Emery, R. v [2017] EWCA Crim 375

[2017] EWCA Crim 375Case No 201601424 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 21 February 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE HOLROYDE
MR JUSTICE SOOLE
Between
R E G I N ACrownv
Between
PHILLIP GEORGE EMERY
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 J Kern appeared for Applicant for The Crown did not appear and was not represented
J U D G M E N T (Approved)
[1]MR JUSTICE HOLROYDE: On 29 January 2016, in the Crown Court at Cambridge, after a trial before Mr Recorder Lowe, this applicant, Phillip Emery, was convicted of offences of blackmail, affray, theft and criminal damage. On 4 February 2016, he was sentenced by the learned recorder to a total of 34 months' imprisonment.[2]He applied for an extension of time of about 1 month to make an application for leave to appeal against his conviction. That application was refused by the single judge, Walker J. It is now renewed to the full court. There was also listed before the court an application for leave to appeal against sentence, but the court has been told today that that application has been abandoned and we need say no more about it.[3]We are grateful to Mr Kern of counsel, who represented Mr Emery at the sentencing hearing but not during the trial, for his careful submissions on the applicant's behalf to this court.[4]The victims of the various offences were friends or acquaintances of the applicant. The person most seriously affected by the crimes was Mr Michael Stone, in whose house the applicant was living at the material time. The applicant was convicted of blackmailing Mr Stone for sums totalling some £2,000 by threatening violence and/or damage to the property. That was the offence of blackmail charged in count 1. The applicant was further convicted of an affray, count 2, which involved holding a Stanley knife to Mr Stone's throat in the presence of others. He was also convicted of criminal damage to Mr Stone's property, count 7, that offence consisting of damaging the satellite navigation device in Mr Stone's car. In addition, on counts 4 and 6, the applicant was convicted of stealing laptop computers from two male friends, and on count 8 he was convicted of stealing some £250 in cash from a female friend.[5]The trial took place in the absence of the applicant. The applicant was also unrepresented at his trial having dismissed counsel who had formerly acted for him. In summary, the procedural history which led to that situation obtaining at the trial was as follows.[6]In the early stages of the proceedings the applicant was represented by solicitors who later withdrew because of professional embarrassment. A fresh firm of solicitors were engaged to represent him and counsel Mr King was instructed. The solicitors, attended the applicant in custody, but it does not appear that any proof of evidence or defence statement was taken from him.[7]On 26 January 2016, the first day of the trial, counsel Mr King applied for an adjournment so that psychiatric evidence about the applicant's mental state could be obtained. The learned recorder refused that application but allowed Mr King the rest of the day to take instructions from the applicant. On the second day of the trial, 27 January 2016, a similar sequence of events was followed. Mr King again applied for an adjournment to obtain psychiatric evidence. That application was refused. Yet further time, amounting to almost of whole of that morning, was allowed to enable Mr King to take instructions. It may be noted that during the day and a half of proceedings thus far, prosecution witnesses had been waiting to give their evidence.[8]Later on the morning of 27 January, Mr King, on the applicant's behalf, sought a Goodyear indication in relation to possible pleas to two of the charges. The judge indicated that he was not prepared to give any indication. After that, the applicant simply refused to come up from the cells and appear in the courtroom. The applicant dismissed Mr King. Despite having dismissed him, the applicant then used Mr King as a messenger to convey to the court that he, the applicant, had swallowed a razor blade the previous day. We note that in a document helpfully produced for the assistance of the court this morning, emanating from those responsible for the custody of the applicant at court, there is a note to the effect that the applicant told them that he had swallowed two razor blades. In any event, nothing was said to the recorder to suggest that any urgent medical treatment was needed as a result of swallowing any blade.[9]The recorder indicated that the trial would proceed that afternoon. The applicant maintained his refusal to come back into court. The trial therefore proceeded in his absence. In the course of that afternoon, whilst Mr Stone was giving evidence, the applicant sent from the cells a letter to the judge indicating that he had decided to remain out of court because he did not wish to show himself in a poor light because he "could have verbal outbursts". He therefore indicated that he proposed to “wash his hands” of the trial.[10]Later in the course of the trial the applicant refused to be transported from the prison where he was remanded to court. The trial continued in his absence. The recorder in the course of summing-up gave a conventional and proper direction that the jury should not speculate as to the reasons for his absence. The jury returned guilty verdicts, as we have indicated.[11]In the written and oral grounds of appeal it is submitted that the recorder had wrongly concluded that the applicant was fit to stand his trial, had reached that incorrect decision without properly considering the court's obligations under the Equality Act 2010 or in relation to special measures, and had wrongly found that the applicant had deliberately absented himself from the trial process. The grounds of appeal were the subject of a written respondent's notice seeking to uphold the convictions. Focus is therefore placed by Mr Kern on the material before the court which led the learned recorder to conclude that the application for an adjournment should be refused and that the trial should proceed in the applicant's absence.[12]When the initial application for an adjournment was made the recorder had available to him four medical reports, three psychiatric and one psychological, which had been prepared during the period 2012 to 2014. These reports collectively indicated that the applicant displayed features of emotionally unstable personality disorder and post-traumatic stress disorder, both of which had been exacerbated in the past by misuse of drugs and alcohol. In one report, which in March 2013 had specifically addressed an issue of fitness to plead, the author had found the applicant to be fit to plead and to stand trial. The author had also indicated that the applicant knew right from wrong. In addition to those medical reports, the learned recorder also had a bundle of correspondence which the applicant had written to the court, principally addressed to a judge at that court centre who had dealt with the case in its earlier stages.[13]In rejecting the first application for an adjournment on 26 January 2016 the recorder referred to the medical reports which were before him and said that:
"It seems to me that there's little to suggest that any different conclusion would be drawn as to fitness to stand trial. He's already entered a plea in this case."
