Case No: 200704171/B3 
Neutral Citation Number: [2008] EWCA Crim 3129
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 4 December 2008
 
B e f o r e:

LORD JUSTICE HOOPER 

MRS JUSTICE RAFFERTY DBE 
 
MR JUSTICE SWEENEY 
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R E G I N A 

v 

DAVID JOHN SUTTON 
 
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Mr G Cooke appeared on behalf of the Appellant 
Mr H French appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE HOOPER:  On 11 July, in the Crown Court at Woolwich before Deputy Circuit Judge Hubert Dunn QC and a jury, the appellant was convicted by a majority of ten to two of theft contrary to section 1(1) of the Theft Act 1968. 
2.	He appeals against his conviction with the leave of the Full Court.
3.	The theft alleged against the appellant was one of theft by shoplifting in WH Smith's.  The appellant was a serving police officer at the time.  On 31 January of 2006 he was seen by a store detective to select a number of magazines, and, on the store detective's evidence, conceal them inside his jacket before exiting the shop without paying.  When challenged outside the store, he returned.  He offered to pay for the items, which had a value of £43.17.  It was found that he had £200 in cash in his possession at the time.  There is evidence that other police officers were concerned about the appellant's mental state following his arrest.
4.	The defence case was that the appellant was suffering from psychiatric problems at the material time, such that he did not know what he was doing.  He was not acting dishonestly and had no intention of permanently depriving the store of the goods.
5.	A psychiatrist, Dr Wood, had prepared a very lengthy report.  He concluded that the appellant was suffering from sleep deprivation as a result of spending a large amount of time on night work.  Secondly, he said that the appellant was suffering from a mild depression, and, thirdly, that he was taking too many analgesics.
6.	There are a number of grounds of appeal, but we resolve this case having considered only the first ground of appeal.   Mr French who appeared for the respondent did not conduct the trial on behalf of the prosecution.
7.	On Monday 9 July 2007 Mr Cooke, appearing for the appellant, asked for the trial listed for that day to be adjourned because Dr Wood was only available to give evidence on that day and it would not be possible for the appellant to give evidence on that day, having regard to the number of prosecution witnesses.  
8.	On Friday 6 July Mr Cooke had appeared before His Honour Judge Dunn and asked that the case could be listed during the latter part of the following week so that Dr Wood could hear the evidence of the appellant and then, in the normal way, give his expert evidence thereafter.  Dr Wood was only available on the Monday or on the Thursday and Friday.  That application was refused.  That application having been refused on the Friday, it is perhaps not surprising that when it was renewed again on the Monday it was refused again.
9.	Thus Mr Cooke was left in the position that the judge was ordering the trial to start on Monday 9 July, knowing that Dr Wood was available on the Monday and would not be available until the Thursday.  The judge then, in effect, required Mr Cooke to call Dr Wood first.  If he was not called first, he would not be called at all.  Thus, after Miss Ball for the prosecution had opened the case, the first witness was the defence expert, Dr Wood.
10.	In her opening, Miss Ball summarised the facts of the case and told the jury that the defendant was saying that he had no memory of what had occurred in WH Smith's and was, therefore, himself unable to give an account of the immediate events that led to him being charged with shoplifting.
11.	Dr Wood having been called, he was examined in‑chief for about an hour.  He was then cross‑examined.  The rest of the prosecution's case was called.  The defendant gave evidence and called other evidence in support of his positive good character.  The matter was summed up to the jury on Wednesday and the jury convicted on that day.
12.	Inevitably, because Dr Wood was called first, he had to explain to the jury what it was that the appellant had said to him about various matters, matters which enabled Dr Wood to reach the conclusions to which we have referred.
13.	Somewhat extraordinarily, in our view, when the judge came to sum up the case to the jury he said this:
"Now, members of the jury, a great deal of what [Dr Wood] told you came from the defendant, and whether it adds anything to this case or not you will have to ask yourselves ..."
14.	A little later he said this about Dr Wood's evidence:
"Well, members of the jury, how useful all that was took a great deal of time, namely repeating what the defendant had told him, you may wonder, and in particular his medical condition throughout 2006, which was after this incident, but if you find it helpful, by all means take it into account." 
