Evans, R v [2011] EWCA Crim 2842

Case No 2011/2448/D3[2011] EWCA Crim 2842
IN THE COURT OF APPEAL
CRIMINAL DIVISION(
Venue Royal Courts of JusticeDate Wednesday, 16 November 2011
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE OWEN
MRS JUSTICE LANG DBE
Between
R E G I N ACrownv
Between
SCOTT LENNON EVANS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Sharma (Solicitor Advocate) appeared for AppellantMr R Whittam QC and Mr R Hallowes appeared for CrownMr L Mably appeared as Amicus
J U D G M E N T
[1]THE VICE PRESIDENT: The issue on this appeal is whether, when at the Crown Court the defendant's advocate went into the courtroom where his case was likely to be heard and told the usher that he (the defendant) was in the building, the defendant had thereby surrendered to his bail. The issue arises because after that had happened the defendant walked out of the building and did not return. When his case was called on he was not there and in due course he was dealt with for the criminal offence of failing to surrender to bail, contrary to section 6(1) of the Bail Act 1976. Although the sentence passed upon him was a concurrent one, so that it added nothing to what he received, the issue which he raises is one that he is entitled to raise and, as has been apparent from the argument before us, it is a point which may recur in other cases.[2]The facts are agreed here and were agreed in the court below. The defendant was indicted for burglary of a flat and stealing from it two televisions which he was found carrying away some time after midnight. He had been sent for trial at the Crown Court on bail. His case was listed for plea and if necessary case management on 1st March 2011. On that day the defendant duly went to the Crown Court building. There he met the advocate who was to appear for him. She in turn went into the courtroom in which his case was listed and she told the usher that he was in the building. Then, as is likely to happen with a great number of defendants, she and he went to confer somewhere convenient in the building. She last saw him at about 11.30 by which time he had decided on his plea which was to be guilty.[3]Unfortunately between then and 12.45 when his case was mentioned in court, he simply walked out of the building and was not seen again that day. Later in the afternoon, after enquiries as to whether there was perhaps a reasonable explanation for his departure, the judge, satisfied that there was not, issued a bench warrant for his arrest and detention.[4]The defendant was arrested promptly the following day, having surrendered himself to the police. He was returned in custody to the Crown Court. There he pleaded guilty to the burglary. The additional offence of failing to surrender was also put to him and he pleaded guilty to that as well. However, Mr Sharma, who was then appearing for him as he is now, raised a prompt query whether the latter plea to the Bail Act offence was erroneous on the grounds that the defendant had in fact surrendered the previous day when the usher had been told that he was in the building.[5]At that stage the judge declined to vacate the plea and proceeded to sentence. He passed a sentence of 12 months for the burglary and a concurrent sentence of 14 days for the failure to surrender. There is and could be no complaint about the sentence for burglary, particularly in view of the defendant's antecedents. However, his advocate thought further about the charge of failing to surrender and gave notice to the court of an application to vacate the plea. That came before the same judge 28 days later on 30th March. The judge rightly observed that the plea of guilty was not necessarily an insuperable bar to an appeal to this court, but in the purported exercise of his discretion he allowed the defendant to vacate his plea. He then heard argument, but ruled that on the agreed facts the defendant had not in fact surrendered on 1st March and thus that he was indeed guilty of the offence contrary to section 6. From that decision the defendant now appeals.[6]The first thing to say is this. We appreciate that the judge was trying for the best of all possible motives to get through the form to the substance. We are however unable to avoid saying that he had no jurisdiction to allow the defendant to change his plea after he had passed sentence a month earlier. The dealings with the defendant were completed and the judge was functus officio. That is confirmed by the decision this court in R v McNally [1954] 1 WLR 933. That case was listed precisely to provide the court with the opportunity to explain the rules about vacation of plea. The Lord Chief Justice, Lord Goddard, ruled that(i) up until sentence vacation of plea is a matter entirely within the discretion of the judge, but(ii) after sentence there is no power to permit it. That had been held to be the position in previous cases there reviewed going back over a century. The court specifically held that one recent instance of a trial judge permitting a change of plea after sentence was wrong and ought not to be followed. The judge in the present case was not referred by either advocate to McNally and it is unsurprising that he unwittingly failed to follow it.[7]Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (frequently known as the slip rule) does not alter this position. Although it refers to altering a "sentence or other order" it is perfectly plain that it deals with orders which are made by way of disposal, that is to say by sentence or orders ancillary to sentence and does not reverse McNally to give the court jurisdiction to vacate a plea after sentence. Whilst side headings do not control the content of a statutory section, the side heading of this one confirms that ordinary reading of it because it reads "alteration of Crown Court sentence".