Kane, R. v [2013] EWCA Crim 1487

[2013] EWCA Crim 1487

Case No 2012/1607/c5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 30 July 2013

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE DAVIS

MRS JUSTICE NICOLA DAVIES DBE

HIS HONOUR JUDGE BEVAN QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

PETER KANE

Computer Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Miss M Moore QC appeared for Appellant

Mr D Richards appeared for Crown

J U D G M E N T

LORD JUSTICE DAVIS:

[1]This appeal raises troubling matters indeed in view of the circumstances which we will come on to recount. We announce at the outset that this appeal is allowed and the conviction is quashed.

[2]The background is as follows. At various dates in November 2011 in the Crown Court at Bournemouth, the appellant, Peter Kane, now aged 27, pleaded guilty to seven particular counts on an indictment, being variously counts of possessing criminal property, converting criminal property, fraud, attempted involvement in money laundering and entering into a money laundering arrangement. Pleas on two of those counts were only entered at a very late stage, indeed the date fixed for trial. In addition, he was also facing a count of blackmail on another indictment which had previously been joined with the indictment containing the other seven counts. In due course he was convicted on that count.

[3]The trial commenced in November 2011 before His Honour Judge Harrow. At an initial stage the judge dealt firstly with an application on behalf of the appellant, supported by other co-accused, for severance and then secondly, and on the following day, an application on behalf of the prosecution to adduce bad character evidence. We should add that there were co-accused. One, a woman called Donworth, pleaded guilty on rearraignment to count 2, being a count of converting criminal property. Another called Eigenmann was convicted after a trial in his absence of two counts of entering into a money laundering arrangement (those were counts 6 and 7) and Lee Harris was also convicted on count 2.

[4]So far as the counts in respect of which the appellant had pleaded guilty, there was no real dispute that the revenue and customs tax records showed that he had no employment recorded for the tax years 2005/2006 to 2010/2011. Further, there had been a police search of an address associated with the appellant in Boscombe where a significant amount of cash was found, tainted with a higher degree of heroin than is normal, and a valuable Rolex watch was found as well as traces of cocaine and other drugs and so on. The other counts involved various dealings with money. It is not necessary, for present purposes, to give the details here.

[5]So far as the blackmail count is concerned (the count on which ultimately he was facing trial) the background was this. Until 2011 the complainant, Emily Legge, a young woman, had been involved in a relationship with a man called Myron Stapleton. His nickname was "Killer". She ended the relationship following his arrest at her home for drug offences. According to her, on 18th April 2011 she received a call on her mobile phone from a man with a Liverpool accent calling himself "Pistol Pete". The man said that she owed £15,000 because Myron Stapleton had passed on to her a debt in that sum. She replied that she did not have that sum of money and was told that she had until the following Friday to make the payment or she would be hurt. He said that he knew her address and he quoted it. She ignored a subsequent call but was then sent two text messages. The first stated: "Not a smart move." The second re-stated her address. She told her mother what was happening and showed her the texts. Her mother called the police and showed them the messages. Shortly after the police left, there was a further call which Emily Legge ignored and this was then followed by another text stating: "Okay, let's play games."

[6]The appellant was arrested in Liverpool and four mobile phones were seized from his flat. Emily Legge's number was stored on one of them and this was the phone that had been used to call her. When police viewed the phone, the text "Okay, let's play games" was still stored.

[7]On 25th April 2011 Emily Legge purported to make a retraction statement. In the event, however, she did give evidence at the trial against the appellant. Amongst other things, she said that her father had told her to make the retraction statement otherwise she and her family would be hurt, but she had not wanted to withdraw it.

[8]In interview the appellant stated that he knew Myron Stapleton through others but not very well. He accepted that he was known as "Pistol Pete". All the mobile phones belonged to him although he sometimes used phones belonging to flat mates and they likewise used his. He further said that someone called Sasha had asked him to ring someone by the name of Will who owed money. This related to £5,000 owed to "Killer" by Will. Sasha had sent him an address and he had sent this to Will, possibly by accident. He had spoken to a woman but the conversations concerned Will and not Emily. He accepted that this was a form of debt collecting.

