No: 201500434/C5‑201500435/C5 
Neutral Citation Number: [2015] EWCA Crim 952
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 7th May 2015
 
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION 
(SIR BRIAN LEVESON) 
MR JUSTICE HICKINBOTTOM 
MRS JUSTICE THIRLWALL DBE
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R E G I N A 

v 

PAUL GOWANS
 
BARRY KENNETH HILLMAN
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995 

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Mr S Russell‑Flint QC appeared on behalf of the Appellant
Mr S Denison QC appeared on behalf of the Crown
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J U D G M E N T
1.	 THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:  On 24th August 2001 in the Central Criminal Court before His Honour Judge Stephens QC and a jury, these appellants were convicted by majority verdict of murder.  Both were sentenced to life imprisonment.  In relation to Paul Robert Gowans, now aged 42, the period of 13 years was specified pursuant to the provisions of what later became section 269(2) of the Criminal Justice Act 2003.  In relation to Barry Kenneth Hillman, now aged 35, the period of 11 years was specified.
2.	On 10th December 2003 the Full Court (Kay LJ, Douglas Brown J and Sir Michael Wright) dismissed the appellants’ appeals against conviction.  These convictions have now been referred to this court by the Criminal Cases Review Commission, it having established that consent to the prosecution had not been provided by the Attorney‑General.
3.	The background can be summarised very shortly.  On 29th January 2000 the appellants attacked and robbed Vytautas Jelinskas, a pizza delivery man.  During the robbery he was kicked to the head, sustained a subdural hematoma to the left side of his cranium and was left in a comatosed state from which he never recovered.  
4.	On 14th August 2000 both men pleaded guilty to robbery and on 16th August both were convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, each man receiving a substantial term of imprisonment.  Three days after the convictions, the victim contracted an infection and died of septicaemia.  As a result both men were charged with murder.  The prosecution case was that the appellants had subjected the victim to a vicious assault in which he sustained brain damage that led to his death 6 or 7 months later.  The victim had to undergo invasive procedures as a result of the injuries and these carried a risk of infection.  These procedures would not have been required but for the acts of the appellants.
5.	The defence case was that there was insufficient evidence to show the acts of the appellants had been a significant cause of the death of the victim and that the original injury did no more than set the scene in which another cause of death had come about.  Thus, the issue for the jury turned upon causation and detailed medical evidence was adduced in relation to that issue.  The jury having convicted, this court reviewed the convictions and, as we have recounted, dismissed the appeal.  Both men then commenced to serve their sentences of life imprisonment.
6.	It was, we are told, Mr Hillman who referred the case to the Criminal Cases Review Commission on the grounds, we understand, of fresh medical evidence.  In the course of its review the Criminal Cases Review Commission undertook a check to ensure that the Attorney‑General had given consent for the prosecution for murder under the Law Reform (Year and a Day Rule) Act 1996.  That consent was required because section 2 of the Act states that: 
"(1)Proceedings to which this section applies may only be instituted by or with the consent of the Attorney General.
(2)This section applies to proceedings against a person for a fatal offence if— 
... 
 (b)the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death."
7.	Having made enquiries both with the Crown Prosecution Service and the Attorney‑General's Office, there is no record of an application having been made for the Attorney‑General's consent in relation to the prosecution of these appellants for murder and no record of consent having been sought or granted.
8.	Mr Simon Denison QC, for the Crown Prosecution Service, does not challenge that conclusion.  Although there is no precedent identified where the grounds of appeal were a failure to obtain the Attorney‑General's consent to institute proceedings under the Law Reform (Year and a Day Rule) Act 1986, a failure to obtain permission to institute proceedings for other offences in other circumstances has resulted in proceedings being declared a nullity.  Thus, R v Angel [1968] 1 WLR 669, the defendant was convicted of offences of gross indecency and buggery with a young boy under section 8 of the Sexual Offences Act 1967.  The consent of the Director of Public Prosecutions was required for the institution of such proceedings but had not been obtained.  The Court of Appeal allowed an appeal stating the proceedings were a nullity without the consent of the DPP.
9.	Similarly in R v Pearce [1981] 72 Cr App R 295, a defendant charged with incitement to racial hatred, contrary to section 70 of the Race Relations Act 1976, the Attorney‑General's consent was obtained.  In the event the indictment was amended to allege a conspiracy to incite racial hatred the Court of Appeal concluded that the conviction for the conspiracy offence could not be sustained on the basis the Attorney‑General had not given separate consent for this prosecution.  In the circumstances, following the decision of this court in R v Booth (1999) 1 Cr App R 457, we declare that the conviction and judgment be set aside and annulled.  This is on the basis that the irregularity in failing to obtain the Attorney‑General's consent vitiates the entire trial.
10.	The main issue which has been argued before this court has not been that conclusion; it has rather been whether the court should order a venire de novo or exercise its discretion that the appellant should not be tried again.  On the face of it the grounds for ordering a venire de novo and thus a trial are extremely strong.  These appellants were properly charged with murder, the consequences following conviction being lifelong, not merely in the form of the mandatory period in custody, pending a decision of a Parole Board following the conclusion of the minimum term, but also because of the life licence which permits the State to monitor the continued conduct of all those subject to life sentences.
11.	Mr Denison argues that it is in the public interest that those charged with murder should be tried and that the delay, although of substance and not the fault of these appellants, should not prevent that trial from taking place.
12.	Mr Russell‑Flint QC, for the appellants, submits that this would in fact be the third occasion on which these two appellants would be standing trial for the same incident.  The appellants at the time of the incident were 28 and 19 respectively and had served many years in custody already.  Further, there was no intention to kill the deceased.  Causation remained in issue.  The minimum term had long passed and the family of the deceased have made it clear, even at the time of the original sentence for murder, that they bore no malice towards the appellants.
