Cooper & Anor, R. v [2017] EWCA Crim 419

[2017] EWCA Crim 419Case Nos. 2015/05293/C2, 2015/05197/C2 & 2015/05294/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Birmingham Crown Court
Queen Elizabeth II Law Courts
1 Newton Street
Venue BirminghamDate Date: Wednesday 8 th March 2017
B4 7NA
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
MR JUSTICE HADDON-CAVE
and MR JUSTICE SOOLE
Between
R E G I N ACrown- v -
Between
ROGER ANDREW COOPERDAVID ALAN COOPER
Computer Aided Transcription byWordwave International Ltd trading as DTI165 Fleet Street, London EC4A 2DYTelephone No: 020-7404 1400; Fax No: 020 404 1424(Official Shorthand Writers to the Court)
Mr M Hussain QC appeared for Appellant Roger Andrew CooperMr O Glasgow QC appeared for David Alan CooperMr D Whitehead appeared for Crown

J U D G M E N T(As Approved by the Court)

[1]On 20th October 2015, in the Crown Court at Birmingham, before His Honour Judge Patrick Thomas QC and a jury, the appellants, Roger Cooper and David Cooper, were convicted of the murder of Sameena Imam ("the deceased”) on Christmas Eve 2014.[2]On the day following their conviction they were each sentenced to imprisonment for life, with the minimum specified term of 30 years (less time spent in custody on remand).[3]They both appeal against sentence by leave of the single judge. Roger Cooper also renews his application for leave to appeal against conviction following refusal by the single judge. We refused that renewed application earlier today.