[9]The prosecution case therefore was that the appellant had made the calls to Emily Legge demanding the money and making threats if she did not pay up.

[10]The appellant did not give evidence. The essence of the defence case was that his conversation with Emily Legge had been purely innocent.

[11]Evidence was given by Myron Stapleton for the defence. He said that he did not owe the appellant money. He described him as a good friend. He said that Sasha was his girlfriend. He said that he had met Emily Legge and described her as being a compulsive liar. He also said that he had left a number of items at Legge's mother's house at the time of his arrest.

[12]A statement from Sasha Debiri was also read at trial. This had not been agreed by the prosecution but it was said that Sasha Debiri was unable to attend court as she was abroad. The statement, as read to the jury, was to the effect that Stapleton had asked her if she could get his property back from Emily Legge. She had provided the appellant with Legge's number, but had not asked him to threaten or blackmail her. This, therefore, was rather different from what the appellant had said in interview.

[13]Emily Legge's father William Legge, also gave evidence for the defence. He said that he did not know the appellant and said that he had not been bribed or threatened as to what evidence to give. He said he was separated from his family and hardly involved in Emily Legge's life. He said that she could tell lies and he had been present when she made her retraction statement. There was evidence of a considerable amount of telephone traffic between William Legge and the appellant. He said, however, that he could not remember anything about the calls. He said that the police had apparently tried to see him but he had refused to speak to them.

[14]There are two grounds of appeal, although they are linked to a further point of objection as to the manner in which the judge subsequently summed up to the jury. The trial itself, as we are told, lasted the best part of some 10 days.

[15]The first objection is that the judge had been wrong to reject the submission made on the first day of trial, and after the guilty pleas on the last two counts of money laundering had been tendered by the appellant, that the remaining count of blackmail be severed from the trial against the co-accused on the remaining counts of money laundering. The second objection is that the judge was wrong to permit to be admitted, as purported bad character evidence, voluminous evidence as to, among other things, the appellant's past dealings and his close involvement or association with others having extensive criminal convictions. There was no dispute however that his pleas of guilt on the various money laundering charges could be adduced if there were a joint trial. In the event the judge first rejected the application to sever and subsequently acceded to the bad character application. The matters thus proceeded.

[16]It is, we think, convenient to deal with the second ground of appeal first. On the face of it the Crown's case against the appellant on the count of blackmail was both simple and strong. Apart from the evidence of Emily Legge, there was the undeniable fact of the text message or messages emanating from the appellant's phone. Moreover, the evidence of Sasha Debiri, as read out, was, as we have indicated, by no means consistent with the appellant's initial account. Furthermore, the evidence about the retraction statement was, to put it at its lowest, very two-edged for the defence.

[17]But what one would have thought ought to have been a relatively simple and short and straight forward trial, lasting say some 2-3 days, became immeasurably complicated.

[18]We have to say that the evidence leads one to think that the police had had the appellant in their sights, and no doubt for cause, for a long time. The fact remains that the appellant had never been charged with any drugs dealings or drugs related offences, nor had he been charged with any relevant kind of conspiracy. Indeed it was common ground that he had no relevant previous convictions at all. What the prosecution nevertheless sought to adduce is illustrated by the revised opening note which was intended to set out the basis for the prosecution's opening speech. It was prepared by Mr Richards, appearing then, as now, for the prosecution, with the assistance of his junior. The opening note was 119 paragraphs long. Of those paragraphs only 14 of them related directly to the primary facts of the count of blackmail taken on its own. The rest almost entirely related to the bad character evidence which it was proposed be put before the jury.

