Mehr, R v [1999] EWCA Crim 97 (19th January, 1999)

LORD JUSTICE BROOKE: On 17th October 1997 at the Lewes Crown Court the appellant was convicted of two counts of burglary and one count of going equipped for theft. On count 1 (burglary) he was sentenced to three years' imprisonment consecutive to a term of three months in relation to a breach of licence. On count 2 (burglary) he was sentenced to four years' imprisonment consecutive to count 1. On count 3 (going equipped for theft) he was sentenced to one year imprisonment concurrent to count 2.

He also admitted being in breach of an early release licence in respect of a 30 month sentence of imprisonment imposed by the Crown Court at Maidstone on 18th August 1995 for burglary. He was ordered to serve three months of the unexpired portion of the sentence for the breach.

The appellant now appeals against conviction by leave of the full court, which referred his renewed application for leave to appeal against sentence to us. This judgment will be concerned only with the appeal against conviction.

The prosecution case on count 1 was that the appellant and his son, Paul, burgled the flat of Mrs Rosen, an 85-year-old lady, whilst their co-accused, Andrew Fossey, distracted her attention with an examination of her car for the purpose of conducting repairs. The three men were arrested almost immediately after the burglary took place as a result of a police surveillance operation.

The prosecution case against the appellant on counts 2 and 3 was that he had contacted and made arrangements to visit 93-year-old Mrs Cook on the pretext that he worked for her insurance company. Mrs Cook contacted the police and an officer arrested the appellant on the premises as he carried out an 'inspection'.

The appellant's case in relation to count 1 was that he had accompanied his son and Fossey to Mrs Rosen's flats in the hope that he could buy antiques off her. He learned of his son's plans to steal from the flat when they arrived at the premises and had sought to persuade his son not to get involved.

So far as counts 2 and 3 were concerned, the appellant's case was that he had wanted to buy a cabinet from Mrs Cook and had gone along with the pretence of being from the insurance company so that she would invite him into her house.

On the first day of the trial counsel for the appellant applied for count 1 to be severed from counts 2 and 3. The basis of this submission was that the allegations against the appellant were of a 'scandalous' nature capable of arousing hostile feelings on the part of the jury and, as such, could prejudice his right to a fair trial. Counsel also submitted that the appellant would be compelled to give evidence and would be placed at a disadvantage because of the likelihood of a 'cut-throat' defence being run by Fossey in relation to count 1.

Rejecting the severance argument, the Recorder ruled that the allegations against the appellant were not of a scandalous nature as envisaged in R v Southern (1930) 22 Cr App R 6 and that a properly directed jury were capable of considering the allegations separately. The Recorder felt unable to express a view in relation to the appellant's likely reaction to Fossey's evidence as the appellant had maintained his right to silence during his interview on count 1.

At the trial Mrs Esther Rosen (who was then 85) told the jury that she lived in a flat in Dolphin Court, Sackville Road, Hove. She knew Fossey from a time when he had repaired her car. He had mentioned setting up in the car repair business on his own.

She 'buzzed' Fossey into the building. They talked for a while in her living room, and then went down to the car. When they arrived he said he had left his notebook on her table. She gave him her keys to enable him to retrieve the book.

Fossey left after a few minutes. When she returned to her flat the front door was open. She noticed that her silver and glass collection had been stolen from her display cabinet. The collection was worth about £2,000. The property was returned shortly afterwards by police officers.

Police Constables Steven, Gray and Hart were engaged on observation duty watching the flats at Dolphin Court on 31st January. They filmed events using a hand held video camera and they also took photographs. Dolphin Court was also filmed by a static CCTV camera.

The film evidence revealed that at about 11.38 am Fossey entered Dolphin Court together with the appellant and his son Paul. Paul was carrying a holdall which appeared to be empty. The appellant and Paul came out of the building shortly afterwards. They re-entered the building at around 11.50 am.

Paul Mehr left Dolphin Court at about 12 pm and went towards his car. The holdall appeared to be full. The appellant followed shortly afterwards. He headed in a different direction to his son, towards the car park. Both men were arrested. Fossey was arrested in his car shortly afterwards.

On 27th February 1997 she left home to go to the post office at about 2 pm. A man walking on the opposite side of the road asked her where she lived. She told him her house number. The man said he had done work for her. She did not know him and said he had not. He then walked away. She told the police about the visit.

