Hoare & Anor, R v [2016] EWCA Crim 886

Case No 2015/05466/B3Case No 2015/05597/B3[2016] EWCA Crim 886
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM Bristol Crown Court
Mr Justice Dingemans
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/06/2016
Before
LADY JUSTICE MACUR DBEMRS JUSTICE NICOLA DAVIES DBETHE RECORDER OF LIVERPOOL(His Honour Judge Goldstone QC)(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
ReginaAppellantShauna HoareRespondentNathan MatthewsRespondent
Mr A Langdon QC and Miss C Spedding appeared for Applicant Shauna HoareMr A Vaitilingam QC appeared for Applicant Nathan MatthewsMr W Mousley QC Mr R Posner appeared for CrownHearing Hearing dates : 23 June 2016
Judgment
[1]Shauna Hoare and Nathan Matthews renewed their applications for permission to appeal against convictions and sentence after refusal by the single Judge. Mr Langdon QC and Ms Spedding appeared pro bono for Hoare in relation to both applications. Mr Vaitlingam QC appeared pro bono on behalf of Matthews in relation to the renewed application for sentence only. We considered Matthews’ renewed application on the papers having rejected his application for an adjournment to obtain legal representation to argue in respect of the previously prepared grounds or otherwise. The Crown were represented, as is now the case in all Counsel renewed applications in cases involving the death of a victim, by Mr William Mousley QC and Mr Posner. All had appeared in the trial at first instance. However, Mr Mousley QC was only called upon in relation to points of law arising from Hoare’s renewed application in respect of conviction. In the event, the point upon which his assistance was sought did not inform our decision, announced on 23 June, to dismiss all the applications. These are our reasons.[2]This is a case of some notoriety. On 7 October 2015 the applicant Matthews pleaded guilty to perverting the course of justice, preventing the burial of a corpse and possessing a prohibited weapon, namely a stun gun. On 11 November 2015 the applicants Hoare and Matthews were both convicted of conspiracy to kidnap, Matthews was convicted of murder and Hoare was convicted of manslaughter. Hoare was also convicted of perverting the course of justice, preventing the burial of a corpse and possessing a prohibited weapon.[3]On 13 November 2015 Matthewswas sentenced to life imprisonment with a minimum term of 33 years, less 253 days spent on remand. Hoare was sentenced to a total of 17 years imprisonment, all sentences being made concurrent to the sentence handed down in respect of the offence of manslaughter, namely 10, 2, 3 and 2 years respectively for the offences of conspiracy tokidnap, perverting the course of justice, preventing the lawful burial of a corpse and possession of an offensive weapon.[4]Reporting restrictions have been made previously in relation to related family proceedings. These continue. An amended order under s.45A of the Youth Justice and Criminal Evidence Act 1999 was made with respect to the child witnesses CB and AD which we continue. An order made restricting reporting of other related but severed proceedings against one of the applicants pursuant to Section 4(2) of the Contempt of Court Act 1981 is no longer necessary, but the complainant in those proceedings is entitled to life-long anonymity pursuant to the Sexual Offences (Amendment Act) 1992.[5]A brief summary of the facts of this case are as follows. On 20 February 2015, Rebecca Watts, a 16 year old girl from Bristol, was reported missing by her father. Rebecca lived with her father and her step-mother, the mother of the applicant Matthews, at ‘Crown Hill’.On 19 February 2015, Rebecca arrived home shortly after 8.30am. Her step-mother left the house at 10.15am. Matthews rang the landline at the property at about the same time as his mother left. At 11.03am Rebecca sent her boyfriend a text message.[6]Police mounted a full investigation and questioned members of the family to ascertain Rebecca’s whereabouts.Matthews and Hoare both denied seeing Rebecca at Crown Hill on the day of her disappearance, but said they had been in the property and heard a door slam, which implied Rebecca had been there, but left to go out.[7]On 3 March 2015, during a police search of a property at an address 80 metres away from the applicants’ home in another area of Bristol, a right hand that had been severed at the wrist was found in a suitcase in the shed. On closer investigation it was found that Rebecca’s entire body had been cut up and packaged in cling-film, plastic bags, suitcases and other luggage stored in the shed. The tools used to dismember her body (including a circular saw bought by Matthews from B&Q) were also stored in the shed.