[19]Although we have not ourselves seen the written application notice, we understand that the application was made pursuant to section 101(1)(d) of the Criminal Justice Act 2003. The proposed bad character evidence was very extensive. It included very sophisticated spider charts which must have taken weeks to collate. It is quite clear that they had been prepared at a time when it may have been thought there were going to be issues so far as this appellant was concerned not only on the blackmail count but also on the money laundering counts. But on any view to a considerable extent that was overtaken by the appellant's pleas on those latter counts.

[20]An illustration of what was contained in the application of the prosecution can be reflected by what was subsequently put before the jury by the judge in a document entitled "Summary of agreed evidence". That was a rather unfortunate title. At all stages counsel then appearing for the appellant had stoutly resisted that any such matter should be placed before the jury. It was only when the judge had ruled against him that it was accepted that the defence was not in a position to challenge the details of such. Draft admissions that had been proffered by the Crown were not in fact agreed and ultimately what was presented by the judge to the jury was in the form of this document. We gather from Miss Moore QC, now appearing for the appellant, that to a great extent this had been culled by the judge, with the assistance of counsel, from the previous draft admissions.

[21]Thus the following was permitted to be placed before the jury (who were left to retire with a fat Jury Bundle): and we say this by way of illustration, not intending to be exhaustive of all the points raised. It was said, for example, that there had been searches of premises at 95 Honeycombe Beach in Boscombe, premises rented by the appellant, where large amounts of cash and so on were discovered and, as mentioned, other items such as valuable Rolex watches and drug traces and the like were found. A matter sought to be placed before the jury related to an incident on 31st July 2007. The appellant had been in a car with a Mr Fudge and had been stopped by the police on the motorway. When a search was undertaken, Fudge had quantities of heroin in his tracksuit worth some £50,000. The appellant himself was arrested and interviewed at the time. But in the event, he was released without charge. Notwithstanding that he had been released without charge in respect of that matter, that incident was then sought to be put before the jury at this particular trial. A further matter placed before the jury was the discovery of drugs at a property at 4A Washington Avenue in Bournemouth, said to have been the home of the appellant. Further matters placed before the jury were evidence of travel on the part of the appellant in company with others on various occasions to places such as Belgium, North France and Amsterdam. On various of those occasions the appellant had been stopped and interviewed. He was never charged at that time or subsequently with any offence arising out of any of those matters.

[22]A particular feature of what was sought to be deployed before the jury related to phone contact by the appellant with various individuals. We have been taken to one particular version of the spider charts which were placed before the jury: although, as we gather, they had to be quite significantly amended as the trial went on. For example, taking the three illustrations from the chart taken by Miss Moore, the first entry relates to contact by way of mobile phone contact on the part of the appellant with a man called Harvey. The chart records that Harvey has three convictions for four offences. Of the convictions one offence is for possession of a controlled drug. Harvey was also stated as having "one impending prosecution for a theft offence". That is the way it originally read. The second individual identified on that particular chart related to a woman called Johnson. It was said:

"Johnson has a total of one conviction from one offence of theft - shoplifting. Johnson has three reprimand/warnings/cautions for a total of three offences, one of which is for the offence of controlled drug - possession."

The third illustration relates to a man called Hilliard. The original entry on the chart was this:

"Hilliard has 23 convictions for 48 offences. Of these 48 offences 19 were drug related offences consisting of two offences of supplying controlled drugs, two offences of possession with intent to supply controlled drugs, one offence of being concerned in the supply of controlled drugs and 14 offences of controlled drug possession."

And so on. At virtually all stages the emphasis sought to be given is by reference to drugs offences.

[23]In addition to that, there were placed before the Jury some 200 pages of printouts from the police national computer - to some extent, redacted during the course of the trial - containing details or purported details (if accurate) of the previous convictions of the various persons with whom the appellant had been having contact. Thus, taking the example of Mr Harvey, there were placed before the Jury details of his conviction in the Bournemouth Crown Court on 17th October 2005 for offences of wounding and affray and in 2007 for possession of a controlled drug. Other offences as recorded on his record were subsequently deleted during the trial, albeit the jury apparently had first been informed of them.

