Neutral Citation Number: [2011] EWCA Crim 2149
Case No: 201101527/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Tuesday, 26th July 2011
 
B e f o r e: 
LORD JUSTICE MOSES 
MR JUSTICE SIMON 
HIS HONOUR JUDGE GILBERT QC 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

MICHAEL JAMIE EDWARD PHILLIPS
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Miss L Wilson appeared on behalf of the Appellant  

Mr R Storey appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is an appeal that has been well argued by counsel for the appellant, Miss Wilson, who was counsel at the trial.  
2.	The case concerns a young man who asserts that the jury may have convicted him of burglary on an erroneous basis because the Recorder failed to deal in her legal directions with the issue of burglary as committed by someone reckless as to whether they were a trespasser or no.  Secondly, she failed to direct them, as the appellant was entitled to a direction, dealing with him as if he were of good character. 
3.	The appellant and his co‑accused had, beyond doubt, entered the underground car park of a residential building known as a glass house at about 3.35 on the 23rd September 2010.  Means of access to that car park is of relevance to the first issue in this appeal.  Residents would fetch their vehicles by using a key pad and a fob, or by going via a lift or a side gate.  The side gate had to be opened by a key, and the user would need to pass through a second gate secured with a key pad system.  But at the relevant time the lock on the outer gate was broken.  The appellant and the co‑accused got in as shown by the CCTV.  One of them, the appellant's co‑accused, climbed over a gate in order to gain access and there was no dispute but that this appellant knew that that was how his co‑accused had gained access.  But he said that he had gone through the side gate and had merely walked in.  His case was that he was not thinking about whether he was a trespasser, his intention was merely to seek shelter and get off the streets.  He told the jury nothing: "Nothing crossed my mind about whether I was trespassing" and he repeated in cross‑examination: "It didn't cross my mind I was not allowed in."  
4.	CCTV had shown one of them getting in at least by climbing over.  The police, who had been called, arrived at 4.46 and saw the appellant and co‑accused sitting on two mountain bicycles in the underground car park.  They had tried to run off.  There was evidence that the two bicycles had been secured by cables and locks in the car park and that a cable lock had been seen to be broken.  The appellant and the co‑accused said, that they had not intended to steal those bicycles, they had merely found them unsecured and ridden around on them, no doubt to pass the time.
5.	It is accepted that in order to prove burglary the prosecution had to prove, either that the appellant knew he was not entitled to be in the car park, or was reckless, in the sense that he did not care whether he was a trespasser or not.
6.	The first ground of appeal is that it was necessary for the jury to receive a proper direction on recklessness:  The prosecution had to prove that this young man either knew that he was not entitled to be in the car park or did not care less whether he was entitled to be there or not.
7.	The Recorder in directing the jury said to them   
"A person is guilty of trespassing if they enter a building or part of a building knowing that they do not have permission, or being reckless as to whether they have permission or not."  
They received no further direction as to that.  But they were reminded of what the defendant had said about it not occurring to him that he was not allowed in.  That part of the case prompted a request from the jury to be told whether there were any signs indicating that the car park was private property.  They were reminded that there was no evidence about that.
8.	In our judgment, it would have been better if the judge, rather than telling them the law, had directed the jury in relation to what was meant by recklessness.  They had to be sure; if they were not sure that the defendant knew he was not entitled to be there, that he did not care less whether he was or not.
9.	The danger, as Miss Wilson points out, in her clear and cogent arguments, was that the jury might have rejected the Crown's case that these two young men knew perfectly well they were not entitled to be there and convicted on the basis that no one was in fact, other than residents, allowed in the car park, rather than on the basis that this defendant could not care less whether he was entitled to be there or not.
10.	She draws attention, in support of that submission, to the use of the word "admitted" suggesting an admission of an offence when the defendant said: "It didn't cross my mind I was not allowed in." If, of course, that may have been his state of mind, he was not even guilty of recklessness in relation to the issue of trespassing.
11.	Whilst it might have been better had the Recorder given clearer directions in relation to that, our jurisdiction is to consider the safety of the conviction.  There can be no question but that this young man must have appreciated he was not entitled to be there.  What was the point of the gates?  What was the point of double gates, open or not?  He had seen his colleague climb over through the gates because he said "Josh climbed over the gate.  I didn't think I'd fit through the gap.  I decided to walk round to the side entrance and gain access.  The two gates were open and I went through the second gate.  Nothing crossed my mind about trespassing." Having seen his colleague gain access in that way, it was impossible for him to contend and expect to be taken seriously that he did not realise he was a trespasser.  So, in our judgment, the failure that we have identified does not have any impact upon the safety of the verdict.
12.	The next question relates to the character of this young man.  He had, when he was 12, admitted to an offence of criminal damage, for which he had been warned, back in October 2004.  Nearly 2 years later, on 11th September 2006, he was convicted of common assault, when he was 14.  He pleaded guilty and was sentenced to a 6 month referral order.  It was spent, once he had completed the terms of the order successfully.  He adduced those previous offences in his evidence in‑chief.  Unfortunately, before doing so, as Miss Wilson frankly and rightly accepts, she did not raise the question of how the Recorder was proposing to deal with the question of character.  It ought to have been discussed, as she recognises, in advance, so that the defence would know the line they could best take in dealing with those previous convictions.  That would have had an important effect on the culmination of the trial, because it would have afforded Miss Wilson the opportunity of submitting that this appellant ought to be dealt with as if he was of good character.  She might well have wished to say that those previous convictions had no effect on his credibility, because he had previously always admitted when he had done wrong and, further, that it was an important insight into his propensity because although he had previously, unfortunately been involved in some fracas, hence the offence of common assault and very long previously when he was a mere child committed criminal damage, he had never committed any offence as serious as burglary.  No doubt she made those submissions to the jury in her speech but she had not raised those questions with the judge.
13.	It is, of course, entirely a matter for the judge to consider whether fairness demands that a defendant, with previous convictions, or previous warnings is entitled to be dealt with as a person of good character or not.  The judge was not asked to give any ruling as to that issue and never did.  What she did do was, when she came to that aspect of the evidence, to remind them of what the defendant had told them about his past and tell them that just because he committed the previous offences it did not lead to any conclusion that he was likely to have committed the offence of burglary.  She went on:  
"I direct you to disregard them." 
She continued to say that they should not speculate about it and that it had no bearing on their decision in this case, and should not influence them.  That was a strong warning in relation to propensity.  When the matter was finally raised at the close of her directions, she said that she had taken the view that he was not entitled to a good character direction and that was inappropriate.  She was perfectly entitled to reach that view.
14.	In those circumstances we cannot see that this appellant suffered in any way by the approach that the Recorder took bearing in mind she had not been asked to give a ruling in advance.  Indeed, he achieved the best he could hope for having regard to those previous convictions.
15.	In light of the fact that the jury were told to disregard them they could have had no effect upon this conclusion.  
16.	In those circumstances we dismiss the appeal. There will be no recovery of defence order.