[8]In police interview, after admitting his initial lies about his involvement and movements, Matthews eventually admitted that he had visited Crown Hill on 19 February and tried to kidnap Rebecca using a mask to conceal his face. During a violent struggle, in the course of which the mask slipped, he admitted using a stun gun on her, and strangling Rebecca to death. He further admitted dismembering her body in a bath tub and then concealing it in the shed. He maintained that throughout his offending he had acted alone.[9]The Prosecution casewas that the applicants jointly conspired to kidnap and then murdered the deceased, Matthews being the principal and Hoare the secondary party as part of a joint enterprise. The offences were committed for a shared sexual purpose and the couple had an unhealthy sexual interest in petite teenage girls and had planned to engage in sexual acts with Rebecca. The Prosecution relied on the applicants going to Rebecca’s home equipped with tape, handcuffs and a stun gun. The cause of death was suffocation and not strangulation. Post mortem evidence proved that Rebecca’s mouth and nose had been covered after a violent struggle which had caused bruising to her arms, legs, elbows and knees. This was not an accidental death and Matthews’ account of the killing could not been relied upon as it had been rejected by the pathologist. Quite soon after Rebecca’s death, her body had been meticulously dismembered at the applicants’ home and the pieces wrapped up and stored with cat litter to prevent any odour. Matthews and Hoare then told a web of lies to both the police and family members to attempt to conceal their guilt.[10]The Prosecution relied on the movements of the applicants that day, they were seen in a store together, buying batteries at 11am, and were both then in Crown Hill on 19 February 2015. Hoare admitting to the police that she was with Matthews there all day. In addition there were incriminating text messages between the two applicants, talking about kidnapping pretty teenage girls, Hoare’s admitted lies to police concerning the text messages, Rebecca’s blood on the doorframe outside her bedroom, some of which contained Matthews’ fingerprints, Matthews’ medical condition which meant he could not have physically carried Rebecca’s body from the scene of the killing and his car on his own and the proximity in time from the killing, to the dismembering of the body, which took place in a bath tub in the applicants’ home.[11]There was evidence which indicated a sexual motive for the killing, including a graphic rape video entitled: “virgin teen gets raped in her own house,” together with 273 images and 21 other movies on a laptop computer found at the applicants’ home and “bookmarked” pornographic websites found on the applicants’ mobile phones, as bad character evidence demonstrating a shared sexual interest in petite teenage girls and group sex and evidence from one witness that she had engaged in consensual sexual acts with the applicants .[12]The Prosecution also relied on evidence that Hoare purchased one of the stun guns and cell site evidence and other text messages and evidence from both applicants’ mobile phones including incriminating search terms on Hoare’s phone such as: “how long to wait before calling the police for missing person,” and: “Do you want to hide a body” ,DNA attributable to Hoare being detected on a mask, clothing and bags, and the applicants jointly purchasing a variety of cleaning products, three rolls of cling-film and sacks on 21 February 2015.[13]The Defence case for Matthews wasthat he could not be guilty of conspiring to kidnap, as he had acted alone in trying to kidnap Rebecca. He admitted killing Rebecca but maintained that the strangulation was not intended to kill her and that he was guilty of manslaughter only, as he lacked any intent to kill or cause really serious injury. He relied on evidence that Rebecca was rude and disrespectful to his mother, who suffered from multiple sclerosis which significantly affects her mobility, as his motive for the kidnap.[14]The Defence case for Hoarewas that since the age of 15, she had been in a controlling and violent relationship with Matthews and took no part in any plan to kidnap or kill Rebecca. She completely denied the other offences and maintained that Matthews dismembered and arranged for the storage of Rebecca’s body without Hoare’s involvement or knowledge.[15]Both applicants’ relied on their previous good character and gave evidence. Hoare also gave an account that she was required by Matthews to use a bucket instead of being allowed access to the bathroom to use the toilet whilst the body was being dismembered by him alone and without her knowledge.