Welsh & Ors, R. v [2013] EWCA Crim 409

[2013] EWCA Crim 409Case No 2012/1609/D3, 2012/1608/D3 & 2012/1606/D3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Sitting at The Law Courts
Venue Cathays Park, Cardiff, CF10 3PGDate Tuesday 12th March 2013
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE MITTING
MR JUSTICE MALES
R E G I N A
v
KIERAN WELSH
JOHN WELSH
THOMAS WELSH
Computer Aided Transcript of the Stenograph Notes of
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Mr B Treadwell appeared on behalf of Kieran Welsh
Mr S Mihangel appeared on behalf of John and Thomas Welsh
Mr D Mainstone appeared on behalf of the Crown
J U D G M E N T
Between
Welsh & OrsDefendantRCrown

LORD JUSTICE LEVESON:

[1]On 20th January 2012 in the Crown Court at Caernarfon before His Honour Judge Hughes QC and a jury, these appellants were each convicted of causing grievous bodily harm with intent. They were each sentenced to a term of 12 years' imprisonment with time served on remand to count towards the sentence. Kieran Welsh appeals against conviction by leave of the single judge and all three appeal against sentence by leave of the single judge.[2]The facts can be stated shortly. At about 9.40 am on 28th May 2011, police officers were called to an address in Holyhead following a report that a man, Alan Haigh, aged 44, had been assaulted. Mr Haigh suffers from schizophrenia for which he is prescribed medication. He had been seen earlier that day at about 6.30 am behaving oddly and he was taken by the police to his sister's home.[3]When the police attended shortly after 9.40 am he was seen to be on the ground and had clearly been hurt. It was the prosecution case that the three appellants had all participated in an assault on Mr Haigh during which he was punched, kicked and struck with an iron bar while lying on the ground. It was alleged that Kieran Welsh had been in possession of the iron bar.[4]The appellants are related. Thomas and John (known as Jackie) Welsh are brothers. Kieran Welsh is Thomas's son.[5]In the case of Thomas and John Welsh, the defence was that Mr Haigh was chased by them having burgled Thomas's home. They denied behaving otherwise than in self-defence. Kieran Welsh denied his presence at the scene and relied on an alibi.[6]In order to understand the circumstances in which this appeal has been mounted, it is necessary to turn to the way that the trial took place. We start with a critical eyewitness.[7]At about 9.40 am on 28th May, Wendy Bailey-Williams was in her kitchen and heard shouting at the front of her house. She went through to the front living room and looked outside. She saw four men running towards her gate. She recognised Alan Haigh whose sister lives nearby. He was being chased. There were two men she knew, Tom and Jacky, and a third whom she did not know. Alan seemed to trip and he fell into the garden. Tom and Jacky began kicking him. Tom kicked him first into his chest and stomach. Tom also punched him about four or five times. Jacky then kicked him in the lower back about four or five times but did not deliver any punches.[8]While they were doing this a third man, whom she described in her evidence as "a lad", jumped over the wall and kicked Alan once or twice in the lower legs and then produced an iron bar. He hit him with this seven or eight times, using continuous blows. Alan was screaming in pain. It was over quite quickly and the third man was the first to leave, jumping back over the wall. Jacky left in the same direction. Tom stayed for a couple of minutes and crouched down and held Alan's coat with both hands, with his face in close proximity. He appeared to be talking to him. He then left in the same direction as the other two.[9]Miss Bailey-Williams telephoned the police and gave a running commentary of what she was witnessing. She went outside where a number of people had gathered and gave Alan a glass of water. He had blood on his face and was in a poor state. The incident lasted about five or ten minutes and it was a full-on attack. It was in broad daylight and she had a clear view of events.[10]When cross-examined she said Alan's body was wriggling around during the attack. She did not see him kicking out with his legs, but accepted that this was a possibility. On an identification parade she did not identify Kieran Welsh and picked out a volunteer as the third man.[11]Constable Davies arrived at 9.47 am. He found Alan Haigh on the ground screaming. At 10.05 a paramedic arrived. He saw a man lying in the gateway shouting in pain and saying that he had been hit by an iron bar. He was taken to hospital and was behaving then somewhat bizarrely, singing to himself and having a conversation with an imaginary person.[12]At 2.30 in the afternoon, Sergeant State arrived and saw Mr Haigh in the hospital. Mr Haigh told him he had been jumped by three males: Thomas, Jacky and Kieran. He went on that Kieran had caused most of his injuries using an iron bar.