She was telephoned at home by a man a week later. He asked for Mrs MacDonald. She said her name was Cook. He said he had done work for her and would call round to deliver a leaflet about roofing repairs. She told him she did not want any work done.

On 12th March she was telephoned by another man, who was the appellant. He said he was from her insurance company. He asked her whether she had any jewellery. He said the company had overcharged her and he would call round the next day to give her a cheque.

At about 2 pm the appellant called at the house. She recognised his voice as the man on the telephone the night before. The appellant had a small camera and told her that insurance companies took photographs and did not bother with notes any more.

The appellant gave evidence at the trial. He said he was at home with his son on the morning of 13th January and was due to meet a friend at a pub at around noon. Paul was driving to Sackville Road to see a lady about some work. Sackville Road was near the pub so he asked for a lift.

He had done some antique trading in the past so he decided to go along in order to see if he could pick up some business. They parked the car nearby and met up with Fossey (whom he did not know) outside Dolphin Court. He got the impression that Paul did not want him there.

There was no response to the intercom to the flat so they left to go to a telephone box. He waited outside. He could not hear what was being said over the telephone nor what was being said between Paul and Fossey. Paul told him the woman did not want to sell anything but he asked him for an introduction anyway.

When they arrived back at the flats Paul told him he might steal something. Fossey had gone inside by that time. He warned Paul against stealing and threatened to call the police. He left the flats, but Paul followed and persuaded him to return. He only went inside in order to try to stop Paul from stealing. The inner door had been wedged open with a mat.

He denied being the man who approached Mrs Cook in the street. He had mentioned to his future son-in-law that he had previously called at Mrs Cook's home and tried to buy a cabinet from her. Mrs Cook told him then that she did not sell at the door and would want a valuation.

He remembered his conversation with Mrs Cook and got her number out of the telephone book. He said the detail in her statement was not completely accurate. He mentioned a valuation over the telephone. She had asked if he was from the insurance company and he said he was because he thought it might mean she would invite him round.

He continued to pretend to be the insurance man when he called at the house because she had been expecting it. He took the camera in case she had any other furniture but in the event he did not want to take any photographs. He wore gloves because it was cold.

He planned to make an offer on the cabinet downstairs in order to do a deal for the better cabinet. He looked in the drawers to see if they worked and if there was anything in there. He saw the £40 but thought nothing of it. He asked if he could look upstairs and was then arrested. He had not been intending to steal any property.

He outlined his previous convictions for burglary and theft. His last conviction in 1995 was for burglary from a retired schoolmaster. He committed the burglary on behalf of someone else. He had posed as a surveyor in connection with the 1993 burglary. He had been concerned not to see his son go the same way as he had.

Mr Hussein represented the appellant when he was arrested in relation to count 1. He told the jury that he advised his client not to answer questions because the video evidence was not available to view. The appellant had given an account to him in private by way of explanation.

Fossey's evidence was that he saw the Mehrs as he approached Dolphin Court on his way to see Mrs Rosen. They asked him what he was doing. The last time he saw them was when Mrs Rosen 'buzzed' him into the flats. He denied giving the keys to the Mehrs or being involved in the burglary.

On this appeal against conviction the first issue which was argued by Mr Abbott was the main ground on which the full court granted leave to appeal. Although the appellant committed a deception prior to the entry into the premises, the argument runs that that deception did not work on Mrs Cook's mind when she had told the police that she was perfectly happy to allow him into her house. Mr Abbott submits that the evidence before the jury left the point open as to whether he was entering with the purpose of stealing and Mrs Cook was indeed giving him authority to enter for that purpose, knowing that the police and the cameras were upstairs and he would be caught. He submitted that in those circumstances it was wrong to describe the appellant as a trespasser because there was an open issue that he had been given authority by the householder to enter for the purpose for which he had sought entry.

When we put to Mr Abbott that on this evidence it would have been open to the jury to convict his client of an attempt, pursuant to the principles set out in section 3 of the Criminal Law Act 1967, after some initial prevarication he conceded that it was difficult for him to submit successfully that his client had done only what was merely preparatory in connection with the offence of burglary.

In our judgment, so far as count 1 was concerned, this conviction was safe. The relevant principle is that, under section 9 of the Theft Act 1968, a person is guilty of burglary if he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) including theft.

