Case No: 200302542/B2/2550/B2/6250/A6 
Neutral Citation Number: [2004] EWCA Crim 1163
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date Wednesday, 7th April 2004
 
B E F O R E:

LORD JUSTICE HOOPER 

MR JUSTICE RODERICK EVANS 
 
MR JUSTICE TUGENDHAT 

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R E G I N A 

-v- 

ASHLEY TREVOR PRYER 
PAUL SPARKES 
AND 
BENJAMIN JON WALKER 
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR S MOSES appeared on behalf PRYER 
MISS E STAPLETON appeared on behalf of SPARKES 
MR T SHORTER [solicitor advocate] appeared on behalf OF WALKER
MR A HIDDLESTON appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE HOOPER:  For the reasons which we now give these two appeals are dismissed.
2.	Ashley Pryer, now 31, and Paul Sparkes, now 37, appeal against their convictions of violent disorder on 19th March 2003.  The violent disorder arose out of an incident on 17th November 1999.  On that day six to seven men entered a house in Weymouth occupied by Karen Watson and her then 13-year old daughter Melanie Watson.  Three men were armed with various weapons; one had a baseball bat.  They began to smash up the contents of the house.  It appears from the papers before us that the motive for the attack was in connection with rival drug activities.  Less than 30 minutes later the appellants and four others were arrested at 52 Park Street in Weymouth.  That was, as the judge said, was within a couple of hundred yards of the home of Karen Watson.  
3.	In addition to the two appellants, arrested at that time were Ryan Pitney, Lewis Durrant, Benjamin Walker, Nicholas Pryer and Philip Snarey.  No proceedings were, as we understand it, taken against Philip Snarey.  Nicholas Pryer succeeded on a submission of no case in the Magistrates' Court. 
4.	On the prosecution's case the appellants and others involved in this attack had set off earlier from that same address, 52 Park Street.  Melanie Watson named one of those arrested, Ryan Pitney, as having been armed and fully involved.  She was not able to identify any of the other men.  Three mobile phones taken from the house were later found at 52 Park Street and blood shed at the scene was that of Benjamin Walker, traces of whose blood was also found at 52 Park Street.  Melanie heard someone addressed as Walker.  
5.	The co-defendant Ryan Pitney gave evidence for the prosecution.  He gave conflicting accounts of his knowledge of weaponry being carried as they left 52 Park Street.  We return to that later.  He said that the appellant Sparkes had a baseball bat which he used in the house to cause damage.  He said that two of those involved went into the premises first followed by others.  He said that by the time he got into the house Sparkes was "messing up the room" with a baseball bat.  He said that the appellant Pryer was walking around the house shouting, "Don't worry, everything is going to be all right".  He said that Sparkes continued to damage the room by the use of the baseball bat.  He went round the room anti-clockwise smashing up the television, some shelves, some speakers and finishing on a large wall unit.  He said that another person had a metal or wooden bar.  The group having been told that the person whom they were looking for was not there, they then left and went back to 52 Park Street.
6.	The appellants Pryer and Sparkes, according to Pitney, put the baseball bat and another weapon in the back of the red van.  The baseball bat was later found in a van which was registered to Ashley Pryer, but Ryan Pitney admitted that he had been driving it and indeed had smashed it.  As to this matter, the judge said:
"That by itself does not connect Mr Pryer with this incident, but it is just a piece of evidence that the prosecution point to." 
7.	Melanie Watson's interview recorded on a video tape was played to the jury as her evidence-in-chief.  She was not required for cross-examination.  She said that six or seven men had gone into the house and that the men were armed with a number of weapons.  She said that Ryan Pitney had a weapon and played a full part in causing the damage.  She identified him as being the second man to come into the house and said that she knew him through her brother.  She opened the door after hearing a knock and three men had pushed past her.  They all pulled bars out of their jackets and one of them told her not to worry as she was not in any danger.  They then started "smashing up the house", using the bars which they had brought with them.  Pitney and a man called Joe (not identified) smashed her television up and then caused substantial damage to various rooms in the house.  
