Dowty, R. v [2011] EWCA Crim 3138

[2011] EWCA Crim 3138Case No 201101589/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 1st December 2011
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE WALKER
RECORDER OF NORWICH
(His Honour Judge Peter Jacobs)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
PHILIP ROY LOUIS DOWTY
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)
Miss L Maroof appeared for Applicant
J U D G M E N T

LADY JUSTICE RAFFERTY:

[1]On 23rd November 2010 in the Crown Court sitting at Chelmsford the applicant, 28, pleaded guilty to making indecent photographs of children and on 21st February, on rearraignment, to meeting a child following sexual grooming. On 24th March he was sentenced thus: for meeting a child following sexual grooming, 18 months' imprisonment; for two counts of making indecent photographs, 4 months' imprisonment on each concurrent with each other but consecutive to that on the grooming count, the total therefore 22 months. Consequential orders were made. After refusal he renews his application for leave to appeal against conviction.[2]During the school summer holidays of 2009 the complainant, born on 26th December 1995, so 13, began to communicate with the applicant on a social networking site, Netlog. Her profile declared her to be 13, his declared him to be 26. They exchanged email addresses and shifted their communication method to MSN, the messenger service. They exchanged mobile telephone numbers and began over the telephone to speak. A meeting was arranged, the Crown alleged instigated by the applicant, and on 25th July 2009, he, from Bedfordshire, went to near her home in Essex, where they met with two of her friends. The quartet walked to a nearby park. The two friends then ran away and the applicant stroked the complainant's inner thigh and touched her knee (counts 1 and 2). Her friends came back with their father, who warned him off. There was some delay in her telling her parents and reporting the matter to the police so the applicant was not until 19th November 2009 arrested.[3]His laptop and a memory card were analysed and disclosed 1178 indecent images of children, 1772 at level 1, three at level 2, three at level 4, and 97 indecent images 80 at level 1, three at level 2, seven at level 3 and seven at level 4 on the card. The Crown's case was that these children were of much the same age as the complainant.[4]Interviewed, he said he did not use Netlog only Facebook and MSN. He had spoken to the complainant after she had initiated contact. He remembered little of her. He thought she was 16 but they had never discussed her age. He did, when he met her, find her attractive but thought of her as a friend. She was quite desperate and pestered to meet him. They had not discussed anything of a sexual nature. Once they met he realised she was under 16 and was uncomfortable. He went to the park so that he could let her down gently and he put his hand on her leg only to console her. He accepted that he had used Netlog and could not explain his earlier lie. His motive for meeting the complainant was not sexual. His computer was not used by anyone else but he denied that it held indecent images.[5]After analysis of his laptop and card, he attended the police station and was told of the discovery of the images. He was re-interviewed on that topic and made no comment.[6]There was, before an experienced tribunal, an application to stay the proceedings as an abuse of process, on the basis that the Crown had initially undertaken that were a guilty plea entered to counts 3 and 4, counts 1 and 2 would be withdrawn. The Crown had subsequently changed its mind, that was presented as it reneging on its promise.[7]The history bears some examination. Charged on 15th April 2010 with the four counts, on 30th June 2010 the applicant made his first appearance at the Magistrates' Court. Jurisdiction was declined and a date fixed for committal.[8]On 18th August 2010 a Crown prosecutor, Mr O'Toole, telephoned the applicant's solicitors and explained that were there a plea to counts 3 and 4 the Crown would not proceed on counts 1 and 2. The applicant's solicitors accepted that proposal and on 20th August 2010 Mr O'Toole put in writing: "once your client has entered pleas of guilty at the Magistrates' Court, we can confirm that we will withdraw the remaining charges".[9]Listed on 31st August 2010 for committal, the CPS had not prepared a bundle, anticipating that the matter would be dealt with as planned. However, the legal adviser to the justices explained to parties that, in his professional opinion, the court was powerless to allow a change of plea. Mode of trial had been decided, plea before venue indicated. Matters were adjourned to 7th September.[10]A different CPS advocate, a Mr Pearson, considered that the magistrates did have the power to entertain the application for change of plea.[11]On 7th September he sought to persuade a different legal adviser of his view. He failed.