13.	Mr Russell‑Flint also prays in aid in relation to Mr Gowans the fact that he has now been transferred to an open prison, on the basis that at some time next year he has a realistic prospect of being released on parole.  Thus, it is submitted that if fresh proceedings are instituted against him on a charge of murder he could well lose his place in open conditions and, if convicted, would have to recommence the life sentence which he has already served.  
14.	The position in relation to Mr Hillman is somewhat different.  He was transferred to open conditions in or about 2012.  While on leave from prison, however, he was arrested, charged and convicted for the offences of rape and assault by penetration for which he was sentenced to 8 years' imprisonment, clearly to run concurrently with the life sentence.  Not surprisingly he has returned to closed conditions.  His appeal against conviction for those offences was dismissed by this court ‑ see [2014] EWCA Crim 2112.  The risk that he poses which falls to be considered by the Parole Board is therefore different.
15.	The failure to obtain the consent of the Attorney‑General is not the fault of either of these appellants.  However, in our judgment, it is appropriate and in the interests of justice that a venire de novo should issue and that they be retried on the count of murder which they faced.  If there is new medical evidence disclosed to the prosecution doubtless the position can be reconsidered.  But in our judgment, the overwhelming public interest that those who are guilty of murder should be convicted and those in respect of whom there is a doubt of guilt acquitted, prevails.  
16.	That is not however to say that either appellant should be put back into the position in which they were in 2000.  Taking the case of Mr Gowans, he has progressed through the minimum term that he was ordered to serve and is now in open conditions near or comparatively near the prospect of release.  It would be quite wrong if the decision of this court were taken by the authorities in any sense to affect the risk that he poses to the public.  If the Parole Board, based upon all the circumstances, have properly considered him suitable for open conditions, in our judgment, it will be wrong to change that approach simply as a reflection of this decision.  Equally we anticipate that if the appellant is convicted every allowance will be made for the fact that he has in fact served the minimum term then considered appropriate, so that the Parole Board would urgently have to consider his case in exactly the same way as if this appeal had never been mounted.
17.	The same applies in relation to Mr Hillman although different considerations obtain.  To such extent as he is a risk to the public he will not be released from the 8 year sentence until he has served the minimum term required by that sentence, by which time this prosecution will have concluded.  He also will fall to be considered (assuming he is convicted) in the same way as if this appeal and retrial had never been necessary.  In both cases the present position of these appellants ought to be preserved and they should not suffer a detriment for the consequences of the error to which we have referred.  
18.	We cannot leave the case without expressing our concern that this error should ever have occurred and that considerable public funds, in the original trial and appeal, should have been wasted because of a failure to obtain appropriate authority.  We are assured by Mr Denison that this type of case is now subject to greater supervision within the Crown Prosecution Service and that there is a flag on the system which triggers whenever the consent of the Attorney‑General is required which ensures that this requirement is not missed.  We trust that this error will not happen again.  
19.	For the reasons we have identified we make the order namely, that the conviction and judgment be set aside and annulled and that a new trial shall take place on the charge of murder.  The defendant is ordered to appear before a Crown Court to be determined by the Presiding Judge for the South Eastern Circuit to plead to the indictment.  We make an order that these proceedings shall not be reported until after the conclusion of the retrial.  That order is made under section 4(2) of the Contempt of Court Act 1981.
20.	MR RUSSELL-FLINT:  Might we obtain a copy of the judgment, my Lords, so that we can, if need be, provided it to the prison authorities if it is anonymised suitably? 
21.	 PRESIDENT OF THE QUEEN'S BENCH DIVISION:  In this case we direct that the judgment which will be transcribed should be provided to both appellants and a copy to you or your instructing solicitors if you have any for such use to be made of it as is felt appropriate.
22.	MR RUSSELL-FLINT:  Thank you very much indeed.  
23.	Secondly, can I ask this?  I have the benefit of a representation order issued by the Registrar.  Those who instruct me were instructed by Mr Hillman initially, in respect of the matter referred to in the reasons for the reference to this court to look at the fresh medical evidence that had been obtained.  As is set out at paragraph 26 of the statement of reasons for a reference to the Court of Appeal it was as a result of the letter sent by those who instruct me, Messrs Kaim Todner, to the Attorney‑General that his office checked as to whether or not the consent, which has led to this appeal being allowed in the terms that it has, to come before this court.  The request is that this court, which is empowered to do where it allows an appeal under the 1968 Act against conviction, to order a defendant's costs order in favour of these appellants.  It will deal with the work that my solicitors have undertaken in respect of preparing this matter for this appeal.
24.	 PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Is there anything else?  Do you need to take instructions on any other aspect of the judgment in the light of your previous observations? 
25.	MR RUSSELL-FLINT:  I do not think I need to take instructions at this stage.  We were trying to get down to see Mr Gowans whilst my Lords were considering the judgment.  I do not think there any specific point we sought to make.  But at the moment I make no application for, if that is what your Lordship is thinking of, bail.  We will take instructions with him after this court has dealt with this appeal.  
26.	 PRESIDENT OF THE QUEEN'S BENCH DIVISION:  In the normal course my practice would be to say that any application for bail should be made to the Central Criminal Court because the trial will be conducted at a court determined by a presiding judge of the South Eastern circuit likely to be the Central Criminal Court.  In the light of the unusual circumstances if you want to mention the case back at 2 o'clock you may do so.
27.	MR RUSSELL-FLINT:  Thank you very much indeed.
28.	 PRESIDENT OF THE QUEEN'S BENCH DIVISION:  Is there anything else Mr Denison?  
29.	We will make a representation order in the terms sought.  A defendant's costs order to be assessed if not agreed.
30.	MR RUSSELL-FLINT:  I am very grateful.