[16]In relation to the murder, the jury were directed that they had to be sure that Hoare foresaw that Matthews would cause really serious harm to the deceased during the course of the kidnap.[17]Successful ‘bad character’ applications were made by the prosecution in respect of: evidence of bookmarked websites which demonstrated an interest in petite teenage girls and group sex pursuant to Section 101(1)(c) as important explanatory evidence which explained the motive for the kidnap; evidence of consensual sexual as a “threesome” as relevant; and, evidence of the rape video and other pornographic material found on the applicants’ laptop which demonstrated an interest in rape, petite teenage girls and group sex and associated text messages from the applicants’ mobile phones pursuant to Section 101(1)(c) and (d) to explain the motive for the kidnap.[18]An application was made on behalf of Hoare to admit the evidence of a witness, KF, who alleged a violent and controlling relationship with Matthews immediately prior to him commencing his relationship with her as relevant to his propensity to be violent and controlling towards her. The trial judge rejected the application as not being substantially probative of the issue.[19]In sentencing the applicants, the trial judge noted that Hoare aged 21 was of previous good character and had had a significantly disrupted childhood and been the victim of rape at age 13. He accepted that Matthews was violent and controlling towards her. He determined the motive for the kidnap was sexual and it was difficult to know how the applicants thought the kidnap would end but they were prepared with tape, handcuffs and a stun gun. In setting the minimum term for Matthews and the determinate sentence for Hoare, the Judge considered that this was the killing of a child, with dismembering and concealment of the body. The deceit shown to family members was seriously aggravating and the proposed abduction was for a sexual purpose. The Judge further took into account the fact that Hoare would lose contact with her daughter.[20]The written grounds of appeal in relation to Matthews’ proposed appeal against conviction are that 1. The Judge erred in admitting as bad character evidence: i) the graphic rape video ii) other pornography found on the same laptop which depicted petite teenage girls iii) evidence that the applicants both engaged in consensual sexual acts with X (a “threesome”) which was not important explanatory evidence within Section 101(1)(c) of the Criminal Justice Act 2003 (as defined by s.102) 2. Any successful appeal in respect of Hoare’s Grounds of Appeal as supporting his assertions that his convictions on Count 1 and Count 2 are unsafe.[21]Refusing permission to appeal, the single Judge commented[1]The judge described the victim, Rebecca Watts as being a petite 16 year old girl. The prosecution contended that the defendant’s motive in kidnapping her was sexual. Therefore, it seems to me that the judge was entitled to admit in evidence the computer sites which the applicant had “bookmarked” and visited, which featured(a) the rape of such a girl in her own house and(b) other images which tended to demonstrate his sexual interest in young teenage girls. Such evidence was in my judgement admissible under gateway (d) as showing a propensity towards sexual offending towards such girls (and perhaps under gateway(c) as well), as the judge explained.[2]In any event, the Court of Appeal is very reluctant to interfere with bad character decisions given by trial judges in the course of reasoned rulings, unless the decision was plainly wrong or unless it is clear that the judge has improperly considered irrelevant matters or has overlooked relevant matters; none of which could possibly apply to the judge’s decision in this case.[3]The evidence of the — admittedly consensual - sexual ‘threesome’ with X (whom I do not think it necessary here to name), may not strictly have been ‘bad character evidence, (although some might argue that such conduct was ‘reprehensible’ within the meaning of the 2003 Act).[4]However, this evidence was to my mind plainly admissible since it demonstrated a propensity for the applicant to engage in such conduct, which may have made it more likely and the co-defendant would jointly kidnap the victim with a view to jointly engaging in some sexual assault upon her.[5]It is said that if the co-defendants conviction for a conspiracy to kidnap is set aside, then the applicant’s conviction for conspiring with her must necessarily also be quashed, since he could not conspire with himself; and, so it is said, if the conviction for the conspiracy to kidnap is quashed then the safety of the conviction for murder is imperilled. I think this extended line of reasoning is highly questionable, but in any event the matter does not arise since I have refused leave for the co-defendant to appeal her conviction; therefore, the factual pre-condition for this ‘parasitic’ ground of appeal does not arise.”