[8]Nevertheless, that error does not affect the power of this court to hear an appeal against the conviction which was recorded not on 28th March but on 2nd March when the defendant had pleaded guilty to the Bail Act offence initially. Generally of course a plea of guilty is an acknowledgement of guilt which will prevent any possibility of appeal. However, one exception is where the plea is entered on agreed facts where, it is contended, the judge has wrongly ruled that they amount to the offence. Accordingly, with that rather lengthy introduction, we turn to the merits of the appeal.[9]The Bail Act distinguishes between two situations. The first is where a defendant is on bail but fails without reasonable excuse to "surrender to custody". "Surrender to custody" means by section 2(2) in this context "surrendering himself into the custody of the court ... at the time and place for the time being appointed for him to do so." The failure to do that is by section 6(1) an offence. The offence may be dealt with according to section 6(5) either by summary conviction before the magistrates or as if it were a criminal contempt of court. Note that it is not in law a contempt of court, it is simply punishable as if it were - see Reader (1987) 84 Cr.App.R 294. In consequence, the maximum is not the two years which is applicable to contempt of court by virtue of section 14 of the Contempt of Court Act 1981, but rather it is the 12 months specifically provided for this offence by the Bail Act.[10]The former process before the magistrates was considered by the Divisional Court in Schiavo v Anderton (1986) 83 Cr.App.R 228, but it does not arise in this case and we say nothing about it. Here it was the latter procedure which the judge adopted.[11]The second situation contemplated by the Bail Act is where a defendant has surrendered to bail but absents himself from the court before the hearing either begins or resumes as the case may be. That is not a Bail Act offence but the court may issue a warrant for the defendant's arrest - see section 7(2) of the Bail Act which provides as follows:
"If a person who has been released on bail in criminal proceedings absents himself from the court at any time after he has surrendered into the custody of the court and before the court is ready to begin or to resume the hearing of the proceedings, the court may issue a warrant for his arrest ..."
Whilst this second situation therefore does not constitute the Bail Act offence of failure to surrender, because by definition surrender has happened, it is of course the common law offence of escape which is indictable and for which the sentence is at large - see R v Rumble [2003] EWCA Crim. 770. The purpose of section 7(2), additionally to the law of escape, is plainly to enable the absconder to be apprehended as soon as possible so that the proceedings can begin or continue as the case may be.[12]In the present case Mr Sharma's argument is that the defendant here had surrendered by making himself known through his advocate to the responsible officer of the court, that is to say the usher, and thereby submitting to any directions which the usher might give, for example, as to where he should go until his case was called on or on any other topic. We have additionally been very much assisted by careful submissions by Mr Mably, helpfully acting as advocate to the court. He also invited us to consider that submission as a practical solution to the need for such certainty as can be achieved on the topic of what constitutes surrender. Says he, the usher will be somebody specifically tasked to find out whether those concerned in each of the cases listed in that court are present. He or she will have a list and be able to mark off attendance as it is noted. To report to the usher is, says Mr Mably, a convenient and practical way of putting yourself at the disposal of the court which is, he says, the essence of surrender. From the time that that is done, say both Mr Sharma and Mr Mably, the defendant is not free to leave as he wishes; that is because he has surrendered.[13]For the Crown Mr Whittam QC supports the need for such certainty as can be achieved in this area. He submits however that just as it is common ground that attendance at the Crown Court building is not an act of surrender, so neither is a report to the usher, whether it is made personally by the defendant or by his advocate on his behalf. Mr Whittam's submission is that surrender is accomplished by overtly subjecting oneself to the directions of the court and that in the Crown Court at any rate that is conventionally and normally accomplished by entering the dock when the case is called on and placing oneself in the hands of the custody officers. However, he adds that surrender may also be accomplished in a particular case in the Crown Court by the commencement of a formal hearing before the judge at which the defendant is identified as present and whether he is placed in the dock or not.[14]Mr Sharma's argument that the defendant had surrendered in the present case, and that report to the usher amounts to surrender, derives substantially from the decision of the Divisional Court of Queen's Bench in DPP V Richards (1989) 88 Cr.App.R 97. In that case the defendant was on bail to appear at the Magistrates' Court. On the appointed day he arrived at the building in good time. There was a notice in the concourse which said:
"All persons due to appear in court please report to the enquiry counter."
