Powell, R. v [2014] EWCA Crim 642

[2014] EWCA Crim 642Case No 201206579 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 29 January 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE GRIFFITH WILLIAMS
RECORDER OF LONDON
Between
R E G I N ACrownv
Between
POWELL
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 7404 1424(Official Shorthand Writers to the Court)
Mr Shaun Smith QC appeared for Applicant
J U D G M E N TLord Justice Jackson :
[1]This judgment is in four parts, namely: Part 1. Introduction, Part 2. The facts, Part 3. The criminal proceedings, Part 4. The application for leave to appeal against conviction. Part 1. Introduction[2]This is an application for leave to appeal against conviction for the murder of one woman, and sexual offences against another woman. The issue in this application is whether the judge ought to have severed the indictment so that the two incidents could be dealt with in separate trials.[3]We shall refer to the Indictments Act 1915 as "the Indictments Act". Section 3(1) of the Indictments Act provides:
“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
[4]Section 5(3) of the Indictments Act provides:
"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."
[5]Rule 14(2) of the Criminal Procedure Rules sets out the criteria for joinder of different counts in one indictment. That rule provides:
"(3) An indictment may contain more than one count if all the offences charged - (a) are founded on the same facts; or (b) form or are a part of a series of offences of the same or a similar character."
[6]Having set out the relevant statutory provisions we must now turn to the facts.

Part Two. The facts

[7]On the evening of 22 July 2011, Ms Caroline Coyne, aged 28 but looking younger, attended her sister's birthday party. She drank heavily. Later that night she wandered alone around the area of Portchester Road in Nottingham, much the worse for drink. The last sighting of Ms Coyne on CCTV was at 1.16 am when she was in Thorneywood Mount, which was a side road off Portchester Road.[8]On the morning of 23 July Ms Coyne's body was found on a pathway by Thorneywood Mount. There were a number of injuries on her body. In particular, there was a head injury resulting from blunt trauma. This was the cause of Ms Coyne's death.[9]There were signs that Ms Coyne may have been sexually assaulted. Her knickers had been rolled down across the front and there was reddening along the labia, although no injury attributable to forceful penetration could be seen. There were signs on Ms Coyne's body that someone had gripped her around the neck and also around the arm areas.[10]One month later, on the night of 22 August 2011, another young woman was attacked in the same area of Nottingham. We shall refer to that young woman, who happily survived, as Ms P. Ms P, aged 21, was walking up Carlton Hill in the early hours of the morning. She became aware of a man following her. In an attempt to defuse the situation Ms P turned around and asked him the time. The man told Ms P the time and she continued on her way. A few seconds later, the man grabbed her round the throat. He dragged her across the road, through a gate, and up some steps leading to a college. When the man released his grip, Ms P, with great presence of mind, started talking to him. In due course she persuaded the man to walk her up Carlton Road towards both of their homes.[11]When the time came for them to part, the man took some sexual liberties with Ms P. Ms P says that the man kissed her and forced her hand against his penis. The defence case is that he did no more than kiss her and fondle her buttocks. Ms P was consenting.[12]The incident was reported to the police. As a result of DNA profiling, the police identified the defendant as the man whom Ms P had encountered. The police arrested the defendant and interviewed him on 27 August 2011. The defendant's explanation for grabbing Ms P by the throat was that he thought she was a friend; that was a mistake. However, this allegedly was the way he normally greeted his friends. The defendant denied that any of his conduct amounted to forcibly detaining Ms P or sexually assaulting her. He maintained that all contact was consensual.[13]Examination of CCTV footage revealed that the defendant had been walking close to Caroline Coyne on the night when she was killed. The defendant was re-arrested and interviewed about that matter. The defendant admitted that he was the man shown on the CCTV pictures. He admitted that both he and a young girl, who must have been Ms Coyne, were walking along Portchester Road that night. He recalled having spoken to her briefly. He denied that he had attacked or killed her.[14]The police did not accept the defendant's account of events. Accordingly, criminal proceedings followed.

