Fawcett, R v [2013] EWCA Crim 1399

No:201 205966 B2[2013] EWCA Crim 1399
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 12 July 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE IRWIN
MR JUSTICE GRIFFITH WILLIAMS
Between
R E G I N ACrownv
Between
DAILL ARRAN FAWCETT
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Perkins appeared for AppellantMr G Stables appeared for Crown
J U D G M E N T

LORD JUSTICE LAWS:

[1]On 27 September 2012, before Miss Recorder Wigin at the Hull Crown Court, this appellant changed his plea to guilty on two counts of burglary (counts 1 and 2) and one count of theft (count 3). Earlier on 6 June 2012, before HHJ Mettyear at the same court, he had pleaded guilty to three counts of handling (counts 1, 4 and 5), fraud (count 2) and theft (count 3) charged in a different indictment T20120208. He appeals against his conviction on the burglary charges by leave of the Full Court (Aikens LJ, Silber J and HHJ McReath) granted on 8 May 2013. The Full Court issued a request that sentence be deferred pending this appeal and that has been done.[2]The question in the case is whether the prosecution for the two burglaries should have been held to have amounted to an abuse of the process of the court. The learned Recorder declined so to hold on 27 September 2012 whereupon, as we have said, the appellant changed his plea to guilty.[3]The burglary offences were carried out in two dwelling-houses in the same road in Hornsea on 18 March 2012. The appellant was arrested on 20 March. He was carrying an Adidas bag belonging to the householder, Mr Vaughan, who was the victim of the burglary which eventually became count 2. Inside the bag were a number of items stolen in the two burglaries.[4]Interviewed on 21 March 2012 the appellant denied being responsible for the burglaries and stated that he had stolen the bag from a man called Jason who had been driving a BMW car. A BMW with the Adidas bag in it had been stolen from the driveway of the house, the subject of the count 2 burglary. The car keys had been taken from inside the house. The appellant was charged with two offences of handling stolen property. They were to become counts 4 and 5 of indictment T20120208.[5]However, before this the householder, Mr Vaughan, had found a tobacco pouch lying in his driveway. He found it when he returned home on the day of the burglary. It was seized by the police and found to contain a cigarette lighter. The lighter was sent for forensic examination. The results were only obtained after the appellant had been charged with the handling offences. They revealed a mixed male/female DNA profile. All the corresponding components of the appellant's DNA profile were represented within it.[6]The appellant was re-interviewed in prison on 25 May 2012. He said he had had a job delivering leaflets in the Hornsea area for a Chinese restaurant and had lost tobacco in the past. Mr Vaughan said he had never received such junk mail.[7]On 30 May 2012, authority was given by a CPS lawyer to charge the appellant with the two burglaries and theft of the BMW. The lawyer noted the file with the words:
"PLEASE NOTIFY YOUR LOCAL CPS OF THESE 2 CASES ASAP - THE DEF HAS PREVIOUSLY BEEN CHARGED WITH HANDLING IN RESPECT OF THE 2 BURGLED HOUSES."
[8]On 1 June 2012, the appellant was charged by the police in the prison with the two burglaries and theft. On 6 June 2012 the appellant appeared at the plea and case management hearing at the Hull Crown Court and pleaded guilty, as we have said, to all five counts in indictment T20120208, including the two handling counts. Nothing was said about the burglary charges. The appellant was present and represented by counsel. Counsel for the Crown was lamentably unaware of the burglary charges.[9]The indictment containing the burglary counts first came before the Crown Court for a preliminary hearing on 21 June 2012 and a timetable was set for trial. The defence raised abuse of process as a preliminary issue on 7 September 2012. The substantive application to stay the burglary count as an abuse was heard by Miss Recorder Wigin on 26 September. She gave judgment, as we have said, dismissing the application on 27 September 2012. The Crown accepted, as they accept now, that if the appellant remains convicted of burglary the handling charges must be vacated, and that the pleas of guilty to handling could not be adduced before the jury trying the burglaries if there were a jury.[10]The defence contended and contend that to proceed on the burglary counts would be abusive because it would offend the general rule that no one should be subjected to criminal process twice for an offence or offences arising from substantially the same set of facts. However, it is recognised that a second trial is not always oppressive. There may be special circumstances which in a particular case will justify such a process (see R v Beedie [1997] 2 Cr App R 167 in which consideration was given to Lord Devlin's speech in Connelly v DPP [1964] AC 1254: note in particular pages 1359 to 1361 in Connelly). The learned Recorder concluded on 27 September 2012 (transcript 5G):
"I find that the basis of the charge for burglary was not on the same facts as the handling. The linking by the finding of the Defendant's DNA on the tobacco pouch with the burgled premises on the day in question was a significant new fact. The handling charges were based on simple possession of the property several days later. In any event, I find that the prosecution have discharged the burden upon the Crown of proving special circumstances on the basis that a charge for burglary was brought as soon as there was an evidential basis to do so, and was in existence at the time that the handling matter came before the Crown Court. The error was that the Crown Court was not made aware of the burglary charge so that the matter could have been joined in one indictment as alternatives. The argument advanced by the defence that by due enquiry, the prosecution could have discovered the existence, the prosecutor could have discovered the existence of the burglary charges prior to the Crown Court hearing on 6th June, does not affect my finding of special circumstances, and that is my judgment."
[11]Mr Perkins for the appellant contends that the handling and burglary charges were based on the same facts. There are no exceptional circumstances such as are discussed in Beedie and the Recorder was wrong to find any. There is double jeopardy: the appellant cannot be guilty both of the burglary and handling, yet he stands convicted of both. The court has no power to quash the unequivocal plea of guilty to handling of its own motion. He submits moreover, and placed some emphasis upon this this morning, that this court should visit the Crown's incompetence on 6 June 2012 on the occasion of the handling pleas with the appellant's acquittal of burglary on this appeal.[12]In our judgment to allow this appeal would sanction the triumph of technicality over justice. The handling indictment went forward on 6 June 2012 because of a mistake by the prosecution. The left hand did not know what the right hand was doing. Counsel for the Crown, and presumably anyone sitting behind him, was not aware on 6 June that the appellant had been charged with the burglaries; the appellant of course knew perfectly well.[13]Mr Perkins' submission that we should, as we have put it, visit the Crown's incompetence by allowing this appeal is a world away from the law relating to double jeopardy and abuse. Of course the appellant cannot be convicted both of handling and of burglary: far less punished for both.[14]We reject entirely the suggestion that the court lacks the power to vacate the plea to handling. It is well-established, and indeed commonplace, that the court may do so on a defendant's application (see, for example, R v Drew [1985] Volume 1 WLR 914). The jurisdiction is inherent or implied. There is no rule to restrict jurisdiction to cases where the defendant makes an application. The limits of the court's power at common law to regulate and manage its own procedure (see R v Munro [1997] Cr App R 183) may not be clearly fixed, but are plainly broad enough to allow the vacation of this appellant's plea to handling in these circumstances.[15]The reality is that this appellant faces no risk whatever of being proceeded against twice for the same offending. The basis of the abuse jurisdiction is the protection of criminal defendants from unfairness and oppression. This appellant will not remotely be at risk of either if the handling pleas are vacated and the court proceeds to sentence him for the burglaries. That is what should happen. For these reasons this appeal is dismissed.