No: 9608454 X2  9608455 X2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Tuesday 28th October 1997
 
                    B E F O R E :

               LORD JUSTICE ROCH
 
               MR JUSTICE BUCKLEY
 
                         and
 
                  MRS JUSTICE HALE

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                     R E G I N A

                       ‑ v ‑

                MATTHEW CLAYTON
              KEITH EDWARD CLARKE
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
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MR P CARR appeared on behalf of the Applicant CLAYTON
MR PA THOMAS appeared on behalf of the Appellant CLARKE
MR JA FISHER appeared on behalf of the Crown
 
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                      JUDGMENT
          (As Approved by the Court)
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                   Crown Copyright 
                          Tuesday 28th October 1997
 
                      JUDGMENT
 
LORD JUSTICE ROCH:  On 7th June 1996, at the Birmingham Crown Court, Matthew Clayton and Keith Clarke were convicted of conspiracy to pervert the course of public justice and burglary, Counts 1 and 2, on what we shall call the first indictment.  On 7th November 1996, in the same Crown Court, Mr Clayton was convicted of robbery by a majority verdict of 10‑1 on Count 2 of what we shall call the second indictment, and Mr Clarke was convicted, again by a majority of 10‑1, of theft in respect of the same count.  Sentence was passed on 15th November 1996 by his Honour Judge McCreath, who had presided at both trials.  The judge sentenced Mr Clayton to five years' imprisonment for both offences on the first indictment, those terms to run concurrently, and to 30 months' imprisonment in respect of a conviction for robbery on the second indictment, again that sentence to run concurrently with the five year terms imposed on the first indictment.  Mr Clarke was sentenced to five years' imprisonment in respect of each of the offences for which he was convicted on the first indictment and to 12 months' imprisonment for theft on the second  indictment, all those sentences to run concurrently. Both men therefore received sentences totalling five years in all.
      Mr Clarke and Mr Clayton had faced other counts in the second indictment.  They faced a charge of robbery, which had originally been Count 7 and which later became Count 4.  They were both acquitted of that charge.  They were also charged in the first count in the second indictment with a further offence of robbery.  The jury were discharged from giving a verdict on that count, the jury being unable to agree.  Two further counts in that indictment, Counts 3 and 6, charged Mr Clayton with robbery.  The Crown offered no evidence against Mr Clayton on those counts during the trial, which ended on 7th November 1996, and verdicts of not guilty were entered on the direction of the judge pursuant to section 17 of the Criminal Justice Act 1967.  Equally, Mr Clarke faced two further charges, namely robbery, Count 3, and affray, Count 13.  In respect of those the Crown offered no evidence, and the judge directed verdicts of not guilty to be entered pursuant to section 17.
      Other defendants were charged in the second indictment, but with the exception of one of them it is not necessary to detail the counts they faced, the  verdicts or the sentences in their cases.  The exception is Thomas Cadby, who was also charged in Count 4 in the indictment with robbery, and in respect of whom the jury were unable to reach a verdict on that count.  He was, however, convicted on another count of burglary at a public house known as the Trade Winds.
      In these proceedings Mr Clarke appeals against his conviction for theft under Count 2 in the second indictment, the trial judge having granted a certificate.  Mr Clayton renews an application for leave to appeal against his conviction for robbery on that count, the Registrar having referred that application to the Full Court and having granted legal aid for counsel.  Both Mr Clayton and Mr Clarke apply for leave to appeal against sentence.  Again those applications have been referred to the Full Court by the Registrar with the Registrar granting the necessary extension of time in respect of Mr Clayton's application of eight days.
      We deal first with Mr Clarke's appeal against conviction and Mr Clayton's application for leave to appeal against conviction.
      The second indictment referred to a series of alleged offences said to have been committed by various men, among whom were Mr Clayton, Mr Clarke and Mr Thomas  Cadby, at two public houses in Shard End, Birmingham, namely the Woodside Public House, the landlord of which was a Mr Brian Lewis and the Trade Winds Public House. Mr Clayton and Mr Clarke were not concerned in the charges relating to the Trade Winds Public House, although Mr Thomas Cadby was.
      The evidence of Mr Lewis was to the effect that he had been the licensee of the Woodside Public House for a period of seven months between 1st February 1994 and 31st August 1994, and that during that time various men had, by means of violent behaviour and violent threats ‑ the violent behaviour involving damage to the premises or to property on the premises ‑ obtained drinks from the bar for which they had had no intention of paying and for which they did not pay.
