Clarke, R. v [2015] EWCA Crim 350

[2015] EWCA Crim 350Case No 2013/06585/B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
His Honour Judge Lafferty
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/03/2015
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE MITTINGMR JUSTICE LEWIS
Between
ReginaRespondentDean ClarkeAppellant
M Cousens (who did not appear at the trial) for AppellantT Naik for RespondentHearing Hearing date: 18 February 2015
JudgmentLord Thomas of Cwmgiedd, CJ:
[1]On 12 November 2013 the appellant was tried with others at the Crown Court at Snaresbrook of conspiracy to rob. He was convicted and subsequently sentenced to 12 years imprisonment. He appeals against conviction by leave of the Single Judge. The background Robbery at 42 Kenwood Gardens

The background

[2]On 1 June 2012 two men disguised as police officers gained access to 42 Kenwood Gardens, London by informing the occupant, Mrs Kumar, that her husband had been involved in a road traffic accident. The two men, subsequently joined by a third, robbed Mrs Kumar of jewellery, a mobile telephone and a bank card.[3]It was the prosecution case that the appellant organised the robbery but did not enter the house. Relying on cell site evidence the prosecution case was that he was in the area at the time the offence took place. There was also CCTV evidence which showed the appellant and his uncle, one of the co-accused, at the business premises of Mrs Kumar days before the robbery.

William Hill Bookmakers, Holloway Road, London

[4]On 15 June 2012 two men went to William Hill Bookmakers in Holloway Road, London. One of those engaged the cashier, Nakita Jordan, in conversation. That person claimed to be a bailiff who needed access to the flats above the bookmakers. He then returned with an older man and began to talk to the cashier, asking about her job and security. She told them that her colleague, Dahlia Dixon would be present the following day rather than her. The two men asked her to leave a note for her colleague, telling her that the two men would be returning and that she should make them a cup of tea.[5]Two men could be seen arriving in a distinctive Mercedes and walking around on CCTV taken in the vicinity of the premises of the bookmakers that day. Based on subsequent identification by Mr Rafferty (to whose evidence we refer at paragraph 7 below) and subsequent identification at an identification parade by Ms Jordan, the prosecution case was that it was the appellant who had been one of the two men, the man who engaged Ms Jordan in conversation and the man who had got out of the Mercedes.[6]On the following day, 16 June 2012, the prosecution case was that one of the co-defendants, Walsh, approached Ms Dahlia Dixon. He said that Nakita had said that Dahlia would be able to make them a cup of tea. He followed Miss Dahlia Dixon into the building, where she proceeded to make a cup of tea for him. Another man then entered the shop. He grabbed Miss Dixon from behind and put his hand over her mouth. He demanded the keys to the safe. Miss Dixon was then taken to the basement where the safe was kept and asked to open it. The safe was time delayed and therefore could not be opened. On being asked where the money was kept Miss Dixon told the two men that it was upstairs. One of the men led her to the toilets and told her to wait for five minutes. He left but immediately returned asking where the CCTV was located. Miss Dixon refused to answer his question. Once the man had left the shop Miss Dixon left the toilet and noticed the CCTV hard drive, the float and her bag had been stolen. It was the prosecution case that the man who had entered the shop and grabbed Miss Dixon was the appellant. That was based upon Miss Dixon’s identification at an identification parade and the evidence obtained from the CCTV in the roads surrounding the premises. It was the prosecution case also that CCTV evidence showed him outside the premises that day.[7]Stills from the CCTV footage taken on 15 and 16 June 2012 were published in the “Wanted” section of the Police Gazette. On 1 September 2012 Michael Rafferty, a prison officer at HMP Stamford Hill, recognised the appellant. He did so on the basis of the time the appellant had spent in the prison where the officer worked. Mr Rafferty had seen the appellant last in 2010. His contact with him had been over a period of four months while the appellant had been a prisoner between June 2009 and April 2010. The appellant made an application to exclude the evidence on the basis it could not be adduced without the jury being informed that Mr Rafferty was a prison officer and that this would be gravely prejudicial as it would put before the jury the fact that the appellant had been a prisoner. As we set out at paragraph 22 below, the judge ruled that it was admissible.[8]The defence case was that the appellant was not involved in the robberies. He gave an explanation of his presence in the areas. He had said he had little to do with Mr Rafferty and had never been at close quarters with him.[9]His appeal against conviction is based on two grounds, one relating to the sufficiency of the particulars of the offence set out in the indictment and the other to the admission of the evidence of Mr Rafferty. (i). The sufficiency of the particulars of the offence set out in the indictment[10]The indictment was in the following terms:
“STATEMENT OF OFFENCE CONSPIRACY TO ROB, Contrary to Section 1(1), Criminal Law Act 1977. PARTICULARS OF OFFENCE DEAN CLARKE, PAUL WALSH and STEVEN FRY between the 25th day of May 2012 and the 16th day of June 2012 conspired together and with other persons to rob a dwelling and business of cash and other items.”

