Seale, R v [1997] EWCA Crim 1677 (3rd July, 1997)

THE VICE PRESIDENT: On 12th February 1992, after a 25 day trial at Manchester Crown Court before His Honour Judge Sachs (as he then was), the appellant was convicted of five offences of robbery on Counts 1, 2, 3, 5 and 6, and one offence of having a firearm with intent to commit an indictable offence, namely robbery, on Count 7. The verdicts on Counts 1, 2, 6 and 7 were unanimous. The verdicts on Counts 3 and 5 were each by a majority of 10-2. The jury failed to agree on Count 8, which alleged possession of a firearm, a Basque pistol, on the motorway with intent to endanger life on the same day as that to which Counts 6 and 7 related. Subsequently the appellant was sentenced to 18 years' imprisonment on each count concurrently, and a forfeiture order was made in respect of certain items.

The co-accused, Lynne Seale, was the appellant's sister-in-law. She said that she was acting under duress in the sense that she was afraid of the appellant, and had asked no questions as to what was going on. The jury acquitted her on Count 7, robbery, on the judge's direction. They were unable to agree in relation to her on Count 4, which alleged handling stolen goods, and Count 6, one of the robbery counts: they were discharged from returning verdicts on those counts and she was discharged.

A man called Stephen Brown had absconded and did not appear for trial with the appellant and his sister-in-law, but he was subsequently arrested, tried separately and convicted on Counts 1, 2, 6 and 7, and sentenced to 16 years' imprisonment concurrently for each of those offences and two years consecutively for escaping from custody, that is, making a total sentence of 18 years.

The Single Judge granted this appellant the necessary extension of time of nine and a half months in relation to an application for leave to appeal against conviction, but he refused leave to appeal. The Full Court granted leave on 7th October 1996. His application for leave to appeal against sentence was refused by the Single Judge and was not renewed.

In summary, five armed robberies took place in the Manchester area between 28th September 1989 and 2nd February 1990. The prosecution alleged that the appellant had committed them with Brown, so far as Counts 1 and 2 were concerned, with Brown and Lynne Seale so far as Count 6 was concerned, and with someone other than Brown, who at that time was in custody, so far as Counts 3 and 5 were concerned. It was the prosecution case that during the robbery giving rise to Count 6, the appellant had a pistol with him, and that gave rise to Count 7.

A team of police officers gave evidence about carrying out surveillance on the appellant. On 1st February 1990 they undoubtedly chased a beige Montego car in which he, Brown, and Lynne Seale were travelling shortly after the robbery. The officers alleged that the appellant was in the rear seat of that car and had threatened one or more of them with a gun, and that gave rise to Count 8 in relation to which the jury, as we have said, disagreed.

The appellant's case was that he had not committed any of these offences. There was a conspiracy by the police to convict him, and evidence had been, pursuant to that conspiracy, planted on him and the police officers had lied. Furthermore, so far as 1st February was concerned, there was a third man involved, referred to as "John", and it was he, not the appellant, who had committed the robbery on that day with Brown.

About 25 minutes before the robbery, a Mrs Collins and her daughter, Mrs Wilson, had seen three youths, as they described them, in a red car outside Mrs Wilson's house in Flixton. The registration number of that car, Mrs Wilson said, was C960 JOE. In due course she purported to identify the appellant, in the dock, as being one of the men whom she had seen, and to that we shall later return.

In the course of the robbery, the two men had entered the bank while customers were being served. One had smashed the anti-bandit screen with a hammer. One had pointed a gun at the cashier and demanded money. The man with the pistol in his hand ran out of the bank, taking off his balaclava, and got into the rear of a red Ford Escort car, which was driven away. There were apparently three people in the car. It had been stolen the previous night, and its registration number, to which we have referred, was false, and composed of stick on letters and figures, to the significance of which we shall later return.

Count 2 related to the Trustee Savings Bank at Bolton. On the afternoon of 19th October 1989 two men robbed that bank of £1,300 odd. An hour and a half or so before the robbery a lady delivering newspapers noticed a white Fiesta motorcar D170 VVU, with one person in the driving seat. Another man wearing a tracksuit walked to the car, spoke to the driver and got in. At the time of the robbery the security screen was shattered. One of the two men had two guns. When the getaway car, the white Fiesta, which had been stolen a day or two before, was examined, it, too, was found to have a number plate composed of sticky letters and figures, and broken glass was taken from inside the vehicle.

Count 6 related to the National Westminster Bank at Irlam-O'th'Heights. That was robbed at about 12.15pm on 1st February 1990 by two men. Something over £10,000 in cash and a quantity of cheques were taken. Some minutes before, two men wearing ski tops with hoods and their collars up and one of them carrying a bag or binliner, were seen standing against a wall not far from the bank. There was a white Escort with its engine running nearby, and the witness who had seen the two men shortly before the robbery leaning against the wall saw them shortly afterwards getting into the Escort.

