Venclovas, R v [2013] EWCA Crim 2182

No: 201300063 C1[2013] EWCA Crim 2182
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 8th November 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE GREEN
SIR DAVID MADDISON
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
RIMAS VENCLOVAS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Mansfield QC & Mr M McDonald appeared for Applicant
J U D G M E N T
[2]The applicant renews his application for leave to appeal against conviction, the single judge having refused the application.[3]We draw attention to the fact that there are reporting restrictions present in this case in relation to a child witness.[4]The deceased was a 29-year-old Lithuanian woman living in Peterborough. The applicant was her former husband. The couple married in 2007 and divorced in 2010. There had been a number of reports to the police from the deceased alleging domestic violence by the applicant towards her whilst the pair were in the UK together. Following the last reported incident of domestic violence in February 2011, the applicant left the country and went to Lithuania whilst on police bail.[5]Whilst in Lithuania, the applicant changed his name to the name under which he stood trial, Rimas Venclovas. He bought a Mercedes minibus and he obtained an identity card under his new name. He learnt that the deceased had started a relationship with another man.[6]In July 2011 he travelled by ferry from Dunkirk to Dover and then went to Peterborough. He made the return crossing that same evening. He then returned to Lithuania and altered his van by adding dark tinting to the windows. It was the Crown's case that this trip to the United Kingdom was, in effect, a dummy run made by the applicant in preparation for what later occurred.[7]The applicant again travelled by ferry from Dunkirk to Dover on 11th August 2011. He paid for the outward crossing by using his partner's credit card.[8]Shortly after 5 am on the morning of 12th August 2011 the deceased left her home in Peterborough to go to work. She never arrived. Later that morning the applicant returned to Dover and bought a crossing ticket with cash. CCTV footage showed the deceased being grabbed a short distance from her home by a man who overpowered her and took her away. That CCTV footage also recorded the applicant's van being in the road in which the kidnap took place. The deceased was reported missing on the evening of 12th August when she failed to return home.[9]A European arrest warrant was issued on 26th August 2011 and on 31st August the applicant was arrested while trying to sell his van. He was in Lithuania. His home was searched and a sat nav device was found. On 1st September 2011 the applicant was brought before a court in Lithuania and an order was made for his extradition. He returned to this country later that month. The charge referred to in the extradition warrant was one of murder with the details showing the offence committed in England on 12th August 2011.[10]On 31st October 2011 a shallow grave containing the deceased's remains was found in Poland. A post-mortem examination showed that she had died suddenly and violently as a result of manual choking. It took some time thereafter for the victim's identity to be established.[11]Examination of the sat nav device showed that it had travelled from Lithuania to the house where the deceased was living in July 2011. It covered the first trip made by this applicant. The applicant was also seen in Peterborough on that date. The sat nav also showed a journey from Lithuania to Peterborough in relation to the second trip, that is the trip of 11th/12th/13th August 2011. The sat nav on this occasion had been programmed to drive to the house where the deceased was living in the small hours of 12th August. Again, the applicant's van was captured on CCTV in the road close to where the victim lived, and CCTV cameras tracked the van after the time of the kidnap showing the applicant taking a circular route around Peterborough and then travelling to a number of remote spots in Cambridgeshire. This, according to the Crown, plainly demonstrated that there was an opportunity for the applicant to have killed the victim at this point and to have been searching for a convenient place to dispose of her body. The sat nav then recorded the vehicle's journey back to Dover and through Europe before coming to Poland. The place in Poland where the vehicle stopped was at a location some 75 metres away from where the deceased's body was later found. The evidence showed that the vehicle had been stopped at that location for about 40 minutes before continuing its journey through Poland and into Lithuania.[12]The applicant was also implicated by cell site evidence from his mobile phone which could be tracked in conjunction with the journey made by the van.[13]The Crown's case was that the applicant was responsible for the kidnap and the murder of the deceased. In that context the Crown sought to put before the jury a history of domestic violence and controlling behaviour of which the applicant was said to have been responsible in the past. In addition, the Crown relied on CCTV imagery which gave moderate support to identification of the deceased and of this applicant. The Crown also relied on evidence of the applicant's former partner that he had told her that the deceased was missing and that he would be accused of murder at a time before he had been contacted by the police.