There is a helpful passage in Smith and Hogan Criminal Law (8th Ed) at page 629 headed "Trespass by exceeding permission", which draws attention to the principles set out by the House of Lords in the civil case of Hillen and Pettigrew v ICI (Alkali) Ltd [1936] AC 65, and also by the High Court in Australia in Barker v R (1983) 7 Australian Law Journal Reports 426. In the first of these cases Lord Atkin said:

"As Scrutton LJ has pointedly said: 'When you invite a person into your house to use the staircase you do not invite him to slide down the bannisters.' So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly."

In our judgment on the evidence before the jury the conviction was perfectly safe. If the judge had added a further direction to the jury that they must be satisfied that Mrs Cook did not give him authority or permission to enter her house for the purpose of stealing, the jury, in our judgment, would have inevitably have reached the same answer.

In any event - as by the end of argument Mr Abbott was inclined to concede - there was nothing to prevent this Court from using its powers under section 3 of the Criminal Appeal Act 1968 to substitute a conviction of attempted burglary on this evidence, and the degree of criminality was precisely the same.

The basis of the application for severance was that a trial of all these matters together would inevitably prejudice the defendant in the eyes of the jury. There was the argument that, if these matters were all tried together, they were likely to arouse hostile feelings against him in the eyes of the jury because they involved elderly, frail and apparently defenceless ladies and the theft or the intended theft of their treasured possessions. That was the argument on which reliance was placed on the old case of Southern.

The second reason, which Mr Abbott developed with skill, was that his client might conceivably be forced to adopt two different defences because of the complications he faced with regard to a possible 'cut-throat' defence from one of his co-accused on count 1 which would put his convictions in in relation to that count. Once his convictions were in (which would put before the jury evidence that he had been convicted on two occasions in the last five years of offences which were remarkably similar to the one in which he was charged on count 2) then Mr Abbott said that his conviction on count 2 would be inevitable and that, accordingly, the Recorder ought to have taken that danger properly into account when deciding how to exercise his discretion.

He submitted that the Recorder was wrong in excluding the possible development of the defence, simply because the appellant had exercised his right of silence when being interviewed by the police. He said it would be the duty of a judge, directing himself properly, to consider all the possible ways in which the trial might develop, and, when he did so, he would be bound to have to consider a possibility or likelihood that Fossey would succeed in the context of his own defence on count 1 in getting the appellant's case before the jury, and that, as we have said, would render the appellant defenceless on counts 2 and 3.

In relation to the other submissions which were made, the Recorder directed himself conventionally that the question he had to apply was whether there was a prospect that the defendant might not receive a fair trial if both these incidents were tried together by one and the same jury, and he had to consider whether it was in the interest of justice that these matters were tried together by one and the same jury. When considering whether there was some special feature of the case which required separate trials, he had to consider the interest not only of the appellant but also of the prosecution. He took the view that it was well possible in this case that proper directions to the jury as to their separate consideration of the issues, their separate consideration of the various counts on the indictment and their separate consideration of the evidence against each of the three defendants on this indictment would entitle a conscientious jury properly directed to separate the issues properly and give them their separate consideration. He did not consider that this was a case which was in any way similar to the case of Southern.

Putting aside the point about the danger of the 'cut-throat' defence on count 1, in our judgment the judge directed himself quite properly and took into account all relevant matters and was perfectly entitled to exercise his discretion in the way he did.

In relation to the question of severance in cases alleging sexual misconduct, practice has moved on since the case of Southern - although the principles set out in Southern are applicable in an appropriate case of that type. The current principles are set out in the speech of Lord Taylor CJ (with which the remainder of the House of Lords agreed) in Christou [1997] AC 117.

In our judgment, putting to one side the point Mr Abbott signalled up about the Recorder not taking into account the way that the defence might be run, we find nothing to be criticised about the way that the Recorder decided to exercise his discretion.

We therefore go back to this point. The Recorder said with regard to that second matter - namely the complications the appellant faced with regard to a possible 'cut-throat' defence from one of his co-defendants if he was required to defend himself against both allegations in the same trial so that he might conceivably be forced to adopt two different defences - that he was afraid that he regarded that as something which was a matter for him and that he could not really express a view on it since the appellant exercised his right of silence at interview: "So what his explanation or reaction to utterances by a co-defendant are I know not and do not propose to consider for the purpose of this application."