[12]As a consequence the matter was committed to the Crown Court, where the expectation was that the applicant would plead guilty to counts 3 and 4 and no evidence would be offered on counts 1 and 2. On 5th October his solicitors wrote to the court asking for an early listing with that in mind. On 11th October the Crown Prosecution Service telephoned his solicitors to say that a senior Crown advocate, Mr Jackson, had read the papers and that the Crown would be proceeding to a contested trial on all four counts. As a consequence the case was listed "for mention" and an abuse of process application. On 11th November the defence told the court that it would not pursue its abuse of process application and on 30th the applicant pleaded not guilty to counts 1 and 2 and guilty to counts 3 and 4 at a plea and case management hearing. The balance of the indictment set for trial was put into the warned list for 21st February 2011 but on 30th January 2011, counsel, having reconsidered, lodged a skeleton argument supporting an abuse of process application which was made on 21st February.[13]The judge ruled that the law was well established and authorities considered including R v Abu Hamza [2007] 1 Cr App R 27. Applications based on a promise not to prosecute upon which there was then a reneging divided into two: where the defendant would not receive a fair trial and where it would be unfair to try him. The case before him was in the latter category, as the applicant could not claim to be prejudiced by the going back on the initial promise because, when he entered his guilty pleas on 30th November he knew of the Crown's intention to proceed on all four counts. He knew too that his own counsel did not intend to pursue a stay.[14]It was plain from the consideration of authorities that the absence of detriment to him would not always be fatal to an application to stay: R v Bloomfield [1997] 1 Cr App R 135 and R v Smith [2010] EWHC 3593. The test was set out in Hunter v Chief Constable West Midlands Police [1982] AC 529; whilst the Crown's conduct had disappointed the applicant, it had not made it unfair to try him. The judge thus asked himself whether the Crown's conduct would bring the administration of justice into disrepute in the eyes of right-thinking people as posed in Hunter. On the face of it he accepted that it would. The promise could not be plainer: it stood for 2 months and was twice communicated to the magistrates' legal adviser. However, addressing the impact upon the notional right-thinking person, the judge would assume that such a person was fully acquainted with the Hunter landscape, the most important fact emerging from which was why the Crown had changed its position.[15]By contrast with this case, in Bloomfield and in Smith, the Crown had been unable to answer that question. Here, however, counsel who appeared finally for the Crown, said that the evidence in counts 1 and 2 made the original decision not to proceed manifestly wrong. The evidence was very strong. The judge agreed, especially in relation to count 1, where, as he put it, most of the alleged criminality resided. Though the court had not heard from the original decision maker, Mr O'Toole, it was difficult to see how his proposal could be justified. Counsel for the Crown had submitted that if the O'Toole course of action had stood, most right- thinking people would see it as an affront to justice. The court agreed. It was referred to the Code for Crown Prosecutors 2010 (paragraph 12), which indicated that a decision not to prosecute could be overturned particularly were the case serious. One reason for so doing was to maintain confidence in the Criminal Justice System. That code was an echo of comment in Bloomfield. True it was that the court had not been told the genesis of O'Toole's decision but that was not fatal to the court's reasoning.[16]In grounds of appeal composed and orally developed today by Miss Maroof, the complaint is that the conviction is unsafe and that the judge fell into error in concluding that the Crown's conduct did not amount to an abuse of process.[17]She has addressed us on the basis that, accepting their is a very wise area of discretion, she can only succeed if she can establish that the decision the judge made was irrational.[18]Refusing leave the single

judge said:

"The judge's very clear ruling shows that he applied the correct legal principles and took into account all relevant factors. He concluded that the original decision by the CPS lawyer not to proceed on counts 1 & 2 was manifestly wrong. Although your barrister criticises that conclusion, it was one which he was entitled to reach. Indeed, I would add that it was the right conclusion, for the reasons he gave. The judge then had to make a judgment based on his assessment of the competing considerations which he identified. Again, his conclusion was one which he was entitled to reach...in my view, the right one. In my judgment there is no basis on which it could be argued that the judge's decision not to stay the proceedings was wrong."
[19]Grateful as we are to Miss Maroof for her energetic submissions, this application is rejected - we agree entirely with the single judge.