Neutral Citation Number: [2010] EWCA Crim 1997
Case No. 2009/01718/C2
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  17  June  2010

B e f o r e:

LORD  JUSTICE  MOSES

MR  JUSTICE  HOLMAN

and

MR  JUSTICE  CHRISTOPHER  CLARKE

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R E G I N A

- v -

JULIAN  JOHN  FREEMAN
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Mr T Bowden appeared on behalf of the Appellant

Miss L Matthews appeared on behalf of the Crown
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J U D G M E N T

Thursday  17  June  2010

LORD JUSTICE MOSES:  

1.  On 24 October 2008, in the Crown Court at Bristol, the appellant (now aged 27) was convicted of two counts of assault occasioning actual bodily harm against Kelly Bains, with whom he was in a relationship, and one of blackmail.  On 17 November 2008, he was convicted unanimously of kidnap on a separate indictment in relation to a different victim.  On 12 December 2008 he was sentenced on the two counts of assault occasioning actual bodily harm to two years' imprisonment on each and on the blackmail to six years' imprisonment.  For the offence of kidnap he was sentenced to imprisonment for public protection with a specified minimum period of five years and 78 days (less a period of time spent in custody on remand).  By leave of the single judge he appeals against conviction in relation to the two offences of assault occasioning actual bodily harm and one of blackmail on the basis that the judge improperly permitted the statement of Kelly Bains' mother in relation to the blackmail to be read.

2.  We can deal comparatively shortly with the evidence so as to give the context in which the issue arises.  Trouble had started between the appellant and his girlfriend in relation to another girl the subject matter of another count in respect of which he was acquitted.  It had started on the night of 25 February 2008 and had spilled over into the following day.

3.  On 26 February 2008 it was alleged that the appellant had by threats forced Kelly Bains into a motor car and had then telephoned her mother from his mobile and threatened to break her daughter's arms and legs.  He said that he wanted £3,000 within an hour.  They travelled from the scene in the car with three other occupants to a public house where it was alleged she was persuaded to go into a park.  According to the prosecution, the appellant had then struck her on both her legs with a wooden object.  They had travelled on to a petrol station and there, it was alleged, a threat had been made accompanied by a request to her mother, Jayne Bains, for £3,000.  A number of calls had been made in which threats were made that if the money was not handed over Kelly Bains would either be killed or her arms and legs would be broken.  Those threats were interspersed with conversations, so the prosecution said, between the girl and her mother.

4.  The journey had continued to a car valeting business.  There Kelly Bains had tried to lock herself in the car.  The appellant had smashed one of the windows of the car with a wooden object.  Kelly Bains managed to escape from the car, so the prosecution alleged, and run to the main road, pursued by the appellant.  That assault was witnessed by two bystanders.  Susan Taylor described a "ferocious attack" in which the assailant hit a girl on the back of her head, dragged her by her hair and kicked her five or six times.  Susan Taylor said that the girl appeared to be resigned to what was happening.  The other witness, Alexis Irwin, said that she saw a woman being held in a headlock and kicked in the back.

5.  The evidence on which the prosecution relied was contained not in the oral evidence of Kelly Bains, but in the evidence of written statements she had made to the police.  When she arrived at the Bristol Royal Infirmary with the appellant, she spoke to doctors and porters there.  She did not make a complaint against the appellant but said that she had been struck by a 4x4 motor vehicle.

6.  Her mother had made written statements to the police in which she described the terrifying telephone calls in which her daughter had sounded frightened and upset.  She had heard the appellant threaten to kill her daughter or to break her daughter's arms and legs.  He had said, "Even if I get the money, no matter what, I'll still break both of her arms and legs".

7.  Kelly Bains' mother attended a police station at Cwmbran.  There Police Constable Tinsley saw her at 4.10pm on 26 September 2008.  She was very distressed.  She complained that her daughter had been kidnapped.  Whilst she was there she received a telephone call in which the police officer heard Kelly Bains sounding very distressed.  There was a male voice in the background shouting something.

8.  As was foreshadowed in the attitude of Kelly Bains when speaking at the hospital, in the absence be it said of the appellant, it was plain that as the prosecution continued Kelly Bains wanted no part of it.  She wrote letters complaining of the way the police had behaved, complaining that she had been persuaded by her father to make the statement, and criticising the conduct of the officers.  A number of those letters were before the jury.

9.  Her mother, Jayne Bains, who, it will be recalled, had gone to the police station to complain of kidnap, wrote on 1 April 2008:

		".... I wish to formally withdraw my statement relating to the alleged kidnap and assault on my daughter Kelly Bains.  