15.	We say "somewhat extraordinarily" because it is difficult to see how the psychiatrist could have given evidence at the outset of the trial without describing what the defendant had told him about the various background matters which underpinned his opinion. 
16.	In our view, requiring the expert to give evidence first deprived the appellant of a fair trial.  It must have been extremely difficult for the jury to follow the evidence of the psychiatrist.  Mr French rightly points out that they knew something about the case from the opening.  But they were having to listen to evidence describing the expert's view as to the defendant's mental state without having had the benefit of seeing the defendant, hearing his account, not only of the day but of the important background to that day.  
17.	Without suggesting that defence witnesses can never be called out of order, in our view this was not the right approach to adopt in this case.  What the jury needed to hear was, first, what the prosecution witnesses were saying about the events in question on the day, secondly what the defendant was saying about the day and his personal history and thirdly the evidence given by the expert.  If the right order had been followed, Mr Cooke would have been able to invite Dr Wood to comment on the evidence that had been given particularly by the defendant and ask him to draw conclusions from it.   
18.	For these reasons alone we would allow the appeal.  We have other concerns about the safety of the conviction.  We mention them only briefly because we did not invite Mr French to address us about them. 
19.	Over and over again in his summing‑up the judge told the jury that the evidence of the store detective was unchallenged and undisputed.  In fact, Mr Cooke had been able to establish that the store detective's evidence that the appellant was looking around him at the time of the alleged theft, was something that was not said to the officers in the first place but was later included in the statement.  
20.	The judge himself recognised the importance of the store detective's evidence when he said at page 10 of the summing‑up:
"According to him [the store detective], now this is fact for you, the defendant says he doesn't remember what happened, but he was constantly looking over his shoulders to see if anybody was looking at him.  Well, is that important, is that not important?  Fact for you."
21.	When Mr Cooke objected at the conclusion of the summing‑up that the judge had said on more than one occasion the evidence was unchallenged, when in fact it had been challenged, the judge made a correction, but arguably it was not one which would cure what had gone wrong.
22.	As we say, we do not quash the conviction on that ground.  We merely express our concern about the way in which the judge dealt with the important challenge to the store detective's evidence.   
23.	MR COOKE:  My Lord, so be it.  I have two applications to do with costs.  Mr Sutton was not legally aided.
24.	LORD JUSTICE HOOPER:  Costs out of central funds.  
25.	MR COOKE:  Please.  Also his individual costs.  I happen to know from my solicitor what the costs are; they are not small.  I don't know if it is something that your Lordship and the court can consider, saying, yes, that's granted, or leave it to taxation.
26.	LORD JUSTICE HOOPER:  Are you going to give us the schedule of all the costs? 
27.	MR COOKE:  Of the lawyer's costs, yes, my Lord.
28.	LORD JUSTICE HOOPER:  That just goes to taxation.  Show us what you have got and then we will decide whether it goes to taxation or whether we make a lump sum. 
(_Handed) 
29.	MR COOKE:  My solicitor is saying that it must go to taxation. 
(Pause) 
30.	LORD JUSTICE HOOPER:  It goes to assessment in the normal way.
31.	Mr French, any more help we can give you?  I hope you get through.
32.	MR MOORE:  Yes.  
(Short Adjournment) 
33.	LORD JUSTICE HOOPER:  Mr French.
34.	MR FRENCH:  Can I start by thanking your Lordships for giving me the time to take instructions from the Crown Prosecution Service.  I have done that, my Lord, and I have spoken to a representative from the Crown Prosecution Service and I am instructed to ask for leave to seek a retrial in respect of Mr Sutton, and in making that application can I put forward three reasons, please.
35.	Firstly, that the differences between the accounts given by Mr Osho, the security officer, of course are an important defence point, but they do not undermine the evidential sufficiency of the case.  In relation to that, it is right that an initial summary was given by Mr Osho at the time and that that was signed and later that day he gave a more detailed witness statement in which he gave a far more and more detailed account of what had happened in the store.  And, of course, as there always would be in a more full account, there were several differences, but most importantly Mr Sutton relies on two differences.  
