Case No: 200104068X2
Neutral Citation Number: [2002] EWCA Crim 2474
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
(HIS HONOUR JUDGE KING)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 6 November 2002
Before :

LORD JUSTICE POTTER
MR JUSTICE BUTTERFIELD
and 
HIS HONOUR JUDGE FINDLAY BAKER QC
(Acting as a Judge of the CACD)

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Between :

	R	Respondent	
	- and -		
	JULIAN WOOD	Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr Gau for the appellant
Mr B Stephenson for the respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice  Potter: 
1.	This is the appeal of Julian Lesley Wood now aged 42 who, on 6 June 2001, in the Crown Court at Winchester before His Honour Judge King and a jury, was convicted after a three-day trial of doing an act tending to pervert the course of justice and was sentenced to three months’ imprisonment.  Leave to Appeal was granted by the full Court on 26 March 2002.  Following argument on 21 October 2002, we dismissed the appeal indicating that we would hand down our reasons in due course.  Those reasons appear below.
2.	The short facts are that on 22 August 2000 at about 9.00pm police officers observed the applicant travelling at 121 mph on his Ducati motorcycle.  He was stopped and subsequently appeared before the New Forest Magistrates on 11 October 2000 where he appeared in person and pleaded guilty to the offence.  He was later charged with doing an act tending to pervert the course of justice on the basis of what he said to the Magistrates upon that occasion when personally presenting his plea in mitigation in order to avoid, or at any rate minimise, any period of disqualification for the motoring offence.
3.	The prosecution case was that, in the course of that mitigation, consistently with what he had said to the police officers at the time of his arrest for the motoring offence, the appellant claimed that he was a retained fire fighter and would be unable to perform his duties if he were disqualified from driving.  Evidence as to what was said at the time of the arrest was called from the arresting officers.  Although there was no recording or transcript of what was said in Court, oral evidence as to that was given by one of the lay magistrates and the Court Clerk before whom the plea was presented and a press reporter present in court at the time.  The defence case was that the applicant had not misled the Court and sought only to give the impression that he was qualified as a retained fire fighter.  It was admitted that he had at one time been a retained fire fighter, but he had ceased to be so employed in January 2000, some six months before the speeding offence.  However, it was the appellant’s case that he intended to return to those duties at a later date.
4.	At trial, PC Bayles-Gear gave evidence relating to the speeding offence to the effect that, after the appellant had got into the police car, a conversation had ensued.  As a result of what the appellant said the officer formed the impression that he was employed by, or at any rate something to do with, the fire service.  He said that the appellant said that if he lost his licence he would lose his job.  He subsequently confirmed that he was a company director.  In cross-examination the officer said that he did not recall the appellant saying he was involved in rescue work and repeated that the impression that he had was that the appellant would lose his job with the fire service if he lost his licence.  He said that the appellant was distraught at the scene.  He had not noted precisely what was said in that respect because he considered that such remarks were not relevant to the commission of the offence.  PC Newman gave evidence in similar terms.  He said he had only made a cursory note at the time.  He assumed that the applicant was a retained fireman although he stated that his occupation was that of company director.  He said he understood the situation to be that the applicant was currently employed in some capacity by the fire service.  
5.	Melody Roberts, the magistrate who gave evidence, said that she recalled dealing with the applicant for the offence.  She gave evidence from recollection of a number of things he had said in mitigation and specifically recalled that he had said that he was a retained fireman and needed his licence to carry out his duties.  In cross-examination she said that the applicant had with him a prepared statement which he asked to read verbatim.  She did not recall him to have been upset or crying as he did so.  She said she would have made notes at the time but these had since been discarded.  When she was shown a copy of what was said to be the prepared statement which the applicant had used, she said its content did not accord with her recollection in various respects.  In particular, whereas the statement she was shown referred to the applicant simply as a “qualified volunteer fire-fighter who wished to retain the ability to offer his services to the public”, she reiterated that he had said he was a retained fireman.  Pressed, she said that she could not be specific. She accepted that the applicant could have said what appeared in the statement she was shown, but in re-examination repeated that it was her clear understanding that the applicant needed his licence in order to continue as a retained fireman.  She said the Bench had felt some sympathy with him, but that they had not been influenced in their decision by the specific mitigation advanced before them.  