[14]When the application was repeated and again refused the following day the learned recorder indicated that he would give a full ruling at a later stage. This he did on 29 January. He indicated in that ruling that the correspondence, like the transcripts of interview of the applicant, showed the applicant to be an intelligent man but one with obsessive preoccupations who was unwilling to focus on the relevant issues. The recorder continued:
"What he says is however, generally speaking, coherent, albeit often random. I note that when eventually faced in interview with the allegations about which he was being questioned, he was able to recall the incidents in turn and gave a coherent account which amounted to a defence in each case."
The recorder observed in that interview the applicant had "pretty clearly" set out his defence. He summarised the submissions which had been made by Mr King in support of the application for an adjournment. He referred to the procedural history which we have mentioned. He had very much in mind Mr King's submission that he, Mr King, had had difficulty taking instructions from the applicant, and he also had clearly in mind the medical evidence. As to the letter sent to him in the course of the trial, the recorder regarded it as striking that the letter showed:
" ... self-possession, the careful and considered construction, intelligent argument and the clear grasp of the issues dealt with in court that day. It is very far from the production of a man unable to give instruction, unable to focus, unable to concentrate or unable to string an argument together. It confirms in my mind the strong suspicion already created, a significant part of the defendant's motivation from the outset has been to engineer a delay to the trial for his own perceived advantage."
[15]The learned recorder then went on to pose and to answer a series of questions as to the ability of the applicant to participate in the trail and concluded that the applicant was engaged in a deliberate attempt to manipulate the court process. He found that the applicant "was capable of dealing with the issue rationally but he did not want to".[16]In his submissions on the applicant's behalf Mr Kern placed before the court a substantial list of decided case law and relevant legislation and guidance, but his focused oral submissions confirm that his principal grounds of appeal are as follows. First, that the material before the court should have led the recorder to conclude that the applicant because of his mental difficulties was not fit to participate in the trial process. In this regard Mr Kern relied on passages from the medical evidence to which we have referred indicating the difficulties which the applicant experienced in maintaining concentration and the stress which the trial process might place him under. Secondly, Mr Kern challenged the medical evidence on which the recorder relied as being out of date and for the most part not directed to the specific question of fitness to stand trial. Thirdly, he criticised the recorder for failing to take sufficient account of the difficulties which the trial process would present for the applicant and failing to take the initiative in proposing adjustments to the trial process which would assist the applicant. Lastly, Mr Kern submits that the recorder had been wrong to find that the applicant had voluntarily chosen not to take his medication at the time of trial.[17]We have reflected on those various submissions but, like the single judge when he refused leave, we have concluded that, however formulated, each of the grounds fails for the same essential reason. The recorder concluded that far from there being any reason to adjourn the trial, all the evidence and information pointed to the applicant being fit to stand trial but deliberately choosing to absent himself from the trial when his attempts to secure an adjournment and thereby to delay the procedure were unsuccessful. In our judgment, the recorder was fully entitled to reach that conclusion. He rightly summarised the effect of the medical evidence as being that there was no obstacle to the applicant's standing his trial. True it is that the most recent of those reports was many months earlier, but the recorder was entitled to conclude that there was no reason to think any further report would reveal any different picture.[18]Moreover, the learned recorder did have important recent indications supporting his view. He had the bundle of correspondence to which we have referred in which the applicant, whilst clearly interested in pursuing points which seemed important to him rather than important when viewed objectively, had shown himself perfectly capable of understanding of the issues and had articulated what he wanted to say about them. Most recently in the bundle of correspondence the court sees that the applicant had written to a judge seeking judicial assistance with obtaining treatment for an ankle injury which the applicant had unfortunately suffered. There was nothing in that most recent letter to suggest that he had problems facing the trial other than physical difficulties which might be caused by issues of access and the like. Moreover, the most recent letter referred to anxiety on the applicant's part about being exposed to violence in the prison setting and thereby suffering further injury to his ankle, but still did not say anything to suggest that he was unfit to plead. In addition, and in our view importantly, the applicant had been able at an early stage of the trial process to instruct his counsel to seek a Goodyear indication as to sentence.[19]In those circumstances, the recorder was, in our view, entitled to conclude that there was no reason to doubt the applicant's ability to participate in the trial and that the applicant's absence from trial was a matter of choice. Having reached that conclusion, then any question of adjourning for a further psychiatric report fell way. To have adjourned for that purpose would have been to indulge the applicant in what the recorder justifiably believed was an attempt to manipulate the court process. Similarly, the submission that the recorder should have been proactive in proposing possible ways in which the applicant might be assisted to give evidence, such as through the use of an intermediary, overlooks the simple fact that the applicant flatly refused to come up from the cells to the courtroom. No submission was made on his behalf to the recorder to the broad effect that with assistance he would be able to participate in the trial process.[20]For all these reasons, the recorder was, in our judgment, entitled to reach the decisions he did. There was no unfair prejudice to the applicant in the trial proceeding in his absence. His conviction is not even arguably unsafe. In those circumstances, there would be no purpose in our granting the requested extension of time, even if (which we are bound to say we doubt) the explanation for needing that extension could be regarded as adequate.[21]In those circumstances, and for those reasons, the renewed application for an extension of time fails and is dismissed with the result that the application for leave to appeal against sentence cannot succeed.