		Having recalled and discussed the manner in which the statements were taken, I'm in full agreement with the comments of my daughter's letter."

10.  By the time of the trial, the prosecution were aware that they would receive no assistance -- indeed there was to be positive evidence to the contrary -- at least from Kelly Bains.

11.  The mother, Jayne Bains, did not attend on the first day of the trial.  A medical report was produced.  The circumstances in which that was produced were aired before the judge in evidence given before him by Detective Constable Caulfield.  He told the court that he had gone to the address of Jayne Bains, who had not attended, and had approached her in order to present her with a witness summons.  In response to that Jayne Bains said, "I won't be coming".  Her husband said, "You won't be saying anything", and went on to say, "We'll get a certificate from the doctors".  Indeed a certificate was produced before the court.  It was dated 15 October.  It read that she had recently been an in-patient at a hospital identified suffering with severe right-sided kidney pain.  She was currently undergoing investigation but unfortunately was still suffering from the pain and required regular doses of strong analgesics.  The prosecution were clearly concerned.  They needed to know the position and whether they could seek to deploy section 116 of the Criminal Justice Act 2003.  A telephone call was therefore made to the doctor who said that he regarded the problem as persisting and ongoing and that she would need future medication.

12.  In the light of that position the prosecution sought to rely upon section 116 of the Criminal Justice Act 2003, and particularly upon section 116(2)(b) on the basis that Jayne Bains was unfit to be a witness because of her bodily condition.

13.  In his ruling of 16 October 2008 the judge refused that application.  Counsel for the prosecution, Mrs Matthews, therefore proceeded straightaway to submit that, pursuant to section 114(1)(d) of the 2003 Act, the court should be satisfied that it was in the interests of justice for the statements made by Jayne Bains to be read.  The judge acceded to that submission, despite the opposition of Mr Bowden on behalf of the defendant, and said that he would give his ruling later.  That was clearly a sensible course so that the trial should proceed.  

14.  The judge gave his ruling on 22 October.  He described in short order the evidence given by DC Caulfield, particularly of the husband saying "We'll get a medical certificate", and noted that that was in the context of Jayne Bains being served with a witness summons.  He concluded that he was not satisfied so that he was sure that she was unfit to attend at court. 

15.  The judge then proceeded to consider section 114.  He conscientiously went through the different factors identified in section 114(2).  As has been pointed out in a number of authorities in this court, it is not incumbent for a judge to consider in detail every single factor under subsection (2) because not all those factors will always be relevant.  However, the judge set out his reasoning and noted that under subsection (2)(a) of section 114 the statement of Jayne Bains had substantial probative value in relation to the allegation of blackmail.  That was plainly correct.  During the course of an excellent summing-up the judge dealt with those parts of Jayne Bains' statement that went to blackmail.  At the close of his summing-up he was asked by the jury to remind them of the statement of Jayne Bains and he did so.  He reminded them that it described in detail a series of calls.  There was independent evidence of the timing of those calls.  We need not read them out for the purposes of this judgment.  They are detailed and identify separate calls in which threats against her daughter were made for the purposes of obtaining money.  It is therefore not surprising -- indeed, only one conclusion could sensibly be reached -- that they were of considerable probative value in relation to the blackmail.

16.  The judge then considered what other evidence there was in relation to the blackmail.  There was plainly the evidence of the statements made by Kelly Bains which would be evidence of their truth should she, as in fact she did at trial, say that they were untrue.

17.  In relation to (c) the court asked how important the evidence was and the judge rightly identified the fact that they were central.  There was some discussion in this court as to which way the importance of a statement read under section 114 would lead.  Is it the case that the more important it is, the more reluctant the court should be to admit it?  Or is it the case that the more important that statement is, the more anxious the court should be to ensure that it should be adduced?  In our judgment the statute must be read as requiring consideration of the importance in the context of the interests of justice.  An important statement that favours the prosecution may well lead to the conclusion that it is in the interests of justice to the prosecution that that statement should be read.  That is clearly, and in our view correctly, the approach the court took.

18.  Under (d) the circumstances in which it was made were plain.  A formal witness statement was available from an experienced officer who gave evidence to the court as to the circumstances in which those statements were obtained.

19.  We turn to a feature which causes us greater difficulty.  Under (e) the court is required to consider how reliable the evidence of the maker of the statement appears to be.  In his ruling the judge said this:

		"It appeared to me that she appeared to be reliable although unwilling.  The two are not necessarily the same, and there was no available evidence to show the witness was unreliable.  Often that will be a case in which the court will have to have regard to the general mental state of the witness and whether or not they could have been trusted to give competent evidence before the court had they attended.  It seems to me that there is nothing to impugn the reliability of the witness only to suggest that she was not now willing to give evidence."