8.	The appellant Sparkes subsequently went on an identification parade, but was not picked out by either Melanie or her mother.  The appellant Ashley Pryer took no part in identification procedures.
9.	There was no forensic evidence linking either of the appellants to the attack.  
10.	The appellants were interviewed on two separate occasions and answered no questions.  
11.	At the close of the prosecution's case a submission of no case was made, the effect of which was that Ryan Pitney was not a witness upon whose evidence the jury could properly rely.  
12.	The learned judge refused the applications, stating as follows:
"Let me just summarise what the case is about for the purposes of saying what I am going to decide.  On 17th November 1999 a group of men, six or perhaps seven, went to 41 Chelmsford Street, in Weymouth.  That group, some or all of them, were armed with weapons of some sort, a baseball bat or crowbars, and a good deal of damage was done, as the photographs in exhibit 2 make clear.  At the time a young teenage girl, Melanie Watson, was in the house and saw some of what happened, and her mother, who was upstairs at the beginning, came downstairs and also saw some of what was going on and received some, happily, fairly minor injury. 
It is, of course, a matter in the end of the jury, but it strikes me at this stage that that is ample evidence of a violent disorder, that more than three people were involved, and those present reasonably feared for their personal safety, so at this stage, again, stressing it is a matter for the jury, that there would, I feel sure, be a case to answer against all the members of that group, whatever individually they did, and whether individually they had, or used, a weapon. 
These two men and others were arrested soon afterwards at a nearby house, within a couple of hundred yards or so. 
Melanie Watson only recognised -- she was able to describe some of the men -- but she only recognised one of the group, somebody called Ryan Pitney.  There is no other identification evidence, or there was no other identification evidence, against any other members of the group, and these two men on trial today, although arrested, Mr Pryer and Mr Sparks, were not charged because there was no evidence to identify them at that stage as members of the group. 
Ryan Pitney, having been identified, was charged.  In due course he pleaded guilty and was sentenced.  For whatever reason, he decided to make a witness statement and say that he was willing to give evidence against others, and he did make a statement, which named these two defendants as part of that group, and that, from the prosecution point of view, changed the evidence available against these two men and they were rearrested, and find themselves charged with violent disorder. 
At the end of the prosecution case, with great skill, Miss Stapleton and Mr Moses, Mr Moses first, has submitted to me that in accordance with the familiar principles in the cases of Galbraith and the case of Shippey there are such inconsistencies and such unsatisfactory features of the evidence that I should exercise the power that I have to say the case really should go no further, and they have, both of them, drawn attention to the difference in the accounts of what happened at 41 Chelmsford Street given by the teenage girl, Melanie, and given by Ryan Pitney. 
Put shortly, but I hope doing justice to their case, the essential difference between the witnesses is this: Melanie describes Ryan Pitney as having a weapon of some sort and taking a full part in doing some of the damage that was undoubtedly done. 
Ryan Pitney, although he pleaded guilty and was sentenced, has given evidence to say that really he took no part.  He was there but he was just effectively watching from outside, and that he himself did not have any weapon and did not do any damage. 
Mr Moses, (inaudible) statement, is absolutely right to draw attention to those two different accounts.  They go further, and say they are so different that the prosecution cannot, and should not, have it both ways, and they really cannot rely on a witness like Mr Pitney, who is so much in conflict in detail with Melanie Watson. 
In response to that submission, Mr Hiddleston, for the prosecution points out that it is these two men who are on trial and not Mr Pitney, and the important part of his evidence is not to say what he or what others did, but to say that those other two men, the defendants in this case, were there and taking part in what went on. 
Our process of cross-examination has exposed Mr Pitney to very rigorous and searching cross-examination, and counsel have prepared the ground for very strong comments to the jury about the reliability of this evidence, and they did so professionally and skilfully, but I have to judge the case as it stands at this stage, and it is important that I remind myself that I am here to look after matters of law in the trial and see that the trial goes according to established rules, but that we have the 12 members of the jury to judge the evidence. 
