No: 200304607/5243/B2 
Neutral Citation Number: [2004] EWCA Crim 1620
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 21st May 2004
 
B E F O R E:

LORD JUSTICE BUXTON 

MR JUSTICE NEWMAN 
 
MRS JUSTICE RAFFERTY 

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R E G I N A 

-v- 

CHRISTIAN THOMAS BROWN AND JASON GRANT
 
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MR T MACKINNON appeared on behalf of BROWN
MR P B HUMPHRIES appeared on behalf of GRANT
MR J W WILLIAMS appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE BUXTON:  The two appellants, Christian Thomas Brown and Jason Grant, were convicted in the Crown Court at Blackfriars before His Honour Judge Martineau in July 2003 for aggravated burglary and sentenced to periods of four and five years' imprisonment respectively.
2.	The background to the case was that they allegedly committed the offence in the company of a co-defendant, a man called Jeffs.  The matter arose from a complaint being made to the police that a young girl, who we do not need to identify further than as the sister of Mr Jeffs and Mr Brown, had been assaulted by two brothers called Lauren and Daniel Steventon, encouraged by other of their brothers.
3.	In the early hours of a morning on a date in March 2003 the appellants, together with Mr Jeffs, went to a flat in London.  They gained entry and demanded to know from the occupants, that is to say two of the Steventon family and a man called Mr Walji, where they could find the three other Steventons, Mark, Daniel and Warren.  It was alleged that Mr Jeffs was carrying a knife, Mr Brown had a red handled hammer and Mr Grant wearing driving gloves.  They had socks on their hands.  Their manner was threatening and intimidatory.  Mr Grant and Mr Jeffs searched each room in the flat while Mr Brown stood there with them.
4.	Mr Warren Steventon was at the address.  He was able to telephone the police before the people visiting saw him.  Police attended and seized the knife and the hammer.
5.	The prosecution case was the appellants, acting jointly, entered the address as trespassers intending to inflict grievous bodily harm upon the three Steventon brothers.
6.	The defence was that the appellants did not expect the three Steventon brothers to be at the address and had no intention of inflicting physical harm on anybody.  The weapons that they carried and the gloves and other paraphernalia were intended to protect themselves against the Steventons' Staffordshire bull terrier dog should it become aggressive.  The reason for the visit at that hour was, apparently, to enquire as to the whereabouts of the Steventons.
7.	The only matter of which complaint is made is this.  At the commencement of the trial the prosecution applied for a ruling that Adela Steventon and Warren Steventon should give their evidence behind screens under the provisions of section 17 of the Youth and Criminal Evidence Act 1999.  Mr Walji did not wish to give his evidence behind screens.  After he had given evidence an application was made that Leigh Steventon should give evidence behind a screen in addition to Adela and Warren Steventon.  The judge ruled in favour of those applications in each instance.
8.	In his ruling the judge said, clearly having taken account of the requirements of section 17, this:
"... I am satisfied that the quality of evidence given by them is likely to be diminished by reason of fear or distress.  That is to say that the mere sight of the defendants will increase the fear and distress that they are likely to suffer anyway -- assuming, of course, that their account is true -- in recollecting the events the of night in question. 
... 
The nature of the alleged circumstances here were very frightening indeed, because it is alleged that at 1.30 a.m. these three defendants gained access to the flat where the witnesses lived, and Mrs Adela Steventon, as I understand it, would be the tenant of this council flat ... 
Two of them were armed, one with a knife and one with a hammer and they are out to get the sons of Adela Steventon, that is to say Mark, Daniel and Warren.... I do not think that they knew what [Warren] looked like and did not realise in the time available when they saw him that he was in fact one of [the persons] they were wanting to see, and they uttered persistent threats of violence."
9.	The judge held that those circumstances fell clearly within the requirements of section 17(2)(a) of the Act; that is to say, the nature and alleged circumstances of the offence to which the proceedings relate.  He clearly had that section in mind because he drew attention to it in his ruling.
10.	Complaint is made on two grounds.  First, that the application for the giving of evidence behind screens should not have been granted at all; and, secondly, that, if it were granted, inadequate guidance was given to the jury as to the implications of such a step.  We take the first of those complaints first.  There are a number of elements in it.  