      Mr Lewis' evidence in relation to Count 2 was that Mr Clarke, Mr Clayton and Mr Thomas Cadby had come to the public house.  Mr Lewis was told that Mr Clayton had had a round of drinks for which he had not paid and proceeded to ask Mr Clayton for payment.  Mr Lewis' evidence was that Mr Clayton's reaction as to sweep the drinks off the bar and to say that it was going to be free for him all night.  Mr Clarke then told Mr Lewis to get rid of the barman because he was "a dirty little rozzer".  That frightened the barman, who was sent  home.  Thereafter, according to Mr Lewis, Mr Clarke and Mr Clayton obtained drinks for which they did not pay. Mr Clayton ordered some of those and Mr Clarke ordered the remainder.  Mr Cadby did not order drinks, but he was drinking the free drinks.  The other two would ask Cadby what he wanted and they would get it for him.
      The defence of Mr Cadby was that he was not present at the public house during any such incident at any time.  He gave evidence to that effect.  The jury were unable to agree in his case and ultimately the jury, having convicted him on another count, the judge discharged the jury from giving a verdict on Count 2 in respect of him.
      Mr Clayton and Mr Clarke did not give evidence. The case that was put forward on their behalf was that Mr Lewis' evidence, taken generally, was so inconsistent and so flawed that it was not possible for the jury to be sure of guilt of any one of the defendants on any of the charges.
      In relation to Count 4 in the indictment the prosecution called another witness in addition to Mr Lewis, namely a Mr Guest.  The account given by that witness of the events relating to Count 4 were quite different from the account given by Mr Lewis.  Moreover, in respect of Count 3 in the indictment, the judge had,  during the course of the trial, directed the jury to acquit those charged in Count 3 because Mr Lewis' evidence on that count was, to use the judge's phrase, "all over the place".  The judge reminded the jury of that in his summing‑up when he came to Mr Lewis' evidence.  That was part of his comments on Mr Lewis as a witness in a section which began with these words:
"I am just going to take a moment, but not terribly long, to remind you about the inconsistencies in Mr Lewis' evidence." 
      The judge then went on to remind the jury of the obvious conflict between the evidence of Mr Lewis and Mr Guest on the events to which Count 4 related, then reminded them of his direction to acquit on Count 3 because Mr Lewis' evidence was, in respect of that count, "all over the place", and he reminded the jury of the inconsistencies in Mr Lewis' evidence, inconsistencies between his earlier statements and his evidence to the jury about the value of the drinks stolen by Mr Clayton and Mr Clarke on the evening when the barman had been sent home.  Further, Mr Lewis had not been consistent over the period of time which had elapsed between his coming to the public house as licensee and the evening when he maintained the events relating to Count 2 had occurred.  The judge also reminded the jury of a difference between Mr Lewis'  account of this evening in his evidence during a first trial and the evidence to the jury in the second trial which was then in progress.
      The first ground relied upon by counsel for both Mr Clayton and Mr Clarke is that the judge did not consider Mr Lewis a reliable witness with regard to Count 3, the jury did not regard him as a reliable witness in relation to Count 4, and at least some of the jury must have regarded him as an unreliable witness in relation to Count 1, with, consequently, the jury reaching the conclusion on Count 2 that they could act on Mr Lewis' evidence as satisfying them beyond a reasonable doubt that Mr Clayton was guilty of robbery and Mr Clarke was guilty of theft, was inconsistent with the jury's views as disclosed on Counts 1 and 4.  It was submitted that the jury's verdicts were inconsistent.
      We have reminded ourselves of the test for inconsistent verdicts stated by Devlin J in the case of Stone which is to be found in the case of Durante (1972) 56 Cr.App.R. 708, at page 714, namely that to succeed on such a ground an appellant:
".....must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand.  But the burden is on the defence to  establish that."
      The judge, early in his summing‑up, gave the jury a clear direction that they must give separate consideration to each defendant, to the case against each defendant, and to each defendant on each count that that defendant faced.  They were told that they had to look at the evidence against each individual defendant on each count separately.  Moreover, at the very outset of the summing‑up the jury were directed, quite properly, that they had to assess witnesses and decide whether an individual witness was one who was plainly wrong about everything or wholly right about everything, or if the jury thought it appropriate a witness who was right about some things but wrong about others.
      There is no logical inconsistency between the verdicts of the jury on Count 2 and their verdicts on the other counts in the second indictment.
      The submission that is being made on behalf of Mr Clarke and Mr Clayton is, in effect, a submission that Mr Lewis' evidence was so unsatisfactory that the jury, although properly directed, could not reasonably convict in reliance upon it.  In other words, it is the second limb in the well‑known case of Galbraith (1981) 73 Cr.App.R. 124, that is being urged upon us.  This was pointed out to us by Mr Fisher, who appeared for the  respondents.  Mr Fisher told us that such a submission had been made to the judge at the close of the prosecution's case and rejected by him.  Mr Fisher pointed out that nowhere, either in the perfected grounds of appeal in the case of Mr Clarke or the draft grounds of appeal in the case of Mr Clayton, is it said that that ruling by the judge was wrong.