We pause there.  In one sense the judge was plainly right.  Looking at the statements as a whole, their detail, their coincidence with the timing of the mobile telephone calls and the location of the calls made on the mobiles, coupled with the evidence of PC Tinsley, to which we have already referred, tended to show how reliable the maker of the statement was at the time those statements were made.  The judge was entitled to conclude that it was difficult to think that she could have made all that up, even if it stemmed from exaggeration as to the circumstances in which the calls were being made.  That simply would not explain the evidence of the officer, PC Tinsley.

20.  However, that was not the only feature of the evidence which it was incumbent on the judge to consider when considering section 114(2)(e).  There was other evidence of unreliability to which he ought to have referred, even if one accepted the prosecution's stance.  Whatever the explanation, Jayne Bains had made detailed statements accusing the appellant of blackmail and yet had purported to withdraw them in wholly startling and surprising circumstances to which the letter that she wrote gave witness.  Furthermore, there was her whole attitude as described by DC Caulfield when served with a witness summons.  Indeed, so unreliable was she that the judge had rejected her reliance upon her medical condition.  In those circumstances it was inconsistent for the judge merely to conclude that she was reliable without at least some reference to the surrounding circumstances which suggested to the contrary.

21.  The judge then turned to other factors.  Under (2)(f) there was no problem about the evidence of the making of the statement.  (2)(g) related to whether oral evidence could be given.  The judge considered that although oral evidence could have been given, it was not given because of the cloak of unfitness behind which the witness was hiding.  Under (2)(h) the judge concluded that there was no difficulty in challenging the statement since the appellant could give evidence about it.  Under (2)(i) he concluded that there would be unlikely to be prejudice to the appellant.

22.  Having made his ruling, the case proceeded.  Kelly Bains gave evidence in which she said that, although there had been a quarrel on that day and indeed the day before with the appellant, it was that which had led her to make false statements against him.  She stood "forcefully" by her current, up-to-date account that the allegations were false and she did not stand by the original statements she had made.

23.  The independent witnesses gave evidence and the appellant gave evidence in which he denied having treated Kelly Bains with violence.  He accepted that there had been arguments, particularly with the girl the night before in respect of the offence of which he was acquitted.  He described how, when Kelly Bains was standing on a kerb, she had turned and a car had hit her.  The driver had not stopped and the appellant had gone with her to Bristol Royal Infirmary.

24.  The jury convicted of the two offences of assault occasioning actual bodily harm and of the blackmail, although they acquitted the appellant of kidnapping and of an assault against another lady.

25.  The question now arises whether the judge was right in the interests of justice to admit the evidence of Jayne Bains in statement form pursuant to section 114.  It should be repeated: this court should not interfere unless the conclusion of the judge is outwith the range of reasonable conclusion.

26.  There is now ample authority on the correct approach to section 114.  As Lord Phillips made clear in describing the scheme of this part of the 2003 Act in R v Horncastle [2010] 2 WLR 47, the jurisdiction to admit such a statement under section 114 is a residual jurisdiction if the interests of justice require it.  Not only is it residual, it is limited: see paragraph 31.  In a number of cases this court has stressed that section 114 should not be used by the prosecution or the court as a way of circumventing the requirements of section 116.  Indeed, it would be wholly contrary to the scheme of the Act if the prosecution, having failed to identify a condition  under section 116(2), could as a matter of routine rely upon section 114(1)(d) in particular in circumstances where to do so would circumvent the requirements of section 116.  If authority is required for that proposition, which is evident from the structure of the Act, it can be found in the decision of this court in R v Y [2008] EWCA Crim 10 [at paragraphs 58 and 59].  
27.  Generally, criminal justice in this country requires a defendant to be given the opportunity to confront a witness.  In this case the prosecution say that that would have been of little avail to the  appellant since it was plain that the witness, Jayne Bains, sought to resile from the earlier detailed statements that had been made.  But the effect of depriving the appellant of the opportunity to cross-examine the witness was that he was deprived of the opportunity to explain how it was that the first set of statements came to be made and why it was that she now resiled from them.  After all, for all anybody knew, she might have said that she was angry or upset with the appellant because of his attitude to her daughter and had deliberately exaggerated what had happened and what she had heard down the telephone.  She might have gone to the lengths of explaining how she was able to put on a charade of distress as witnessed by PC Tinsley.  
28.  Apart from the authority of R v Y, this court has stressed the need of courts to be aware of the different factors under section 114(2): see, for example, Seaton v R [2010] EWCA Crim 450 at paragraph 23.