It is, in my view, quite open to the jury to say 'we are satisfied that those two men were there', whilst at the same time, said (?) saying (?) 'and we think that Ryan Pitney took a much bigger part in this than he pretended to us that he did'.  But the importance of his evidence at this stage is that he puts these two men as members of that group. 
Whether the jury will accept that evidence or not, in the light of the skilful attack on his credit, his reliability, his memory and his truthfulness, is something the jury have to decide.  That is the essence of the trial process in our system, and it would not be right, I am quite sure, for me to say that I must step in at the stage and say the jury should not further consider the case.  They will have the benefit of considering all the evidence in the case and the comments and arguments of counsel about the shortcomings, which they may well find exist in the evidence of Ryan Pitney.  But that evidence is evidence in the case.  It is open to a jury to accept it if they feel it right, and if they did accept it there would be the conclusion which the jury would come to, would be the conclusion which I began by setting out. 
I am afraid I have come to the firm conclusion that despite the attractive submissions there is a case which the jury should consider against both of these defendants."
13.	Having refused the application, the case proceeded.  Neither of the appellants gave evidence, nor did they call any witnesses.  The judge directed the jury to draw no adverse inferences from their failure to say anything at interview, or from the fact that they had not given evidence.  
14.	There was no doubt that the case against the appellants depended on the evidence of Pitney.  Unless the jury could be sure that Pitney was telling the truth when he placed the two appellants at the scene, then they could not be convicted. 
15.	It is agreed before us that the only issue in the case was whether or not the appellants were in the house.  If a reasonable jury properly directed could be sure that the appellants were in the house, then the convictions are safe.  The precise role played by the appellants would be a matter for the sentencing judge.  It would not on the charges which these two faced and in the circumstances of this case, need to be resolved by the jury.    
16.	The two skeleton arguments which have been prepared on behalf of the appellants for us helpfully set out the inconsistencies, contradictions and indeed lies upon which the appellants rely.  We set out, first of all paragraphs 7, 8, and 10 of the skeleton argument of Miss Stapleton:
"7. Ryan Pitney was interviewed by police on 18th November 1999.  He made no comment to questions put to him.  On 1st December 1999 he attended Weymouth police station for an identification parade to be carried out.  Prior to the procedure he requested an interview with police which was conducted under caution.  He stated that evening he had been at 52 Park Street and that they [including the appellants] all had gone down to 41 Chelmsford Street 'tooled up', i.e. with crowbars, a baseball bat and a couple of hammers (interview 1st December 1999, page 2).  He further stated that 'they said we'll go down with this just in case anybody does pick up something, we've got something to defend ourselves with'.  He maintained that he did no damage to the property and did not participate. 
8. He was charged with aggravated burglary and attended the Magistrates' Court in early 2000 but subsequently absconded for a considerable period of time.  On 31st October 2000 Mr Pitney pleaded guilty to violent disorder, as did Lewis Durrant.  Mr Pitney entered a basis of plea wherein he denied using a weapon or causing damage to the property but accepted that through his presence he was acting in a joint enterprise.  He offered to give a statement to the police implicating the protagonists.  The prosecution did not accept the basis of this plea but specifically stated that they did not think it in the public interest to require Melanie Watson to attend court for a Newton haring because of her young age.  Sentence was adjourned to 24th November 2000 but on that occasion was adjourned again to allow Mr Pitney to give his statement to the police.  The statement was taken in the presence of his solicitor and father on 3rd December 2000. 
... 
10. Mr Pitney's statement of 3rd December 2000 implicated Mr Sparkes and his co-defendant in the incident of 17th November 1999.  Specifically he stated that Mr Sparkes had a baseball bat at 52 Park Street and attended at 41 Chelmsford Street, wherein he smashed up the back room with the same.  He also maintained that he had no knowledge of any weapons being taken to the property and that he himself had not been involved in any violence." 