The factual background

[4]The background can be briefly summarised. Roger Cooper was a warehouse manager for Coventry employed by Costco, a US wholesale warehouse company with a worldwide business. At the material time he had been with the company for 25 years. Costco had a policy which discouraged personal relationships between its employees, and in particular between a supervisor and another staff member. Such relationships were required to be disclosed under the company's policy. Failure to do so could lead to the termination of the employment. We make that clear at the outset because it explains, in substantial part, the very unusual facts of this case.[5]Roger Cooper entered into a sexual relationship with the deceased. She had worked for Costco for twelve years. She had been promoted, on a temporary basis, to marketing manager for Costco with responsibility for the warehouse stores, including the one in Coventry. She was not Roger Cooper's line manager, but she saw him in connection with her work with Costco.[6]Roger Cooper lived with his long-term partner, Susan Fox. Highly relevant to the events that followed was the fact that, apart from his sexual relationship with the deceased, he also had a sexual relationship with Sinead Sweeney. She was also an employee of Costco at the Coventry warehouse; she was directly line-managed by Roger Cooper.[7]As part of the deceased's responsibilities for marketing, the deceased visited the Coventry store. Of relevance to these events, she did so in December 2014. It is clear from what emerged that, probably as early as 4th December 2014, Roger Cooper and his brother, David Cooper, started to plan the death of the deceased. Attempts were made on 12th and 22nd December. Their attempts succeeded on the 24th December 2014 in the following circumstances.[8]Just after 4pm on 24th December, having gone to Coventry as part of her business, the deceased left the Coventry store. That was the last time she was seen alive by anyone, other than by the appellants, Roger and David Cooper.[9]It was common ground that on 24th December Roger Cooper and the deceased met by arrangement in the street near the Costco store. They travelled together in Roger Cooper's car to his brother's house in Leicester.[10]At the trial there was a dispute as to what happened. In the event, the deceased was reported as missing to the police on 26th December.[11]On 1st and 2nd January 2015, Roger Cooper was interviewed by the police. On 7th January 2015, the police arrested both Roger and David Cooper on suspicion of murder. They were further interviewed. On 10th January 2015, David Cooper asked for a further interview. In the course of four interviews that day, he admitted causing the death of the deceased at his home on 24th December. He told the interviewing officers that he had let her into his house shortly after his brother had left. The deceased then asked where his brother, Roger, was. He went into the kitchen, doused a tea towel with chloroform and put it over her mouth. He then sat on her so that he could hold her arms down until she went still. Within a short period, she had slumped and stopped breathing. He then put a plastic bag over her head so that he could not see her face.[12]The deceased's body was then recovered from David Cooper's allotment after excavation by a forensic archaeologist. The post-mortem examination, conducted on 17th January 2015, showed the cause of death had been chloroform toxicity.[13]This was a contested trial. The prosecution case was that, by Christmas 2014, Roger Cooper had reached such a state in his sexual relationships that the drastic solution of getting rid of the deceased became ultimately the only option. The matter appears to have been brought to a head because the deceased had arranged for her and Roger Cooper to stay at the Malmaison Hotel, Birmingham for two nights on Christmas Eve and Christmas Day 2014. That did not happen. Instead, the deceased was driven by Roger Cooper to his brother's house in Leicester, where she was killed with chloroform shortly after arrival. The chloroform had been purchased on eBay in early December. Roger Cooper had then left for Coventry, leaving his brother to dispose of the body.[14]The prosecution relied on evidence that just after 7pm on 24th December, a text message was sent from the deceased's phone which said:
"I am fuming and going to where I am truly cared for"
. The prosecution case was that that was sent by Roger Cooper from the deceased's mobile phone to his own mobile phone. The whole point of this was to send the message from Coventry, which he had reached by that time, so as to try to prove that the deceased was alive and in Coventry at the material time.[15]The prosecution case was that David Cooper had no motive for killing the deceased, other than to assist his brother. Roger Cooper's motive was to kill the deceased as she wished to take the relationship to a more serious level, and he did not want their relationship revealed to others, or it being discovered, because if it became known, it would put at risk his whole employment, and the very significant financial benefit it gave him.[16]Roger Cooper's defence was that the deceased had returned to Coventry with him in his car; that she had been upset with him before the start of the journey; and that as soon as they had reached the outskirts of Coventry, she had demanded to be let out of the car. He let her out, and that was the last time he had seen her alive. He gave various explanations to the police about lies he had told them in the course of his interview, saying that those had been to protect his long-term partner, Susan Fox.[17]It is clear from the jury's verdict that all of these matters were disbelieved. They found that what had occurred was a cold-blooded, callous murder. The judge’s remarks on sentencing[18]When the judge came to sentence the two appellants, he set out the facts and the aggravating features, which are not in dispute in this appeal.[19]First, this was a carefully planned murder, clearly premeditated. The appellants had discussed killing the deceased as early as 4th December through using chloroform. Over the internet they purchased the chloroform which was delivered to David Cooper’s house. It arrived probably on 10th December 2014. It is clear that an attempt to murder her was contemplated on 12th December, but for some reason it did not take place. The callousness and evil of Roger Cooper could be seen by the fact that, although he spent the night of the 12th with the deceased, the following morning he was discussing a new plan to kill her. There could be no doubt that both appellants were in this together. They both thought out the stratagem and no doubt the way in which Roger Cooper would return to Coventry so that a text could be sent from there. A strikingly callous aspect of this case was that, on his allotment which had not been used for some time, David Cooper had dug the ground and prepared the place for the deceased to be buried when she had been killed. This caused extreme distress to the family of the deceased. Another aspect of the planning was the way in which the attempt was made to dispose of the deceased's car and to remove any aspect of their involvement. There could be no doubt, therefore, that this was a carefully planned and premeditated crime of the utmost callousness.[20]Secondly, there could be no doubt that this was a case where there was an intention to kill.[21]Thirdly, there could be no doubt, as the judge found, that this was a case where there had been deliberate concealment of the body in a manner which, because of its disposal in the allotment, there would be considerable decomposition of the body and ultimate distress.[22]When he came to pass sentence, the judge took into account those aggravating factors. He reached a starting point of 30 years' custody by reference to two provisions of Schedule 21 to the Criminal Justice Act 2003. He concluded that this was not a murder in which the culpability was exceptionally high, but he came to the view that it was one which was particularly high. He reached that decision by two routes. The first route was to say that this was a crime where there was an element of gain. The second was to take into account the provisions of paragraph 5A of the Schedule, where a minimum term of 25 years' custody is set for an offender who takes a knife or other weapon to the scene, intending to commit any offence, or to have it available for use as a weapon. On that basis, the judge reached the view that the minimum term should be 30 years' imprisonment. He considered that there was only one mitigating factor: that the two appellants were both men of hitherto good character.