[13]Against that background we turn to the evidence of Alan Haigh. As we have recounted, he suffers from schizophrenia for which he has been prescribed medication. He has lived in Holyhead all his life and grew up with Thomas Welsh. They both attended the same school. He regarded him as a friend and had visited his house on several occasions. He also said that he knew Kieran Welsh, Tommy's son, and had known him since he was a young boy.[14]He gave evidence that on 28th May he went to his sister's house. He said that he did not know where he went after that and he could not recall what had happened thereafter. He could not remember talking to police officers and said that he was ill at the time. He was invited to consider the terms of his statement dated 7th June 2011, although it was well understood that during the course of the proceedings he had made a second statement informing the police to say that he could not now or then remember who had assaulted him on the day. Having looked at his statement (which recounts what happened in terms to which we will later refer), he said that he was ill and could not remember.[15]As a result, an application was made under section 3 of the Criminal Procedure Act 1865 to cross-examine Mr Haigh on the grounds that he was hostile. The Crown argued that he was making very little effort to engage in his statement and was being deliberately obstructive. The application was resisted by the defence with counsel submitting that the word "adverse" meant hostile, not merely unfavourable.[16]The judge referred to the mental health of the witness and his claim that he was suffering from an illness. The judge also took into account that a consultant psychiatrist, Dr Da Silva, had been made aware of his claim that he could not recall what happened that day and had expressed the opinion that there was no medical reason why he would lose his memory. 16.1. The judge said that it was important to have regard to this medical evidence since an interpretation which might otherwise have been placed upon the way in which he answered questions might have resolved the case in favour of the defence objection.[17]Having regard to the circumstances, however, the judge concluded that there was positive material which supported the attitude he displayed when asked questions which indicated he might well be hostile. He granted leave. That ruling is not the subject itself of appeal.[18]Of course, prior to the implementation of section 119 of the Criminal Justice Act 2003, treating a witness as hostile who does not then adopt the statement that he made, does not make that statement of evidential significance. Section 119(1) of the Criminal Justice Act, however, provides:
"(1) If in criminal proceedings a person gives oral evidence and— (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18), The statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible."
As a result, the statement having been proved, it was admissible as evidence. Mr Haigh was cross-examined about it at length. In that statement he describes how he knew each of the three appellants. Thomas Welsh he had known since he was aged 11:
"He was in the year below me. We were not friends at school", he said. He went on that he knew him socially and was aware where he lived and had visited him on occasions. He explained that he also knew Jacky Welsh, Tommy Welsh's older brother, again "for years"
. As for Kieran he said:
"He is Thomas Welsh's son. He is about 20 years old. He is Julie Harvey's son. He is well-known in town and everyone knows he's Tommy's son. He does not work ... I have never had a problem with Kieran and we would often speak in passing."
[19]He then went on to describe the incident which was the subject of his injuries. What is significant, without reading the entirety of the statement, is that (as is conceded) his description is consistent with the evidence given by the independent witness Miss Bailey-Williams. In particular, he describes how he feared for his safety and started to run. He went on:
"I know Kieran was holding a weapon which I would describe as an iron bar. He later assaulted me with this bar."
He went on:
"The bar that Kieran had was a metal bar which I thought may be some kind of car jack, but I cannot be sure, I cannot describe it further. Kieran was hitting me on the arms, legs and body. He was also trying to hit me on the head with the bar ..."
He goes on to the effect that the three were working together to inflict the attack:
"It felt like it lasted over ten minutes"
. He said:
"All of a sudden the attack stopped and the three of them ran off. I do not know what direction they left. I was in shock, in pain, and slipping in and out of consciousness. Lots of people in the street had seen what was happening. One lady gave me two pints of squash afterwards."
He concludes his statement:
"I had a clear and unobstructed view of the three males. The lighting was good and they were directly in front of me. There were no obstructions. I am in no doubt they were Thomas, Jacky [John] and Kieran Welsh."