[24]So far as Johnson was concerned, in the ultimate version of the PNC printout of her antecedents, what was left in was a conviction for shoplifting in 2010.

[25]So far as Hilliard was concerned, one of the matters left in was a violent disorder offence going back to as long ago as 1993. A series of other offences were also set out, some of them drug offences, although others again were during the course of the trial deleted. At all events all that gives the flavour of what was going on. Emphasis was thus being put on the mobile phone contact which the appellant had with a number of individuals who had criminal convictions. There was, however, no evidence whatsoever that any of those criminal convictions of those individuals involved the appellant himself. Indeed, it was not shown that he even necessarily knew the details of their convictions.

[26]A further aspect of the trial relates to a matter in respect of which, unhappily, there is a difference of recollection between trial counsel. This related to a trial of the appellant in the local Crown Court whereby he had been accused of assaulting a man called Miller. In the event, the appellant had been acquitted at that trial. But it was said, and was recorded in the agreed statement of facts put before the jury, that amongst other things Mr Miller had sworn an affidavit saying that his attacker was not Mr Kane and the trial nevertheless went ahead and the prosecution asserted his affidavit was untrue. It is, we were told, the recollection of counsel appearing for the appellant at this trial that that evidence had been sought to be put in by the prosecution. It is the recollection of Mr Richards, who of course did appear at the trial, that that had not been so and on the contrary that evidence had been sought to be put in by the defence in order to suggest a police vendetta against the appellant. It is impossible for us to resolve that issue. Suffice it to say that when the judge came to sum up, he summed up on that particular issue relating to Mr Miller immediately before he summed up on the retraction evidence relating to Emily Legge: and the impression, on the face of it, would have been given that the Miller incident in some way counted against this appellant as connoting that in the past he had sought to pressure a witness.

[27]There were other aspects of the background evidence which it is not necessary to set out. We should, however, record that there was evidence that the appellant had been discovered with a mobile phone whilst on remand in prison in respect of these matters. That plainly was relevant as it bore on his contact with Mr William Legge.

[28]When the prosecution indicated that it proposed to call this mass of bad character evidence if the judge granted leave, the appellant, by his then counsel, vigorously objected to leave being granted. It was said that such evidence had no real relevance at all with regard to the blackmail count and was of no probative value with regard to that count. It was further said that such evidence if admitted, whether individually or cumulatively, would be highly prejudicial. Furthermore, it was said (and this seems to a considerable extent to have been borne out by events) that to admit that evidence could give rise to a trial devoting much time to collateral or satellite issues when in truth the issues should have been short and were capable of being tried shortly. It was further said in effect that this was a character assassination and the prosecution were seeking to advance, surreptitiously or otherwise, a case of guilt by association. Certainly it is the case that the specific examples sought to be relied upon by the prosecution did not comprise examples of previous alleged incidents of blackmail or of extracting money with menaces or anything of the like so far as this appellant was concerned. A number of the co-accused strongly supported the application of the appellant for severance.

[29]Just what the prosecution seems to have been aiming at is perhaps revealed from the submissions made by Mr Richards to the judge in support of the bad character application. What Mr Richards is recorded as saying at one stage was this:

"The point about this application is that we will be able to tell the jury the nature of the man making the phone call and when she says that he was threatening and enforcing a drug debt, it is entirely consistent with everything that we know about him. He is associated with drugs. He is associated with the proceeds of crime and he is someone that people turn to. As for his criminal associations, that is directly relevant to his character, to his propensity, and will assist the jury in weighing up the two accounts ... "

Rather in the same vein, in his written Respondent's Notice dated 7th April 2012, Mr Richards said this:

"The prosecution case was that Mr Kane was a committed criminal holding a position of some authority in the criminal world. As such he is accustomed to getting his [own] way. This we argued makes it more likely he will call Emily Legge to threaten her in an attempt to recover her debt ... 15. This evidence was highly probative on the central issue whether the accused made a threatening or a friendly phone call in part because there was so much of it. The number of associates and the number of times controlled drugs were found in circumstances touching the appellant and the frequency with which he was linked to large sums of money (including those the subject of the money laundering counts) gave the jury a clear picture of the position he held in the criminal world. Taken together with the evidence of him directing others to do his criminal bidding the jury were far better able to judge the central issue on count 4."

The central issue on count 4 of course was whether the appellant was guilty of blackmail as charged. We pressed Mr Richards repeatedly as to how all this asserted bad character evidence could bear on that particular point. He at one stage repeated that it was propensity evidence. It is to be recalled that section 103 of the Criminal

Justice Act 2003 says this:

"For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include: (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged ..."

Mr Richards was wholly unable to say why such evidence could bear on a propensity to commit offences of the kind with which the appellant was charged: that is to say, blackmail. The propensity is not to be equated with some kind of propensity to commit offences generally.

[30]Mr Richards has been more or less explicit in saying that really why the prosecution wanted this evidence in was that they indeed wanted the jury to know "the nature of the man with whom they were dealing." That cannot possibly in itself be a sufficient justification for admitting that evidence or a sufficient justification for the prosecution even to try and persuade the Crown Court judge to admit that evidence. Guilt by association of itself has never been part of the criminal law of England & Wales. Indeed the whole position is designed to be covered under the regime of the Criminal Justice Act 2003. The prosecution stance regrettably had no proper regard to the requirements of that Act.

[31]We pressed Mr Richards, by way of example, about the incident involving Mr Fudge. What were the jury meant to be sure of, we asked, if the Crown and the police had not even been sufficiently confident at the time to bring charges? Mr Richards, with all respect to him, was unable really to say. We then asked what relevance it had to the count of blackmail. Again, he conceded it had, taken on its own, no real relevance. Ultimately he really said with regard to each individual aspect of bad character that none of itself had any real relevance: but taken together, taken cumulatively, it all became relevant and gave the jury the "picture" of the man who was in front of them. With respect, that is no kind of legal answer at all. Indeed, it is virtually a naked appeal to prejudice.

[32]There were some matters which perfectly properly could indeed have been placed before the jury. For one example, the pleas of guilt; and perhaps also one or two other aspects. But in respect of the main part of what was sought to be adduced that simply cannot be said. Points which are devoid of content as legitimate bad character evidence cannot acquire such a status simply by heaping them together with other points which themselves also have no proper claim to admissibility as bad character evidence under the requirements of the 2003 Act.

[33]When the judge gave his very brief ruling, he did not really identify any reason as to why this alleged bad character evidence should be put in. In effect, he simply associated himself, without elaboration, with the Crown's stance. He recounted the prosecution's argument that the jury should be in a position to assess the appellant's character to determine the content and implications, and then he went on to say:

"If the jury were simply confined to the evidence of Miss Legge herself and the defendant's guilty pleas to the other counts and if called, the defendant's explanation, they would be unaware of important material in relation to the defendant's criminal character and this can only be established by the prosecution evidence of his alleged links with drugs, his finances and association with criminals."

Then as to exclusion he said:

"I have decided it would not be unjust to exclude it or any part of it. For the same reasons the criminal convictions of others can be adduced by the means proposed by the prosecution."

That last sentence of course arises because the prosecution necessarily also had to seek leave with regard to introduction of evidence of bad character of persons who were non-defendants.