11.	The first is that there was a distinction between Mr Walji, who did not want to give evidence behind screens, and the others who did, and allowing the latter to do so in those circumstances would indicate to the jury that there was something exceptional about giving evidence behind screens and the evidence of those persons who gave it.
12.	We cannot accept that submission.  Provided the jury were correctly instructed as to the implications of the use of screens, a matter to which we will come later, it cannot possibly be the case, as my Lord, Newman J, pointed out in the course of argument, that the fact that a witness gives evidence without screens requires all the rest to do so as well.  The lack of reason in that argument is, we think, plain to see.
13.	Secondly, it is complained that there was nothing special about this case: the witnesses were not particularly vulnerable, they were not young, they were not the victims of rape, they did not fall into one of the categories where screens are characteristically used.
14.	The judge, however, ruled, having heard the evidence and understanding the nature of the prosecution case, that they fell within a particular section of the Act as we have already indicated.  It was a matter for him to determine whether that was so.  It was essentially a matter for his discretion and judgement to decide whether the justice of the case, fairness to the defendants and, we might add, fairness to the witnesses, whose interests have now to be taken into account under the provisions of the European Convention on Human Rights, required or permitted him to allow them to give evidence in the way that he did.  This case is far away from one in which the Court would interfere with that discretion.
15.	Secondly, complaint is made that the applications were made late, which indeed they were.  They were not made 28 days before the trial as is envisaged in Rule 2 subrule (4) of the Special Measures Directions Rules 2002, and in those circumstances the court was required to be satisfied that the applicant was unable to make the application in accordance with that Rule under the provisions of rule 4(2)(b).  Complaint is made that the judge did not refer to rule 4(2)(b) and did not express himself as satisfied under its terms.
16.	It is hardly surprising that the judge did not refer to rule 4(2)(b) because we have no reason to think that anyone mentioned the Special Measures Directions to him.  He can hardly be criticised, therefore, for not reciting satisfaction as to a matter of which no complaint was made before him.   Even if that were not the case, however, we do not accept that the provisions of Rule 4(2)(b) are mandatory, in the sense that if they are not complied with it is not possible for the judge to give the relevant direction.  In our judgement they are directory, and the principal reason why they are there is that Special Measures Directions Rules apply to all special measures, including, in particular, the giving of evidence by video recording.  There are obvious reasons why it is desirable that the latter applications should be made well in advance in those cases.  It is much less obvious why it should be necessary for there to be a 28 day lead-in, if we may use that expression, when screens are going to be used. 
17.	If, of course, there was any significant handicap to the defence by a late application, whether in terms of section 4(2)(b) or otherwise, then the judge would have to take that very carefully into account.  But we are not satisfied that there was any handicap.  The prosecution relied on insulting and threatening remarks that had been made to one of the witnesses, and we are told that a statement was produced relevant to that.  However, the judge in fact did not base his ruling on that.  He did not indeed refer to the alleged threats to one of the witnesses, but, as we have said, placed his judgement, as he was entitled to, solely on section 17(2)(a).
18.	As to the question of the direction to the jury, the judge did not include a direction in his summing-up.  What he did was to say, before the first of the witnesses gave evidence, this:
"Members of the jury, the position about screens is this; it is now commonplace for screens to be set up in a serious case and this is plainly, on any view, a serious case.  The allegation here is very serious.  Whether it is true or not is what you are here to decide, but if it is true it is obviously a serious case and Parliament has enacted a few years ago that a witness may elect to give evidence from behind screens and that is what this witness and her daughter, Leigh, and her son, Warren, have also elected. 