Part Three. The criminal proceedings

[15]The defendant was charged on an indictment containing four counts: count 1 charged the defendant with the murder of Ms Caroline Coyne; count 2 charged the defendant with false imprisonment of Ms P; count 3 charged the defendant with committing an offence with intent to commit a sexual offence, namely assaulting Ms P and unlawfully and injuriously imprisoning her and detaining her against her will with the intent to commit a sexual offence; Count 4 charged the defendant with sexual assault upon Ms P, namely intentionally touching her, such touching being of a sexual nature. The defendant pleaded not guilty to all counts. He stood trial at the Nottingham Crown Court before Flaux J and a jury in October 2012. Count 2 was dropped during the trial because it was effectively duplication of count 3. In those circumstances the Crown Court and this court are concerned only with counts 1, 3 and 4.[16]At an early stage of the trial, Mr Shaun Smith QC, who appeared for the defendant below as he appears for the defendant in this court today, applied for severance. His essential argument was that if both incidents were dealt with in the same trial that would cause great prejudice to the defendant. The judge rejected that application but said that he would keep the matter under review.[17]The evidence was duly called. Towards the end of the case, after the conclusion of the evidence, there was the usual discussion between counsel and the judge about appropriate directions of law to be given in the summing up. After hearing argument the judge ruled that, although the issue was finely balanced, he would not allow the cross-admissibility of each allegation as evidence of bad character.[18]The judge was as good as his word. Indeed, in many respects, he was generous to the defence when he came to the question of how the jury should approach different counts in the indictment. He said this, at pages 13 to 14 in the transcript of the summing up:
“The first direction concerns the fact that there are separate counts. The evidence is different on each count and you may reach different verdicts on each count. Only count 1 relates to the death of Caroline Coyne whereas you know counts 3 and 4 relate to the incident involving Ms P and the evidence in relation to count 1 is quite distinct from the evidence on counts 3 and 4. You should consider each count separately and, only if you are sure of the defendant's guilt on the basis of the evidence on the count you are considering and only on that count should you convict on that count. So what you can't do is to use the evidence in relation to Ms P to bolster the case on count 1 and somehow convict the defendant of the murder or manslaughter of Caroline Coyne if you are otherwise unsure of his guilt on that count. In other words, you can only convict him on count 1 on the evidence of count 1 and, if you are unsure on the evidence on count 1, then the verdict is not guilty. You cannot use the evidence from the other counts to somehow bolster the case. Of course the obverse is true. Even if you were to convict him on count 1, then you must consider the evidence in relation to the incident with Ms P separately and there is distinct evidence on each of counts 3 and 4 so they need to be considered separately as well and only if you are sure on the basis of the evidence on the particular count you are considering could you convict the defendant on that count. In other words, counts 3 and 4 do not necessarily have to stand or fall together. You could conclude that he was guilty of the one and not guilty of the other. Again, what you cannot do is to use the evidence in relation to Carline Coyne to bolster the case on counts 3 and 4 if you are otherwise unsure of the defendant's guilt on either of those counts. I hope that is clear.”
[19]In due course the jury returned unanimous verdicts of guilty on all counts. The judge sentenced the appellant to life imprisonment on count 1 for the offence of murder. The judge set a minimum term of 20 years imprisonment. The judge imposed shorter concurrent sentences in respect of the other offences against Ms P.[20]The defendant was aggrieved by his conviction. Accordingly, he applied to the Court of Appeal for leave to appeal against conviction.

