Case No: 200103033X1 & 200103036X1
Neutral Citation No: [2003] EWCA Crim 694
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HHJ McKINNON
SITTING AT MAIDSTONE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18th March 2003

Before :

LORD JUSTICE MANTELL
MR JUSTICE JACK
and 
MR JUSTICE HEDLEY
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Between :

	Regina		
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	ANDREW JOHN CUSHMAN
And
PAUL STUART MASTERS		

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Mr A Bell appeared on behalf of the Appellant Cushman
Mr T Badenoch appeared on behalf of the Appellant Masters
Mr D Ross appeared on behalf of the Crown

Hearing date: 14th February 2003
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Mantell: 
1.	On 27th April, 2001 at the Crown Court at Maidstone before His Honour Judge McKinnon and a jury Andrew Cushman and Paul Masters, were convicted of false imprisonment.  Cushman was also convicted of causing grievous bodily harm with intent and Masters of inflicting grievous bodily harm.  On an earlier occasion Masters had pleaded guilty to an offence of burglary.  Both had bad records and both were liable to be required to serve unexpired licence periods from earlier sentences of custody.  In the event Cushman was sentenced to 5 years imprisonment on the charges of false imprisonment and causing grievous bodily harm to run consecutively, that period of 10 years itself to be consecutive to a period of 105 days ordered to be served under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.  Masters was sentenced to 4 years detention for false imprisonment, 2½ years detention for inflicting grievous bodily harm and 9 months detention for the burglary, all consecutive to one another and consecutive to a period of 475 days ordered under section 116, making a total sentence slightly in excess of 8½ years detention.  Masters appeals against his conviction by leave of Wright J. and Cushman renews his application for leave to appeal against conviction after refusal of leave by Wright J.  Both appeal against sentence by leave of the same judge.
2.	At the conclusion of the hearing we announced that Cushman’s renewed application for leave to appeal against conviction would be refused and that Masters’ appeal against conviction would be dismissed.  We also stated that both appeals against sentence would be allowed to an extent.  Cushman’s total sentence was reduced to 7½ years and Masters’ to 4 years and 9 months but in both cases consecutive to the terms ordered to be served pursuant to section 116.  We said we would give our reasons in writing in due course.  This we now do.
3.	The matter in respect of which the appellants were convicted was quite dreadful.  A man called Graham Horsham, who suffered from schizophrenia (although effectively controlled by medication), lived on his own in a bed-sitting room in Chatham.  He knew two other people, Mick Tanser and Sylvia Eastwood, who were similarly accommodated.  He had seen Cushman (whom he knew as ‘Scott’) once before when he came to his (the complainant’s) flat to measure it for wallpaper claiming to act on behalf of the landlord.  On 11th July 2000 Horsham went out to get some beer for Tanser and returned with it to Tanser’s flat.  There he found Tanser, Scott and another man, referred to as John.  He was subsequently to identify John as Masters.  A dispute broke out because Horsham was accused of keeping Tanser’s change.  They locked the door, detaining him for some two hours.  They also raised the question of his alleged relationship with a 14-year-old girl.  The man, John, burned Horsham’s hand with a cigarette lighter and poked his forehead until it bled.  Scott then threatened Tanser with violence unless he (Tanser) attacked Horsham.  Tanser punched Horsham.  Horsham was then threatened with a knife and forced to remain in a chair.  Scott sprayed Horsham’s chest and face with what was thought to be deodorant spray.  This was set alight (by Cushman as the jury must have found).  It was extinguished with the complainant’s own shirt and he was given some beer.  Scott said that Horsham should not leave for three days to keep him out of sight.  Fortunately Sylvia Eastwood then came in.  She made the men leave.  An ambulance was sent for and Horsham was taken to hospital where he was treated for serious burns.  It must have been a deeply traumatic experience.
4.	At trial neither Tanser nor Sylvia Eastwood was called as a witness by the prosecution.  Neither appellant chose to give evidence nor did they call witnesses.  In interview, Masters had denied his presence at the flat.  Cushman had refused to be interviewed.  Horsham identified Cushman at an identification parade and he later identified Masters from a videotape of an identification parade line up.  We were invited to, and did, watch the tape before hearing submissions on the appeal.  Horsham’s identification of Cushman was not challenged at the trial.  It was accepted on Cushman’s behalf at the trial that he was present in the room.  The identification of Masters was challenged and founds one ground of his appeal.
5.	For Cushman, two points are taken on the renewed application for leave to appeal against conviction.  First, it was said that the judge had not dealt fairly with the forensic evidence, particularly in suggesting that the deodorant bottle sent for forensic examination may not have been the one involved as the bottle which was examined would not have been expected to ignite at room temperature.  There was no doubt, however, that Horsham had suffered burns.  Whatever the judge said in this regard could have had no adverse impact on the case of Cushman.
6.	Secondly, it was said that the judge wrongly admitted in evidence the facts relating to Cushman’s failure to be interviewed.  He had refused to be interviewed otherwise than in the presence of his solicitor of choice, and had refused to leave his cell.  Accordingly he was never cautioned and thus no adverse inferences could be drawn against him.  There was, it was accepted, always a clear case for him to answer.  He had not given evidence and the jury were correctly directed that it was open to them to draw adverse inferences from his failure to give evidence.  That would have subsumed everything concerned with the interview, which became of no importance.  Further the judge directed the jury to pay no regard to the failure to be interviewed.  There was no prejudice to the applicant. 