[34]With all respect to the judge, this reasoning, such as it is, simply does not begin to confront all the difficulties arising. Not only does it virtually assume the appellant's "criminal character" but nowhere is it identified, by reference to the provisions of section 101(1)(d), how such evidence could legitimately be introduced. Moreover, there really had to be confronted the point that the sheer detail and extent of this proposed evidence was bound to be immensely prejudicial to the defendant. It is indeed difficult to see how, even if all this was otherwise admissible, it should not be excluded for this reason; it becomes all the more objectionable when one sees in terms of logical probativeness, so far as the count of blackmail is concerned, that the proposed evidence in its generality was of minimal relevance.

[35]We also have to say that all these difficulties did not begin to be cured, if cure was indeed possible, by the terms of the summing-up. When he came to sum up on these matters (and it is not to be overlooked that these matters had occupied by far the great part of the trial which took some 10 days)

the judge simply said this:

"Mr Kane's character. The prosecution has adduced a large volume of evidence largely unchallenged [we repeat that that was a rather unfortunate comment] about Peter Kane and his alleged involvement with drugs and related criminal activities and his association with known criminals. This has been placed before you for two reasons. First, because the prosecution allege he was the one who persuaded the other defendants to enter into the alleged criminal transactions, so they wish you to know more about him and in considering also whether the cash in counts 1 to 3 was criminal property. Second, in relation to count 4 the blackmail, so that you can consider this in the light of his explanation that his conversation with Emily Legge was a purely innocent one. This evidence may help you to decide whether Peter Kane is guilty or not. Therefore, you may take it into account when deciding whether it is proved that he committed the offence charged in count 4. But bear in mind that this evidence cannot on its own prove guilt. It would be quite wrong to jump to the conclusion that because of his background, he is automatically guilty."

This simply will not do. How were the jury to take it into account? They received no guidance at all. Further, the jury were not directed that they would have to be sure in respect of these matters. This could have been very important, not least because the police had been insufficiently confident even to bring charges with regard to any of these matters relating to the appellant in the first place. This summing-up did not devote itself to the detail that was needed on this topic. Nor was any propensity direction, of the kind conventionally given, given in this particular case. The bad character evidence was in effect treated by the Judge - rather as the prosecution had treated it - as an undifferentiated mass.

[36]The introduction of the evidence relating to the mobile phones is perhaps the most disconcerting of all this disconcerting evidence. Let it be granted that the appellant had phone contact with people with criminal convictions. What were the jury meant to make of that? Again, the answer of Mr Richards had to be that they ought to know the "nature" of the man: but what were they meant to deduce from the fact that he was speaking to people who had convictions: for example, Miss Johnson with one conviction for shoplifting? Mr Richards again had to rely on the totality of the persons with whom the appellant had contact having previous convictions. That also will not do. Again it simply serves to illustrate that this is really a case of trying to prove guilt by association. We repeat, there is nothing to link the appellant himself to any of the many convictions of these many individuals concerned. How all this truly bore on the count of blackmail which the appellant faced is impossibly hard to discern; but, we also repeat, the prejudicial impact is obvious.

[37]Two other points may be noted in this regard. First, Emily Legge had not herself said that the claim for payment was linked to any drug matter at all. It was the prosecution who were seeking to persuade the jury that it was: but in order to do that they, in part, were trying to get in this alleged character evidence. Secondly, Emily Legge had not known Pistol Pete and had never said that he, to her knowledge, was the kind of man who had a reputation of hanging out with people known to be violent criminals: so such an issue, even if otherwise potentially relevant in a blackmail case, was never in point at all in this case.

[38]It will be obvious therefore, from what we have said, that in our view this evidence en masse should never have been admitted as it was. Indeed, we think it most regrettable that the Crown had even sought to admit it in this way in the first place. It may be, we know not, that the police feel very frustrated that the appellant, who is in their eyes a bad lot and heavily involved in drug dealing, has never faced true justice in a court and never has been convicted on any significant matter. But that is the case. He never has been convicted of any drugs related matters.

[39]It therefore seems to us that this evidence should not have been admitted and in any event to admit it was wholly and unfairly prejudicial to this appellant.