Another witness saw two men enter the bank wearing, he said, light blue jeans and balaclavas. The first had a bag under his arm. A shot was heard as the men were coming out. One of the men was six feet tall and wearing a dark balaclava, dark top and trousers, and had a sledge hammer. The gun was fired, and the robbers left the bank. Another witness saw two men carrying a black bag come out of the bank. A white Escort, registration C676 DNB, was parked in the next street. Another witness said he had seen the white Escort facing a cul-de-sac with the engine running. It was empty at that time. He noticed that the number etched on the window did not correspond with the registration plates. The ignition was smashed. There was a Nat West Bank cheque inside the car. Samples were taken from that vehicle.

The evidence connecting the appellant with the events at the National Westminster Bank, Irlam-O'th'Heights on 1st February came, in the first place, from police officers, in particular the team who had been carrying out surveillance to which we have referred. According to that evidence, at 10.40am on 1st February the appellant and Brown left 20 Collingwood Road in Levenshulme. They drove off in a beige Montego B691 WBW, registered in Lynne Seale's name. They drove to her home in Blackley. She joined them. The three travelled to Salford in the same car. They stopped in Kendal Road. Brown walked to a blue Montego, which had been stolen two days before and was displaying a false registration number B527 RNA, made up from stick on numbers and letters. They put petrol from a can from the beige Montego into the blue Montego, and then Brown drove off in the blue Montego followed by the appellant and Lynne Seale in the beige one.

At 11.37am the blue Montego was parked in Park Lane. Brown got out of it. The beige Montego, with the appellant driving and Lynne Seale as a rear passenger, drove past the blue Montego. At 11.44am all three of them were seen in the beige Montego, which was then stationary in Kendal Road, Salford. A few minutes after that, Lynne Seale was observed driving that car alone.

At 12.15pm the white Escort, to which we have earlier referred, was seen with two people in it wearing hoods. It was not far from where the blue Montego was parked. The prosecution case was that Brown was driving it and the appellant was in the front passenger seat. The two occupants alighted in Godfrey Road. The appellant was then carrying a large bag. The two of them went to the blue Montego. Brown drove it. The appellant was the front seat passenger. Brown, by this time, had removed his mask.

The car stopped in Welwyn Drive, where the appellant and Brown got out, and went on foot to Hereford Road. The beige Montego was parked there with Lynne Seale in the front passenger seat. According to the police, the appellant got into the rear of that car and Brown drove it. It was followed on to the M63 motorway and, according to at least one officer, during the course of that pursuit the appellant, who was sitting in the rear of the car, wound down the window and pointed a handgun at the police. There was then a high speed chase which culminated in the Montego being abandoned in a cul-de-sac in Eccles. As Lynne Seale was getting out of the passenger door she was arrested. The appellant and Brown ran off. The appellant, who was wearing a suit, was detained nearby, and Brown was found hiding a short distance away. As he was pursued, large quantities of bank notes fell from his pockets.

In the rear of the Montego was a large bag, the one which the appellant had been seen carrying, and it contained cash and other items from the bank - woollen hats, a hammer, a pair of bloodstained kitchen gloves and a pair of trousers. There was a grey and yellow tracksuit top on the rear seat and also a quilted anorak, in the pocket of which was a Basque pistol, cocked and containing live ammunition.

Forensic examination of a number of items took place, and that led to the jury hearing evidence that a cartridge case found outside the Nat West Bank had been fired by the Basque handgun. Furthermore, the false number plates on the blue Montego had been peeled from the backing papers found at 20 Collingwood Road, and there were fibres indicating contact between the blue anorak found on the back seat of the Montego and the jacket worn by the appellant at the time of his arrest, suggesting that that anorak had been worn over the top of that jacket. There was also a glass fragment in the pocket of the jacket, which was indistinguishable from the glass forming the security screen at the Nat West Bank. There were also fragments of similar glass found on the appellant's shoes.

So far as a connection between the appellant and the robberies to which Counts 1, 2, 3 and 5 related, there was again forensic evidence linking the gun used, items of clothing worn and stick on numbers. The Basque pistol was shown, by evidence which included that from a security camera as well as other evidence, to have been discharged in the TSB robbery at Bolton, which gave rise to Count 2, the Norweb, Cheetham Hill robbery, which gave rise to Count 3, and the Leeds Building Society robbery, which gave rise to Count 5.

The tracksuit top worn by the man holding the gun in the photos of the robberies at the TSB, Flixton, Count 1, the TSB, Bolton, Count 2 and the Leeds Building Society, Count 5, appeared, in each instance, to be the same garment, but that garment was not recovered. A light coloured tracksuit top worn at the TSB, Flixton, Count 1, was identical in appearance to the grey, green and white top recovered from 20 Collingwood Road and, in particular, there was damage to the seam at the right of the neck which was visible in the Flixton security camera video. The grey and yellow tracksuit top recovered from the beige Montego was indistinguishable from that worn by one of the men in the robbery at the TSB, Bolton, Count 2.

