No. 2008/03267/C2

Neutral Citation Number: [2009] EWCA Crim 1228

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  21  May  2009

B e f o r e:

LORD  JUSTICE  GOLDRING
MR  JUSTICE  McCOMBE
and
SIR  PETER  CRESSWELL

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R E G I N A

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HUGHROY  CLARKE
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Mr P Rule appeared on behalf of the Appellant

Mr M Anning appeared on behalf of the Crown
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J U D G M E N T
Thursday  21  May  2009

LORD JUSTICE GOLDRING:  
1.  The issue in this case is whether the appellant received a fair trial.  The submission is that he did not and that his conviction is consequently unsafe.  Leave to appeal was granted by the full court after refusal by the single judge.

2.  On 1 April 2008, following a two day trial in the Crown Court at Stafford, the appellant was convicted in his absence and without representation of unlawful wounding, contrary to section 20 of the Offences against the Person Act 1861.  He was subsequently sentenced to an extended sentence comprising four years' imprisonment and a period of one year's licence.

3.  A co-defendant, Lawrence, was similarly charged.  He pleaded guilty to the charge of unlawful wounding.  We mention, for it is relevant, that the appellant and Lawrence are black.  There were twenty black inmates in the wing of the prison in which the alleged offence occurred.

4.  The complainant was a man called Whitfield.  He, like the appellant, was an inmate at Her Majesty's Prison Dovegate in Derbyshire.  On the morning of Sunday 9 July 2006 he said that he was in his cell asleep.  He said that he was awoken by a blow to his face.  He felt a pain to his lip.  He saw what appeared to him to be a knife.  He felt a stabbing pain to the left side of his head.  He described the knife as ten to eleven inches long.  He also felt a flurry of punches to the head.  He could not say for how long the attack lasted.  He could remember nothing more, he said, until he woke up in hospital.  In his witness statement, which was read to the jury, he said:

		"The only thing I can remember about my attacker is that I remember seeing that person who was holding the knife had a black skin, as I saw his hands.  I can't remember anything said by the people who attacked me."

Although he there referred to "people", he appears only to know that one person attacked him.

5.  The case against the appellant relied upon the evidence of Teri Carter, a prison officer.  She had worked on B Wing (the wing in question) for about nine months.  She had known the appellant for about two.  At about 11.10am on 9 July 2006, as a result of speaking to another inmate, she went into Whitfield's cell.  She found him lying on his bed.  There was blood on the wall and floor and on his clothing.  We have seen the photographs which were later taken.

6.  There was a CCTV recording from 9 July.  It covered the area of that part of the wing which included the entrance to Whitfield's cell.  We have seen the CCTV recording.  Mr Anning, on behalf of the respondent, informs us that the quality of what we have seen is similar to that which the jury saw.

7.  Teri Carter gave evidence of what she could see from that CCTV.  She said that when she saw the CCTV recording on different equipment it was a lot clearer.  She said that she could identify the appellant and Lawrence.  She said that both men could be seen entering Whitfield's cell.  The appellant was wearing a bandanna.  They were in the cell for about six-and-a-half minutes.  When they came out (the appellant first), Lawrence did not appear to be wearing a white shirt that he had been wearing when he went in.  He was possibly carrying it.  He handed something to a prisoner called Hutton.  Teri Carter said that she had not seen anyone else wearing a bandanna.  There was no risk of confusion between different inmates.  She knew the wing extremely well.  She knew every inmate by name.

8.  Before Teri Carter saw the CCTV recording, she had been told by another inmate who Whitfield's attacker was.  In her witness statement she said that that inmate told her that Lawrence and "Bubba" (the nickname of the appellant) had done it.  That inmate said that he was "200% sure of that" because they came into the cell and told him.  Although a hearsay notice had been served regarding that evidence, it was not pursued and the evidence was not before the jury.