[22]We have considered these grounds afresh and have the benefit of Mr Vaitlingam’s concession that there is no legal impediment that precludes the charge of a conspiracy between cohabiting partners. In any event, in the light of our refusal of Hoare’s application, the second ground falls away. We really cannot see that there is more to add to the single Judge’s reasons. The evidence of propensity revealed by the video material, pornographic sites and associated text messages was capable of going to motive and also to undermine what is, objectively viewed, a highly implausible reason for kidnap and was obviously relevant to the jury’s understanding of the case.[23]This evidence would obviously prejudice Matthews and Hoare, but its probative value was significant. We consider the trial judge admission of this evidence to have been entirely proper. None of Matthew’s convictions are thereby rendered ‘unsafe’.[24]Mr Langdon has argued the renewed application for permission to appeal Hoare’s conviction with conspicuous and, we have no doubt, his customary skill. He pursues one ground of appeal, namely:
“the Judge erred in failing to admit the evidence of Matthew’s previous girlfriend, KF, as evidence of bad character in support of Hoare’s case that Matthews was violent and controlling in their relationship under Section 101(e) of the Criminal Justice Act 2003.”
[25]The single Judge had rejected the application on the papers with detailed reasons given as follows: 1. The applicant contended that her relationship with her co-defendant Matthews was inherently abusive and that he had habitually controlled her and had used violence towards her. She gave evidence herself to this effect. She was, quite rightly, permitted to ask others who had given evidence for the prosecution of the instances in which they had seen or heard Matthews being controlling or violent towards her. In order to give further support for her contention as to his nature and characteristics, she applied to call evidence from Matthew’s former partner, KF, to the effect that he had behaved in a similar way towards her. 2. It was common ground that this evidence was “bad character” evidence relating to her co-defendant, which if it was to be admitted had to pass through gateway (e) of section 101 of the Criminal Justice Act 2003. 3. The trial judge gave a careful considered ruling on 5 November (at Annex A attached to her grounds of appeal); he accepted that there was an important matter in issue between the defendants, namely, whether the relationship was as she contended controlling and violent (my emphasis). 4. However he was not persuaded that the evidence of KF would have “substantial probative value” in the case, since it related to a different relationship, with a different partner, which had different dynamics, which had ended 6 years before and in which the conduct to be relied upon differed in a number of respects from the conduct on which the applicant relied in her relationship with Matthews. 5. Furthermore, as the judge also observed, the differences between the complainant’s description of the instances of violence in her relationship with Matthews and the account given by Matthews himself were not all that substantial. 6. Accordingly he declined to admit the evidence of KF. 7. It is well established that the Court of Appeal is reluctant to interfere with the reasoned rulings of trial judges made in the specific factual context of the cases they are trying, unless it is clear that the judge has come to a wrong decision, or that he wrongly considered irrelevant matters or has failed to consider relevant matters. In my Judgement there is no prospect whatsoever of the applicant overcoming this high hurdle: indeed the judge’s decision seems to me to be plainly right. 8. I might add that another very sound reason that the judge might have given for not admitting the evidence of KF was the acute undesirability of introducing the satellite issue of the way that Matthews had treated his former partner. 9. This conviction seems to me to be entirely safe and the application for leave to appeal is refused.”[26]Mr Langdon QC has set out his stall at the outset, which can be summarised to be: the issue between the parties for the purpose of the application to admit ‘bad character’ evidence of one defendant against another, pursuant to section 100 (1) (e) of the Criminal Justice Act 2003, was Matthew’s controlling nature of Hoare, enforced by acts of violence, which subdued her will; Matthew’s minimised it, as did the Prosecution; Hoare was entitled to lead the evidence of KF to demonstrate that her characterisation of their relationship was not self-serving; the trial judge came to the wrong decision since he took into account irrelevant information and failed to give appropriate weight to relevant features of the presentation of her case.