[20]Mr Treadwell on behalf of Kieran Welsh accepts that that statement was admissible as evidence of the truth of its contents, but he relies in particular on subsequent answers in cross-examination. When the statement was put to him, he said he could not remember what had happened, he could not remember telling Sergeant State that he had been hit by someone with an iron bar. In his subsequent statement he said that although he had named his attackers in his previous statement he simply could not remember who had attacked him. He was having an episode that day and was ill. When cross-examined he replied to all questions: "I don't remember."[21]It went further. His injuries, he said, could have been caused as a consequence of being hit by a car at Priory Lane. He went over the bonnet and sustained injuries to his arms, legs and body. He could not remember what happened after that, but he knew he went to hospital. He was psychotic that day and had not taken his medication.[22]As a result of the assault Mr Haigh suffered a broken elbow and a puncture wound to his right leg. He also had numerous cuts and bruises to his arms and legs. He broke a window in the hospital for which he was arrested and he was later sectioned under the Mental Health Act.[23]We turn to the arrests. Kieran was arrested, at home, later that day. During his interviews he made no comment to all questions. On 6th June 2011 he handed in a prepared statement which contained details of his alibi. We add that the judge also admitted evidence of Kieran Welsh's bad character in the form of convictions for violence. He did so on the grounds of propensity and also materiality on the grounds that Mr Haigh had initially identified a man who in fact had such a propensity and who also was related to the other two who had been identified by the independent witness.[24]Mr Treadwell submits, in a form slightly different from the grounds of appeal, that the judge should not have admitted evidence of bad character on the basis that the evidence was so thin that it was bolstering a bad or weak case. The precise articulation of the admission of the bad character has not been transcribed, but it is common ground that the judge gave as reasons those which we have summarised.[25]In our judgment, the evidence of Mr Haigh, if taken on its own, may well have caused the judge pause for thought given the issues as to the reliability or otherwise of his account. However, the judge did not have his account on its own, that is to say the account admitted pursuant to section 119 of the Act. He had that account supplemented by the detailed evidence of an eyewitness. In other words, the weakness of Mr Haigh's position, perhaps because of his ill health, perhaps because of his obstruction or unwillingness to give evidence, was substantially corroborated by the independent account, quite apart from the additional material also provided by Sergeant State on the day of the incident itself. In the circumstances, in our judgment, the judge was entitled to admit the evidence of bad character as going to propensity and for the reasons that he gave.[26]Mr Treadwell also submits that the judge should have concluded that there was no sufficient case for Kieran Welsh to answer relying on the well-known decision in Galbraith. In support of his application he submitted that where leave is given to treat a witness as hostile and the witness upon being cross-examined upon a previous statement says that its contents are true, it is incumbent upon the judge to warn the jury to approach any evidence given by the witness incriminating the accused after being treated as hostile with caution, pointing out that the evidence was only elicited as a result of cross-examination by prosecution counsel.[27]The authority upon which Mr Treadwell relied anteceded section 119 and it is now necessary to take the entirety of the evidence into account when considering whether this was a case for the jury or a case which the judge ought to have concluded was so weak as to be insufficient to justify or bear the weight of an adverse verdict. The judge simply articulated that he did not consider that the case fell within the second limb of Galbraith and so left it to the jury.[28]When it came to the summing up, however, the judge did accurately and adequately warn the jury about Mr Haigh's evidence in these terms. Having summarised what had happened during the course of the trial, he said:
"... if you come to the conclusion that he is lying to you when he says he cannot remember, you may still have regard to, and act upon, what he said in his statement. But in those circumstances you would need to approach that statement with caution because it is a statement of someone who you will have decided was not telling you the truth in the witness box. Now, that does not mean that you could not act upon his statement providing that you are satisfied that what he told the police on 6th June (sic) is the truth, and in that regard you are asked to bear in mind that at 10.05, within a few minutes of the incident and when the paramedic arrived, he told the paramedic that he had been hit by someone with an iron bar, and that when Police Sergeant State went to [the hospital] at 2.25 pm that afternoon the same day, he told that officer that three fellas had jumped him and he named the three defendants, adding I quote, 'Kieran did most of it, he had the bar'. And so again it is a classic case for you as a jury to weigh up whether you accept or do not accept what you said in the witness box and/or what he said in his statement. Approach it with care if you have taken the view that what he said in the witness box to you is not true."
