High Court Judgment Template s11

Neutral Citation Number: [2017] EWHC 1219 (Admin)

Case No: CO/3595/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25/05/2017

Before :

LORD JUSTICE GROSS

MR JUSTICE SINGH

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Between :

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Stephen Cragg QC and Kate O’Raghallaigh (instructed by GT Stewart Solicitors and Advocates) for the Claimant

Danny Friedman QC and Marc Brown (instructed by Criminal Cases Review Commission) for the Defendant

Hearing dates: 09 May, 2017

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Approved Judgment

Lord Justice Gross :

INTRODUCTION

1.  Pursuant to permission granted by King J, the Claimant, a prisoner serving a sentence of life imprisonment for murder, challenges the decision of the Criminal Cases Review Commission (“the CCRC”), dated 7th April, 2016 (“the Decision”) not to refer his conviction to the Court of Appeal (Criminal Division) (“CACD”).

2.  Established by the Criminal Appeal Act 1995 (“the 1995 Act”), the CCRC now forms an integral part of the protection available in this jurisdiction against the risk and consequences of wrongful conviction, exercising a residual jurisdiction.

3.  By s.9(1)(a) of the 1995 Act, where a person has been convicted of an offence on indictment in England and Wales, the CCRC may refer the conviction to the CACD. By s.9(2) of the 1995 Act, such a reference shall be treated for all purposes as an appeal.

4.  S. 13 of the 1995 Act provides the threshold conditions for the making of references under s.9:

“ (1) A reference of a conviction ….shall not be made under any of sections 9….unless –

(a) the Commission consider that there is a real possibility that the conviction….would not be upheld were the reference to be made.

(b) the Commission so consider –

(i) in the case of a conviction….because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it….

(c) an appeal against the conviction….has been determined or leave to appeal against it has been refused.”

5.  The factual history may be briefly summarised:

i)  On the 4th April, 2012, the Claimant was involved in an incident at a London nightclub with Mr Phillip Sherriff. In the course of the incident, the Claimant struck Mr Sherriff in the neck with a bottle causing serious wounds and bleeding. On the 8th April, Mr Sherriff died in hospital.

ii)  In November 2012, the Claimant was tried for Mr Sherriff’s murder at the Central Criminal Court, before HHJ Worsley and a jury. The Claimant’s primary defence at trial was self-defence. If that defence was rejected, then the Claimant maintained that he never intended to cause really serious harm to Mr Sherriff, so that he was guilty of manslaughter rather than murder.

iii)  On Friday 9th November, 2012 and after lengthy jury deliberation, the Claimant was convicted of murder by a 11-1 majority. The Judge passed the mandatory sentence of life imprisonment with a minimum term of 14 years’ imprisonment.

iv)  The Claimant sought leave to appeal against conviction and sentence. The Single Judge refused leave to appeal against conviction and granted leave to appeal against sentence. On the 16th December, 2013, the CACD dismissed the Claimant’s renewed application for leave to appeal against conviction and dismissed his appeal against sentence. Giving the judgment of the Court, Jackson LJ observed that both the Claimant and Mr Sherriff (“the deceased”) had been men of unblemished character, who had been strangers to one another until their chance meeting close to the bar at the nightclub. The whole incident had been a tragedy; the deceased lost his life and the Claimant had to serve the sentence imposed upon him.

v)  Following an advice given by Mr Henry Blaxland QC, dated 21st May, 2014 (“the Blaxland Advice”), on the 14th December, 2014, the Claimant applied to the CCRC for his case to be referred to the CACD.

vi)  As already recorded, on the 7th April, 2016, the CCRC gave its Decision – refusing to refer the Claimant’s case to the CACD.

vii)  Thereafter, the CCRC treated the case as closed and further submissions from the Claimant were unavailing.

6.  The Claimant challenges the Decision, contending that the CCRC acted unlawfully in deciding not to refer his case to the CACD. He contends that the CCRC misunderstood the law, first, on whether a submission of no case to answer should have been made at trial and would have been successful. Secondly, as to the proper legal approach to a Nedrick direction; no such direction was given at trial and the Claimant submits that it should have been given.

7.  For his part, King J, giving permission on the basis that the Claimant’s grounds were arguable, went on to add the following:

“These grounds raise also the arguable issue as to the approach of the court on a judicial review when a challenge is made to the Commission’s decision not to refer, on the ground that it took a view of the substantive criminal law which was wrong. Does the court on a judicial review consider the legal position for itself or will it decline to interfere so long as the view taken by the Commission was a tenable one and not irrational?”

THE TRIAL AND THE APPEAL

8.  For present purposes, various aspects of the trial merit noting. First, CCTV footage of the incident was played to the jury. We too have seen it and I deal later with the impression I formed from it.

9.  Secondly, the Claimant placed considerable reliance on answers given in cross-examination by Dr Peter Jerreat, a forensic pathologist called by the Crown. On the footing that the bottle remained intact, the following question and answer are recorded:

“ Q. ….. Is this fair, it is unlikely to cause a really serious injury if it is wielded against the face and it does not break?

A.  Yes, I would agree.”

If, however, the bottle was broken, it would require only fairly moderate force to cause the injury sustained by the deceased.

10.  Thirdly, very experienced counsel then appearing for the Claimant, Mr Andrew Hall QC, did not advance a submission of no case to answer. He also did not seek a Nedrick direction.