The tracksuit trousers with three stripes down, worn in the two TSB robberies, Counts 1 and 2, appeared to be identical, and were worn on each occasion with the pockets hanging out. Those trousers were identical in appearance to grey Adidas tracksuit trousers recovered from 20 Collingwood Road. Glass fragments from those trousers could have come from the security screen at the TSB, Bolton.

Printing imperfections in the number "0" on the stick on registration plates, D170 VVU, found on the Fiesta getaway car in relation to Count 2, corresponded with those in the 0 on the stick on registration plate, C960 JOE, found on the red Escort getaway car in Count 1. Printing imperfections in the number "7" of D170 VVU corresponded with those seen on the stick on registration plates B527 RNA, on the blue Montego, one of the getaway vehicles, from the Nat West Bank in Count 6. A glass fragment in the appellant's jacket pocket was indistinguishable from broken glass taken from the Fiesta, D170 VVU, used on Count 1. Fragments of glass from the appellant's shoes and jacket pocket were indistinguishable from the glass security screen at the TSB in Bolton, which gave rise to Count 2. There was also evidence that on 29th October 1989, two days after the Norweb robbery, the appellant and Lynne Seale had bought two motorcars for a sum in cash in excess of £3,500.

The appellant was not picked out on any identification parade, and there was no fingerprint evidence against him. It was accepted that he had not changed his appearance between arrest and trial, and he had willingly gone on the identification parades and provided a specimen of head hair and his fingerprints. In interview he denied having been involved in the robbery on 1st February. He said he was the driver of the beige Montego on the motorway, and was in a state of shock at the time of the collision. He certainly had not pointed a gun at anybody during the chase.

The dock identification, to which we earlier referred, by Mrs Wilson took place in these circumstances. The appellant invited her to look round the court and see if she could see anyone who was in the car on the day of the robbery in Flixton on 29th September 1989, when she had referred to youths with a red car. She said, "Yes, it was you". To the way in which the judge dealt with that in his summing-up, we shall later return.

The co-accused, Lynne Seale, gave evidence. She said that she knew the appellant had been to prison for a stabbing offence and thought he was dangerous, and she gave examples of him using violence. As to 1st February, he and Brown had turned up unexpectedly at her home, and the appellant had asked her to take them to Salford. She largely accepted the police accounts of the movements of the car. She said there was no discussion about a robbery. She thought they were going to steal cars. When the men left the car, the appellant told her to park on the bend in Hereford Road and move into the passenger seat. They went off in a white Escort. When the appellant and Brown returned, she asked what they had done, and the appellant said, either, "They've just done the bank" or "We've just done the bank". She said there was no third man. She said that she had been too scared of the appellant to ask questions.

As to the appellant's defence, there was, by agreement, called towards the end of the prosecution case, a Mr Bland, the defendant's forensic expert. He said he had found a very small bloodstain of unknown age on the rear seating in the beige Montego, and he had examined the surveillance logs. He would have expected to find hesitations or corrections in the log, which were not there. It seemed incomplete. In cross-examination he agreed that the evidence of the way in which the log had been kept from police officers was sensible, and he also said that an ESDA test, which he carried out, showed no late additions or alterations to suggest subsequent fabrication of the log.

The appellant did not give evidence. He made a lengthy closing speech. Among other things, he said that he was unable to say where he had been at the time of the earlier robberies because they had occurred some months before he had been arrested. He was innocent. The police were corrupt. The surveillance officers were part of a conspiracy to convict him, and their log had been concocted. On 1st February there was a third man, John, in the car. He, the appellant, was driving and not in the rear passenger seat pointing a gun, as the police claimed. There was confusion in the police evidence about rubber gloves said to have been in his possession on arrest. There was dishonesty by Detective Constable Dooley about the number and nature of photographs he had taken on 1st February, and there was also dishonesty by Detective Sergeant Hulse, in particular in relation to the keeping of exhibits.

As to the items taken from 20 Collingwood Road, they were from upstairs and not downstairs where he was living with his girlfriend. He had willingly attended the identification parades and given a head hair sample. He did not realise that Lynne Seale was afraid of him. It was easy for unscrupulous officers to contaminate exhibits, for example, by glass fragments. The police had threatened to fit him up unless he became an informer and told them John's surname. He told the jury that the reason he had not given evidence was because he did not want to grass on John.

(We interpose that, in the course of his submissions to this Court, he claimed that John was an agent provocateur put up by the police, who, having failed to persuade the appellant to commit the 1st February robbery, carried it out himself with Brown.) He did not explain to the jury why, even if a third man was present in the car, this exonerated him on Count 6, or why, if he had been driving rather than merely a passenger in the getaway car on 1st February, this afforded any defence on Count 6.

On 29th May the appellant gave notice of an intention to apply to vacate the new trial date of 8th July. That application was not pursued, but on 27th June the appellant did apply to vacate the trial date of 8th July, this time on the basis of alleged non-disclosure of unused material by the prosecution. The judge granted the application, made an order for disclosure, and said that this was to be the last adjournment of the trial. A new trial date, 6th January 1992, was fixed on 19th July.