17.	Paragraphs 14 and 15 of the skeleton argument of Miss Stapleton set out what happened at the trial:
"14. Mr Pitney gave evidence at trial on 17th March 2003.  He maintained his position in his statement that he did not know anyone had taken weapons to the property; that he had only gone as far as the door of the premises and that by the time he arrived the others had already gained entry.  He saw Mr Sparkes destroying property with a baseball bat in the back room, including the tv, stereo and the shelves on the wall.  It was a big blur and that he was shocked and bewildered about what was taking place.  He went back to 52 Park Street and stayed ad there until the police arrived.  He accepted that he had breached his Community Service Order and had only recently been resentenced to a 170-hour order on 24th February 2003. 
15.  Under cross-examination Mr Pitney stated he had pleaded guilty because a deal was done whereby he would receive a lighter sentence (transcript cross-examination Ryan Pitney page 4).  He claimed he was in fact innocent and that he had done nothing (transcript, ibid page 23).  When the evidence of Melanie Watson was put to him he stated she must be lying when she stated he had participated in violence in the manner she described (transcript, ibid pages 7 to 8).  She was also lying when she said that she knew him and that he did not know her brother.  His words had been twisted when he made his statement (transcript, ibid page 16).  He had chosen to forget parts of what happened that evening.  He insisted he did not know anyone had weapons upon leaving 52 Park Street, despite the interview he gave to police on 1st December 1999 (transcript, ibid page 15)." 
18.	In his skeleton argument Mr Moses deals with a further matter in paragraph 11.  We set out the whole of paragraph 11 also:
"At trial, Mr Pitney gave evidence in cross-examination that he had entered his guilty plea on the basis that '[he] would get a lighter sentence'.  [Transcript of cross-examination of Ryan Pitney at page 4].  He maintained that he had 'made a deal with the prosecution' [Transcript of cross-examination of Ryan Pitney at top of page 11] and that he had 'done nothing wrong'.  'I am an innocent man' [Transcript of cross-examination of Ryan Pitney at page 23] he protested when asked why he had pleaded guilty.  When pushed to explain why his statement was inconsistent with his account in interview and/or in cross-examination, Mr Pitney maintained that '[his] words had been twisted in [his] statement' and/or he had 'chosen to forget parts of his evidence in [his] statement' [Transcript of cross-examination of Ryan Pitney at page 16]." 
19.	The submission made on behalf of the appellants can be simply stated.  The evidence of Pitney should have been looked at by the judge in the round, and looking at it "in the round" such were the inconsistencies and lies that the jury could not properly rely on any part of his evidence. 
20.	We asked Mr Hiddleston for the prosecution to state the prosecution's position about various aspects of the evidence of Pitney.  Mr Hiddleston accepted that Pitney was lying when he said that he was not himself armed and not involved in damaging the house.  We asked him whether or not there would have been a case to answer as against the appellant Sparkes if he had been charged with criminal damage to the television set which was undoubtedly damaged.  According to Melanie that damage was done by Pitney, according to Pitney it was done by Sparkes.  He rightly and sensibly accepted that there would have been no case to answer if he had been charged with criminal damage to the television set.  He also accepted that Pitney was lying when he said that as the group left 52 Park Street, he saw no weapons.   
21.	Counsel rely heavily on the case which Mr Moses described as "infamous", the case often referred to as the "plums and duff" case.  The name of the case is Shippey [1988] Crim LR 767.  It is a decision of Turner J, sitting at Sheffield, and is the subject of a commentary by the late Professor Sir John Smith.  What is not clear from Shippey as reported in the Crim LR are the facts which lay behind the decision that Turner J reached.  What is clear is that the evidence of the complainant in a rape case was certainly very weak and full of inconsistencies in the view of Turner J.  
22.	Turner J considered the case of Galbraith (1981) 73 Cr App R 124 and then said, according to the report in the Crim LR: 
"However, taking the prosecution case at its highest did not mean picking out the plums and leaving the duff behind."  
23.	The report continues: 
"His Lordship found that he must assess the evidence and if the witnesses' evidence was self-contradictory and out of reason and all commonsense then such evidence is tenuous and suffering from inherent weakness." 
