Anderson & Anor, R. v [2016] EWCA Crim 1624

[2016] EWCA Crim 1624Case No 201503192 C4 & 201503117 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 5 October 2016
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE SHARP DBE
MR JUSTICE NICOL
MR JUSTICE GARNHAM
Between
R E G I N ACrownv
Between
ORVILLE ANDERSONRAMONE BARNES
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr E Amoah-Nyamekye appeared on behalf of AndersonMr J Scobie QC appeared on behalf of BarnesMr C Gabb appeared for Crown

J U D G M E N T(Approved)

LADY JUSTICE SHARP:

[1]On 3rd June 2015 in the Crown Court at Bournemouth, before His Honour Judge Harrow, the applicants Orville Nicholas Anderson and Ramone Yannick Barnes were convicted of aggravated burglary. On 4th June 2015 before the same court, Anderson was sentenced to 12 years' imprisonment and Barnes was sentenced to 14 years' imprisonment. They both now apply for permission to appeal against conviction and sentence and for the necessary extension of time to do so, after refusal by the single judge.[2]Both men are represented by fresh counsel, Mr Amoah-Nyamekye on behalf of Anderson and Mr Scobie QC who appears for Barnes on the conviction application only. Mr Gabb who prosecuted the case below has attended on behalf of the Crown.[3]We say at once that we see no merit in the applications before us and we agree with the full reasons given for refusing leave by the single judge.[4]The facts can be briefly summarised. In the early hours of 16th August 2013 a violent domestic burglary occurred in which four masked intruders smashed through the patio doors of the occupants' home and threatened the terrified householders with a handgun under the apparent misapprehension that there was a safe containing high value goods at the address.[5]The unfortunate householders, a married couple, Mr and Mrs Jose were asleep at the time upstairs at their home in Bournemouth, as were their two young grandchildren. The couple had moved to this address only a fortnight earlier. They were awoken by a noise. Mr Jose went downstairs to find himself confronted by four black males, their faces obscured by scarves and hoodies. One of the men pointed a handgun at him and demanded "Where's the fucking safe?" Mr Jose told the men that there was no safe in the house but they repeated their demand, shouting and rummaging through the downstairs rooms. Mr Jose was forced upstairs at gun point and into the bedroom where he was grabbed by the arms, pushed to a sitting position and told, "If you don't tell me where the fucking safe is I'll shoot." Meanwhile the other men ransacked the bedroom, shouting, pulling out drawers and emptying the cupboards.[6]Mrs Jose saw the intruders coming up the stairs. She ran to her grandchildren and took them into another bedroom. She was followed by one of the men whom she begged not to hurt them. When the man stepped outside the room she barricaded herself and the children inside using furniture. She managed to attract the attention of a neighbour who saw her, distraught as she was, shouting from an upstairs window and the neighbour called the police. The men left before the police arrived, taking with them two mobile phones and a purse belonging to Mr and Mrs Jose.[7]On 20th August 2013, Barnes was stopped in London while driving a black BMW in relation to which he held insurance and he was arrested. On 7th January 2014 Anderson was arrested.[8]The prosecution case against both men was a circumstantial one. It arrested on expert ANPR evidence, expert cell site evidence, mobile phone analysis, adverse inferences, DNA evidence for Anderson and admitted lies and previous conviction for Barnes. The evidence made a very strong case against both men. The cell site evidence showed the stolen phones were carried away towards London in the black BMW insured to Barnes and that two mobile phones attributed to Anderson were travelling with Barnes into Bournemouth on the night of the offence, and travelled back to London on the same route as the stolen phones. The mobile phone analysis showed Anderson and Barnes were in contact with each other in the hours leading up to the offence and that one of the stolen phones was used to call telephone numbers that had also been dialled from Barnes' phone on the night of the burglary. The same numbers were associated to and had also been called by Anderson on his phone. The evidence showed Anderson's phone was being used to call the numbers of people associated to him on the night of the offence which rebutted Anderson's late assertion in his defence case statement, which was not served until halfway through the trial, that he had left his phone in Barnes' car. A DNA profile matching that of Anderson was recovered from a plastic cup found in the footwell of the black BMW.[9]Added to adverse inferences against both men from their failure to mention significant facts in interview and the late service of their defence case statements, were admitted lies by Barnes, and, in respect of Barnes his previous convictions for attempted robbery and possession of an imitation firearm. These convictions were relied upon to demonstrate a propensity to commit offences of this type.[10]Both men denied any involvement in the burglary. Anderson said that he was in London that evening. He had been drinking with Barnes and had left his mobile phone in Barnes' car before Barnes went to Bournemouth. He also said he had only one mobile phone that contained a "dual SIM card" which accounted for both attributed numbers.[11]Barnes said that he had had a drink in Croydon with Anderson before driving to Bournemouth to meet a friend to go to a nightclub. He had noticed that Anderson's mobile phone containing dual SIM cards was in his car. He had been driving around Bournemouth that night because he was lost. En route he had lost the person he was going to see's details and he had driven around Bournemouth looking for the club without success. At around 4.30 am he had encountered a car occupied by four males whom he knew as violent offenders and who were wearing hood scarves and hoodies. He had then driven back to London alone.[12]The defence relied amongst other things on expert evidence from a communications expert casting doubt on the specificity of the cell site evidence and the absence of direct scientific evidence linking either the men or the BMW to the offence.[13]The principal issue raised on behalf of both applicants in relation to conviction concerns the judge's decision, first, to permit the prosecution to call rebuttal evidence from Lisa Watkinson, a communications expert. She disputed the evidence from Anderson that he had a dual SIM card and said in her opinion that two IMEI numbers related not to a dual SIM but to two mobile phone handsets. Secondly to refuse a defence application to adjourn so their expert could be consulted about what she said. The issue was material because the prosecution's response to Anderson's late case on this issue was that it was extremely unlikely that the applicant Anderson would have accidentally left two handsets in Barnes' car and what was now said about this matter undermined his and indeed Barnes' credibility.[14]The judge concluded in effect that the fact that the issue had arisen late was the fault of the defence because of Anderson's late change of case. It was too late to adjourn and Miss Watkinson's evidence could be challenged by skilful cross-examination. This was a view he was plainly entitled to take on the facts and we do not consider the contrary to be remotely arguable.[15]We observe first that the defence case statement was served only on the day before the prosecution closed its case, in flagrant breach of the Criminal Procedure Rules, as is conceded on behalf of both applicants. The judge was plainly entitled to refuse to allow this case, involving as it did vulnerable victims, to be derailed by the late service of the defence case statement. But there is a further and more fundamental point. There is no material put before us by way of fresh evidence to suggest that the evidence that was given by Miss Watkinson was wrong. In the absence of such evidence it is not arguable, in our judgment, that these convictions are unsafe, not least because of the strength of the other evidence apart from that which was given by Miss Watkinson to which we had already referred. It seems to us that whether this evidence was called as part of the prosecution case before it closed its case or by way of rebuttal made no difference.[16]We do not accept either that there was any error made by the judge in permitting Miss Watkinson to give the evidence she did because of its lack of expertise, as it is said to be, in relation to the issues which she addressed. It is conceded on behalf of the applicants that the judge dealt with her evidence correctly in his summing-up. He made it perfectly plain to the jury that she was not an expert and delineated in our judgment impeccably the limits and relevance of what she had to say.[17]A further discrete point is made on behalf of Barnes. This concerns the judge's answer to a jury question as to whether they had been satisfied that Barnes had entered the premises. The complaint is that this direction was deficient because it did not include a direction on joint enterprise, nor a specific direction on the applicant's knowledge of the presence of a weapon. The single judge said about this in his reasons given for refusing permission to appeal that; “the judge's additional direction to the jury in response to their question about the applicant's participation in the offence was entirely appropriate. The judge had already given a full and proper direction in relation to joint enterprise and participation”. We agree with those observations. It appears from the judge's summing-up that his written directions on law were given to the jury in writing. They had those directions therefore available to them when they considered the answer to the question that he gave. We do not accept it is arguable that on the facts of this case there was anything deficient in his direction on these matters at the start of his summing-up. The judge said:
"The charge is one of aggravated burglary. In this case, the offence is committed by entering premises without permission and stealing property and in doing so being in possession of a firearm or imitation firearm."