PARTICULARS OF OFFENCE

[11]It was submitted by the appellant that, although the offence was correctly charged, the particulars of the offence set out in the indictment were so defective that the indictment was a nullity and the conviction must therefore be quashed. This submission was founded upon the decision of this court given on 28 April 1998 in R v McNeill (unreported, Tuesday, 28 April 1998, Reference 97/6303/W3) which was drawn to the attention of the parties by the Registrar. In McNeill, the appellant had pleaded guilty at a Crown Court to an indictment containing three counts, one of which was for robbery. He sought leave to appeal on the basis that the sentence imposed was manifestly excessive. In this court he was given leave to appeal against conviction. The judgment of the court was as follows:
“The problem in this case arose when we considered the count of robbery as alleged in the indictment, which, our enquiries revealed, and [counsel for the prosecution]’s presence here confirmed, had not been amended. It read: "Robbery, contrary to section 8(1) of the Theft Act 1968. PARTICULARS OF OFFENCE Graham Frederick McNeill on the 7th day of March 1996 robbed Iceland Plc of a quantity of monies to the value of £60." In fact that indictment simply failed to reflect that to be guilty of robbery an individual, a human being, has to be put in fear or subjected to unlawful force. We have tried to see how this, on one view, technicality, can be circumvented. We are not too apologetic about our concern. It may be a technicality in this case, but it remains a fundamental principle of the whole criminal justice system that no citizen should be locked up and ordered to serve a penal sentence unless he has been properly convicted, and a proper conviction includes being convicted on the basis of an indictment - it may be called a charge, the technical word for it does not matter - which includes particulars of an offence known to the law. Having considered with [counsel for the prosecution] R v Graham [1997] 1 Cr App R 302, our conclusion is that in this case the indictment was defective, so defective as to mean that the plea entered by the appellant was a complete nullity from start to finish.”
The court then went on to express the misfortune that no-one had noticed it, but such things happened and they had to be put right. A venire de novo was ordered to be listed in the Crown Court as soon as practicable. "Robbery, contrary to section 8(1) of the Theft Act 1968. PARTICULARS OF OFFENCE Graham Frederick McNeill on the 7th day of March 1996 robbed Iceland Plc of a quantity of monies to the value of £60."[12]It was submitted on the basis of that decision that in the present case the indictment was a nullity, as the indictment did not specify that Mrs Kumar and Ms Dixon, the employee of William Hill, were subjected to unlawful force or put in fear.[13]The prosecution make two submissions. First that, as the appellant was charged with an offence of conspiracy, whatever the status of McNeill, the indictment charging a conspiracy to rob was sufficient. Second, in relation to McNeill, the decision in McNeill should not be followed as the court had not considered the authorities and it was inconsistent with the approach of this court, principally as set out in the later decisions of R v Stocker [2013] EWCA Crim 1993 and R v White [2014] EWCA Crim 714 where the wrong offence was charged in the indictment. Both cases indicate that in such circumstances where no material unfairness whatsoever is caused to the defendant, the courts are increasingly reluctant to take too technical or formalistic an approach.[14]In McNeil the sole authority relied on was Graham. In that case Lord Bingham, CJ set out the principle to be applied by this court when considering whether a conviction was safe under the provisions of the Criminal Appeal Act 1968 as amended in cases where an indictment was defective. “We would deprecate resort to undue technicality. A conviction will not be regarded as unsafe because it is possible to point to some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice. We would, for example, expect R. v. McVitie (1960) 44 Cr.App.R. 201, [1960] 2 Q.B. 483 to be decided under the new law in the same way as under the old. But if it is clear as a matter of law that the particulars of offence specified in the indictment cannot, even if established, support a conviction of the offence of which the defendant is accused, a conviction of such offence must in our opinion be considered unsafe. If a defendant could not in law be guilty of the offence charged on the facts relied on no conviction of that offence could be other than unsafe.”[15]The issue therefore is whether the particulars were sufficient, if established to support a conviction of the offence of robbery which the appellant is accused. The requirement of sufficiency is set out in s.3 of the Indictments Act 1915 which provides:
“Every indictment shall contain, and shall be sufficient if it contains, a statement of the 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.”
[16]At the time of the decision in McNeill, the requirements as to the particulars to be given in indictments was amplified by the Indictment Rules 1971.