Our conclusion

[23]In our view, the important aspect of this case relates to the question of murder for gain. We wish to stress that this is an unusual and exceptional case in that, on the findings made by the judge, this was not a murder which arose from sexual jealousy; nor was it committed in order to ensure that someone was eliminated because of a sexual relationship. Here it is clear that the motive was for gain. In his sentencing remarks,

the judge said this:

"What was the motive for this cold-blooded murder of a defenceless young woman? She seems likely to have become an embarrassment to Roger Cooper in both his personal and his working life. She had showed signs that she was not prepared to accept further promises from Roger Cooper that he was going to split up with his partner and start a new life with her. It is likely that his failure to honour his promises about the hotel stay over Christmas would have precipitated a breach. In fact, the relationship, if known about, would have – indeed did – cause his partner to break up with him. It might not have had very serious consequences in his work, though Roger Cooper undoubtedly feared it would, that his position was made untenable by the fact that he was simultaneously conducting a relationship with a third woman like [the deceased] at his workplace, unknown, of course, to the other two." 24. "
If that woman had found out about his duplicity and having a relationship with [the deceased], it is likely, and Roger Cooper certainly feared, that she would have revealed the truth as it concerned her and that would be the end of everything for him, so [the deceased] had to die."[24]By reference to Schedule 21,

the judge went on to make the following finding:

"Examples are given of cases that would normally fall within that paragraph, none of those examples apply to this case, though it could well be argued that since Roger Cooper's motives included a desire to keep his job, despite his acknowledged breach of his employers' rules about relationships with the line of command, there is an element of murder for gain here."
[25]The judge went on, as we have indicated, to consider whether the use of chloroform was a particularly heinous part of the murder, as it was akin to poisoning in earlier centuries. He also had regard to paragraph 5A, namely, that this was a weapon that had been delivered to the scene.[26]It seems to us that the proper approach is to look at the case through the motivation: the extremely callous nature of the pre-planning; the premeditation; the intention to kill; and the disposal of the body. It is clear to us that, as the judge found, the motivation was for financial gain.[27]As we have already stated, this is an unusual case. The murder was committed in the context of sexual relationships, but because of the rules that Costco had, the sexual relationships in which Roger Cooper had engaged put him at significant risk of losing his job and therefore suffering immense financial detriment. We consider that on the findings that the judge made on its usual circumstances, the judge was right to conclude that this case contained an element of murder committed for gain. The gain to Roger Cooper included the value of his employment and his pension rights.[28]However, the judge did not find the sole motivation to be murder for gain. He emphatically said that it was an element. We think that although the judge was right to consider it appropriate to have regard to the overall circumstances and the element of gain to place the case within category 5(1), that is to say, where the seriousness was particularly high, we consider that the judge had then to balance out the factors to which we have referred, namely, the callous and detailed nature of the planning, the intention to kill and the concealment of the body with the previous good character of the appellants.[29]Balancing those factors, we consider that the judge should have come somewhat below the 30 year term, but only to a limited extent. In our judgment, balancing those factors together, and concluding that the judge was right to regard the case as one where the seriousness was particularly high, we propose to quash the minimum term of 30 years (less time spent on remand) and substitute for it a minimum term of 28 years.[30]The judge said that he could find no distinction between the appellants. We agree. It has been suggested on behalf of David Cooper that his culpability might be less. However, it is accepted that he had the knowledge of what this was about. He was in it together with his brother. He must have understood the motivation on the part of his brother for the murder. In those circumstances, it seems to us that David Cooper is in no different position to Roger Cooper, and the same minimum term must apply to him.[31]Accordingly, and to the limited extent of quashing the minimum term of 30 and substituting for it a minimum term of 28 years (less time on remand in each case), the appeals against sentence are allowed.