He did that and he obeyed directions which were there given to him to wait in the concourse. His case was not reached and he became tired of waiting and absented himself. He was subsequently charged with the offence contrary to section 6(1) of the Bail Act of failing to surrender. The magistrates before whom he was tried held that he had in fact surrendered because he had complied with the direction given to those attending as to what they were to do. The Crown appealed by way of case stated to the divisional court but the appeal failed. Glidewell LJ giving the reasoned judgment in the case, said inter alia this:
"... what precisely constitutes the person or body to whom a person on bail is to surrender depends upon the procedure followed at the particular court and the directions given in accordance with that procedure to the person who is coming to surrender ... If having done so the person at the Inquiry office said: 'Go to the cells and surrender to a prison officer' that would have been the surrender. If the Inquiry Officer says: 'Go and sit in the concourse until your case is called,' then the court procedure envisages that being the surrender to the court."
A little later at page 104 he said this:
"I take the view that if a court provides a procedure which directs - there has to be some form of direction, by notice or by oral direction - a person surrendering to bail to report to a particular office or to a particular official, when he complies with that direction he surrenders to his bail."
[15]That, as is apparent, was a decision primarily on the particular arrangements in the Magistrates' Court in question. We respectfully agree that what constitutes surrender has necessarily to vary to some extent according to the arrangements which are made for accepting surrender at any particular court. We are very conscious that the physical arrangements at a Crown Court are very likely to be different from those at a magistrates' court. A magistrates' court may have a dock, but it may have none, and it may have custody officers but also it may in a particular courtroom at a particular time have none of those either.[16]Mr Sharma reminds us that Glidewell LJ in Richards relied in part for his conclusion on what he concluded was the absence of any purpose for section 7(2) of the Bail Act unless surrender might take place without entry to the cells. We agree that section 7(2) plainly contemplates the possibility that a defendant may have surrendered but yet not be in the cells or the dock, since if that is where he were the occasion to absent himself before the hearing begins or resumes would, at least ordinarily, rarely arise. It is not, however, impossible to envisage situations where it might arise even after surrender to the cells or the dock.[17]An extreme example is afforded by the facts of Rumble where a defendant was in the process of being sentenced in a Magistrates' Court which had no physical dock and not finding the decision of the Bench to his liking delivered himself of some insulting remarks and left through the public exit. Similarly it can happen in the Crown Court that a defendant who has been in the dock in the custody of the cells officers is allowed for some reason to leave it without a fresh grant of bail. That could happen at a temporary interruption in the hearing or it could happen if counsel were given the opportunity to take instructions from a defendant without the necessity of going downstairs to the cells.[18]Another example of circumstances in which section 7(2) plainly has content is afforded by the decision of the House of Lords in R v Central Criminal Court ex parte Guney [1996] AC 616. That concerned the liability of a surety. The defendant was indicted for complex fraud and his case was transferred to the Crown Court under the then comparatively new provisions of the Criminal Justice Act 1987. The judge directed a preparatory hearing. It was held at a new court building which had neither cells nor dock. The defendant was present. The surety was not. Thinking that they were thereby preserving the recognisance, counsel agreed between themselves that there was no need for the defendant to surrender into the custody of the court. The judge was not aware of that discussion. The defendant then fell to be arraigned having been asked by the judge to stand up in the place in court where he was sitting. There ensued a number of preparatory hearings but after several of them the defendant absconded by leaving the country and remained away for many years. The Crown sought to estreat the recognisance and the liability of the surety depended upon whether counsel's agreement meant that the defendant had not surrendered.