[14]The case for the applicant was that he was not responsible for the kidnapping or the murder of the victim. He had travelled in August 2011 to France with another man. He had remained in France while that other man took the applicant's van and entered the United Kingdom, along with the applicant's mobile phone and identification documents, and had gone to Peterborough in order to deliver some goods. That man had then returned to France but had remained in possession of the vehicle whilst the applicant travelled back to Lithuania in an Audi car. The two men had exchanged vehicles at some point in Poland. The applicant blamed the police for failing to trace the man whose name he had given. He denied any earlier incidents of domestic violence or threatening or controlling behaviour towards the victim. He denied telling his ex-partner that he would be accused of murder and he denied that the CCTV imagery depicted him.[15]It is important to understand that when the applicant was extradited, that was before the body of the victim was found. The application for extradition was made on the basis that the murder had taken place in the United Kingdom on 12th August 2011. As already stated, the body was not found until the end of October and the UK authorities were not notified of the finding and identification of the victim until February 2012. By that stage proceedings had been started in this country for murder and kidnap.[16]In the light of the discovery of the body, the Crown reconsidered its position and the Solicitor General ultimately gave his consent to a prosecution for murder pursuant to section 4 of the Suppression of Terrorism Act 1978. That consent was given in August 2012. This process brought a second indictment alleging murder and kidnap into being and the Crown elected to proceed on this second indictment. The new indictment alleging murder and kidnap alleged that the murder had been committed on 12th or 13th August 2011, the days during which the vehicle had travelled from the United Kingdom through various European countries until it reached Poland. Secondly, the Crown contended that the indictment in this form would cover the possibility that the acts causing death and/or the death itself had taken place outside England and Wales.[17]We turn to the grounds of appeal.[18]Ground 1. The primary submission is that there was no jurisdiction to try this applicant for murder on the second indictment: both the applicant and the deceased were foreign nationals and the Crown could not show where the strangulation had taken place. In particular, the evidence was not sufficient to show that the fatal attack had taken place in England, as opposed to somewhere in Europe, either later on 12th August or on 13th August, or vice versa. The proceedings to which consent under section 4 of the Suppression of Terrorism Act was given, it was argued, related to an offence outside the jurisdiction and section 4 was to be construed as creating a separate statutory jurisdiction in relation to murder committed outside the United Kingdom. Accordingly, the jury could only convict of the murder on the second indictment if they were sure that the murder had been committed in a country outside the United Kingdom. If that submission was correct, the judge's direction that it was immaterial whether the murder was committed in England or any of the other countries en route to and including Poland was wrong.[19]There were further submissions, represented by grounds 2 and 3 contained in the written grounds, based on an asserted non-compliance with section 146 and section 153 of the Extradition Act 2003 which would potentially follow if the core submission was correct. Since it is accepted that those additional grounds stand or fall together with the principal point, it is not necessary to develop them here.[20]The point raised is an interesting one. The common law crime of murder was undoubtedly confined to killing within the jurisdiction: see Sir Edward Coke's reference in the Institutes to "within any county of this realm". Section 9 of the Offences Against the Person Act 1861 had the effect that murder committed beyond territorial limits may be punishable as an offence under English law where the conditions set out there are satisfied, namely that the murder is committed abroad by a British citizen.[21]In our judgment, the correct analysis is that the 1861 Act did not create any new statutory offence of murder; it simply had the effect of expanding the territorial reach of common law murder and, for that matter, manslaughter.[22]The question for us is whether it is properly arguable that section 4 of the Suppression of Terrorism Act was not to similar effect, but rather created a new offence of murder triable in England, rather than extending the existing common law jurisdiction.[23]The preamble to the Act states that it is "an Act ... to confer jurisdiction in respect of certain offences [including murder] committed outside the United Kingdom". The title to section 4(1) refers to "Jurisdiction in respect of offences committed outside the United Kingdom". Section 4(1) provides:
"If a person, whether a citizen of the United Kingdom and Colonies or not, does in a convention country any act which, if he had done it in a part of the United Kingdom, would have made him guilty in that part of the United Kingdom ..."