6.	Ian McConnell, the legal advisor to the Magistrates, spoke from his notes of aspects of the mitigation, which included the fact that the applicant was a retained fireman.  He had made a specific note of that phrase.  The matter interested him because his father-in-law had been a retained fireman for a number of years.  He said he asked the applicant if he was employed by the Hampshire Fire and Rescue Service and he confirmed that he was.  In cross-examination, he said that it had been clear that the applicant had not fully addressed the question of disqualification in his plea.  He asked the applicant what he meant by “volunteer fire fighter”.  He confirmed that, in making his plea, the appellant had appeared to be reading from a script.  He said that when he had finished, Mr McConnell asked him to elaborate on the phrase and he clearly recalled the applicant saying he was a retained fire fighter.  Put to him that this had not happened, he said he had a clear recollection that it had. 
7.	Rosamund Kirby, a local court press reporter, said she had been present during the applicant’s court appearance and had made notes.  These notes did not include the expression retained fire fighter.  She had noted the applicant as saying that he was an “on-call fire fighter” and needed his licence for this.  In cross-examination it was established that she had not recorded all that was said in court.  She recalled that the appellant read his mitigation from a prepared text and did not recall his becoming upset or crying during the hearing.  Her recollection was that he described himself as an on-call fire fighter, that being the phrase she had specifically noted.  She said she was sure that he had used that phrase.  She did not know whether this meant that he was a full or part-time fire fighter.  
8.	The applicant was arrested on 22 December 2000.  In interview he denied the offence.  He did not tell the officers that he had used or spoken from a prepared text in the course of his mitigation.  He said he had not told the Court he was a retained fire fighter, but rather that he was a “qualified retained fire fighter”.  He said that this did not mean that he was actually employed by the Fire and Rescue Service.  
9.	In his evidence, the appellant said that he was a company director.  He said that when stopped for speeding he had told the officers he had been with the Fire Service in Ringwood but said nothing to lead them to believe that he was still so employed.  He said that he had been a retained fire fighter until January 2000 but left because of a personality clash.  However, the officer in question was due to retire, at which stage he intended to return.  He said he kept up-to-date by taking first aid courses.  He said he had decided to represent himself at the Magistrates’ Court hearing and prepared his statement on his computer a day or two before.  He had felt emotional when he read it because he had been describing his mother’s illness in the course of his plea (a fact which all the prosecution witnesses had recalled in their evidence).  He said he simply read the text of his statement out in full and had not used the phrase ‘retained fireman’ which did not appear in it.  He had not intended the Magistrates to understand that he was a serving fire fighter or to mislead the Court.  
10.	Because the prosecution ran the case on the basis that it suspected the mitigation statement produced by the defendant might have been doctored since the Hearing in the Magistrates’ Court, a computer expert was called for the defence who said that his examination of the disk from which the statement came showed that no modification of the document had taken place after 8 October 2000, the time at which the defendant said he had prepared it.  The wife of the appellant also gave evidence of her attendance at the Magistrates’ Court on 11 October.  She said that he had read out his mitigation as it appeared in the document and her recollection was that no questions had been asked of him by the clerk or Magistrates.  This was plainly at odds with the evidence and notes of Mr McConnell.  Finally, a friend of the defendant confirmed that the appellant had been a retained fire fighter and had resigned, but that he hoped to return.  
11.	The first ground of appeal is that, during the trial, the judge expressed manifest bias (a) by reason of an intervention in the cross-examination of Melody Roberts and (b) by intervening in the cross-examination of Rosamund Kirby, the press reporter.  Mr Gau, who appeared for the appellant both here and at trial, also relied, in support of his suggestion of bias, upon the behaviour of the judge following conviction when he dealt brusquely with Mr Gau’s request for some time to take instructions on mitigation from the appellant, who was distressed in the dock.
12.	Complaint (a) arises in this way.  In re-examination of Mrs Roberts, prosecuting counsel asked what effect the information that the appellant was a retained fire fighter had had upon the mind of the Magistrates so far as disqualification was concerned.  The answer was:
“Obviously there was certain sympathy with him because it is quite an important community job.  A retained fireman.  I remember having certain sympathies with him.  Nevertheless, the public expects that people who speed at those sort of speeds should be banned from the road and our guide lines are such..”