      It is to be noticed that Mr Lewis' evidence on Count 2 was not inconsistent with any other evidence on that count.  Nor was it contradicted by any evidence from Mr Clayton or Mr Clarke.  As the judge pointed out to the jury during his directions at page 16G, if the jury thought that Mr Lewis' evidence on Count 2 provided a case for Mr Clarke and Mr Clayton to answer, the jury were entitled to ask themselves why Mr Clayton and Mr Clarke had not given evidence if they had an answer to Count 2, and to draw inferences adverse to Mr Clayton and Mr Clarke and favourable to the prosecution's case from their failure to give evidence.
      The judge went on immediately to say that if, on the other hand, the jury were in a state of doubt as to the prosecution's case so that there was really no case at all on Count 2, then the fact that Mr Clayton and Mr Clarke had not given evidence was of no significance. 
      We have asked ourselves whether, despite the absence of logical inconsistency between the verdicts, the fact that the jury were not prepared to accept Mr Lewis' evidence as proving the prosecution's case beyond a reasonable doubt on Counts 1 and 4 renders the jury's verdict on Count 2 unsafe or unsatisfactory.  If the jury's verdicts on Count 4 and their inability to reach a verdict on Count 1 had meant that they must have thought Mr Lewis was deliberately lying, then there would be substance in the point.  However, an overview of the jury's verdicts on this indictment shows that the jury accepted that a substantial number of incidents of the type complained of by Mr Lewis did occur at the Woodside Public House and the different verdicts on these counts can only mean that the jury were honouring the judge's direction that they must acquit in any case where they were not sure that the Crown had established their case.
      It follows that Mr Lewis' evidence on Count 2, possibly coupled with the failure of Mr Clarke and Mr Clayton to give evidence, made the jury sure of their guilt.  We consider that an appeal by Mr Clayton against his conviction on Count 2 would have no prospect of success, and we refuse his application for leave.
      We would reject Mr Clarke's appeal against his  conviction on Count 2 on this ground.
      Mr Thomas makes a second point with regard to Mr Clarke's appeal against conviction on Count 2, namely that the judge did not direct the jury that theft was an alternative verdict which they could reach on Count 2. Further, Mr Fisher, for the Crown, did not put the Crown's case on Count 2 in that way, nor did he, Mr Thomas, address the jury as to whether his client had been guilty of theft as opposed to being guilty of robbery on Count 2.
      The judge did direct the jury that they could convict of theft in respect of one count of robbery which related to the other public house, the Trade Winds.  But prior to giving that direction the judge had told the jury this at page 5E of the summing‑up:
"In respect of most of the counts of robbery in this indictment, the issues are perfectly straightforward. Did the event complained of happen?  If it did, then there is no issue in respect of virtually every one of these allegations that it was a robbery, and the question then is:  'Are those who are charged with it proved to have been involved with it?'  An absolutely, straight up and down, factual issue for you to determine, and no anxieties about the law there." 
      Then the judge took the jury to Count 5, which was a count relating to the Trade Winds Public House.
      The conclusion that we have reached is that Mr Clarke's appeal against his conviction of theft on Count 2 must be allowed on this ground.  On a charge of  robbery a defendant may be convicted of theft pursuant to section 6(3) of the Criminal Law Act 1967:  see the case of the R. v. Shendley [1970] Crim.L.R. 49, a judgment of this Court.  Further, the evidence the jury heard, as set out by the judge in his summing‑up, explains why the jury reached the verdicts that they did.  They evidently considered that it was Mr Clayton who had made the threats and damaged glasses in the public house, and that Mr Clarke's role had simply been to help himself and others to free drinks.
      Despite these factors, had the judge directed the jury that they could convict of theft as an alternative to the robbery charged in Count 2, Mr Clarke would have had a cast iron appeal on the grounds that that was not the way the Crown had left their case to the jury, nor had his counsel addressed the jury on that point.
      Mr Fisher conceded that the respondents' case on the issue in this appeal cannot be any stronger because the judge did not direct the jury that theft was an alternative.  Consequently the jury have reached a verdict in respect of Mr Clarke that no one has suggested they could, or should, reach, and, more importantly, a verdict in respect of which defence counsel had not addressed them.  Consequently the conviction and sentence on that count in respect of  Mr Clarke will be quashed.
      We will now deal with the applications for leave to appeal against sentence.
 