In our judgment the judge dealt admirably with the difficult situation that had arisen during the course of the trial. Had there been merit in Mr Treadwell's submissions effectively section 119 of the Criminal Justice Act 2003 would not have achieved what the legislature intended that it do achieve.[29]When initially putting forward grounds of appeal, Mr Treadwell relied upon a further argument arising from a letter which had been written by Mr Haigh to the judge after conviction but prior to sentence in which he effectively admitted that which John (or Jacky) and Thomas Welsh had been saying, almost in the precise language of their defence, and went on that he saw Kieran with the other two in court and knew he was not the third person that was there. Given that his evidence to the jury was that he could not remember anything, it is quite difficult to see how he could remember three people or, more particularly, that one person was not one of the three.[30]In the original grounds of appeal this letter was relied upon as further evidence undermining the safety of the conviction. It has since been investigated by the police and Mr Haigh has provided an account of the circumstances in which he came to write it, which suggests a degree of intimidation to which it is unnecessary further to allude. Further evidence was served in answer to the application under s. 23 of the Criminal Evidence Act 1968 to the effect that, on 3rd July 2011, somebody had spray painted the word "grass" on Mr Haigh's flat door which might be rather more illuminative of the circumstances of his retraction of the evidence.[31]Suffice it to say, it is unnecessary to go further into the letter or the other material because although the original grounds of appeal intended to rely upon this material pursuant to section 23 of the Criminal Appeal Act, Mr Treadwell rightly abandons that effort and that submission in the light of the further material that is now available. We say he was right to do so because it is clearly not credible and adds nothing to the position that Mr Haigh had adopted at the time of the trial. In the circumstances the appeal against conviction is dismissed.[32]We turn now to sentence which encompasses all three appellants and raises different issues. Kieran Welsh is now aged 22 with convictions as a juvenile for battery, grievous bodily harm, possession of an offensive weapon and adult convictions for actual bodily harm both in 2010 and 2011. A pre-sentence report assessed him as causing a high risk of causing physical harm to the public and the victim. He stated that he had thoughts of harming himself every day and was tearful throughout the interview. Not surprisingly the probation officer who interviewed Mr Welsh informed the prison authorities of that risk, whereupon the author was informed that the appellant had returned to the wing laughing and joking and that there were no issues with his emotional well-being.[33]John Welsh, who is now aged 49, had previous convictions for assault occasioning actual bodily harm in 1982, 1984, 1986, 1995 and 1997, and for theft, using threatening words and behaviour in 1985, 1990, 1991 and 1998 and affray in 1992, 2001 and 2009. A pre-sentence report assessed him as at medium risk of reoffending.[34]Thomas Welsh is 44 years of age with previous convictions for affray in 1996 and public order offences in 1999 and 2008. On each occasion he received a fine. H34.1. e was assessed as posing a medium risk of harm to the general public and a medium risk towards the victim.[35]When passing sentence the learned judge said that he was unable to pinpoint which of them was the ringleader -- all three were in it together. He concluded that Kieran Welsh had attacked him with an iron bar and the other two had kicked and punched him whilst he was on the ground. He recognised that the injuries Mr Haigh received were not serious, but only in so far as in the context of the offence of section 18 of the Offences Against the Person Act. They were serious in themselves. He noted that all had convictions for violence and that Kieran Welsh had been released on home detention curfew only a week or so before this offence.[36]The judge went on that, having regard to the sentencing guidelines, there was a clear basis for the an assessment of greater harm, namely the fact that the victim was particularly vulnerable because of his mental illness (of which all three defendants were aware). There were also three factors indicating higher culpability. First, a clear case of premeditation; secondly, prior arming themselves for the offence; and thirdly, going out looking for Mr Haigh. He concluded that the offence came within category 1 of the guidelines issued by the Sentencing Council with a range of nine to 16 years and a starting point of 12 years in custody. In those circumstances, he concluded that the starting point was the correct sentence, namely 12 years in each case.[37]There is no doubt in our judgment that there are factors indicating greater harm in this case. First, Mr Haigh was particularly vulnerable because of his psychiatric illness. Secondly, there was a sustained or repeated assault upon him. We recognise, however, that the injury was not serious in the context of the offence and that the guideline underlines that, for category one, normally injury serious in the context of the offence must be present. As for culpability, there is equally no doubt that there was a significant degree of premeditation, the use of a weapon and the deliberate targeting of a vulnerable victim. In our judgment the judge was quite right to place this within category 1 of the guidelines.[38]As for where the case should fit in the guidelines, there is material in relation to Kieran for aggravating or increasing the seriousness by reason of his recent previous convictions. On the other hand, his age of 21 requires the court to have regard to this potential factor as reducing seriousness. In relation to all three, however, in our judgment the most important feature is the fact that there was an absence of serious injury in the context of the offence which must normally be present to fit the case within category 1 and which although not present could be taken as a circumstance to reduce the sentence within the range for this offence.[39]In our judgment, the proper sentence in each of these cases, there being no reason to distinguish between them for the reasons that the judge gave, is one of 10 years' imprisonment. To that extent therefore we quash the sentences of 12 years' imprisonment on each appellant and impose in their place sentences of 10 years' imprisonment. Thus, to that extent, these appeals against sentence succeed.