During 1991 the appellant entered into correspondence with the Crown Prosecution Service, the trial judge and the Attorney-General, making many, and extensive, requests for disclosure of information and documents and repeating those requests even after information or documents had been supplied or he had been told that the documents did not exist.

Purely as an example of this, on 4th September 1991 the appellant's solicitor sent a letter to the Crown Prosecution Service, which appears to have been drafted by the appellant himself, making 185 requests for further information. On 13th December, at a pre-trial review, the prosecution told the judge that most, if not all, of the available information sought in that letter had been supplied and any outstanding matters would be disclosed prior to the trial. On that occasion, junior counsel for the appellant, having addressed the court on a number of matters, the appellant himself, having initially been told by the judge that he had no right to do so whilst he was represented, addressed the court in relation to disclosure, clearly on the basis that junior counsel had not dealt with the matter as he, the appellant, thought it should have been dealt with. Thereafter, he successfully sought to "reinstate" junior counsel in the case on legal aid.

On that day, 6th January, as the judge would know, the appellant had, over the period of the previous 18 months, been represented on legal aid by four different firms of solicitors. There was a period of a month or two in the spring of 1991 when his legal aid had been discharged and when he wrote, he told us, to seven solicitors, one or two of whom visited him in prison, but legal aid was not extended to those particular solicitors.

On 6th January the appellant told the judge that he had "dispensed with" Mr Draycott and Mr Khan because, he said, of their lack of commitment, application and sincerity. The leader had made it obvious that he thought the appellant was guilty, had refused to obey what the appellant called his "lawful instructions requesting a postponement from the 6th January" and had sought, without the appellant's consent, to reduce the number of prosecution witnesses required to give evidence from the much larger number whom the appellant wished to have called. The appellant also told the judge that, so far as his second counsel, Mr Gray, was concerned, he had "bastardised the witness list from 50 to 12 witnesses".

It is pertinent to note that, since his conviction, and in connection with this appeal, the appellant has been successively represented by a total of seven other counsel. One represented him on sentence. Two, Mr Mansfield QC and Miss Mylvaganam represented him from the summer of 1994 until the summer of 1996, when complaints by the appellant about the junior led to her and her leader withdrawing from the case. Mr Wolkind and Mr Agha acted for the appellant between June and August 1996. They had a number of conferences with the appellant. They produced 11 grounds of appeal, which the appellant did not approve, and both counsel withdrew because of professional embarrassment, the appellant having failed to agree those draft grounds. Thereafter Mr Cosgrove QC and Mr Callan acted from November 1996 until yesterday. They, too, drafted grounds which the appellant did not approve.

On 6th January 1992 the appellant applied for the trial to be adjourned and for the services of fresh leading and junior counsel. He made it plain, as is apparent from the transcript, that his application for an adjournment was independent of his wish to instruct fresh counsel, and was because of the prosecution's alleged withholding of unused and used materials. The application for an adjournment was strongly resisted by leading counsel on behalf of the co-accused on the basis that the witnesses' recollections were dimming and she wished to be tried. The prosecution also resisted an adjournment. Against that background, we turn to the grounds of appeal.

The final perfected version as settled in part by different counsel, and adopted and added to by the appellant himself on 2nd October 1996, contained 12 grounds: first, the judge should have granted an adjournment on 6th January and granted fresh legal representation; secondly, the judge failed to maintain a proper balance between the appellant's case and that of his co-accused, who was represented by leading and junior counsel, and the prosecution, who were also represented by leading and junior counsel; thirdly, the judge made interventions and interruptions which were adverse to the appellant; fourthly, the judge should have warned the jury about the dock identification; fifthly, the judge was wrong to refuse the appellant's application during the course of the trial that the trials of the two accused be severed and the jury discharged, particularly in the light of the adducing of the appellant's previous convictions on behalf of the co-accused; sixthly, the judge should have permitted further cross-examination about the identity of an informant; seventhly, there were a variety of defects in the summing-up; eighthly, there was non-disclosure, and late disclosure, of evidence; ninethly, the trial transcript had been falsified; tenthly, it was improper to prevent further questioning by the appellant of his co-accused; eleventhly, he was not permitted to open his case to the jury at the close of the prosecution case; and ground 12 is that, by reason of these matters, he was deprived of a fair trial and the convictions are unsafe.

On 7th October 1996, when this Court, differently constituted, granted the appellant leave to appeal against conviction on the ground to which in a moment we shall come, the Court said, in relation to the documents emanating from the appellant, words which are as apt today in relation to subsequently received documents as they were then. At page 6D of the transcript the Court said that the documents

".....express a variety of strong emotions, some of which are understandable. They contain a mixture powerful arguments on the non-representation point; numerous irrelevant and/or inaccurate propositions of law; many wild allegations of misconduct against many people, including the trial judge, counsel representing him and the judges of this Court, and a variety of threats. Save for his comments on the non-representation point, none of this helps his case.