             (Sentence applications heard)
 
LORD JUSTICE ROCH:  We turn now to the applications for leave to appeal against sentence.  We have already indicated the sentences that were passed and the facts of the robbery on the second indictment of which Mr Clayton was convicted.
      We now outline the facts of the two offences in the first indictment.  They arose out of a party given by a young man called Barry Charlton at his parents' home on 16th April 1994; when his parents were away. During the course of the evening violence erupted. Physical injuries were caused to certain people at the party, and damage was done to the house and the contents of the house.
      The matter was reported to the police and Mr Charlton made a statement implicating a particular person.
      About three weeks later the applicants called at the Charlton house at about midnight.  Barry Charlton was home, as was another young man who was a lodger at  the house, a Mark Farquharson.  Mr and Mrs Charlton were out at the time.
      Charlton asked who was at the door and was told, first of all, that it was the CID.  He locked the family dog away and again asked who it was, and this time got a different answer.  Charlton looked through the letter box and saw a man with his head hidden in a box. Charlton feared that this might relate to the incident which had occurred at the party, and he and Farquharson went upstairs and barricaded themselves in a bedroom. The front door of the house was forced.  Those who entered came upstairs.  They beat on the bedroom door with a claw hammer, smashing the panelling.  While that was being done Charlton was being told not to go to court and that he was not to testify, and then this threat was made, "If you go to court and testify, we're going to knife you and that means kill you".
      The allegation was that it was the applicant Clarke who uttered that threat and the applicant Clayton, who was also outside the bedroom door, was heard to say, "Fuck it, just kill him anyway".
      Damage was done to the house.  A bedroom window was smashed, and various contents of the house were smashed and other contents were taken.
      A short while later the applicants were arrested  in a car.  Clarke was wearing a jacket in which there were splinters of glass which matched exactly the glass of a broken picture at the Charlton's house.  Splinters of glass were found on Clayton which again could be matched to glass from the house.  The car was searched, and items stolen from the Charlton's home were found in the car.  Later both applicants were picked out on an identification parade by Charlton and Farquharson, although we are told this morning that at the trial, because the applicants pleaded not guilty, despite the weight of the evidence against them, the identification evidence collapsed.
      The applicant Clayton is now 32 years of age.  He is single.  He is unemployed.  He lives in the Birmingham area.  He has, as has the applicant Clarke, a formidable record of offending.  There are nine offences of burglary in his record, seven offences of theft, one of attempting to inflict grievous bodily harm and one of manslaughter.  The longest sentence that he had served prior to this case was one of three years youth custody in respect of the manslaughter offence, and the longest term of imprisonment was one of two and a half years for an offence of violence committed in 1987, for which he was sentenced in September 1988.
      The offence of manslaughter occurred on 11th  December 1984.  On the evening of that day he and two others broke into a flat in a high rise block in Birmingham to injure the occupier, who was so frightened that he tried to escape by jumping from the balcony three floors up.  That caused him to suffer injuries from which he later died.
      The offence for which he was given two and a half years' imprisonment was an offence at the premises of Advanced Plant Hire in Bridgetown where cash was stolen from the till.  The offenders were disturbed by the owner and a foreman at the premises.  The foreman ended up on the bonnet of Clayton's co‑accused's vehicle when the foreman attempted to stop the offenders from escaping, and he was carried around the streets on the bonnet of the vehicle as attempts were made to throw him off.