13.	The judge intervened to ask:
“So are you saying that what you were told, what you’re understanding was, [that] the need for him to retain his licence to carry out duties as a fire officer was influential in your decision as to the period for which he should be banned, or not?”
14.	The Magistrate then replied that she did not think the Bench “could have allowed it to be influential”.  The judge then observed that she might not have understood his question and asked several more questions to ascertain whether she was or was not saying that it had any part in the Magistrates’ decision.  Having listed the matters raised by the defendant, including his infirm wife, and seriously ill mother as well as his duties as a voluntary fireman, for all of which the appellant had said that he needed his licence, the judge said
“Were those factors that influenced you in coming to the decision that you did as to the period for which he should be disqualified?”
The Magistrate replied that “ultimately” they had not.  The judge then asked 
“So those particular mitigating factors did not influence your decision?”
and received the answer:
“No.  We had sympathy, but we could not allow it to influence our decision because we did not perceive it as unnecessary hardship, which is our criteria.”
15.	It is Mr Gau’s submission that, during that exchange, the judge gave the appearance that he was not happy with the evidence of the Magistrate that the appellant’s assertion that he was a retained fire fighter had played no part in the decision to disqualify.  Simply reading the transcript, it is impossible to judge whether or not that was so.  The response of the Magistrate had not been wholly clear and we consider that the judge was, on the face of it, doing no more than was necessary to clarify the position for the jury.  If however, appearances were to the contrary, given that it was not in issue such remarks as were made in mitigation were intended to influence the decision of the Court, the initial question posed by prosecuting counsel and the judge’s subsequent questions were not strictly relevant, as the judge made clear to the jury when summing up.  Further, the answer obtained was certainly of no assistance to the prosecution.  Nor is it suggested that the judge behaved with apparent bias during the summing up.  In those circumstances we see no substance in the complaint in respect of the evidence of Mrs Roberts. 
16.	As to (b), we have examined the transcript in respect of the complaint that at one point the judge halted the examination of Rosamund Kirby as she was being taken in considerable detail through her notes of what was said in court in order to test their accuracy.  We feel obliged to say that, at the point when the judge’s intervention was made, Mr Gau had indeed been engaged in an unproductive cross-examination as to minutiae not immediately relevant to the question of the accuracy of the note upon the key issue.  Having intervened, the judge made clear before the jury that the purpose of his intervention was that the jurors’ time should not be wasted with matters that were of no real issue.  This escalated into a somewhat waspish exchange between the judge and counsel, but not one which in our view indicates bias on behalf of the judge.  We do not consider, and indeed Mr Gau has not suggested, that he was frustrated of the opportunity to put any matter to Miss Kirby which, judged ex post facto, can be said to have deprived the appellant of a proper opportunity to put his defence.
17.	Finally, on the question of bias, it is of course obvious that the brusqueness of the judge at the stage of mitigation cannot have influenced the jury’s verdict already delivered.  In any event, whilst the passage of the transcript relied on does not make attractive reading, we consider that it indicates irritation on the part of the judge rather than any question of bias.
18.	The second ground of appeal arises in this way.  In cross-examination the appellant was pressed upon the question why, if he had prepared a script by way of mitigation from which he read verbatim at trial, he did not mention it later to the police at interview when being questioned about what he had said in his plea of mitigation.  The appellant replied that he recalled having been advised by his own solicitor not to say anything about the document at that point.  The judge intervened to ask the defendant to think about the question carefully and to confirm whether or not he was saying that his legal advisor advised him not to disclose or raise the question of the prepared script at interview.  The defendant then replied that he had raised it with the solicitor, telling him of the script, but that he was not sure he could find it this far down the line.  The solicitor advised him that the best thing to do was not to mention it at that point but to see if it could be found first.  He was then asked further questions by Mr Richardson for the prosecution as to when that advice was given, before going to other matters.  Following the re-examination of the appellant by Mr Gau the judge asked a number of clarificatory questions on other matters and then returned to the question why the appellant had not told the police of his prepared text.  The appellant repeated what he had said before but added words to the effect that his solicitor had advised “ ... let’s keep our powder dry on that”.  He re-iterated that he was simply acting upon that advice.  