In our judgment the Recorder ought to have considered the possible way that the trial might go. If he had considered it, in our judgment, inevitably there would have been nothing there which would have prevailed upon him to exercise his discretion in any way other than the way in which he did exercise it.

All three members of the court are each of the opinion that they, too, would have refused severance on this material. The previous convictions were remarkably similar to the charge which the appellant faced on count 2, and in our judgment there is great force in the submission which was put forward by Mr Byers in his skeleton argument that this evidence would have been adduced before the jury on count 2 as soon as the appellant contended that he was only in the flat for the slightly improbable purpose which he sought to put before the jury.

In passing sentence the judge said that the burglary of Mrs Rosen's flat was professionally planned, callous and mean. The appellant and his co-accused took advantage of an elderly lady and stole her cherished possessions. The judge was satisfied that the appellant's role was a supervisory one. Whilst on bail for the Rosen burglary, the appellant went on to commit a further burglary on Mrs Cook, an even older, frailer and more vulnerable lady. Were it not for Mrs Cook's courage and the presence of the police, the appellant would doubtless have stolen from her also. Elderly people living alone are extremely vulnerable and expect protection from the courts. These offences were so serious that only a custodial sentence was justified. The Recorder took into account the appellant's previous convictions for burglary, the fact that both offences were committed whilst on licence and that the appellant was on bail at the time that the burglary of Mrs Cook took place.

The appellant is now aged 49; he was born in January 1950. His previous convictions include the convictions to which we have referred in the other judgment: burglary and conspiracy to burgle in 1993, for which he received a 40 month sentence; and burglary of a dwelling-house in 1995, for which he received a 30 month sentence. He had been released on licence in respect of this burglary when he committed the present offences.

He says, in relation to the first count, that Mrs Rosen was not aware that she had been burgled until she spoke to a police constable afterwards. This was not a case of a confrontation by night; there was no question of any violence being used or threatened.

In the case of Mrs Cook, she was alerted to the likelihood that there was something wrong and called the police, who set up the cameras in her house. She was reassured by the presence of a police officer in the house and others outside, and again this was not a case involving a confrontation by night, or the use of violence or even the threat of violence.

Mr Abbott has told us that this long sentence has been a shock to his client and he has a fervent wish not to spend any further time in prison (he has strong family ties; he is desperate to get back to his family) and that a shorter sentence would fulfil the purpose of the court just as effectively.

Mr Abbott has drawn our attention to a number of earlier cases reported in the reports, including in particular: R v Herridge (1993) 15 Cr App R (S) 648, where a sentence of five years' imprisonment was reduced to three-and-a-half years on a plea of guilty; R v Mincher (1990) 12 Cr App R (S) 592, where a sentence of four years was reduced to two-and-a-half years; and more distant in time, R v Sawyer (1984) 6 Cr App R (S) 459, and R v Pashby (1982) 4 Cr App R (S) 382.

We have considered Mr Abbott's submissions with great care. In our judgment, the Recorder was quite entitled to pass the heavy sentences that he did. There is a high level of contemporary revulsion among the public for those who commit dishonest offences against very old people in their own homes, and we have no doubt that a Recorder sitting in Lewes would be well aware of the worries and concerns of old people, living like Mrs Cook and Mrs Rosen, on their own.

If lower sentences were approved in the past by this Court, they have not been effective in bringing this menace in any way to an end, and we are not persuaded that we should look at those earlier authorities in determining whether this sentence passed by the Recorder in October 1997 was manifestly excessive.

In our judgment, it was not. The appellant had been before the courts for remarkably similar offences on two previous occasions in the last four years. Lower sentences had not dissuaded him from this kind of conduct. The offence which he committed against Mrs Rosen on count 1 was committed while he was on licence at the end of a previous prison sentence. He was released on bail following his arrest and being charged on that count, and he was not in any way deterred by the earlier sentences or the sentence that he prospectively faced in relation to count 1, if convicted, in going and doing the same thing again in relation to an even older woman.

England and Wales Court of Appeal (Criminal Division) Decisions

DENNIS RAYMOND MEHR, R v. [1999] EWCA Crim 97 (19th January, 1999)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mehr, R v [1999] EWCA Crim 97 (19th January, 1999) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/97.html Cite as: [1999] EWCA Crim 97