[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Clarke, R. v [1999] EWCA Crim 1645 (15 June 1999) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/1645.html Cite as: [1999] EWCA Crim 1645

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		15th June 1999

LORD JUSTICE KENNEDY: Mr Justice Newman will give the judgment of the Court.

MR JUSTICE NEWMAN: This is an appeal as of right from a sentence of nine months' imprisonment imposed on the appellant by His Honour Judge Hammond in the Crown Court at Manchester. The imprisonment was imposed in respect of an offence of failing to answer bail contrary to section 6 of the Bail Act 1976.

On 11th February 1997 the appellant was arrested at his home in connection with an allegation that he had been knowingly involved in the fraudulent evasion of excise duty on a substantial scale involving large quantities of alcoholic spirits. The case against him was that he, with others, including a man called Flaherty and another called McManus, used commercial premises for carrying on this illicit business. Estimates placed the duty evaded at £1.2 million. He was alleged to be an important participant in the distribution of the illicit trade.

The appellant was bailed to attend trial on 13th July 1998, but he failed to attend. A warrant was issued. That was executed on 17th January 1999.

The trial against the co-defendants proceeded in July 1998 without the presence of the appellant. In addition, when he was rearrested on the warrant, he was charged with fraudulent trading.

On 27th April 1999 he came before his Honour Judge Hammond in order to be dealt with in respect of this offence of failing to answer his bail. He had the day before completed his trial before his Honour Judge Hammond and a jury and had been acquitted in respect of his alleged part in the fraudulent evasion of excise duty. He pleaded guilty to the bail offence. In our judgment on the facts of this matter he could hardly have done much else, although that does not mean that we totally disregard the point made in the course of able submissions from Mr Csoka, on his behalf, that at least in theory he might have tried to run a defence of duress.

As we have said, he appeals as of right pursuant to section 13 of the Administration of Justice Act 1960. It is convenient to point out at this stage that an issue as to whether time served between 18th January 1999 and 27th April 1999 qualified as the relevant period so as to reduce the time served under the judge's sentence has been resolved as an issue by agreement between the Secretary of State and the appellant, and following the determination of this appeal against sentence the matter will be dealt with by way of an order confirming that the appellant's sentence imposed on 27th April 1999 is calculated on the basis that the relevant period began on 17th January 1999.

As we have said, it has been submitted that the sentence of nine months is too long. In his sentencing remarks the learned judge stated that he regarded the deliberate absence of the appellant from the trial as being serious. He made two points in particular. As we have said, the previous day the appellant had been acquitted of the offence which gave rise to his arrest and being bailed. The judge expressed the view that his absence could well have operated both to his advantage, thus leading to his acquittal, and to the advantage of his co-defendants, who had been dealt with in July 1998. The learned judge plainly had in mind - and it is to be remembered that he was the trial judge on both occasions - that the appellant could have benefited from the absence of evidence from them on his own trial which would have been available against him had they been tried together, and that they could have benefited from the absence of his evidence.

In our judgment the point made by Mr Csoka on behalf of the appellant is well made so far as he says that this was the judge giving inappropriate attention to the possible consequences on those two trials. In our judgment the submission made is correct, but it does not necessarily have the consequences which have been urged upon us.

Continuing a little more with the facts. In July 1998 the appellant had written to explain his absence, and although we have not seen the letters which were sent, the sentencing judge had received them, but we have been informed by counsel that they were not particular in so far as they gave details of threats, but they suggested that he had received threats in connection with his role in the trial which was due to be held in July.

In mitigation counsel pointed out to the sentencing judge that the nature of the threats were that people up the chain in the distribution and marketing of this illicit trade were apparently owed money, and it was in their interests to threaten this appellant to force him to accept responsibility and in doing so to secure the release of Messers Flaherty and McManus. Counsel submitted to this Court that the consequence of the threats was that the appellant chose to stay in France.

The time spent in custody at the date of sentence was three and a half months, and the learned judge was invited by counsel to take that into account in his sentencing process. Further, it is right that the judge was inclined to treat what he was dealing with as a criminal contempt rather than an offence contrary to the Bail Act.