11.  Fourthly, I turn to the Summing-Up. Early on, the Judge stated that there was no dispute that the injury inflicted by the Claimant on the deceased caused his death. There was no suggestion that the blow had been accidental. The issue was:

“….whether at the time of the blow the defendant realised that he had the bottle in his hand which had in fact been broken? The defendant says he deliberately and instinctively swung his arm at Mr Sheriff, but says that he did not appreciate in that moment that he was holding the bottle, which seconds earlier he had grabbed from the hand of Mr Sheriff.”

12.  The Judge then dealt with the burden resting on the prosecution to prove that at the time of the attack, the Claimant intended to kill or to cause really serious harm to the deceased. The orthodox, simple direction was given.

13.  There was no suggestion that the Claimant intended to kill the deceased; the Crown’s case was that the Claimant had formed the intention to cause the deceased really serious harm. That was an intent sufficient for murder. The Claimant denied that he had any such intention.

14.  The Judge went on to direct the jury in the following terms as to determining intention:

“ Now a word about intent, how do you determine what is going on in a man’s head, you cannot cut his head open and look inside?

You determine the defendant’s intent by looking at all the surrounding circumstances as you find them to be, namely what the defendant did and said before, during and after that fatal blow, and what he reliably said to the police and the custody nurse later on.

And this is important in the context of this case; an intent does not have to be a long formed intent. It can be formed in a flash of temper or in a split second. It can immediately be regretted afterwards……”

15.  Having reviewed the CCTV footage, the Judge turned to the “weapon” which caused the fatal injury by cutting the carotid artery. There was no dispute that the weapon was a Beck’s bottle of beer:

“…which by the time it had struck Mr Sherriff’s neck had been broken. No one has suggested precisely how it must have been broken, but you may think that it is common ground that by the time it went into his neck the bottle must have been broken in order to provide the very sharp jagged edge which in fact caused the injury…..”

16.  The Judge recorded the evidence of police officers who arrived at the nightclub, or to whom the Claimant spoke subsequently. PC Bradley handcuffed the Claimant and told him he was being arrested. The Claimant said to him:

“ Yeah, I know. I bottled him. He retaliated me. I didn’t mean to harm him. I’m sorry. Is he all right?”

The Claimant continued to talk about the incident as other officers arrived. PC Davies reminded the Claimant that he was under arrest and under caution but the Claimant continued, accepting responsibility and saying:

“ I hit the guy with a glass. I felt intimidated so I just lashed out. I had a glass in my hand and it cut him, as I turned away he was bleeding from the head area. I no way intended to cause him that damage….”

The Claimant repeatedly expressed his regret and continued to ask about the deceased. PC Davies further recorded the Claimant saying this:

“ ….the man had been pushing past him; he had spoken to him and asked him to stop. He moved away slightly, but then the man pretended to use his mobile phone, and whilst doing this he was basically ‘taking the mick’ out of Mr Charles. This intimidated Mr Charles even more and he, Mr Chales, remembered slashing out at him and seeing lots of blood….”

17.  Summarising the Claimant’s case, the Judge underlined the Defence contention that the Claimant had not been shown to have deliberately smashed the bottle he was holding. Coming to the Claimant’s evidence, he spoke of being scared of the deceased and then described what followed:

“ I saw the bottle in his hand. I panicked and took the bottle off him. I grabbed it by the neck of the bottle with my right hand and it came out of his hand. I moved backwards with my arm across me and I instinctively ‘flapped’ … a slapping motion. My arm went forward and it hit him. I wasn’t conscious of the bottle coming in contact with anything. I wasn’t conscious of having the bottle in my hand. I was slapping with my hand, that’s what I thought.”

18.  In cross-examination, the Claimant accepted that he “slapped out” and that his arm must have been raised above his shoulder height in order to have hit the deceased in his neck (as the deceased was taller than him). The Claimant spoke of a “nothing kind of hit”. He denied that he had lost his temper and had struck the deceased with a bottle, intending to cause him serious harm. In re-examination, he said that he had not known that the bottle was broken when he swung his arm back.

19.  The Judge had given the jury a “Steps to Verdict” document and very carefully went through it with them.

20.  In the course of the jury’s deliberations, after they had retired, they sent a note (“the jury note”) to the Judge, asking for clarification of “…the definition of really serious harm and how it differs to some harm….”. The Judge discussed the jury note with counsel and then gave the jury the following answer:

“ ….I do not know that I can give you much more help than to say that the words mean really what they say; so ‘really serious harm’ means really serious harm, ‘some harm’ is harm which is short of really serious harm. You set the standard. You decide what is really serious harm and what is serious harm. I do not think that I can help you any more than that, and I am sorry if that is not much help to you….”

21.  Fifthly, passing sentence, the Judge, with the benefit of having conducted the trial, made (inter alia) the following observations:

“ What you did was caught on CCTV. You had behaved responsibly throughout the evening. You had caused no trouble. You had drunk, but not excessively, but you clearly became annoyed at what you perceived was the conduct of Mr Sherriff, and lost your temper when he may have pushed against you at the bar.

I have seen, as the jury have, the CCTV footage which show you provoking him, and attempting to seize his mobile phone, which he was using. Then, having done that, you disarmed him by taking the bottle which he was holding in his left hand. You swung it back (it is accepted by the prosecution that you did not deliberately smash the bottle, but smashed it was) and with you holding the neck of that bottle, you brought it up into his neck. It was a lethal weapon.

The risk of his death by the use of a bottle by you was considerable.”