That was on the basis that the judge was wrong to refuse an adjournment and not grant fresh counsel on 6th January, and that, on a correct construction of the Legal Aid Regulations, the judge had no power to leave the appellant with only a solicitor to advise him. It was on the basis of this ground only that this Court granted leave to appeal on 7th October.

The Court, not the appellant, will appoint counsel, and will do so, because the appellant is currently at Durham Prison and there have been some difficulties of access to him in the past, preferably from counsel practising on the North-Eastern circuit. Once counsel so assigned have started to act for the appellant, no other counsel will be appointed for him at public expense in relation to this appeal."

".....the appellant must understand that, in considering appeals, this Court has to concentrate on points of real substance, and that an appellant's case is hindered, not helped, by the pursuit of worthless points. The appellant must also understand that counsel representing him will be aware of the Court's approach in concentrating on what matters, and that counsel have a duty to the court as well as to the appellant. This means, amongst other things, that counsel is under no obligation to take every point the appellant wishes, regardless of its merit. In particular, it is for counsel, not the appellant, to decide what points of laws are properly capable of being argued.

Furthermore, this court will not permit an unrepresented appellant to argue points which are clearly irrelevant or unarguable. It follows that if, for whatever reason, it transpires that the appellant is unrepresented at the hearing of this appeal, he will gain no advantage, and is likely to suffer considerable disadvantage, in the presentation of his appeal. We express the hope, accordingly, that he will be represented and that he will bear the contents of this judgment in mind in his dealings with the next and final counsel appointed to act for him at public expense in this case."

Thereafter, the timetable of events which the Court had directed was not adhered to because, for some reason, there was a two month delay by the shorthand writers in providing a transcript of the 7th October judgment, which we had directed should be sent to the appellant himself as well as to his legal advisors. There were also, unsurprisingly, difficulties in relation to the appointment of counsel.

Perfected grounds were sought by the Court of Appeal office. The office was informed by the appellant's solicitor, on 5th March 1997, that the appellant had had a stroke. This was not confirmed by the prison authorities. On 8th April leading counsel informed the office that perfected grounds and a skeleton argument had been prepared, and he was ready to argue them, but the appellant would not agree to them being released. On 10th April the parties were informed the case would be listed for hearing after 18th April.

On 17th April the appellant's solicitor sought further time for the appellant to check some points before the grounds were submitted. On 21st May the solicitor wrote saying the appellant had asked him to contact every solicitor and counsel involved in the case before trial. As we have earlier indicated, there were three other firms of solicitors apart from the present on legal aid and four counsel. No further perfected grounds or skeleton arguments or a time estimate from the defence have ever been received by this Court. The appellant has, however, continued to write letters.

It suffices, for present purposes, to refer to three of these written during June 1997. The letter on 6th June said that the trial judge had corruptly ordered or acquiesced in the destruction of the tapes of the trial; that the shorthand writers had participated in that corruption by doctoring the trial record; and that counsel acting for the appellant have tried to intimidate him, and do not wish to expose this corruption. On the contrary:

He said that the Court of Appeal have "capitulated their corner" by permitting four successive sets of counsel to represent the appellant in relation to the appeal. The letter misquotes the judgment given by this Court on 7th October. It refers to a lot of skulduggery by the Court of Appeal to prevent all the true circumstances coming to light. It says:

We interpose the comment that, despite exhaustive and repeated inquiries by this Court, there is no reason whatever to believe that there is in existence any transcript of the trial which is not before this Court. We also add that, in so far as some transcripts are missing, that is in part explained, for example, because one of the shorthand writers had a stroke. In any event, we are not persuaded that there is anything in the allegedly missing transcripts which bears materially upon any matter which this Court has to consider. We should also add that this Court has leaned over backwards in an effort to provide the appellant with able and experienced counsel to present his appeal.

On 27th June, which repeats an earlier letter dated 19th June, he said he had no faith in counsel because they were, as he put it, "refusing to obey his instructions", particularly in relation to the obtaining of witness orders, and he wished to ensure that they did not remain representing him. He did not wish to represent himself, but he would do so under duress.

At the outset of the hearing before this Court, the appellant confirmed that he wished to dispense with the services of leading and junior counsel. They, in any event, having seen what the appellant had to say about them in his letters of June 1997, thought it would be improper for them to continue to act for him. It appeared that their instructions had been withdrawn, and they would therefore be professionally embarrassed if they continued to act. Accordingly, at the outset of the hearing before this Court, we granted them leave to withdraw, and, without prejudice to our decision as to the meaning and effect of the Legal Aid Regulations, permitted the appellant's solicitor, the faithful Mr Cox, to advise the appellant during this appeal and to sit with him during it.

Because the construction of the Legal Aid Regulations is of potential importance beyond this case, however, the Court invited Mr Cosgrove QC to act as amicus and to argue solely the construction point. He felt unable to accept that invitation because of the potential professional embarrassment which this might cause him. In consequence, Mr Morris QC, for the prosecution, submitted alternative constructions of the regulations to the Court for the Court's assistance. The appellant added his own submissions, and we have also, in relation to this appeal, considered the two affidavits from Mr Cox, the first dated 16th February 1995 and the second dated 20th June 1996.