29.  In the instant case there is one further raft of authorities to which we ought to draw attention: those authorities that deal with a reluctant witness.  It is vital that courts bear in mind that there is no provision under the 2003 Act that permits statements to be read merely because a witness is reluctant to give evidence: see, for example, the decision of this court in R v Z [2009] EWCA Crim 20, [2009] 1 Cr App R 34 (page 500) at paragraph 25, and that part of the decision of the Supreme Court where, in Annex 4, Lord Judge CJ applied domestic jurisprudence to a number of cases considered by the European Court of Human Rights.  Lord Judge emphasised that there was no provision within domestic jurisprudence that merely allowed witnesses, who will often be reluctant to attend court, to have their statements read.

30.  In this case the reluctance of the witness was obvious.  We also bear in mind that we have grave doubts as to what assistance in fact, and as a matter of reality, the defence would have obtained had the prosecution in some way compelled her attendance.  As we have sought to emphasise, her statements were detailed, were supported by the mobile telephone records as to their timings (although not as to their content), and were powerfully supported by PC Tinsley who overheard what was going on between Jayne Bains' daughter and the appellant.  Had she been called, she would have been in exactly the same position as her daughter, having to explain how it came about that she had given such detailed statements to the prosecution as to the blackmail and as to the threats when they, on her account, were, in fact, untrue.  It was clearly that belief on the part of the judge, namely that there was little to be gained for the defence by having her there, that led him to his conclusion.  We have considerable sympathy with that view.

31.  However, in our judgment there was a fatal error in the process adopted by the prosecution, which tends to show a belief that statements can be read under section 114 in circumstances which are by no means rare, namely merely on the basis that the witness was reluctant.  That, as we have sought to emphasise, is not enough.

32.  The prosecution had hoped to rely upon Jayne Bains' lack of fitness, supported by the telephone conversation between Detective Constable Caulfield and the doctor.  But the judge rejected that.  In those circumstances, as Holman J suggested, arguendo, it was worth considering whether greater pressure should have been put upon the witness to attend.  It is so easy, after all, for witnesses, perhaps unfamiliar with the criminal process, to think it sufficient to say that they do not want to come to court.  Few witnesses do.  But an opportunity should have been taken either to go back to the witness, armed with a warrant; or at least to go back to the witness with firm information that the judge rejected the medical certificate as a basis and that she had better attend court.  Alternatively, since they knew where she was, some measures could have been taken to see whether in the following few hours, or by the next day she could be compelled to attend court.  Nothing was done.  Section 114 was, in our judgment, too readily deployed.

33.  We can only emphasise the principle that reluctance is not a ground for not making a witness come to court, and reading a statement is not an alternative to a reluctant witness.  We have concluded that the judge erred in permitting this statement to be read.  In those circumstances we take the view that the jury should not have heard read out detailed statements that went importantly, as the judge recognised, to the count of blackmail.  We shall quash that conviction.

34.  The question then arises as to how that affects the counts in relation to the two offences of assault occasioning actual bodily  harm.  For that purpose we must return to the facts of the case.  There was independent medical evidence of the extent of the injury to Kelly Bains.  Quite apart from that, there was the evidence of the two independent witnesses, Susan Taylor and Alexis Irwin, and the evidence of PC Tinsley of the distress of Kelly Bains during the telephone call which she overheard.  There was also one further piece of evidence to which we have not yet referred.  There was forensic evidence which gave the lie to a piece of evidence that the appellant had given as to how it was that the window of the car had been broken.  There was forensic evidence which showed that the site of the break was by the car valeting premises in Stafford Street.  Glass found in the gutter was found to match glass recovered from the appellant's clothing and from the clothing of Kelly Bains and matched the glass from the Honda motor vehicle.  That was powerful evidence which contradicted what the appellant said. 

35.  In excellent and clear submissions Mr Bowden argued that by allowing the statement of Kelly Bains' mother to be read, it supported Kelly Bains' evidence not just in relation to the blackmail but also in relation to the offences of assault occasioning actual bodily harm.

36.  We do not agree.  We think that there was ample evidence that the appellant treated Kelly Bains with real and serious violence on that day in public places, witnessed by others.  In those circumstances we do not allow the appeals on the two counts of assault occasioning actual bodily harm against her.  