9.  In his summing-up regarding the CCTV evidence the judge said this:

		"The CCTV footage is real evidence and you are entitled to watch it, make up your mind about it and form your own views and decide what you think it proves or does not prove, but in doing that, you are entitled, if you believe it right -- and it is your decision, not mine -- to take into account what Teri Carter tells you, because she has certain advantages over you; first of all, she knows everybody on the wing as you have heard, or on the wing at that particular time and, secondly, she has seen the footage on better equipment than the equipment that you have and so you can, if you believe it right, in all fairness  -- it is for  you to decide -- take into account what she tells you she has been able to discern from watching that same footage as you have seen on the better equipment.  You remember that she told you, particularly that on the equipment that she has seen it on at Dovegate Prison, she was able to recognise every single person who appears on the film; ...."

10.  At the end of his summing-up, at Mr Anning's suggestion, the judge gave a Turnbull direction.  He said:

		"Members of the jury, because this case is, in effect, one where there is not the usual contest, no issue has been raised by the defence in respect of the prosecution case, but in many cases involving allegations of assault, issues of identification are often raised and Mr Anning has referred me to a particular legal case where judges are reminded to give juries specific directions in respect of identification where identification is in issue."

The judge then gave the conventional Turnbull direction.  A little later he said:

		"Therefore, it is important, before you rely upon evidence of identification, that you, first of all, ask yourselves the question: how long was the person identified in the view of the person carrying out the identification? -- in this case Teri Carter -- and you know how long because it is the CCTV footage that you yourselves have viewed.  You must take into account the quality of the lighting, the distance, any difficulties represented, for example, by other people getting in the way or staircases getting in the way, floors getting in the way and that sort of thing.  You are entitled to take into account any other factors that you regard as potentially undermining the correctness of the identification that she has made.  You know that in respect of the co-accused, Dwayne Lawrence, that her identification was correct because he has pleaded guilty, but it doe not, as a matter of logic, mean that she must be right in respect of Hughroy Clarke.  So look at all the circumstances, the distances, the lighting and that sort of thing and ask yourself the question: are we sure that it is a safe identification that she has made?  If you are not sure, then you must acquit.  Only if you are sure that it is as correct identification can you go on to consider the joint enterprise aspect as put forward by the prosecution ...."

Weapons
11.  On 10 July 2006, in the cell of an inmate called Hutton, were found what were said to be the weapons used in the unlawful wounding.  They were home-made metal spikes.  Their finding was adduced before the jury.  On one of them was Whitfield's blood; it also contained an additional minor DNA component which matched Lawrence.  There was no blood on the other spike.  None of the DNA evidence from the spikes was adduced.  In other words, the jury did not know that there was evidence connecting Lawrence with what were said to be the weapons and that there was none connecting the appellant.  Indeed, Mr Anning has accepted before us that in the absence of anything tying those spikes to either the appellant or Lawrence, strictly speaking, their finding was of no probative value in the case that the jury heard and should never have been adduced.

12.  On 9 July 2006, swabs were taken from the hands of both Lawrence and the appellant.  The taking of the swabs from the appellant was adduced.  No blood was detected.  Although that fact was not in terms adduced, the summing-up made it clear that there was no forensic evidence which implicated the appellant.

13.  Whitfield's blood was found on Lawrence's trainers.  It was also found on what was said to be Lawrence's white shirt, which had been recovered.  That evidence was not adduced.

14.  Clothing was recovered from the appellant on his arrest.  The officer in the case told the jury that clothing was not tested for blood because it was believed that the appellant had had the opportunity to change his clothing before it was seized.

Interviews with the appellant
15.  On 15 November 2006, Detective Constable Breen saw the appellant.  He told him, "I am arresting you for a GBH wounding with intent to cause GBH on Steven Whitfield at Dovegate Prison on 9th July 2006".  The appellant was cautioned.  He made no reply.  That conversation was adduced before the jury.