[27]Mr Langdon QC has identified the evidence before the jury, admitted by the trial judge in relation to the different perceptions of each of the defendants and other witnesses as to the dynamics of the relationship between the defendants. He reminds us that the trial judge did find that the nature of the relationship between Hoare and Matthews was “an important matter in issue” between the co-defendants but distinguished the evidence that was likely to be given by KF, as indicated in a tape recorded police interview with KF, as being in factually different circumstances and not necessarily indicative of the defendants’ relationship, and consequently not substantially probative. Mr Langdon’s overall submission is that rather than demonstrating significant differences, those features highlighted by the judge in his ruling, namely the age difference between Matthews and KF and the time gap since the currency of the relationship actually resound in the significant similarities to be observed in the Matthews/Hoare relationship.[28]We proceeded on the basis of the trial judge’s finding that this was an important issue between the parties. After debate as to whether or not “propensity evidence”, other than that going to untruthfulness, is admissible in criminal proceedings at the behest of a co-defendant, in the light of the terminology deployed in section 103(6) and 104(1) which creates some ambiguity on the point, we accepted that it was prima facie admissible in evidence subject to the necessity that the evidence should be of “substantial probative value”, that is, that it adds significantly to other probative evidence directed to the same issue, which is an important issue between the defendants. (See Phillips v R [2011] EWCA Crim 2935)[29]We are satisfied that the objectively discernible factual differences identified by the trial judge do not, of themselves, distinguish the nature of the relationship between Matthews/KF and Matthews/Hoare, and in this case we disagree with the trial judge. However, we are acutely aware that the factual similarities of one relationship may not define the nuances introduced into a different relationship by virtue of the individual characteristics of the interaction of the different personalities involved. That is, in this case the evidence of KF had limited, if any value to add to the picture created by the evidence of witnesses to the actual relationship concerned between Matthews/Hoare. Consequently, we did not consider that the trial judge’s ruling, adverse to Hoare, was wrong.[30]In the circumstances, we did not consider it necessary to embark upon the “satellite litigation” point other than as reflective of “substantial probative value”. That is, we took the view that if the evidence was of substantial probative value, any argument that the jury would be distracted by satellite litigation would not weigh against it. Logically, if it did distract in the true sense, the evidence would not have substantial probative value in relation to the issue in dispute between the defendants. In any event, we were readily persuaded by the quality of the advocacy we discerned in all quarters in the trial that, if the trial judge, or we, had ruled the evidence to be admissible, it would have been more than adequately managed to assist the jury.[31]Lest we may have been mistaken in that determination, and in any event, we considered the safety of the convictions, particularly in respect of Counts 1 and 2, kidnap and murder, since Mr Langdon QC made concession regarding the available evidence in respect of the remainder counts. In doing so, realistic though that was, he effectively concedes the availability of evidence which was capable of establishing the case against Hoare in respect of conspiracy to kidnap, and the foresight of the consequences of that venture – in Hoare’s case the prospect of at least actual bodily harm befalling Rebecca. That is, the evidence of that which occurred prior to the kidnap attempt, including the purchase of stun gun and the text messages passing between the defendants, her ’voluntary’ presence and remaining at the scene , the necessary assistance to remove the body, able to be inferred, and the actual dismemberment of the body and subsequent lies, even when removed from Matthew’s domination and in police custody, were counters against the nature of her subjugation to him during the relationship being such as to make her unwittingly party to purchase and possession of offensive weapons and masks/ protective clothing and to be present at the scene of what would have been a kidnap but for Rebecca’s killing on site.