24.	He then referred again to Galbraith and a further case and said that he did not interpret them: 
"... as intending to say that if there are parts of the evidence which go to support the charge then no matter what the state of the rest of the evidence that is enough to leave the matter to the jury.  Such a view would leave part of the ratio of Galbraith tautologous."  
25.	Turner J continued: 
"He found that he had to make an assessment of the evidence as a whole.  It was not simply a matter of the credibility of individual witnesses or simply a matter of evidential inconsistencies between witnesses, although those matters may play a subordinate role.  He found that there were within the complainant's own evidence inconsistencies of such a substantial kind that he would have to point out to the jury their effect and to indicate to the jury how difficult and dangerous it would be to act upon the plums and not the duff." 
26.	Turner J then went on, according to the report, to identify parts of the complainant's evidence which were found to be totally at variance with other parts.  He labelled those parts as "frankly incredible" and as having "really significant inherent inconsistencies".  He went on to say that they were: 
"... strikingly and wholly inconsistent with the allegation of rape."  
He thus acceded to the submission and directed the jury to bring in verdicts of not guilty.
27.	It has been the experience of at least two members of this Court that Shippey is often cited by counsel at the close of the prosecution's case.  What counsel often do, and what in our view counsel have done in this case, is to convert Shippey from what it actually is, namely a decision on the facts, into a decision on the law.  Mr Moses and Miss Stapleton seek to find in Shippey, as many counsel have done before them, some principle of the law called "the plums and duff principle".  
28.	What is a trial judge being asked to do when a submission of no case is made either at the close of the prosecution case, or, as sometimes happens, after all the evidence in the case has been given?  He has a task to perform which is stated simply and clearly in Galbraith:
"Could a reasonable jury properly directed properly be sure of the defendant's guilt on the charge which he faces." 
29.	Although the test is a very simple one, it is often difficult to answer the question.  Help may sometimes be found in the case of Shippey in resolving that question, provided it is remembered that Shippey is no more than another case on the facts.  Galbraith gives significant assistance to judges when being asked to resolve that question when the reliability of witnesses is in issue. 
30.	In this case the issue is a simple one given that if the jury were sure that the appellants were there, then the jury would also be sure that they had committed the offence.  About that there is no dispute.  
31.	The prosecution point to supporting evidence.  They rely on the fact that the appellants Pitney and Walker, if not others, were found at 52 Park Street no more than 200 yards away, some 30 minutes after the attack.  They point to the links between that house and the attack, namely, the blood from Walker and the mobile phones.  They seek to rely also on the van, but it seems to us that the judge properly approached the issue of the van in the passage to which we have already referred.  
32.	When a prosecution witness like Pitney lies on important matters, it remains the task of the trial judge to ask the question whether a reasonable jury could properly be sure of guilt. There will be cases, and Shippey is an example, where, having conducted the exercise, the trial judge reaches the conclusion that no jury could be so sure.  This judge, for the reasons which we have set out, concluded that a reasonable jury could be sure.  
33.	We agree with that conclusion.  On the facts of this case the jury was entitled to say to themselves, "we think he is lying about a lot of what he has said, but we are sure he is not lying when he said that the two appellants were present at the scene with him".  In those circumstances, these two appeals against conviction fail.
34.	LORD JUSTICE HOOPER:  Can we deal with the sentence appeal? 
 (submissions made in relation to appeals against sentence) 
35.	LORD JUSTICE HOOPER:  We turn now to the appeal against sentence brought by Benjamin Walker, now aged 23.  He was sentenced on 23rd October 2003 to 12 months' imprisonment for the violent disorder and three months' imprisonment consecutive for an offence under the Bail Act.  He appeals following the grant of a certificate of fitness to appeal against sentence granted by the Recorder who sentenced him, Mr Recorder Dermot O'Brien QC. 