16.  On 1 May 2007, Detective Constable Morson spoke to the co-defendant Lawrence.  He cautioned him and reported him for summons regarding the grievous bodily harm offence.  According to his witness statement, DC Morson "also requested to speak to inmate Hugh Clarke .... regarding the same matter.  However, he refused to speak to me".  That conversation was adduced before the jury.

17.  On 11 May 2007, DC Breen saw the appellant again.  He cautioned him and said, according to the witness statement which was served, "I am reporting you for summons on .... Whitfield ....  You don't have to say anything but it may harm your defence if you don't mention now something you later rely on in court".  The appellant made no reply.  That conversation was not adduced before the jury.

18.  In summing up the interviews the judge said this:

		"In respect of the evidence, you know that the defendant, Hughroy Clarke, was approached by the police with a view to being interviewed and he refused to give an interview.  That is his right.  Nobody accused of a crime has to be interviewed if he does not want to be and, therefore, it is important for you to remember that if he has that right, you should not take it away from him.  So you must not draw any inference against him from the fact that he refused to be interviewed.  The fact that he has effectively remained completely silent throughout this case is no evidence against him.  It simply means he has not put forward any account to rebut or to explain the account that the prosecution have put forward and the inferences that they invite you to draw."

The History of the case
19.  On 14 March 2008, the appellant's then solicitors served a defence case statement.  The appellant denied being in Whitfield's cell when he was assaulted.  It was said that at the time he was likely to have been in his own cell.  Under the heading "Points of Law" the evidence of Teri Carter was objected to on the basis that by the time of her identification she had been told that the appellant was one of those who had been in the cell.

20.  Subsequently there were served two undated "skeleton arguments" by those solicitors.  The first sought an extension of time to apply for dismissal under paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1988.  The second was the application itself.  In that application it was said in the first paragraph:

		"The defence make an application to dismiss the charges themselves on the basis that the evidence on which the Crown intends to rely is wholly inadequate and fails to establish a prima facie case against the defendant."

It refers to Teri Carter having been previously told that the appellant and co-defendant were guilty of the attack.  It refers to the poor quality of the CCTV recording and suggests that the facial features of the inmates there depicted cannot be made out.  In relation to the DNA evidence it states:

		"There is DNA evidence attached .... but the DNA indicates there was no blood from the complainant on the defendant himself.  There is no mention of further DNA evidence by way of clothing or fingerprints linking this defendant to the alleged assault."

21.  The appellant was in custody throughout.  He chose throughout not to attend every hearing of this case.  He was, as we have observed, legally represented.  The case was due to be heard on 1 April 2008.  It was mentioned in court on 31 March 2008.  The appellant was not present.  The judge decided that he should continue to hear the case in the absence of the appellant and without him being represented.  He said this:

		"The matter was ventilated yesterday and I gave Mr Clarke one more opportunity to attend and gave directions that a letter be sent to him at the prison where he is, explaining to him that I would consider the prosecution application to proceed in his absence if he did not attend, explaining to him the format of the trial that was envisaged and warning him that it was very much in his interest to attend.  I have seen a copy of the letter that was sent by fax.  It has been returned by the prison, endorsed with the fact that the original was handed over to him, so he has had it.  The history is that Mr Clarke has been in custody throughout these proceedings.

		....

		He has adamantly refused to attend every hearing.  Until yesterday, he has been legally represented and all the pretrial hearings have been heard with those representatives present.  Yesterday, his legal representatives retired from the case because they had received a letter from him withdrawing instructions.  It is perfectly clear from what I was told that Mr Clarke does not wish to attend and does not wish to be represented and he knows that this case can now proceed in his absence.  I have considered the criteria set out in the relevant authorities, which are summarised in Archbold at chapter 3, paragraph 198, and I am satisfied that if there was a further adjournment, Mr Clarke would still fail to attend, he would still refuse legal representation and that there is, therefore, no advantage at all in further adjourning the case to give him those opportunities.  The fact that this case now is likely to proceed in his absence is entirely a matter of his own choice and, therefore, weighing up all the criteria that I have to, I have come to the conclusion that the correct decision is that the case should now proceed in his absence and I so direct."