[19]After different opinions had been expressed in the Divisional Court and the Court of Appeal, the House of Lords ruled that whenever else it might occur surrender is accomplished as a matter of law when the defendant is arraigned. It added that any practice of a judge directing that despite arraignment the defendant should be deemed not to have surrendered was a direction devoid of legal consequence. It might also have pointed out that by statute a preparatory hearing is the beginning of the trial (section 8 of the 1987 Act).[20]The moral of that decision is that once arraignment has taken place, however informal its particular circumstances may be, the court must review the question of bail and if a surety is involved direct a fresh taking of a reconnaissance. We will return to that topic at the end of this judgment. But so far as the authority of Guney is concerned, to say, as it does, that whenever else it may happen surrender is deemed to have taken place on arraignment, leaves open the question of when before that moment it may otherwise have occurred.[21]Other examples of a case proceeding in the Crown Court without the defendant being in the usual place in the dock flanked by custody officers come fairly readily to mind. First, a defendant, if youthful, will ordinarily be allowed to sit elsewhere than in the dock. The Criminal Consolidated Practice Direction expressly provides that that should ordinarily be the case. Such a youthful defendant might of course have been in custody and be allowed to leave the dock and sit alongside his representatives or at some other convenient place. In other cases he may not have been in custody at all. In either case the entire trial may proceed with him sitting other than in the dock.[22]Secondly, similar arrangements are infrequently but not all that rarely made for defendants who are, for example, very infirm or very elderly or who need physically to be separated from someone by whom they would otherwise have to sit in the dock.[23]Thirdly, there may also be occasions when a management hearing, often relatively short, may take place before the judge who may explicitly say to the defendant that he need not on this occasion enter the dock. The range of topics covered may vary from the briefest of applications for a half hour adjournment or notice of postponed hearing later in the day, up to detailed preparations for a complex trial. In all those situations, it is plain that section 7(2) may have useful content because a defendant might avail himself of the opportunity to abscond without having been in the dock.[24]The Recorder of Birmingham, where the events which concern us in this case took place, has provided a helpful note of the practice which obtains in the particular Crown Court with which we are concerned. It is appropriate to look at that for the same reasons as it was necessary in DPP v Richards to look at the practice in the particular Magistrates' Court with which that court was concerned. There is at this Crown Court no notice directing defendants who come into the building to go anywhere in particular, although in one of the two buildings occupied by this Crown Court there is what is termed a "customer service desk". If a defendant goes to that desk he will simply be told to keep an eye on the monitor which indicates which case is to be heard in which courtroom and when it is likely to be called on. He will be given no directions as to what he is to do by way of surrender. Each courtroom ordinarily has an usher whose job it is to assist the judge and the court clerk in managing the business. An important part of his work is to smooth the flow of cases by identifying when each is ready so that the court can take it if it wishes. In order to do that the usher will be told, normally by advocates or solicitors but occasionally by the defendant himself, that the defendant is present. That is not, according to the Recorder of Birmingham, generally regarded as accepting a surrender into custody. In that court in the absence of unusual circumstances and specific direction, such as in the case of young defendants, every defendant whose case is called on is there and then required to enter the dock in the court where he becomes formally the responsibility of the dock officers. Some court clerks when calling the case on do so using the time honoured expression "Let X surrender to his bail." The Recorder's note contains this conclusion:
"The ordinary defendant is not considered to have surrendered to bail until he has entered the dock and identified himself to the dock officer. The young defendant ... is not considered to have surrendered until he has been identified. In each case this point is the first occasion on which there is any formal notice given to the court that the defendant is at court. Any earlier acknowledgment of the defendant's presence by the usher or any other member of the court staff will be arbitrary."