Through the industrious and diligent conduct of Mr Csoka, the judge's attention was drawn to a recent relevant case, namely Lubega, which is an unreported case, but the transcript of the judgment of a division of this Court is dated 1st February 1999. The position therefore is that on this appeal there are a number of matters, putting aside the personal position, which have also been urged on the appellant's part.

In our judgment the learned judge was entitled to take account of the effect of the appellant's absence on the administration of justice in the cases which had been tried, but, as we have already indicated, we are of the view that he allowed his involvement in the cases to influence his view of the possible consequences to an undesirable degree. In our judgment it was enough that a trial to which the appellant was a proper party and the trial investigation of his involvement, if any, in the events did not take place in the manner in which the criminal process had been established and to which the appellant had been bailed to attend. As a result of him not appearing the whole process had to be repeated for his own trial. We have in mind in this regard not simply the fiscal consequences which arise, but the wider matters of public interest in the due and proper administration of justice.

It has also been submitted that credit should be given to the appellant because he was acquitted. We have some difficulty in following the argument. Where someone is bailed to appear to attend their trial, their criminality, if they deliberately fail to attend, is, in our judgment, not affected by whether or not they are subsequently, if they are tried, acquitted or convicted or whether or not, if they are not tried, the person who does not appear is innocent. Mr Csoka put it on a moral basis. If viewed on a moral basis one could equally say one would expect an innocent man to attend in order to protest his innocence in the course of the due administration of justice.

It is said, too, that the learned judge must have ignored, or at least paid insufficient regard to, the alleged intimidation which had been before him as having occurred. In that respect this Court is not unduly impressed by the quality of the evidence which has been put before it and which was before the judge to show that intimidation really was the critical part of, or critical explanation for, the non-attendance of this appellant.

In our judgment that matter is perhaps most cogently borne out by the fact that he returned from France after the trial of the co-defendants had been completed when he had not in fact cooperated in any way at that trial so as to secure the acquittal of Flaherty and McManus. He apparently returned without fear of reprisals against him at that time, and he then failed to answer, or to surrender, in any way to the process of law to which he must have known he was still subject. From that moment, whenever that was, but we are told it was some months, until the date of his arrest, in our judgment he was acting on his own account wholly inexcusably in relation to his obligation.

Allegations such as intimidation in circumstances like these can be so easily made. In our judgment it is in the interests of the proper determination of such issues that they be looked at by any sentencing judge following a rigorous and demanding approach, so far as time and the process enables, so that he can form a critical view of the general allegations which can, as we have said, be so easily made.

Nevertheless, there is one matter which has caused this Court particular concern apart from the confusion to which we have already alluded in the judge's approach to the consequences of the appellant's behaviour. That is that we do conclude, having heard Mr Csoka, that there is a real chance in this case, having regard to his remarks, that the learned judge, in treating this case, as he appeared to, as a criminal contempt did actually take too high a starting point. Without going into the details, as it is unnecessary to do so, that is borne out by the observations which were made between the learned judge and counsel as to whether or not the time served, namely the three and a half months, would act so as to reduce the sentence. We believe that in this case the judge probably did take too high a starting point, namely a starting point higher than the maximum of 12 months which applied.

Having regard to that point, and having regard, too, to what may be said to be a general confusion and lack of clarification as to the basis upon which this appellant was being sentenced, this Court has been led to conclude that in fairness to the appellant it should intervene, but only to a very small degree. In the circumstances for the sentence of nine months' imprisonment there will be substituted a period of seven and a half months' imprisonment. To that extent this appeal is allowed.

LORD JUSTICE KENNEDY: We now reconstitute ourselves as a divisional court and make the following order, which is made by consent. First, that the applicant's sentence imposed on 27th April 1999 is calculated on the basis that the relevant period began on 17th January 1999. That having been determined, the application for judicial review we give leave to be withdrawn. We order that the respondent to that application pay the applicant's reasonable costs of the application, to be assessed if not agreed, and that there be legal aid taxation of the applicant's costs.