(b) of those Rules provided that:

“The particulars shall disclose the essential elements of the offence: Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by his failure to disclose it.”
[17]The Indictment Rules have been revoked. The requirements are now set out in Crim PR Part 14.2(1)(b) as supplemented by the Consolidated Practice Direction. Part 14.2(1)(b) provides that the indictment must contain “such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant”[18]As is pointed out at paragraph D11.23 of Blackstone, the Crim PR now require less than was required under Rule 6(b) of the Indictment Rules. The sole question is whether the particulars make clear what the prosecutor alleges against the defendant. In the present case there can be no doubt that it was clear what was alleged. The indictment was not therefore insufficient, though it was very, very poorly drafted and ought to have been amended. For example it should not have referred to robbing a dwelling but a person, but that was a simple error and has no effect on the validity of the indictment as it was obvious what was meant. The offence set out in the indictment was correctly described, the particulars of the offence specified supported the conviction of the offence of conspiracy to rob and the particulars made clear what the case of the prosecution was. It was not necessary to specify the ingredients of the offence, such as whether a person was put in fear or unlawful force used. This ground of appeal therefore fails.[19]We should, however, deal with one matter. Until this appeal, as far as we have been able to discover, the decision of this court in McNeill went entirely unreported; it is not referred to in any of the leading textbooks. The words of the particulars of the offence in the indictment in McNeill followed the standard form set out in Archbold, 1996 edition paragraph 21-80 which stated:
“AB on the … day of … robbed JN of £10,000 in money”
The standard form is the same in the 2105 edition of Archbold at paragraph 21-85. The standard form for particulars set out in the 2015 edition of Blackstone at paragraph 4.68 is:
“A on the … day of… robbed V of a gold watch”
[20]As is clear from the authorities decided under the Indictment Rules 1971, the proviso to Rule 6 was important as, if an essential element of the offence was omitted, it did not render the indictment defective if it caused no prejudice: see for example R v K [2005] 1 Cr App R 408. The indictment in the form set out in Archbold and in Blackstone would therefore have ordinarily in the overwhelming majority of cases have been sufficient. Although the judgment in McNeill does not make clear why the proviso to Rule 6(b) was not applicable, the decision must be viewed as a decision where there had been some prejudice on particular facts not set out in the very short judgment that was transcribed.[21]As to the second argument advanced by the prosecution, there can be no doubt that the prosecution case was clear. It is therefore not necessary to examine the cases which examine the extent of the particulars to be given in more complex cases of conspiracy, an issue discussed in cases such as R v Landy (1981) 72 Cr App R 237, R v Hancock [1996] 2 Cr App R 534 and R v K. These issues can be revisited under the Crim PR if necessary. (ii). The evidence of Mr Rafferty[22]As we have set out at paragraph 7, the prison officer, Mr Rafferty had identified the appellant whilst the appellant was serving a prison sentence. The appellant sought to exclude the evidence on the basis that it was not possible to adduce the evidence without the jury being informed that the appellant had served a prison sentence and therefore had a previous conviction. In a short, but very clear, ruling the judge held that the evidence had a probative value which heavily outweighed any prejudicial effect. He made clear that any prejudicial effect could be eliminated by the parties agreeing appropriate formulas for evidence-in-chief; Mr Rafferty could then be cross-examined as to how often he saw the witness, at what distance and in what light without revealing the fact that he saw him while he was a serving prisoner. There was no need for the jury to know, unless the advocate for the appellant opened it up in cross-examination, that Mr Rafferty had got to know the appellant while Mr Rafferty was an officer at the prison where the appellant was serving his sentence.[23]When Mr Rafferty was called to give evidence, the prosecution adduced that evidence without in any way disclosing that Mr Rafferty was a prison officer or that he had identified the appellant through reading the Police Gazette. However, in cross-examination both the fact that Mr Rafferty was a prison officer and that he claimed to recognise the appellant through having seen him whilst serving a sentence of imprisonment for a drugs offence was brought out by the way the cross-examination was conducted.[24]In the course of his summing-up the judge therefore had to deal with this issue. He made it very clear to the jury that the evidence about the appellant being in prison for a drugs offence was not something that they could take into account against the appellant when considering the case against him. They had been given the information solely to explain the contact between Mr Rafferty and the appellant.[25]It was contended before us that the prosecution should have made an application under the bad character provisions of the Criminal Justice Act 2003. That ground is wholly misplaced. The prosecution did not seek to adduce any evidence as to the bad character of the appellant. They did not in any way seek to rely upon the fact that he had been convicted of a previous offence. There was therefore no basis whatsoever upon which such an application could have been made.[26]The only ground upon which the appellant could have successfully objected to the admission of the evidence of Mr Rafferty was on the basis that its prejudicial effect would have outweighed its probative value. In our judgment the judge undoubtedly reached the right decision on that issue for the reasons that the judge gave. It should have been possible to cross-examine Mr Rafferty without eliciting the fact that he had identified the appellant solely because he was a serving prisoner. In any event, even if it would have been impossible to cross-examine Mr Rafferty without eliciting that fact, we consider that the evidence was in any event admissible as plainly the evidence of identification was highly probative and the prejudicial effect could have been dealt with, as it was in the case, by a suitable direction from the judge.[27]This second ground of appeal must therefore fail.[28]We have also considered whether the conviction was safe. There was ample evidence of the appellant’s involvement in the conspiracy and no basis for contending that the conviction was unsafe.

Cited in 1 later judgment