36.	Firstly, the fact that he says that Mr Osho said in his witness statement that Mr Sutton was looking around, or looking over his shoulder.  Secondly, and I do not think it came out until cross‑examination of Mr Osho, Mr Osho says, and here I am relying on the transcript of the summing‑up rather than the evidence, "I am very sure that he [Mr Sutton] did not want to come back in."
37.	So, my Lords, either Mr Osho has embellished his account in order to firm up his evidence, if I may use that phrase, or, of course, the first account was simply a summary and he has just given a more detailed version.  Whichever of those two ways, it is, in the Crown's respectful submission, a matter for the jury as a finding of fact in relation to the case.
38.	My second reason, my Lords, is in relation to the public interest.  At the time of this offence, and I understand also now, Mr Sutton is a serving police officer.  Although this is, of course, a minor offence, the Crown would say that the public interest demands that public servants be prosecuted even for minor offences, particularly in circumstances where dishonesty is alleged.
39.	Thirdly, my Lord, I would say that the case alleged against Mr Sutton remains a strong case and in saying that I rely on the reasons set out at paragraph 4.5 of my skeleton argument.
40.	LORD JUSTICE HOOPER:  If he had not been a police officer, would you be asking for a new trial?  Is there some special principle that applies to the police officers? 
41.	MR FRENCH:  My Lord, I imagine it is just one feature in considering the public interest.
42.	MR JUSTICE SWEENEY:  Is there any Crown Prosecution Service published policy which deals with this?
43.	MR FRENCH:  My Lord, none that I have seen.  
44.	MR JUSTICE SWEENEY:  Is it in the prosecuting standards?  
45.	MRS JUSTICE RAFFERTY:  Code for Crown Prosecutors, anything like that? 
46.	MR FRENCH:  When my learned friend addresses your Lordships, if you would allow me to check that.
47.	LORD JUSTICE HOOPER:  What about the failure on the part of counsel for the prosecution, not you, to actually make sure that this was a fair trial.  In other words, telling the judge, I think Mr Cooke is right, I think this is not the proper way of going about this case.  I think Mr Cooke tried.  
48.	MR FRENCH:  I think the difficulty, and here it is a supposition, the difficulty that trial counsel may have faced is that your Lordship would have seen in the transcript and heard in the tape that the trial judge seemed to come to his conclusions very quickly without having heard argument. 
49.	LORD JUSTICE HOOPER:  Yes, right.
50.	MR FRENCH:  And in those circumstances it is difficult perhaps to know what approach you would have taken.
51.	LORD JUSTICE HOOPER:  Thank you very much.  Now, Mr Cooke, tell us about today.  What is the situation with Mr Sutton today? 
52.	MR COOKE:  He is 52 and a serving police officer of 30 years.
53.	LORD JUSTICE HOOPER:  Is he still a sergeant? 
54.	MR COOKE:  Yes.  
55.	LORD JUSTICE HOOPER:  Is he working?  
56.	MR COOKE:  Yes, but he is on lighter duties.  He has certainly not been on night duty.
57.	LORD JUSTICE HOOPER:  So what are his duties at the moment? 
58.	MR COOKE:  My Lord, I haven't got the detail.
59.	LORD JUSTICE HOOPER:  Ask him.
60.	MR COOKE:  My Lord, can I correct my learned friend's interpretation of Mr Osho's evidence.  It can be summarised thus and I hope correctly.  In his statement signed with the police at the beginning, he alleged that ‑‑ he didn't ‑‑ first of all, he didn't say anything about looking around and that was in his evidence later.  My argument is well‑known to the court, namely it is an important issue going to dishonesty and you are an experienced store detective and if you had seen that you would have put that in your first account.
61.	MRS JUSTICE RAFFERTY:  First account?  Oral first account? 
62.	MR COOKE:  Yes, and signed by him, so we have the document with the signature on.
63.	So far as the going out and then coming back in or not ‑‑ 
64.	LORD JUSTICE HOOPER:  Speaking for myself, that is not decisive of the case.  Someone could be reluctant to come back even if completely innocent.
65.	MR COOKE:  Yes, but it goes to ‑‑ because he changed his account and it is a contradictory account.  In other words, in his note to the officer ‑‑ 
66.	MR JUSTICE SWEENEY:  He changed it to a more culpable allegation.
67.	MR COOKE:  Which went with the "sexing up", dare I put it that way, of his account.
68.	LORD JUSTICE HOOPER:  Yes.
69.	MR COOKE:  It is for the Crown Prosecution Service, of course, to decide whether they meet the evidential requirement.  Public interest and all that comes second.  Does it meet the threshold of likely to achieve a conviction?  If your Lordships want my view I expect you know what I would say.  Those are important factors and I have to say this, and my learned friend has got the wrong end of that stick and also the sharp end of something, he didn't understand that that was the crux of Mr Osho's evidence and therefore the Crown Prosecution Service, who, of course, did not apply their minds to the potential defence available, even though it came within the unused document, namely the police officer's notebook.