[40]Having so ruled, we need not deal in any detail with the other ground relating to severance. We have to say that we see a very strong argument indeed in favour of severance given the circumstances that existed at the date of trial after the pleas of guilt had been entered. In fact, it had been Mr Richards' initial intention, as we understand, to accept severance. But ultimately and very late in the day he changed his mind. We appreciate that it is a very strong thing to interfere with the exercise of a judge's discretion on issues such as joinder and severance. But it is perhaps sufficient to say that a particular plank of the Crown's eventual argument on severance was linked to its proposed bad character application; and once that plank has gone it is very difficult indeed to see a good basis for maintaining that a joint trial was appropriate in this case given the circumstances. Moreover, taking them on their own the connection between the blackmail count and the other counts of money laundering, once the pleas had been entered, seem to have been nebulous. However, all that said, we need express no concluded view on that ground.

[41]In these very unsatisfactory circumstances, this court must interfere. The conviction in this case is quashed. This court cannot be satisfied that the conviction arising was safe. Indeed, we have to say in fairness to this appellant who may not in general terms be a man deserving of much sympathy, that in our view he simply did not receive a fair trial. We trust that applications of this kind will not hereafter be pursued by the prosecution in Crown Courts in the way in which they were pursued here.

[42]MISS MOORE: My Lord, having spoken to Mr Richards before you came into court this morning, there will not be any application for a retrial in respect of Mr Kane.

LORD JUSTICE DAVIS: There is not an application for a retrial?

[44]MR RICHARDS: My Lord, no, given the length of time he has served in any event and the nature of the complainant, Miss Legge, a young woman, she is vulnerable, measures need to be taken for her protection.

LORD JUSTICE DAVIS: We understand the realities on that. Have her views been taken?

[46]MR RICHARDS: So far as I know they have not been taken in this instance, but it is not the case where frankly the position would change.

LORD JUSTICE DAVIS: Blackmail is a serious matter.

[48]MR RICHARDS: It is a very serious matter but bearing in mind the length of time he has served and, as I say, bearing in mind that she will have moved on in her life, from the age of 17, we do not seek a retrial.

LORD JUSTICE DAVIS: And the appellant received three years for the other matters?

[50]MR RICHARDS: Three years for money laundering concurrent and three years consecutive for this.

LORD JUSTICE DAVIS: We will make no order as to a retrial in those circumstances.

[52]MISS MOORE: Following from that, may I have a defendant's costs order for the two hearings on which I have appeared in front of this court. The defendant having been legally aided at trial and then refused leave by the single judge, his family have paid privately for my assistance here today.

LORD JUSTICE DAVIS: How much are you asking for?

[54]MISS MOORE: I am asking for it to be taxed. I cannot give you a specific figure.

LORD JUSTICE DAVIS: Your clerk has not done the groundwork?

[56]MISS MOORE: My Lord, no, I apologise for that.

LORD JUSTICE DAVIS: We will make such an order. The amount payable will be assessed by the Registrar in due course.

[58]MISS MOORE: Thank you, my Lord.

LORD JUSTICE DAVIS: Mr Richards, you will ensure that what this court has said will come to the attention of the local prosecuting authorities?

[60]MR RICHARDS: Yes.

LORD JUSTICE DAVIS: We are still concerned that there still seems to be an element of incomprehension on your side of the court.

[62]MR RICHARDS: Far from it.

LORD JUSTICE DAVIS: I appreciate it is coming from different counsel but we are very concerned that this application was made in the first place in the way that it was.

[64]MR RICHARDS: I take that point.

LORD JUSTICE DAVIS: It may be your initial thoughts were the right thoughts. This is not to say that some kind of bad character application was appropriate, for example the previous convictions. It is the extent of it.

[66]MR RICHARDS: I do understand. I will of course draw it to the attention of those who prosecute. I am not familiar with what was said about local practices changing, but nonetheless it will be passed on.