      Keith Clarke is now 34.  He, too, is single, and lives in Birmingham.  He is unemployed.  He has a record which includes 19 offences of theft and kindred offences, four offences that are linked with weapons ‑ firearms and shot guns ‑ five offences against the person, one offence of public disorder and an offence which relates to police, courts and prison.  There are 11 further miscellaneous offences.  He, in January 1987, following a dispute with a former girlfriend, caused  extensive damage to her house and her motor vehicle.  In November 1987 he attacked another woman called Agnes Taylor in a nightclub in Small Heath, punching her and kicking her.  That lady later required treatment at hospital.  The attack stopped because others at the nightclub intervened.
      Submissions made by Mr Carr, on behalf of Mr Clayton, and Mr Thomas, on behalf of Mr Clarke, seek to make this point:  that the record of offending of each of these applicants shows a slowing down in their criminal activities, and also that prior to the offences in the first indictment the last violent offences of which they had been convicted were in the second half of the 1980s, some years before.  Consequently it is said that the judge took too hard a view of their antecedents when arriving at appropriate sentences for these cases.
      The main submission that is made is that these sentences on the first indictment were too long. Mr Thomas and Mr Carr are very precise in this submission.  They say it was 12 months too long, and that sentences of four years' imprisonment would have been sufficient.  To sustain that submission we have been referred by councel to two cases, the first is the case of Richard Thomas Williams (1995) 16 Cr.App.R.(S.) 191.  In that case four years' imprisonment was upheld  for taking part in an attempt to intimidate a witness in civil proceedings.  Mr Thomas points out that in that case a gun was used, although it is right to observe that it was not used by the applicant nor were the most serious threats in that case made by the applicant.
      The second case is the case of Taggart (1995) 16 Cr.App.R.(S.) 789, where a sentence of five years' imprisonment was upheld for doing an act tending to pervert the course of justice by threatening a witness with violence in order to persuade him not to give evidence.  The point that is made in respect of that case is that there were two incidents that the court had to consider, and that in each of those incidents actual and serious violence was used by the applicant.
      Mr Thomas accepted that each case turns on its own facts, and he further accepted that the upholding of those sentences does not mean that this Court was saying that longer sentences would have been inappropriate.
      There is a significant difference between the case of Williams and this case in that in that case the court was dealing with a man of good character who had an excellent service record in the Army; Williams had left the Army with an exemplary character.
      The judge, when sentencing these applicants, observed that each had a bad criminal record.  The judge  outlined the facts, observing that the applicants had decided to ensure that Barry Charlton was not going to give evidence, and that they had sought to ensure that by putting him in fear of his life.  Then the judge said:
"It must be understood that those who try to influence the process of justice by threatening witnesses will receive significant punishment.  Those who employ the means which you did must expect a very substantial sentence indeed." 
      Mr Carr and Mr Thomas both realistically accept that these were very serious offences, as indeed they were, because they were committed at Barry Charlton's home in the middle of the night.  Entry to the house was obtained by smashing the front door and then, when threats were made, they were accompanied by the door of the bedroom, in which Mr Charlton and Mr Farquharson had barricaded themselves, being smashed with a claw hammer.  In addition considerable damage was done to the house and significant property was taken.  These applicants did not have the mitigation of having pleaded guilty, and they certainly did not have the mitigation that Williams had of being men of good character.
      The appeal can only succeed if this Court comes to the view that the sentences were manifestly excessive. The view we take is that there is no prospect of this Court being perusaded of that, and consequently these  applications will be refused.