Mr Seale, in a courteous, clear, thoughtful and skilled submission to this Court, of which many members of the Bar would have been proud, submitted, first, that he was representing himself under duress, and he had had only 24 hours notice that this might happen. As to the Legal Aid Regulations, the judge made no inquiry in open court as to the circumstances of the parting of the ways between the appellant and his legal representatives, and he should have done, and he should have applied his mind to the Legal Aid Regulations.

Mr Seale invited our attention to Chambers, unreported, Court of Appeal, Criminal Division, transcript of 16th December 1988, Davies, unreported, Court of Appeal, Criminal Division, transcript of 2nd February 1987 and McAlister [1988] Crim.L.R. 380. He said that, if his appeal were frivolous, this Court would not have granted leave and would not have granted him legal aid to pursue it. This Court had failed to conduct an inquiry as to why counsel had withdrawn and why he was dissatisfied with them. None of the counsel, he said, had represented him competently, fairly adequately and fully. The trial judge had forced him to represent himself. It was a crooked solicitor, not he, who had sacked the first counsel. In June 1991 the judge was wrong to say that he, the defendant, had a propensity for sacking barristers. On 6th January 1992 he was trying to ascertain his legal position. He wanted clarification. He wanted the judge to endorse his order as to disclosure, because such disclosure would demonstrate his innocence. He sought an adjournment from this Court, which we refused. He complained that the transcripts provided of the proceedings below, which include many volumes of evidence, the summing-up and the important events on 6th January 1992, are inadequate to enable him properly to present his appeal. He questioned, as he had in correspondence, the integrity of the transcripts, and he rehearsed the history of his attempts to obtain further transcripts.

Mr Seale submitted that what the judge did in relation to counsel had the direct consequence that the Crown's evidence was not competently and fully contested, despite the fact that it was voluminous and complicated, as the judge appreciated, and, as the judge appreciated, there were going to be, and were, many legal arguments to be ruled upon. Because the appellant was unrepresented, his trial was unfair and his convictions unsafe. He was deprived of expert cross-examination, expert submissions to the jury, which would also have been of assistance to the trial judge, expert advice on strategy and tactics and, in particular, in relation to whether or not he should give evidence, and expert submissions on the law. Mrs Wilson's dock identification would never have occurred had he been represented by counsel. There were, he said, apart from her, no other civilian witnesses giving evidence incriminating him. Lynne Seale's evidence was, he said, cleverly manipulated by her and prosecuting counsel as to what was said after the robbery of 1st February.

As to the surveillance evidence on 1st February, that was wholly unreliable, shot through with discrepancies and supported by a fabricated log. If the surveillance evidence was unreliable, the police evidence in relation to other events must be equally suspect. He stressed that there was no forensic evidence by way of signs of deposits on him to show that he had discharged the gun on 1st February, and he referred to the evidence of Mr Bland, the defence forensic scientist, and showed us part of Mr Bland's report. The bloodstain found by Mr Bland in the back of the Montego confirmed, he submitted, that Brown, who was bleeding, not the appellant, had been in the back seat. The prosecution evidence in relation to the door handle of that car, and in relation to whether there were or were not fingerprints in that car, was, he submitted, wholly unsatisfactory. He submitted that the judge failed to direct the jury that the prosecution forensic evidence went solely to association, not to identification.

The appellant complained that his previous convictions, in particular one for violence, should not have been adduced at the behest of counsel for the co-accused. But we are unable to see how the judge could have refused the application on behalf of that defendant to adduce evidence of those matters having regard to the nature of her defence.

He submitted that he was deprived of the advice of counsel as to whether he should give evidence. His solicitor had advised him that he should give evidence, and if counsel had said the same he would have given evidence, albeit it would have been restricted in relation to the man, John, whom he was not prepared further to identify. He had been held in police cells during the trial because of the rebuilding works at Strangeways and had there suffered deprivation of writing materials, about which he had complained to the judge.

The judge, he submitted, failed to place sufficient weight, in refusing the adjournment and further counsel, on the gravity of the charges, the number of counts, the cutthroat nature of the defences, the complex and difficult issues of law. The judge should have exercised his discretion differently and allowed an adjournment and representation by fresh counsel. All of those submissions we have carefully considered.

So far as Mrs Wilson's dock identification is concerned, it seems to us that, had it been possible to do so, it would have been preferable for the judge to intervene to stop the witness answering the question which the appellant unwisely asked her. However, in any event, in our judgment, the judge should not, in his summing-up, have invited the jury to place any reliance at all on that purported dock identification, bearing in mind that, not only was it made in the dock, but it took place well over two years after the September 1989 event about which Mrs Wilson was speaking and, furthermore, in the intervening period, she had failed to pick out the appellant on an identification parade.