[24]As to the reference to a "convention country", that phrase covers each of the countries through which the van containing the victim travelled.[25]Notwithstanding the submissions made by Mr Mansfield QC, who did not appear below, we do not consider that there is anything in the language of the preamble to the Act, the title to section 4(1) or the terms of section 4(1) itself which supports the applicant's contention. We note that the schedule to the Act refers to murder as a common law offence. We also note the observation of Lord Hope in R v Bow Street Magistrate, ex parte Pinochet (No 3) [2000] 1 AC 147 at page 232:
"Murder is a common law crime which, before it became an extraterritorial offence if committed in a convention country under section 4 of the Suppression of Terrorism Act 1978, could not be prosecuted in the United Kingdom if it was committed abroad except in the case of a murder committed abroad by a British citizen: Offences Against the Person Act 1861 ... section 9, as amended."
[26]It seems to us that, consistent with that passage, the true position is that section 4 of the 1978 Act does not create a new criminal offence or replace the common law jurisdiction or, in the language of Mr Mansfield's submission to us, add a new dimension to the offence of murder.[27]The effect of the provision, in our judgment, is that it expands the existing common law jurisdiction in a way which enables a prosecution to proceed for an offence of murder committed in any convention country including England and Wales. A necessary check on the inappropriately wide use of the extension of jurisdiction by this means is the requirement for the Attorney General's consent to the use of the expanded jurisdiction. For these reasons, we consider that the trial judge's ruling and directions below were correct, as was the decision of the single judge in refusing leave. Accordingly, grounds 1 to 3 must fail as we are clear in our conclusion that no arguable point is raised.[28]Before leaving the point, we simply observe that if the applicant's argument were correct it would lead to wholly anomalous results and complications which could never have been intended by Parliament.[29]We turn then to other grounds raised in the written submissions but not developed in oral argument.[30]Ground 4 relates to the admissibility of the sat nav evidence. We can deal with the matter briefly. At trial the applicant sought to argue that the evidence of the sat nav and its contents should not be admitted, contending that the sat nav had been unlawfully seized from the applicant's home in Lithuania since it had not specifically been referred to in the search warrant.[31]The judge heard expert evidence regarding Lithuanian law and practice and found that the seizure was lawful. Even if that were not the case, the judge held that there was no evidence of bad faith and that, applying the observations of Nolan J (as he then was) in R v Governor of Pentonville Prison, ex parte Chinoy [1992] 1 All ER 317 at page 332, any breach could carry no more weight than breaches of English law. In the circumstances of this case there would have been no breach of English law by reason of section 19(3) of the Police and Criminal Evidence Act 1984. The judge also considered the provisions of section 78 of the Police and Criminal Evidence Act and held that there was no basis for excluding the evidence. We fully endorse his approach and conclusions.[32]Ground 5: the judge admitted four episodes of alleged prior domestic violence or threatening behaviour together with the evidence of the dummy run. The four episodes of domestic violence were admitted pursuant to section 101(1)(c) of the Criminal Justice Act 2003. Complaint is made that the judge fell into error in admitting the evidence.[33]The judge gave a lengthy and careful ruling on this aspect of the case. We consider that his analysis was entirely correct. There was a continuum of violent, aggressive and controlling behaviour prior to the murder which was highly relevant to the issues at trial and which were supported by a cogent body of evidence. The process of assessment of this evidence by the trial judge was robust and, in our judgment, legally correct.[34]It follows therefore that none of the grounds of appeal put forward has any prospect of success. Accordingly, this renewed application must fail.