[32]We are satisfied that there is no reasonable argument that Hoare’s convictions are unsafe.[33]The trial judge understandably did not seek a report before sentence. Section 156 of the Criminal Justice Act 2003, requires that the full Court obtain a Report unless, as we found here, it is unnecessary. We have read the report of Dr Broderick in relation to Hoare.[34]Matthew’s seeks permission to appeal against sentence on the basisthat, in the absence of any sexual assault on the victim the Judge erred in sentencing him on the basis that the murder was sexually motivated, and there was ample evidence that the motive may have in fact been the deceased’s treatment of his mother. In this respect, since the motive for killing Rebecca had been ‘mixed’ at least, the starting point should have been discounted in accordance with R v Tailor [2008] 1 Cr App R (S), 37. Alternatively, the starting point for sentence was too high in any event and should have been closer to 15 years bearing in mind the facts of other, far worse, cases in terms of depravity which have resulted in sentences not far greater than that handed down in this case.[35]To further his argument that there was an alternative, or additional motive for Matthews to kill Rebecca, Mr Vaitlingham QC, referred us to the agreed facts, evidence and the substance of text messages capable of indicating Rebecca’s disrespectful attitude towards her step-mother, Matthews’ mother, and the close nature of the relationship between Matthews and his mother and his resentment of Rebecca’s behaviour. In this respect he argues that the sentencing judge was wrong to find that Matthews’ accounts regarding motive “were obviously dishonest accounts and the jury must, by their verdict, have rejected them.” We agree. However, we had no doubt that the judge was entitled on the evidence to find that the motive for the killing was sexual for the reasons referred to above as justifying the admission of evidence of the book marked pornographic videos and photographs and related text messages. Rebecca was 16, and therefore “a child”. The fact that he hated Rebecca does not undermine that point. We do not accept the argument that a mixed motive – sexual and another- dilutes the impact of Criminal Justice Act 2003, Schedule 21, paragraphs 4(1) ,(2) (b) and (5) (1) (a). The case of Tailir does not establish this proposition. What the court said at paragraph 21 in the fact specific circumstances of that case was that:
“…he could and perhaps should have discounted the starting point by reference to the mixed motives that were present here. There is no reason to believe that there was uppermost in the mind of this appellant the financial gain that he would make upon the death of his wife. No doubt he expected it, but it was not, on the view which we have formed about the facts of this case, the primary motive for this offence”
. From this passage we extrapolate that if the primary motive was discerned to be the expectation of gain, then a secondary or additional motive would not mitigate it.[36]The sentencing judge cannot possibly be criticised for selecting the starting point of 30 years prior to aggravating and mitigating factors. He correctly identified both factors. In the circumstances, the determination of the minimum term to be served cannot be realistically described as excessive, let alone manifestly so.[37]Mr Langdon QC’s arguments in relation to Hoare’s sentence rely upon the reduced culpability indicated by the sentencing judge’s acceptance that she was a victim of a controlling and violent relationship with Matthews, poor early life experiences and lack of intent or foresight that Rebecca would be subjected to grievous bodily harm or death. He argued that the weight that should be given to these factors would substantially mitigate the inevitable prison sentence, front loaded as it was in relation to the manslaughter. We considered these arguments with some care but were unconvinced by them. The circumstances of this case demanded condign and retributive justice and indicated that the convicted defendants were prospectively to be designated as ‘dangerous’ offenders. But for the adverse influence of Matthews, as he accepted there to be, the sentencing judge may well have been compelled to so conclude in the case of Hoare. In any event, those factors which informed the unimpeachable sentence in the case of Matthews, necessarily informed the sentence in the case of Hoare. In the circumstances, the determinate term handed down cannot be realistically described as manifestly excessive.