The judge went on to say:

"It is accepted that this did happen."
[18]There was no dispute in this case that four men had entered the house and that the events that the terrified occupants of the house described had occurred. The issue the jury had to focus on was whether these applicants were two of the men who were involved. In our judgment, the judge's summing-up properly addressed the issue the jury had to consider and the contrary is not arguable.[19]We turn then to the question of sentence. Both sentences were appropriately long ones in our judgment for this very serious offence. The judge had heard the trial and he was entitled to form his own views about the men's knowledge of the firearms in relation to the offence. The nature and effect of this ordeal on this wholly innocent family does not require to be spelled out. If there was any doubt about the matter it is made extremely clear from the victim impact statements which we have read, which not only describe the dreadful nature of the ordeal which they suffered but the long lasting effects it has had on all members of the family, including the children.[20]It was suggested on behalf of Anderson at one stage that the judge incorrectly sentenced by reference to the robbery guidelines. We think that must be based on a misunderstanding by original trial counsel because it is quite clear from the judge's sentencing remarks that he did not do so. He said that in the circumstances of this case there was an overlap between the robbery and the aggravated burglary guidelines and went on to say:
"... the robbery guidelines, and they are guidelines, are not appropriate in the current situation."
[21]This was plainly offending at the top end of Category 1 of the definitive guideline for aggravated burglary, with numerous factors indicating greater harm and higher culpability. Anderson's sentence was within the aggravated burglary range for Category 1, that is nine to 13 years. The sentence for Barnes above that range was justified by his previous convictions, as was the difference in sentence between the two men.[22]It follows that the renewed applications both for permission to appeal against conviction and in relation to sentence are refused. We should add that had there been any merit in the applications we would have extended time, notwithstanding the somewhat unsatisfactory nature of the explanations that have been given for the fact that they were lodged outside time. In the event that matter does not arise.