Part Four. The application for leave to appeal against conviction

[21]There are, in counsel's helpful advice and grounds of appeal, three grounds of appeal set out. The first is that the judge should have acceded to the application to sever the indictment at the start of the trial. The second ground is that the failure to sever the indictment led to significant prejudice to the defendant, and the third ground is that the prejudice to the defendant was such that his convictions are unsafe. All three of those grounds of appeal really boil down to a single contention which is that the judge erred in failing to sever and, in consequence, the convictions are unsafe.[22]Mr Smith began his submissions today by drawing attention to the similarities and the dissimilarities between the Caroline Coyne murder and the incident involving Ms P. The similarities between these two matters are helpfully set out in the skeleton argument of prosecution counsel at trial and they are the following: i) The events of 23 July and 24 August 2011 were proximate in terms of both geography and time, occurring in each instance during the early hours in the morning, some 32 days apart. ii) In each instance the attacker was a stranger and the victim was an unaccompanied woman, one in her late 20s, albeit having the appearance of a younger person, and the other aged 21. iii) Given the time at which such events occurred, each victim could be assumed by any potential attacker to have been the worse for drink and undoubtedly one of them was. A probable consequence, says the prosecution counsel, was that, should either of them have been so disadvantaged, they might have an inability to identify the assailant or understand and resist what was intended. iv) In each instance the initial attack upon the victim was motivated, whether wholly or in part, by sexual intent. An issue of propensity arises as a consequence. v) In each instance, moreover, violence was used initially to restrain and/or subdue the victim involving the signature feature of grasping each victim by the throat. vi) In each instance the defendant had an admitted connection with the victim, either immediately prior to or at the time of her being attacked. vii) In each instance the defendant was wearing a jacket, the hood of which was raised. viii) In each instance the defendant has denied any attack upon, or sexual contact with, the victim and, in the case of Ms P, he has denied specifically that he grabbed her by the throat and forced her to the ground.[23]Those then were the eight matters of similarity which were relied upon by prosecuting counsel at trial and which Mr Smith very fairly accepts we must take into account in considering this appeal.[24]Turning to the dissimilarities, Mr Smith has set out a number of matters which he identifies in his advice on appeal. The first point he makes is that the time period between the two allegations is 32 days. We are bound to say that we do not regard this as a dissimilarity at all. One month is a short period. The two incidents have the hallmark of being attacks upon young women in the same part of Nottingham carried out in the same timeframe, all in the summer of 2011. Therefore we do not accept that that is a significant, or indeed any, dissimilarity.[25]The second point raised is that the victims did not have any physical similarities except for their approximate age and sex. With all due respect to Mr Smith, we regard this as being a similarity. They were both young women who were likely to be a source of sexual attraction to any predators walking the streets. The fact that there may have been no close resemblance in terms of facial features or size or whatever, if that be true, that is in our view neither here nor there; they had the essential qualities of being single young women walking alone late at night in Nottingham.[26]The third dissimilarity raised by Mr Smith is that the two incidents were wholly disconnected. Well, that is a question for the jury. The fact remains that they are two broadly similar incidents which were close in time. There is no suggestion that the two women knew each other. On the other hand there is no suggestion that the defendant knew either of the two women before encountering them on the two fateful evenings.[27]The fourth dissimilarity urged by Mr Smith is that the non-fatal attack is alleged to have taken place after the fatal attack as opposed to vice versa. This points away from the suggestion of any kind of preparatory attack prior to any subsequent killing. We do not think that there is any significance in the sequence of the two incidents. They both involved attacks on young women. One of the young women was extremely drunk and did not have the ability to take the steps which Ms P was able to take. The second victim, Ms P, was extremely sharp-witted, as we commented during argument, and also she was extremely courageous. She engaged her assailant in conversation. He would clearly be someone who would be of a volatile and unstable nature. She engaged him in conversation and, by showing a measure of friendliness, she succeeded in persuading him to walk up the road with her. Those friendly comments of Ms P to her assailant may well for all we know have saved her life. We do not see any significance in the fact that the non-fatal incident followed the fatal incident.[28]The next dissimilarity identified by Mr Smith is that the allegation in respect of Ms Coyne involves, at its highest, a short pursuit followed by an act of physical violence involving blunt trauma and eventual death. The Crown assert that it may also involve elements of a sexual nature, although the scientific and pathological evidence is inconclusive. Clearly there was a blunt trauma injury to Ms Coyne because the assailant succeeded in killing her, no doubt because she did not comply with what he wished her to do. So far as the sexual aspect is concerned, although the evidence is not conclusive, there are very strong pointers towards sexual motivation, namely the fact her knickers were rolled down the front and the reddening of the labia. There are other matters such as the position of the brassiere cup which could be indicative of a sexual assault, but perhaps this evidence is less powerful than the two matters which we have specifically mentioned.[29]The next dissimilarity which Mr Smith identifies is that it is clear from the CCTV footage that initially, and for some distance, Ms Coyne was followed by the defendant. On the other hand, the defendant was following Ms P for a shorter period. We do not see any significance in this. Stalkers who are acting opportunistically will follow their victim for as long a period as they deem necessary before they strike. In the case of Ms Coyne she was clearly under the influence of drink. She was behaving in a somewhat erratic manner. She was wandering around and her assailant clearly bided his time before he struck.[30]The next difference which Mr Smith identifies is that the allegation in respect of Ms P involves at its highest an initial attack by the defendant, who is effectively unidentifiable because of his hooded top. The attack does not involve blunt trauma, nor does it involve sexual behaviour on the part of the defendant. We do not accept that. It appears from Ms P's account that there were sexual actions by the defendant and clear sexual motivation. It is pretty obvious that there was sexual intention when he grabbed her by the throat and dragged her across the road and took her to a secluded place. His conduct later on was also sexual. He admits having kissed her. This was a woman he had never met before in his life. He admits having fondled her buttocks. He says that he did not commit the other sexual acts and he says that this was consensual. It seems to us that there was a sexual element in both of the assaults on the young women.