22.  We have been shown a copy of the fax referred to by the judge.  It is addressed to the appellant.  It states as follows:

		"Your case was listed today at the Crown Court sitting at Stafford, for an offence of unlawful wounding.  

		His Honour Judge Eades has ordered that your case will proceed tomorrow morning and if you are not in attendance he will consider proceeding without you in your absence.  

		The prosecution intend to read the following witness statements as evidence."

There is then set out a list of witness statements.

		"The prosecution intend to call the following witnesses to give live evidence."

There is then set out the names of the two witnesses it was proposed to call.  The fax ends:

		"His Honour Judge Eades has asked that you are informed it is in your interest to attend court for this trial."

It is signed by Vic Deeley, an officer of the court.

23.  The appellant now disputes that he ever received that fax.  He suggests through Mr Rule, who represents him, that he only received it when on 1 April 2008 he was informed that he had been found guilty in his absence.  It seems to us perfectly clear that the appellant did receive the first fax and that the judge was entitled accordingly so to find.

24.  Before the jury was empanelled, there was discussion between the judge and Mr Anning.  Mr Anning suggested what the judge might say as to the absence of the appellant.  The judge accepted Mr Anning's suggestion.  At the outset he said this to the jury, which had by then been empanelled:

		"It is this defendant Hughroy Clarke's choice not to be at court.  He is entitled not to come if he wishes.  He has been told of the consequences of not attending court and is well aware that the case is going to proceed in his absence today.  In addition, he has refused legal representation for the trial today.  He was legally represented until yesterday when he dismissed his legal team.  That is also his right and his choice.  The fact that he is not here does not, of course, mean that he is guilty.  The trial will take place in the ordinary way and it will be your task to decide whether the evidence produced by the prosecution proves his guilt.  If it does, you will convict him.  If it does not, you will acquit him.  So I stress, your decision depends upon the evidence and you will draw no inferences against the defendant at all from his absence.  Your task, therefore, is to concentrate on the evidence that is going to be given."

The judge effectively repeated those observations at the beginning of his summing-up.  He said, among other things:

		"So you must treat the fact that he is not here entirely neutrally.  It is no evidence of guilt.  If a person exercises a right, you cannot hold it against him and you must not hold it against him.

		You know, members of the jury, that he has been put in a full picture as to what was likely to happen today about the trial proceeding and he was given every opportunity to attend if he wished and he chose not to.  The same applies to the lack of legal representation.  You know that up until yesterday he was legally represented.  He chose to do away with his legal representation.  That was his choice, made of his own free will.  Again, members of the jury, do not hold it against him that he is not legally represented.  That is his choice and his decision and it does not indicate guilt or innocence in any shape or form.  So please treat that entirely neutrally as well."

The judge directed the jury on joint enterprise.  Although in the grounds of appeal there is floated some criticism of what the judge said, Mr Rule very sensibly has not seriously sought to pursue it today.  The judge made plain to the jury that the case against the appellant was one of joint enterprise; that he had not necessarily directly, according to the prosecution, participated in the attack on Whitfield.  Lawrence's plea was admitted in evidence.  The judge made clear to the jury that the fact that Lawrence had pleaded guilty was no evidence of the appellant's guilt; it was merely evidence that Whitfield had been assaulted.  It is unnecessary to quote his precise words.

The Grounds of Appeal
25.  There are four grounds of appeal.  The first is that the judge was wrong to proceed to try the appellant in his absence and in the absence of any legal representation; that the trial was unfair; and that it breached article 6 of the European Convention on Human Rights.  Leave was not granted on that ground.  It was renewed and amplified in submissions before us to this effect.  It is said that the appellant had sought fresh solicitors; although he had met his present solicitors before trial, it was not until 2 April 2008 that the representation order was transferred; and that in those circumstances the matter should not have proceeded.  