7.	On behalf of Masters two points are taken.  The first is that in an earlier abortive trial Horsham had been allowed to refresh his memory by watching the videotape identification whilst sitting in court in the presence of the defendants.  This was done because up to then he had not stated which of the two defendants it was that he had purported to identify on the videotape.  It was submitted that this had given him an opportunity to compare the person he identified on the tape with the person in the dock, thus strengthening his confidence in his own identification.  It was not repeated in the second (and effective) trial with which the appeal is concerned.  We do not think that the exercise should have been conducted in court.  In any event it was unnecessary.  He had already made an identification of Cushman as Scott (which was accepted) and it was common ground that he knew Tanser.  That only left the one man, Masters   It would have been simple enough for prosecuting counsel to have elicited that by a few direct questions.  So what happened cannot have prejudiced Master’s case.  Insofar as it is said that it strengthened Horsham’s confidence in his own identification, that is belied by the answers that Horsham in fact gave in cross-examination which included an acceptance that he might have got the wrong man.
8.	That leads to the second and much more substantial point taken on behalf of Masters by Mr. Badenoch, namely that such were the inherent weaknesses in the identification evidence that the judge should have withdrawn the case against him from the jury in accordance with the principles in Galbraith [1981] 1 W.L.R. 1039.  This is the sole issue for us as the judge gave impeccable directions to the jury on this point, clearly identifying for them the potential weaknesses to be borne in mind with regard to the identification evidence.
9.	The thrust of Mr Badenoch’s submissions to the judge (repeated before us) was to draw together a number of features of the evidence and then invite him to consider the whole picture.  It was pointed out that the witness suffered poor mental health, that he both agreed he could have got the wrong man yet insisted that his identification was right, that he said the man had jet black hair whereas Masters had light brown hair when arrested.  (All the matters were to be identified by the judge in his summing-up between pages 19F and 21F as were other factors relating to Horsham’s reliability which the judge with between pages 26A and 28B of his summing-up).  Masters had admitted in interview to having visited the flat once before.  It is of particular importance that he was seen close to the flat at a time soon after the offences, consistent with his being present in the flat at the relevant time.
10.	Mr Ross for the prosecution drew our attention to all the matters that the judge had in mind.  He pointed out that an identifying witness may be unsure or wrong about details but correct in his actual recognition.  He made the point that this was not a fleeting glance case. 
11.	We have given this matter close attention.  On the one hand it is true that mistaken identifications can and do happen.  Accordingly, great care has to be taken over evidence such as was given in the present case.  On the other hand, this court should give particular weight to the decision of the trial judge who has seen and heard the witness.  When we saw the videotape of the identification of Masters by Horsham there was nothing to cause us any misgivings about the accuracy of the identification.  The jury saw it.  It is apparent from his summing-up that the judge was at pains to direct the jury as to the care they should exercise and as to the matters to which they were to have particular regard.  It is clear that he had all these matters in mind when considering Mr Badenoch’s submission of no case to answer (We should mention that in his ruling he did not go through the various points which had been made, saying that he had sufficiently indicated his views during the submissions of which we do not have a transcript.)
12.	We are satisfied that the judge was fully entitled to allow matters to proceed.  He reached his decision having all relevant matters in mind.  He took the view that Horsham’s evidence was capable of being found both credible and accurate and he did so in the full knowledge both of the weaknesses inherent in it and the limited supporting evidence.  We reject the submission that the judge should have withdrawn the case from the jury.
13.	It is for these reasons that we dismissed Masters’ appeal against conviction.
14.	We turn finally to the issue of sentence.  Cushman was aged 29 and Masters 19.  Both had bad records and neither had the mitigation of a guilty plea.  Substantial custodial sentences were inevitable for these offences and that of Cushman would inevitably be more severe given his age and the actual offences of which he was convicted.  Dealing first with Cushman we were persuaded that in two respects the sentence could be criticised.  First, this was really all one incident and it did not call for consecutive sentences and secondly that the overall sentence was too long.  We agree that this was in effect all one incident and that accordingly concurrent sentences would have been appropriate.  Although clearly the judge had regard to totality, we also think that the sentence was longer than it needed to have been.  Accordingly we substituted a sentence of 7½ years imprisonment for the offence under section 18 with the concurrent term of 5 years for the false imprisonment.  This will be served after the period of 105 days ordered to be served under section 116.
15.	Likewise in the case of Masters no complaint can be made of having to serve 475 days pursuant to section 116 nor of the sentence for the burglary being made consecutive to any other sentence.   In his case, too, we are persuaded that the in respect of false imprisonment and inflicting grievous bodily harm sentences should have been concurrent.  He was convicted of a lesser offence and, despite his bad record, was only 19 at the time of trial.  In the circumstances we concluded that the overall sentence was no longer than it needed to be and we varied it by directing that the periods of 4 years and 2½ years detention are to run concurrently rather than consecutively.  To that extent both appeals against sentence are allowed leaving total sentences in respect of Cushman of 7½ years to be served after the section 116 period and in respect of Masters 4 years and 9 months to be served after the section 116 period.