As you know, Mr Walji elected to give evidence without screens.  It is a matter entirely for each individual witness, but, members of the jury, what you must not do is to allow it to prejudice you in any way at all against the defendants or any of them.  It is a procedure laid down by Parliament.  Parliament has given the opportunity, some witnesses take advantage of it, some do not."
19.	In our judgement that was an appropriately low key but very clear direction to the jury setting out the circumstances of the matter; and, we will add, carefully, but without giving undue emphasis to it, explaining the different position of Mr Walji.  It was entirely suitable for the occasion.
20.	As to it not being repeated in the summing-up, Mr McKinnon says it was an absolute rule that the judge should repeat the direction in the summing-up, even if he had given a warning of the sort that we have indicated before the witness gave evidence.
21.	We cannot agree with that.  It is an argument that is purely formalistic.  The question is whether effectively the judge has got across to the jury the essential matter of the use of screens and the conclusions that they should draw and not draw from it.  That is much more likely to impress itself on the jury if it is given at the time that the witnesses give evidence than if it is repeated at a later date in the summing-up.  Indeed, for the judge to revert to it might in some circumstances give the matter more emphasis, derogatory to the defendants, than it deserves.  We cannot therefore accept that submission on the part of Mr McKinnon.  True it is, as he says, that the learned section 31 judge drew attention to the absence of a warning in the summing-up, but we are satisfied that she was not aware when she said that of the earlier warning given by His Honour Judge Martineau, because that was not referred to, as it should have been in the grounds of appeal.  It was only drawn to our attention by the prosecution.
22.	In these circumstances, therefore, we think there is no force in either of the limbs under which this appeal is advanced.  Both of them were matters for the judgement and discretion of the judge.  He discharged his discretion in an entirely correct way.  These appeals are dismissed. 
 (Submissions made on behalf of the appellant Brown in relation to an appeal against sentence)
23.	LORD JUSTICE BUXTON:  We have already given judgment in a conviction appeal in relation to the present appellant, Mr Christian Brown.  The outline facts of the case can be drawn from that judgment.  We do not repeat them.  As we have already indicated, Mr Brown incurred a penalty of four years' imprisonment from the learned sentencing judge.
24.	Submissions are made that that should be reduced to some extent on a variety of bases.  First, the role played by Mr Brown, which was less, it is said, than those of some of his co-accused and also personal mitigation in terms of age, previous good character and his commendable behaviour when he has been in prison.
25.	We fear that we are not persuaded by any of those submissions.  The learned judge heard a trial of this case and formed a very clear view of what the three men together had been embarked upon.  It is relevant to read out his summary of his view of the case.  He said this:
"You burst, the three of you, into someone's home at half past one in the morning, a place where people were asleep in their beds, including a four year old boy, two of you armed with weapons; a murderous combat knife and a heavy claw hammer.  Your behaviour in that flat was, I am quite satisfied, utterly terrifying. 
I am quite sure, happily, that no injuries were caused to the people who you were seeking and were not there.  There were no physical injuries, but I am quite sure there has been some psychological impact.  I note from the evidence it would be very odd if there was not.  I note from the evidence that all three, that is to say, as I understand it, Warren Steventon, his mother, Adela, and his sister, Leigh, were all shaking with, I should accept, shock and fear when the police arrived and Leigh was reduced to tears in this courtroom when recollecting the events of that night. 
Of course again, that ordeal she suffered in having to give evidence about it would have been avoided if you had pleaded guilty.  That is always the best mitigation but not available to you here, and I dread to think what would have happened if the Steventon brothers had in fact been there, which the jury, by their verdict, was satisfied is what you expected."
26.	He then said that only a custodial sentence could be justified.
27.	Then he said this to Mr Brown:
"... you are clearly the youngest and have a previous good character, which you have now lost and you will never have again, but you are entitled to a bit of credit for that good record and your age."