26.  In short, the position as at 1 April was this: first, the appellant knew perfectly well that the case was to be heard; second, he knew that he could attend and make submissions; third, he decided deliberately to absent himself from the hearing; fourth, he decided to withdraw his instructions (the fact that the representation order was not formally withdrawn is in our view on the present facts irrelevant); fifth, he had not before in the course of the case attended any hearing; and sixth, the judge considered the issues raised in R v Jones [2003] 1 AC 1.  There can, in our view, be no criticism of him permitting the trial to proceed.  

The way the judge dealt with the appellant's absence
and lack of representation
27.  Although this is not said by Mr Rule to be among the two most important points, we shall deal with it next.  The submission is this.  The proceedings were artificial.  It was incumbent upon both the prosecution and the judge to reduce the prejudice to the appellant as far as possible.  Reference is made to the Judicial Studies Board specimen direction at 45A.  It is unnecessary to set it out, although we have read it were care.  Its terms, it is rightly submitted, were not specifically followed; some aspects were not dealt with.  It is submitted that the observations made by the judge were prejudicial and heightened the burden that the appellant faced in his absence.

28.  Mr Anning, who was responsible (indirectly at least) for what the judge said, told us that he suggested to the judge such directions as were given for these reasons: some explanation had to be given for the fact that the appellant was not present and nor was he represented.  Mr Anning suggests that the JSB direction is largely for situations when the defendant is absent, but is represented; what the judge said was satisfactory because it made clear that the appellant's absence and the lack of legal representation was not to be held against him.  That is why he suggested the direction in the terms he did.  He suggests that, in the absence of such a direction in the particular circumstances of this case, the jury might have speculated about a number of matters which would have been prejudicial to the appellant.  
29.  A judge, of course, is not required slavishly to follow the JSB directions.  He must tailor what he says to the case in hand.  The judge here entirely accurately set out the position.  It does not seem to us prejudicial to say of a defendant who, as is clear to everyone, is not present or represented, that that was his decision.  The jury was told firmly on two occasions that they had to decide the case on the evidence that they heard, that the absence of the appellant and lack of representation did not indicate guilt or innocence in any shape or form.  They were reminded of the importance to concentrate on the evidence.  They were reminded clearly of the burden and standard of proof.  The jury, whom we must trust, was perfectly able, in the face of the judge's observations, dispassionately, in our view, to consider the evidence.  That ground of appeal therefore fails.

30.  The second ground of appeal upon which leave was granted was in respect of the forensic evidence.  The suggestion is that the full forensic findings should have been placed before the jury.  We have indicated that there was forensic evidence implicating Lawrence, and that there was none, as the judge told the jury, implicating the appellant.  The point made by Mr Rule on behalf of the appellant is that nothing was done to point the jury towards the negative forensic evidence which was consistent with innocence and a positive fact capable of lending support to the appellant's innocence.

31.  Mr Anning rightly points out the judge's observation as to the lack of forensic evidence.  Moreover, he rightly points out that the case against the appellant was of joint enterprise.  It was not suggested that he was necessarily the user of any weapon, or that he joined directly in the attack or necessarily did so.  The absence of forensic evidence, as far as he was concerned, was therefore irrelevant to the case as it was advanced.  

32.  As it seems to us, while it might have been preferable to spell out the forensic evidence as far as it went, and as far as the appellant is concerned, the failure to do so, given the way in which the case was put, could not conceivably render the conviction unsafe.  It was, in reality, of very little probative value.

Apparent errors by the judge
33.  Leave was granted to argue that errors were made by the judge in relation to what he said of the appellant's refusal to answer questions in interview.  We shall not repeat what he told the jury.  In short it was that the appellant refused to be interviewed but that it should not be held against him.

34.  On the material before it, the full court was of the view that there was nothing to suggest that any request for an interview had been made; that the request was merely to see the appellant in order to report him for the summons.