However, that aspect of the case is material only to Count 1. There was, as we have indicated, clear forensic evidence, the reliability of which the jury plainly accepted, implicating the appellant on that count. It is, accordingly, impossible to regard the irregularity of the dock identification, and the impropriety of the judge's summing-up in relation thereto, as rendering the appellant's conviction on Count 1 unsafe.

We turn to the primary ground of appeal, the refusal to grant an adjournment and further counsel. As to the law, with regard to the legal aid position, the appellant had "dispensed with" his counsel for reasons which he explained to the judge and to which we have already referred. However, he wanted his solicitors to continue to act on legal aid, and he said, in terms, that he did not want his legal aid certificate to be rescinded. The judge said, as appears from the transcript:

"(1) A court having power to make a legal aid order may, on application, amend any such order by substituting for any legal representative or representatives previously assigned under the order any legal representative or representatives whom the order could have assigned if it had then been making the legal aid order. (2) A court having power to make a legal aid order may withdraw any such order if the only legal representative or all the legal representatives for the time being assigned under the order withdraws or withdraw from the case and it appears to the court that, because of the legally assisted person's conduct, it is not desirable to amend the order under paragraph (1) above."

(i) There is no power under regulation 44(1) to grant legal aid for representation by solicitor only: see Mills, unreported, Court of Appeal, Criminal Division transcript of 21st March 1997, page 12B. In so far as Kirk (1983) 76 Cr.App.R. 194, suggests otherwise, we confess that, unlike the Court in Mills, we are unable to discern any material difference between the old section 30(1) provisions of the 1974 Act and the new regulation 44. The better view seems to us to be that as, in Kirk, there was nothing to indicate that the defendant had "shopped around" and he wished to continue with his solicitor, the judge was wrong to insist that the trial proceed without the defendant being represented on legal aid at all.

".....experience of the operation of the Legal Aid Act has shown that many accused in criminal cases, when they get advice from the lawyers who are assigned to them under the Legal Aid Act 1974 which is unpalatable - particularly when they get advice that they have no defence to a charge - want to shop around until they can find some gullible or inexperienced lawyer, who is willing to put up a defence which is hopeless and which may occupy a court for days at considerable expense to the public. It follows therefore that when somebody does want to get rid of his legal aid representation the court is under no obligation whatsoever to assign new legal aid representation. Judges should be very careful about assigning new representation if there is any reason to think that the object is to shop around until such time as someone can be found who will be willing to conduct a hopeless defence."

Despite the continuing applicability of those observations, in our view Kirk should not be regarded as authority for the proposition that legal aid can be granted for a solicitor only. We regret that lacuna in the present regulations, and we echo the observations of the Court in Mills as to the desirability for urgent consideration to be given to an appropriate amendment to the Regulations. It is worth commenting that the presence of the appellant's solicitor, Mr Cox, at trial and on appeal has been of help to the Court.

(iii) A judge may amend a legal aid order by substituting fresh legal representives for representives previously assigned: regulation 50(1). But he has a discretion. He is under no obligation either to assign new legal aid representation or to amend the existing order simply because the defendant chooses to dismiss one or more of his legal representatives. In exercising his discretion it is appropriate for him to bear in mind the observations of Lawton LJ in Kirk, which we have cited.

In the present case, the judge said he amended the certificate only if he had power. As he had no power, the certificate remained unamended. The appellant continued to be entitled under it to the services of leading and junior counsel, but he had chosen to dispense with their services. He was entitled to a solicitor, and the solicitor's services he chose to enjoy.

The Crown, before this Court, raised the possibility that, having regard to the provisions of regulation 45(2), which permit a solicitor on legal aid to instruct any counsel willing to act, the continued existence of a legal aid order might, in some cases, create difficulties if, for example, other counsel were instructed by the solicitor and appeared at court during the currency of a trial. That did not happen in the present case. If it had, it would have been necessary for the judge, in the exercise of his discretion conferred by the regulations and in the exercise of his wider discretion in relation to the proper conduct of the trial, to deal with the situation in the light of all the circumstances as they then appeared. However, having regard to the comments which we shall make hereafter about this appellant and his relationship with his legal representatives, it does not seem to us that it is necessary for the purposes of the present case further to address the possibility canvassed by Mr Morris.

(iv) In some cases it may be necessary for a judge to conduct an inquiry as to why a defendant has dispensed with his legal advisors: see Chambers, Davies and McAlister, to which the appellant referred. Whether such an inquiry is necessary will depend on the circumstances of the particular case. In the present case, the judge was familiar with the history of the case and, as is apparent from the transcript in relation to 6th January 1992, had before him the defendant's explanation in relation to his legal advisors. No further inquiry was, in our view, necessary.

(v) An irregularly in the trial judge's treatment of a defendant's legal aid representation may lead to the quashing of his conviction, as it did in Chambers and Davies, but it will not necessarily do so - see Dimech [1991] Crim.L.R. 846 - and will not do so when "the result of the trial would inevitably have been the same": per McKinnon J in Chambers at page 6B.