[25]For the purpose of the present appeal enquiries have also been made by Her Majesty's Courts and Tribunals Service. Some 28 Crown Courts responded to an invitation to explain their surrender procedures. Of those, 27 answered that the defendant is treated as having surrendered once he enters the dock. Several reported procedures similar to Birmingham whereby ushers are responsible for finding out who is present and ready. We agree that as explained in Richards individual courts may have particular arrangements and accordingly no absolute rule can be deduced. However, the procedure concisely explained by the Recorder of Birmingham and by the 27 Crown Courts who responded to the request for information accords exactly with our several experiences in Crown Courts up and down the country over a certain period. We would be surprised if most do not have ushers responsible for finding out who is present and ready. Generally, however, the almost universal practice is to require those who surrender to enter the dock and place themselves in the custody of the custody officers.[26]It seems to us that that general practice also accords with principle. Surrender means surrender to custody - section 2(2) of the Bail Act. Whatever may be the position in courts such as the Magistrates' Courts where there is no physical movement into an identifiable place of custody and perhaps no custody officers in the courtroom, in the great majority of Crown Courts the dock is such a place and it is staffed for the purpose by uniformed custody officers. Next, once a defendant has surrendered he must by definition be under the control of the court and he must be the responsibility of the court. The plain threshold for such control and responsibility in the ordinary case is placing oneself in the dock. If simply reporting one's presence to the usher were to constitutes surrender, the defendant could not then go off into conference with his lawyer without express permission and indeed arguably without a fresh grant of bail for the purpose. He certainly could not leave the building for lunch even if he was told that his case would not be reached until after 3 o'clock, unless there were a fresh grant of bail. The business of the court would be, as it seems to us, unnecessarily and impracticably delayed by fresh considerations of bail in every case not to be taken before the midday adjournment. Moreover, the fact that the custody officers plainly have some responsibility for any defendant in their custody would be at least likely to have the consequence that if reporting to the usher constituted surrender those officers would then feel it necessary to insist that every such defendant thereupon went into cells, lest for example there should be an outbreak of disorder or violence, or a contretemps with a witness whom the defendant might encounter elsewhere and the custody officers might face a claim in tort.[27]Accordingly, as it seems to us, the general practice of accepting surrender by way of entry into the dock accords not only with common experience and general practice, but also with principle. However, by analogy with Guney we agree that in the Crown Court surrender may also be accomplished by the commencement of any hearing before the judge where the defendant is formally identified and whether he enters the dock or not. In any of the examples which we have given of youthful, elderly or vulnerable defendants or of the case management hearing in which the defendant is not required to enter the dock, it seems to us that surrender would have occurred. The hearing would have begun. The defendant would be present and formally identified and plainly would overtly have subjected himself to the control of the court. The same is not necessarily so if there is but a brief mention of the case in the absence of the defendant. That may occur at the initiative of the advocate or it may sometimes occur at the initiative of the judge. The enquiry might be about whether the case is ready or is likely to be reached or about whether a particular document can or should be supplied. That kind of mention does not, as it seems to us, involve surrender by the defendant unlike the case where the defendant is formally identified in court and a hearing, however brief, commences.[28]Accordingly, we do not agree that reporting to the usher amounts to surrender. We make it clear that we do not rest that decision upon the fact that the Act speaks of surrender to the court and the court is, for the purposes of the Bail Act, defined in section 2(2). The definition reads:
"... 'court' includes a judge of the court, or a justice of the peace ... having powers to act in connection with the proceedings before that court..."