19.	It seems to us quite clear that the matter did go too far.  Once Mr Richardson had elicited the initial answer from the appellant that, in not mentioning the script, he was acting on the advice of his solicitor, the matter should have been left there, without further questions being asked which might elicit the detail of the advice given which was plainly privileged.  It was for defence counsel to decide whether he would take the matter further in re-examination.  On any view the judge should never have returned to the matter later as described.  Nonetheless, while this was an irregularity, we cannot think that it prejudiced the appellant in any way.  Whether or not in realisation that he had gone too far, when summing up the matter to the jury, the judge directed them that they should not hold against the defendant his failure to draw the notice of the officers to the text in the course of the interview, observing that if he had received the advice he said he had, he could not be blamed for following it.  We consider that, in so far as any detail emerged in relation to the advice of the solicitor, it must have assisted the appellant’s defence in explaining what was otherwise a glaring omission on the appellant’s part.
20.	The final ground of appeal relates to the summing up.  It is complained that the judge summed up on a basis for conviction not relied upon by the Crown, namely that the applicant’s written mitigation to the Magistrates if reproduced by him verbatim was of itself intentionally misleading.  It is said that this had never been the case for the prosecution and had not been canvassed with counsel as a possible basis for conviction.  
21.	The passage complained of was a passage of comment on the defendant’s own evidence.  The judge stated
“If we look at what he says he told the Magistrates’ Court, and I go back to page 3 of his prepared text, he said this “I am a qualified volunteer fire fighter”.  I do not wish to nit-pick, members of the jury, qualified he may have been, but at that time he was not a volunteer fire fighter, was he?  I suppose it is open to the ambiguous construction that he may have been or was not, but at any rate he added “ ... would like to retain the ability to offer my services to the public.  I need my licence for this.”
Well, it is a matter for you, members of the jury, to decide what you make of what he says he represented to the court, whether that of itself was or may have been potentially ambiguous or misleading.  But he says that albeit that he made that representation, he was not intending to mislead the Court, he was not intending to pervert justice, he was not intending anything of the kind.  That in effect he was being quite straight and doing his best to get his case across, bearing in mind he does not have the particular skills of a lawyer, honestly and truthfully.  There was no intention, he says, on his part to mislead the Court, either inadvertently, as this might suggest – it is a matter for you of course – or still less deliberately.”
22.	It is correct that the prosecution had not sought to advance the case simply on the basis that the statement was ambiguous.  It was the prosecution case that, albeit the appellant appeared to read from a script in court, what he actually said, whether in the course of reading from it, or afterwards in clarification of it, was that he was a ‘retained’ ie currently employed fireman.  That was, and remained throughout, the issue before the jury.  The judge made very clear that the matter on which the jury had to be satisfied was that the appellant falsely represented to the magistrates that he held a position as a retained fire officer and required a driving licence to discharge his duties as such.  Not only did the judge go through the terms of the indictment with the jury but he related his summing up to the specific falsehood therein alleged.
23.	When the judge summarised the evidence of the prosecution witnesses, he made clear that their evidence related to the use of the expression ‘retained fireman’ save for that of Miss Kirby who had, in her notes, recorded the expression ‘on-call fire fighter’ which the appellant also denied.  The case was plainly fought from first to last on the basis that the phrase ‘retained’ had been used and/or that whatever had been said was an expression indicating a current status as a part-time fireman.  It seems to us that the passage complained of was, to adopt the phrase of the counsel for the Crown, a piece of ‘judicial musing’ which did not disturb the overall weight or effect of the summing up upon the central issue which was clearly canvassed throughout.  Certainly that passage did not lead either counsel to raise with the judge the possibility of a misdirection having occurred.  In our view the clearly asserted recollection of the prosecution witnesses, coupled with the note which the legal advisory officer took of the appellant’s answers to clarificatory questions, rendered the evidence both cohesive and convincing and we have no doubt that the conviction was safe.  
24.	Accordingly the appeal is dismissed.