It is to be noted that, on 6th January, the appellant's application for an adjournment was on the ground that there had been inadequate disclosure by the prosecution: see the transcript at page 4D and 5G. This is a matter which has concerned the appellant at all times before and since the trial, even when it has been apparent that documents which he seeks do not exist and even when, as happened on 13th December, his counsel was not apparently willing to make submissions in relation to further disclosure. His apparent obsession with supposedly undisclosed material and, in relation to this appeal, the absence of certain transcripts which, as we have said, we are not persuaded are material, may be born of an unwillingness on his part to face the strength of the case against him.

However, as is clear from the transcript on 6th January, he expressly said he was not asking for an adjournment because he wanted new counsel. His application for new counsel was on the basis that he felt he required the services of a QC and a barrister if justice was to be done, and because his legal aid certificate had not been revoked. In the light of what appears in that transcript, we do not accept his submission to us that he then believed that the judge had revoked his legal aid. What he was seeking was fresh counsel under the existing legal aid certificate.

The question which arises is whether there was material before the judge justifying him in refusing an adjournment. The matter required the exercise of his discretion. He had to balance the interests of the prosecution, whose witnesses' recollections were fading with time, and the co-accused, who was anxious to be tried, against those of the appellant, who wanted the adjournment. Both the prosecution and the co-accused, as we have said, objected to a further adjournment.

So far as legal representation of the appellant was concerned, the judge was entitled to take into account that, during the previous 18 months, the appellant had had on legal aid four different firms of solicitors and, at three different stages, four different counsel. Whatever may have been the precise position in relation to the departure from the case of the first two counsel, (and the appellant complained to us that the second counsel would not "do his bidding" in relation to what witnesses should be called) there is no doubt that, as the appellant himself told the judge, he had "dispensed with" both leader and junior counsel, either at the end of 1991 or the beginning of 1992. His reason for so doing was, as we have said, because of their alleged application, commitment and sincerity. However, it is also apparent that they had given him advice which he found unpalatable. Junior counsel, on 13th December, was clearly not prepared to address the judge in the way the appellant wanted with regard to further disclosure. Leading counsel, the following week, clearly gave strong advice as to the formidable nature of the prosecution case and, no doubt, as to plea. Leading counsel had also refused, the appellant said, to "obey my instructions" to request an adjournment on 6th January, and leading counsel had refused to call all the witnesses whom the appellant wished to be called.

It seems to us that there was ample material before the judge for him to conclude that the appellant's object in dismissing counsel was, in Lawton LJ's words in Kirk to, "shop around". We do not ignore the expressions of a contrary opinion in Mr Cox's two affidavits, but they do not dissuade us from that conclusion, particularly as his second affidavit shows that his first affidavit was wrong on the important point as to whether the appellant had dismissed junior counsel.

Furthermore, the judge was plainly, as necessarily he must have been having regard to his long familiarity with this case before trial, fully alive to the seriousness of the charges, the cutthroat nature of the defences, and the difficult issues of law which might arise. Accordingly there was, on the facts before the judge, as it seems to us, no good reason in relation to inadequate disclosure for adjourning the case, and the judge's decision to refuse an adjournment for further legal representation cannot be effectively challenged. It was, as it seems to us, a proper exercise of his discretion on the material before him. There is no reason to believe that any further investigation by him would have revealed any further relevant material.

Events since the trial have confirmed that this appellant, as it seems to us, tries his utmost to play the system. He has, for one reason or another, to use a neutral phrase, fallen out with no fewer than seven highly experienced counsel in relation to his appeal, and, despite the knowledge that he must have had from the terms of this Court's judgment on 7th October 1996 that his appeal would proceed yesterday and today whether he was represented or not, he again dispensed with his counsel at the last moment, yet claimed not to be ready for the appeal to proceed.

It is apparent that the appellant does not accept advice from counsel unless it appeals to him. He does not accept that counsel must exercise their professional judgment. Accordingly, even if the judge had granted an adjournment and representation by fresh counsel, the whole history of this case demonstrates that counsel so appointed would have been unlikely long to survive the appellant's displeasure. It is quite impossible to believe that any counsel appointed at the beginning of, or during, the trial, would still have been there at the end.

It follows that in the present case there was, in our judgment, no irregularity in relation to the defendant's legal aid. Even if there had been, there is certainly no reason for regarding his convictions as unsafe by virtue of that or by virtue of the judge's refusal to grant an adjournment. The evidence against him was overwhelming to an extent which full representation could not have been expected to overcome. He was caught red-handed escaping with the proceeds of the of 1st February robbery, and there was abundant forensic evidence, which the jury plainly accepted, implicating him on the other counts. The judge's summing-up was, save as to dock identification, comprehensive, accurate and fair. Accordingly, there is no ground for regarding these convictions as unsafe, and this appeal is dismissed.

England and Wales Court of Appeal (Criminal Division) Decisions

PETER SEALE, R v. [1997] EWCA Crim 1677 (3rd July, 1997)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Seale, R v [1997] EWCA Crim 1677 (3rd July, 1997) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/1677.html Cite as: [1997] EWCA Crim 1677