It is true that there is no mention of the usher in that definition, but then there is no mention of the dock officers either. Surrender to the dock officers is plainly not only a possible but the normal manner of surrender and indeed is likely generally to happen before the judge is present in the courtroom. Likewise, DPP v Richards shows that in a particular court if the arrangements call for it, as it may do in some magistrates courts, a court officer other than the judge may be designated to accept surrender.[29]The reason for our decision does not thus depend upon the definition of the word "court". The reason for it is that in the absence of either stepping into the dock in a Crown Court or in such a court being formally identified for the purposes of hearing, the defendant has not put himself into anything which can properly be called "custody". Nor, we should add, has he overtly subjected himself to the directions of the court. He may of course accept advice as to where it is convenient to wait and what he ought to do, but it does not follow from that that he is in custody.[30]That point is conveniently illustrated by a subsidiary submission made to us on behalf of the appellant by Mr Sharma. In this particular area the notice issued by the magistrates to a defendant who is committed or sent to the Crown Court on bail informs him that he is committed or sent "to Birmingham Crown Court on" (and then the date) "at 9.30 am ... on bail." If there are conditions to the bail those are then identified. Mr Sharma invites us to say that that means that a defendant recipient of such a notice is required to surrender precisely at 9.30 in the morning and that any failure to do so constitutes the offence contrary to section 6(1) of the Act. Mr Whittam QC offered the alternative view that the reference to 9.30 in the morning in the notice given to the defendant is rather than an obligation to surrender at that moment, a duty to arrive at court at that time imposed by way of a condition of bail.[31]It seems to us that the status of this particular part of this notice is in fact rather simpler than that. This is a notice to the defendant that he must be at the Crown Court in order to surrender when called upon and it is a notice that that may happen at any time from 9.30 in the morning onwards. It is neither a condition nor is it a requirement that surrender must actually take place at 9.30. If it were the latter of those things then every defendant appearing at a busy Crown Court would have physically to place himself in the custody of the court precisely at the same moment. That is neither necessary nor is it practicable.[32]We do agree that once a defendant arrives at the Crown Court building he is in one sense not entirely at liberty to come and go as he wishes. That, however, does not seem to us to mean that he has thereby surrendered. Indeed it is common ground that mere arrival at the Crown Court building does not constitute surrender and could not do so. The correct analysis seems to us to be not that he has surrendered but that he knows that he may be required at any moment to do so and in consequence he would be very unwise to wander away.[33]We return briefly to the general position in relation to grants of bail and sureties. Guney points up a particular issue concerning sureties but the point is of more general application. It is important to remember that if a Magistrates' Court commits on bail with or without a condition that a surety provide a recognisance, that bail and recognisance lapse on the first appearance in the Crown Court. It cannot in law carry through subsequent adjournments in that Crown Court. On the other hand, the Crown Court, if it renews bail, does have the power to make the recognisance continuous for all future appearances. All that underlines the importance of attention being paid to the terms of a defendant's bail, particularly at the conclusion of the first hearing in the Crown Court. At that point conditions of bail should always be considered. Of course it is sufficient to do so briefly by simply reimposing conditions previously placed there by the magistrates, if that is appropriate and especially if there is no objection. But in both surety cases and non-surety cases an assessment of bail is required at the end of the first hearing in each Crown Court.[34]For all those reasons, we are quite satisfied that the arrangements in place at Birmingham on the day when this defendant went to the building but subsequently absconded meant that he did not surrender unless and until he put himself physically in the hands of the custody officers by entering the dock or a hearing before the judge was begun at which he was formally identified as present. Those are the requirements for surrender. That means that this appeal must be dismissed. The defendant was correctly convicted of the Bail Act offence.[35]We observe, of course, that even if the rule were that surrender could be accomplished by a defendant presenting himself to a court official such as the usher, it would still have to be accomplished personally. It could not be done by an advocate simply reporting to the usher that he had been seen, as happened in this case. For all anyone might know he might already by that time have decided to leave.[36]We do not however rest our decision on that narrow ground. Rather, we conclude, as we have previously said, that in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents himself to the custody officers by entering the dock or where a hearing before the judge commences at which he is formally identified as present. Secondly, if there has been no previous surrender, as ordinarily there will have been, it is also accomplished by arraignment. Thirdly, the position in the Magistrates' Court may be the same, but may easily differ as explained in DPP v Richards.[37]We have helpfully been provided with a copy of the Crown Court Manual which displays a certain degree of ambivalence about the position as to surrender. We hope that what we have said will enable at least some of those doubts to be resolved and the form of the document to be modified. Similarly, there is a reference to Richards in the current edition of Archbold at paragraph 3-30. That too leaves open the possibility that the court was in that case holding that in every case in every kind of court report to some person on the court staff might suffice for surrender. Unsurprisingly the commentary suggests that if so there may be some consequential directions needed. We hope that what we have said here will enable a different and more certain note to be included in subsequent editions.