36.	We have set out the facts when dismissing the appeal of the two appellants Pryer and Sparkes against conviction.  Pitney and Lewis Durrant were sentenced by His Honour Judge Beashal on 19th January 2001, some 15 months after the commission of the offence.  We are told that that long period of delay is in large measure due to the fact that Pitney absconded whilst on bail.  As we have already said, by then Pitney had made a statement which was to be the principal evidence against the two appellants whose appeals against convictions we have already considered.  
37.	Pitney was at that time 21 and had one previous conviction for criminal damage.  The prosecution did not accept the basis of the Pitney's plea that he carried no weapon and had caused no damage, but was present when the damage was caused.  However, the prosecution did not seek a Newton hearing given the age of Melanie, and thus the judge sentenced Pitney on the basis that he had not organised or played a major part in the events with which we are concerned.
38.	The judge said this to Pitney:
"... although your presence was obviously frightening to the people in the flat, you did not otherwise intimidate them and you were not in possession of a weapon and did not, apart from your presence, act violently.  You have had this matter hanging over you for a very long time, and very importantly since this was offence was committed you have put your life right.  You have moved away from this area to another part of the country; you have been employed; you have a girlfriend, and the probation officer is confident that you have put your life of drugs behind you."  
39.	The judge gave him credit for his plea of guilty and also, of course, for his co-operation with the police and prosecuting authorities.  The judge made a community service order for a period of 200 hours.
40.	Insofar as Lewis Durrant is concerned, the judge also accepted his basis of plea, namely, that he went along, had no weapon, was the last to enter the house and stood in the entrance hall throughout.  He was aged 19 at the time.  He was given credit for his plea of guilty and the absence of any previous convictions.  The judge made reference to a medical report and said: 
"You have very real problems in your life and I am persuaded that if I sentence you to a young offender's institution you would come out significantly scared."  
The judge then made a probation order for a period of two years.
41.	The next two to be sentenced were the appellants Pryer and Sparkes following their convictions on 19th March 2003.  They were sentenced on 16th April 2003.  Each received a conditional discharge.
42.	We asked for an explanation for the delay between the passing of the sentence on Pitney on 19th January 2001 and the trial in March 2003.  We were told that a number of interlocutory issues were raised, such as venue and abuse of the process of the court.  It is unfortunate that there was such a substantial delay.
43.	In passing sentence His Honour Judge McNaught, who heard the trial, said: 
"It was, you know, a frightening incident and you've seen the photographs, and I've seen the photographs, a lot of damage was done and by rights it might have merited a prison sentence doing that, but the other man didn't get a prison sentence and I said at the end of the trial that I didn't think 0it would be fair to you, although you've denied it and been convicted, to treat you in a different way, and I had hoped that I would be able to order you to do Community Service work as well.  But the reports make it clear that I can't do that.  It's a pity, but I can't.  And it's not a case where either of you needs to be under the hand of the probation service.  
It all goes back a long time and in other respects you haven't behaved too badly." 
The judge also made no order as to costs or compensation.
44.	The fifth and final defendant, Benjamin Walker, pleaded guilty on rearraignment to violent disorder, having pleaded guilty in the Magistrates' Court to an offence of failing to surrender to bail on 11th April 2000.  That matter had been committed to the Crown Court.  The prosecutor, Mr Bradbury of counsel, said that the case against Mr Walker:
"... relies substantially upon what [Mr Pitney] said occurred on that day." 
Mr Bradbury had not been counsel at the trial, and, as Mr Hiddleston told us, it is doubtful whether he would have said that had he been prosecuting the case, given the inconsistencies in the Pitney statement.
45.	Counsel told the learned Recorder about the other sentences which had been passed and explained the substantial delay in dealing with Benjamin Walker's case by the fact that he had absconded.  He had been due to attend in the Magistrates' Court on 27th May 2000 but had failed to attend.  A warrant for his arrest was executed in February 2001.  He had then been rebailed, but again failed to attend his next court appearance.  A warrant for his arrest was issued and was subsequently executed in July 2003.  Committal proceedings took place and he made his first appearance in the Crown Court on 15th August.  By this time he had been rebailed.  He was subsequently rearrested for being in breach of his bail conditions.  He was again remanded in custody.  On 5th September he pleaded guilty and he was granted bail pending sentence.  He was due to be sentenced on 4th October 2003, but there was no pre-sentence report available because the appellant had missed the appointment.  At the time of sentence he had a single conviction of possession of cannabis for which he had been fined.