37.  For those reasons the conviction on the count of blackmail is quashed and the appeal is allowed to that extent.

38.  The appellant also appeals against sentence by leave of the single judge.  The sentence which is challenged is that of imprisonment for public protection with a specified minimum of (not as it is shown in the Court of Appeal Summary) six-and-a-half years, which represents a determinate sentence of thirteen years.

39.  The appellant is aged 27.  The argument first advanced by Mr Bowden is that there was insufficient material to justify the conclusion that he represented a significant risk of causing serious harm to the public on the basis either of his previous convictions or on the basis of the offence for which he fell to be sentenced.

40.  Although the appellant had an appalling record, it was not as serious as might have been thought.  It was suggested in the pre-sentence report dated 8 December 2008 that there was serious previous offending.  It was certainly numerous; there were 84 previous offences, very many of them committed when he was a juvenile.  They were serious in the sense that repeated offences of causing damage and common assault are always serious, but they were nothing like as grave as the offence of kidnap for which he was sentenced.  There was an offence of affray when he was aged over 18, but the offence of robbery recorded was committed whilst he was still a juvenile.  After that, similar minor offences were repeated.

41.  It is submitted that the previous offending was not sufficiently serious as to indicate a high risk of harm to the public, even though there was clearly a high risk of repeated offending.

42.  The pre-sentence report dated 8 December 2008 refers to documented incidents of domestic abuse towards previous partners.  That is challenged, although it appears that the police have some evidence of previous reports.  But it matters not, in our view, since the evidence of the appellant's behaviour towards Kelly Bains, of which he was convicted, demonstrates serious violence towards partners.  It should be recalled that, whilst her injuries might not have persisted or been long-lasting, the appellant chose to treat her with violence in public and in the presence of others.  That provides a powerful demonstration of his inability to control his violence and anger.

43.  All of that pales into insignificance in the light of the offence for which the sentence of imprisonment for public protection was imposed.  That offence took place in the early hours of 30 March 2007 when the appellant with two other men went to a house in Bristol, assaulted two men and kidnapped one of them.  That man was placed into the boot of a car.  The judge, who was in the best position to assess the offence, described it as the use of unrestrained violence to subdue and to carry away the victim.  Merciless baiting had taken place and the violence was extreme.  The victim was detained in the boot of the car for a period of 45 minutes until the appellant and his co-defendant, Churchley, obtained the money that they wanted.

44.  That, in our view, is a powerful demonstration of an escalation of violence.  True it was that there had been no offences between 1999 and the instant offences, but this escalation was a matter of severe concern.  It amply justified the view that the probation officer in the pre-sentence report, and indeed the judge, took.

45.  The reports are taken to task, and particularly the pre-appeal report dated 1 September 2009, for the fact that the appellant did not admit the offences of which he had been convicted.  Although it is hard for a young man to accept his responsibility, it nonetheless is a factor in that it shows the difficulty he will have in reforming whilst he maintains that attitude.  In the second report the author makes it clear that he assesses the appellant as posing a high risk of causing serious harm, whether or not the conviction for blackmail is quashed.  The offence shows the capacity for serious premeditated violence.  That relates to the offence which the appellant has not sought to challenge against a friend of his girlfriend, Tessa Barrett, whom he assaulted in the early hours of the morning on which the other offences took place.

46.  For those reasons we take the view that the judge was entitled to conclude that the appellant posed a high risk of causing serious harm.  We bear in mind his youth in respect of which there are greater prospects for reform than there would be if he was older.  We also bear in mind the fact that such a sentence is a sentence of last resort since a court is bound to consider an extended sentence before it considers an indeterminate sentence of imprisonment for public protection.

47.  Nonetheless, we take the view that that sentence was appropriate.  The appeal against it is dismissed.

48.  The next question is as to the notional determinate period.  The appellant was sentenced to a specified minimum period of six-and-a-half years' imprisonment.  His co-defendant was sentenced to a determinate sentence of nine years' imprisonment for the kidnapping.  That is considerably less than the thirteen years which the six-and-a-half years represents.  No basis has been put forward for distinguishing between the two, even though Churchley has limited previous convictions.  That is no basis for distinguishing between the two.  Were it to do so, the appellant would have suffered a double penalty, taking into account his previous convictions not only in relation to the conclusion that an indeterminate sentence should be passed but also in relation to the notional determinate sentence.

49.  We see no basis for distinguishing between the two.  In those circumstances we shall reduce the minimum period from one of six-and-a-half years to one of four-and-a-half years' imprisonment.  We stress that that does not mean that he will be released after four-and-a-half years; that is the minimum period before which parole can be considered.  There will be reduced from that the correct period of time that he has spent in custody on remand.  To that extent the appeal against sentence is allowed.

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