35.  Mr Anning says that the prosecution, in fact, have a document dated August 2008 in which it is stated that a request was made to interview the appellant, that he refused to leave the prison, and that he became extremely violent.  It does not seem to us appropriate to have regard to such information, it never having been adduced.

36.  That having been said, and accepting that to some degree what was said by the judge about the interviews was not entirely accurate, what was said in the circumstances was peripheral.  The appellant said nothing.  The jury was told that he was entitled to say nothing.  The jury was also told that it was irrelevant to his guilt or innocence.  Such error as there was therefore could not in our view render the conviction unsafe.

The extent to which the identification evidence was tainted as a result of the witness Teri Carter having been told in advance of viewing the CCTV footage who the perpetrators were
37.  The full court granted leave to argue that point which is encompassed in the second ground of appeal, which is that identification evidence should have been excluded under section 78 of the Police and Criminal Evidence Act.  The submission, again put shortly, is this.  The CCTV was of very poor quality.  Before she saw it, Teri Carter had been told (possibly unreliably and by way of hearsay) that the perpetrators were Lawrence and the appellant.  That could well have influenced her identification of the appellant.  The jury did not know about that possible influence.  The matter should have been investigated.  The judge should have been invited to consider whether in those circumstances the evidence should have been adduced.  In the circumstances it should not have been.

38.  We have referred to the fact that in evidence Teri Carter said that she had seen much clearer CCTV footage.  We have also referred to the fact that we have seen the CCTV footage in the sort of quality it was seen by the jury.  It seems to us, even having regard to the poor quality of the CCTV which we saw, that it would be reliably open to someone who was familiar with those who lived on the wing in question to identify them.  They are shown, if Teri Carter is right, both upstairs, downstairs, and upstairs again.  Additionally, she was plainly right in her identification of Lawrence.  

39.  It seems to us that the prosecution was entitled to rely on Teri Carter's evidence.  The judge gave a careful direction concerning her evidence, to which we have already referred.  Plainly it could not be adduced before the jury that she had been told what she had, for to do that would have been too prejudicial.

40.  Leave was also given to argue the circumstances of, and approach to, the Turnbull direction.  The first submission is that the observations just before it was given to the effect that there was "no usual contest" were themselves prejudicial and detracted from the Turnbull direction.  It is also said that that direction should have been given at its correct point in the case.

41.  If (and we are by no means certain that it was so) there was a need for a Turnbull direction in this case, it was in our view adequately given.  The witness, after all, purported to identify on CCTV footage someone she knew well.  She could see the recording again and again.  She saw it on better quality equipment.  Either she rightly recognised those whom she purported to identify or she did.  In other words, this is not a "fleeting glance" or a Turnbull type situation.  Assuming, therefore, a warning was necessary, it was in all the circumstances sufficient.

42.  It is also submitted in renewed grounds of appeal that the conviction of Lawrence should not have been adduced.  Reliance is placed on the decision of this court in R v Smith [2007] EWCA Crim 2105.  It is said that the admission of that conviction unfairly undermined the identification of the appellant.  There was no issue but that Whitfield had been attacked.  

43.  We disagree.  We think that the judge was entitled to admit this evidence for the reasons he gave.  He carefully directed the jury regarding it.  There is nothing in this ground.  Leave is refuse.

44.  Ground 4 suggests that the defence case was not properly put in the summing-up and that it contained errors.  We have dealt with the interview issue.  We have dealt with the Turnbull direction.  There was, as we have already mentioned, criticism of the joint enterprise direction.  That is not vigorously pursued and in any event would be wholly without substance.  It seems to us that if the prosecution was right and the appellant voluntarily remained in the cell for six minutes, the jury was entitled to infer that he was present when he knew that the victim was being attacked with a weapon.

Conclusion
45.  For the reasons we have given, this appeal against conviction is dismissed.