[31]Mr Smith then draws matters together in his next paragraph without adding to the matters set out above. Finally, he says there was no scientific evidence of any type to suggest that the defendant had contact, sexual or otherwise, with Ms Coyne or Ms P.[32]Our conclusion, after examining the similarities and dissimilarities relied upon, is that there were indeed a number of very significant similarities between the attacks upon the two different young women even though, happily, in the second incident the attack was not fatal. Indeed, if one looks at Rule 14.2(3) of the Criminal Procedure Rules which we have set out in Part 1 above, it can be seen that these offences form part of a series of offences of the same or a similar character.[33]Mr Smith emphasizes in his submissions the judge's decision that he would not direct the jury that this was a case where there was cross-admissibility between the evidence on count 1 on the one hand and the evidence on counts 3 and 4 on the other hand. Mr Smith submitted that the evidence which was before the judge at the end of the case when he decided not to give a cross-admissibility direction was essentially the same as the evidence which was apparent from the witness statements at the start of the trial when the application to sever was made. Mr Smith contends that the judge should therefore have foreseen that this was a case where there would not be cross-admissibility between the two incidents. He should have taken that into account. Indeed, that should have driven him to the conclusion that this was a case where the two incidents should be severed and made the subject of separate indictments.[34]These arguments of Mr Smith require us to examine the two statutory regimes dealing with joinder and severance on the one hand and cross-admissibility on the other hand. We have set out in Part 1 of this judgment the relevant statutory provisions concerning joinder and severance. The Indictments Act gives the judge a discretion as to whether or not to order severance in a case where counts have been joined in an indictment. The leading authority on how the judge should exercise that discretion is Ludlow v Metropolitan Police Commissioner [1971] AC 29. In that case Lord Pearson gave the following guidance which has been accepted as authoritative for the last 40 years:
“The judge has no duty to direct separate trials under section 5(3) unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. In some cases the offences charged may be too numerous and complicated (R v King [1987] 1 QB 214, R v Bailey [1924] 18 Cr App R 42) or too difficult to disentangle (R v Norman [1915] 1 KB 341) so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. In other cases objection may be taken to the conclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused (see R v Southern [1930] 22 Cr App R 6 at 9, R v Muir [1938] 26 Cr App R 164 at page 41).”
[35]Cross-admissibility of evidence between different counts in an indictment is an entirely separate question from that of joinder. Up until April 2005 there was no question of cross-admissibility in many of the cases where separate counts were joined in an indictment. The test for cross-admissibility prior to April 2005 was a much stricter one. Since April 2005 the rules governing cross-admissibility have been derived from sections 101 and 103 of the Criminal Justice Act 2003. It is clear that under these statutory provisions there is now cross-admissibility in a wider range of cases than before. Nevertheless, the fact remains that there are two separate statutory regimes, one governing joinder of counts and severance of counts in an indictment, the other governing cross-admissibility as between counts. Mr Smith submits that the two regimes should now be co-extensive, certainly in cases such as this. Mr Smith submits that cross-admissibility is the yardstick. If the evidence on one count is not cross-admissible in respect of other counts then joinder is inappropriate.[36]In the course of argument, we asked Mr Smith whether his submission is that the new regime for cross-admissibility effectively supersedes the test laid down in Ludlow by the House of Lords for the exercise of discretion in respect of severance. Mr Smith contended that it does indeed supersede that test. We have carefully considered this argument. We bear in mind that this is an application for leave to appeal, not a full appeal with the respondent present to assist us. Nevertheless, we have come to the conclusion that this submission is incorrect. In our view the decision of the House of Lords in Ludlow remains the governing authority in relation to severance although of course one can have regard to whether the evidence on one count will be cross-admissible in relation to other counts.[37]Mr Smith, who has put his arguments before us most concisely and attractively, concedes that if the Ludlow test remains the yardstick then he cannot succeed in his argument. He accepts that having regard to the similarities and dissimilarities between the two incidents he cannot bring this case within the Ludlow criteria. We agree with that concession and we consider that it was properly made.[38]In the present case, one of the reasons for the judge's refusal to sever was that coincidence was improbable. That is a relevant consideration when one is dealing with the issues of severance. Improbability of coincidence is a separate concept from cross-admissibility. We pointed out in argument to Mr Smith that the judge would have been quite entitled in his summing-up to direct the jury that, although they must consider each count separately, nevertheless, they could have regard to improbability of coincidence. It must be said that this is a case where improbability of coincidence is quite a forceful point: two attacks upon young women late at night in the same area of Nottingham within a month. In each case the defendant was present very close to the victim shortly before the attack. In each case the defendant concedes that he had some conversation with the victim.[39]There are the other features which we have mentioned earlier. Even if there is no question of cross-admissibility here, improbability of coincidence is a point upon which the prosecution could have relied. Mr Smith accepted that in his submissions, but he forcefully pointed out that the judge did not direct the jury they could take into account improbability of coincidence. That, in our view, was a generous approach taken by the judge, which he did not need to take. The fact that he did not direct the jury to consider improbability of coincidence cannot now be, so to speak, adopted by counsel for the appellant as a basis for criticising the decision on severance.[40]Let us now draw the threads together. We have carefully considered the arguments which Mr Smith has formulated. We have come to the conclusion that those arguments cannot succeed. Accordingly, we refuse the application for leave to appeal against conviction.