28.	He sentenced him to four years' imprisonment instead of five or six years imposed on the co-accused.
29.	Mr McKinnon pressed us with the case of Daniel [2000] 2 Cr App R(S) 184, when events somewhat similar to this took place and a sentence of four and a half years' imprisonment for aggravated burglary was reduced to two and a half years.
30.	We do not find that case of any help to us.  There are two reasons for that.  The first is that although the Court in the first paragraph of its judgment stated that the appellant had been "convicted" of aggravated burglary, it appears from the last paragraph that he in fact pleaded guilty, because Dyson J said:
"It seems to us that the sentence of four and a half years on a guilty plea was significantly too long."
Mr Brown, as the judge pointed out, does not have the benefit of that mitigation.
31.	Secondly, however, the Court in Daniel appears to have accepted submissions made to it on Mr Daniel's behalf that the case was unusual because he himself had been significantly injured in a previous event, that he had entered the homes of the victims not intending to cause harm to them, and that it was not a preplanned attack.
32.	None of those matters were true in our case.  In his sentencing remarks, as we have already indicated, the judge made it quite clear that he found, first of all, that the entry had been in order to search for the Steventon brothers with violent intention upon them if they were there; and, secondly, that this was a planned, to use the vernacular phrase, mob-handed piece of violence engaged in by the three men together, in the course of which it is difficult, or impossible, to attribute different roles to them.
33.	As the judge said, this was a disgraceful case, involving concerted intervention in someone else's house of a vigilante or family dispute nature.  It is the sort of conduct that the courts will not tolerate.  The judge was quite right to impose severe punishment on these men.  He gave Mr Brown as much credit as he properly could in the light of his offence in setting his sentence at four years.  This appeal is dismissed. 
34.	MR HUMPHRIES:  My Lord, although there is no further appeal pursued on behalf of Mr Grant, may I make application for his solicitors to have a representation order in their favour?  Your Lordships will be aware, I hope, that they prepared the grounds of appeal following the defendant's letter to them as they did not have an appropriate advice on appeal from counsel, and they have been invaluable to me, as I did not appear below, in letting me know what information had been disclosed by way of antisocial contracts.  They have also dealt with correspondence from the defendant about his appeal when he has written directly to them.
35.	In my submission this is an unusual case.  Albeit they did not have an order, they have in fact been quite reasonably put to some work, and I would invite your Lordship to allow their costs to be taxed.
36.	LORD JUSTICE BUXTON:  Wait a minute.  What are they claiming for?
37.	MR HUMPHRIES:  The preparation of two briefs to me, answering letters from the defendant about the progress of his appeal and, of course, as I say, initially they actually prepared the grounds of appeal that were submitted, the typed grounds that were submitted.
38.	LORD JUSTICE BUXTON:  Did they act at trial?
39.	MR HUMPHRIES:  Sorry?
40.	LORD JUSTICE BUXTON:  Did they act at trial?
41.	MR HUMPHRIES:  I believe they were the solicitors instructed at trial but they had agents acting at Blackfriars Crown Court.
42.	LORD JUSTICE BUXTON:  Doesn't their legal aid for the trial cover the preparation of the appeal?
43.	MR HUMPHRIES:  I made an enquiry with the office at the Court of Appeal earlier this week and was told it wouldn't cover work done in preparation of the appeal because legal aid had been granted only for counsel.  It may cover the grounds that were drafted, but once legal aid is thereafter granted to counsel -- 
44.	LORD JUSTICE BUXTON:  Well, the judge gave an order for counsel only.
45.	MR HUMPHRIES:  Yes.
46.	LORD JUSTICE BUXTON:  And that is the normal order.
47.	MR HUMPHRIES:  Yes.  Counsel would, of course, normally have some experience of the case, having dealt with it in the lower court.
48.	LORD JUSTICE BUXTON:  I am afraid we don't -- if counsel changes for any reason we don't allow public funds to take notice of that.  I think what you had better do is get clearer as to what your solicitors are claiming to have done that was not covered by their legal aid order at the trial.  If they think they have got grounds for applying for a further representation order over and above that they can apply to the Registrar.
49.	MR HUMPHRIES:  Thank you very much.
50.	LORD JUSTICE BUXTON:  Thank you.