70.	LORD JUSTICE HOOPER:  Let us move on to him today.  52, still a sergeant. 
(Pause) 
71.	MR COOKE:  Operational sergeant, responsible for logistics and other things at Croydon.  So it's more of a desk job.  Certainly not patrolling streets.  And negotiating, I am told, with contractors and suppliers and so on.
72.	LORD JUSTICE HOOPER:  Have there been disciplinary hearings at all? 
73.	MR COOKE:  No, my Lord.  My Lord, what happened was the police ‑‑ the relevant police officer attended the last day of trial and heard the balance of the summing‑up ‑‑ my speech and the summing‑up, and took his own opinion back to the Metropolitan Police.  Whilst the normal course of events, I am told, is that somebody is suspended at that point pending an appeal, the Metropolitan Police took the view that they would not suspend him until the outcome of the appeal.  And I am aware that that officer who took the report back had, of course, seen a lot of what we have been discussing, namely my speech and the summing‑up.
74.	LORD JUSTICE HOOPER:  So in one sense, it is suspensory.  If ultimately there were to be a retrial and if he were to be convicted, then all of this might lead to steps being taken against him.
75.	MR COOKE:  Yes.
76.	LORD JUSTICE HOOPER:  I see.
77.	MR COOKE:  The particular aspect of which I can speak personally is the strain that he has been under.  I met him, of course, in the first appearance in the Crown Court and I have seen him in conference many times since.  He really has been under enormous strain.  He burst into tears when the verdict was returned.  Now, that may not say a lot, but he has been a man who apart from his own illnesses, if I can call that them that, or conditions, was, in fact, badly treated by the police, and this has is my own input.  That the police had been told do not put him on night duties because of the problems that come.  I did hand up to the court a copy which I see is just being selected out.  There is a copy for each member.  (_Handed).  This featured in the trial as evidence and used effectively by the Crown, in both senses of the word, to show that he did not say he was depressed in January 2006, a few weeks before the event.  One will see his own handwritten qualifications to that.  The reality is that anyone who says they are depressed gets taken off all sorts of things.  So the pressure from the job point of view is to say, I am all right.  Of course he said, I am all right, but.
78.	So, my Lord, it is much more in the area of the punishment that litigation makes, the effect it has, and, my Lady, the relevant part concerning retrials is at paragraph 7‑112.
79.	MRS JUSTICE RAFFERTY:  I will look into that, thank you.
80.	LORD JUSTICE HOOPER:  What does it say? 
81.	MR COOKE:  The test is the interests of justice.
82.	LORD JUSTICE HOOPER:  I think we know that.
83.	MR COOKE:  There is a little commentary beneath it.  I cannot pretend this is not such a minor matter that it shouldn't be litigated.  That would be flying in the face of the facts.  But there must be some general interest in police officers, lawyers, judges, in fact having cases tried because of the importance of their integrity.  But what I do say, which is unusual in this case, is that the stress from the very moment of arrest in January 06, which is nearly three years ago, is of such a character and the impact on him has been such that in the interests of justice there should not be a retrial.
84.	LORD JUSTICE HOOPER:  Thank you very much, Mr Cooke.  Do you want to say anything in reply? 
85.	MR FRENCH:  My Lord, no.  Could I just return to the questions that were put to me in relation to the code for Crown prosecutors.  At 5.9E it mentions the defendant being in a position of authority or trust.  I think that really goes to offences that are committed by someone being in a position of authority or trust.  And so, of course, there is no policy any differently in respect of police officers.  It is just one matter to be considered in the public interest, and, as I said, where the allegation is one of dishonesty, where, perhaps, there might be a greater need to prosecute is otherwise what were perhaps to avoid the danger that there may be somebody in a public role where the question of their probity and honesty is in question.
86.	LORD JUSTICE HOOPER:  Thank you very much.
87.	MR JUSTICE SWEENEY:  I imagine that you would just like in fairness to bring our attention to 5.10G, would you not? 
(Pause) 
88.	MR FRENCH:  Yes, I am very grateful, my Lord. 
89.	LORD JUSTICE HOOPER:  We will retire. 
(Short Adjournment) 
90.	LORD JUSTICE HOOPER:  We unanimously take the view that it is not in the public interest to order a retrial.  Thank you both for all your help.