46.	The Recorder described the weapons being carried as a baseball bat, a crow bar and an iron bar, and he said he did not think it mattered who carried which implement.  He then gave the purpose of the invasion, namely that it was related to drug trafficking in Weymouth, and the object of the exercise was to deter someone called Steve from taking part in the drug scene in Weymouth.  The Recorder said that his rivals, which included, so the Recorder said, the appellant Walker and another man, saw Steve's activities as a threat to their activities.
47.	The Recorder referred to the sentence passed upon Durrant and Pitney, which he described as a "quite extraordinarily lenient penalty".  He said that it had not been suggested to him that he should proceed on any other factual basis than the Pitney statement.  The Recorder said he would assume in the appellant's favour that he did not take the claw hammer, which he described as having been used to smash up part of the house.  The Recorder said that he had picked that up when he arrived and he did not regard that as a significant submitting feature.  
48.	He then referred to the trial of Sparkes and Pryer and said:  
"Sparkes is the one who took and used the baseball bat."  
He went on to say: 
"I have to say that I am unable, on the facts that I have had aired before me, to see how that sentence could be justified.  I shall have to assume that there were circumstances out of my knowledge that were entirely special to those two defendants.  Certainly though it is that in terms of the initiative behind this invasion a Paul Sparkes and Ashley Pryer appear from Ryan Pitney's statement to have been less of the progenitors than Joe Pryer and the defendant Walker.  But having said that, there was not in the execution anything to choose between the six protagonists."
49.	The Recorder referred to the fact that Walker had made a no comment interview and that he was entitled to credit for his plea on 5th September 2003:  
"... albeit not the same credit that he would have been entitled to if that plea had been tendered at an earlier stage." 
50.	He went on to say:
"If the facts appeared to the [judge who sentenced Sparkes and Ashley Pryer] were the same as they appear to me, and there were no other features special to the defendants, as I say, about which I know nothing, I would have to say that the conditional discharge was abhorrent.  I assume it was not abhorrent because there must have been some special conditions about which I do not know." 
The Recorder then referred to the fact that the appellant had kept out of trouble whilst on the run.  
51.	He continued:  
"It seems to me, as I say, that but for the parity argument this is a sentence that would be measured in terms of years.  However the other people have been very leniently dealt with and I have to pay some regard to that with regard to the sentence that I impose.  I think the defendant would rightly feel some sense of grievance if the sentence that is imposed were to be one as long as I think the offence itself richly merits." 
He had earlier said that he thought that the proper sentence was a period of some three years' imprisonment.
52.	It seems to us to be unfortunate that the whole history of this matter, as we have now set it out, was not placed before the Recorder.  Whilst sympathetic to his views that the sentences passed earlier had not been as long as they ought to have been, given the history of case and the long delays, it seems to us that it was not right to select Walker out and to pass upon him a custodial sentence of 12 months.
53.	He has now been in prison for some time.  He is perhaps fortunate in that he was not sentenced for the numerous breaches of bail in the Crown Court.  If they had been, he would no doubt have received imprisonment for those breaches.  We pass upon him a sentence which leads to his immediate release, namely, one of six months' imprisonment: Mr Shorter, who appears for the appellant, asks us not to pass any form of non-custodial sentence which would leave this appellant at risk should he reoffend in the future.
54.	The appeal against sentence is allowed to this extent.  For the sentence of 12 months' imprisonment there will be substituted a sentence of six months' imprisonment.
55.	LORD JUSTICE HOOPER:  We were considering whether to make a recovery of costs order, not against your client but the two appellants in the appeal against conviction, but we have decided not to do so.