BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[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 >> Burley & Ors, R v [2001] EWCA Crim 731 (22nd March, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/731.html Cite as: [2001] EWCA Crim 731 |
||
[New search] [Printable RTF version] [Help]
Case No: 00/3559/Z5; 00/3562/Z5; 00/4290/Z5
Neutral Citation Number: [2001] EWCA CRIM 731
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 22nd March 2001
LORD JUSTICE WALLER
MR JUSTICE GARLAND
and
MR JUSTICE SACHS
- - - - - - - - - - - - - - - - - - - - -
Regina |
||
- v - |
||
Terence Desmond BURLEY Kalman MOLNAR Robin STANTON |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J P Burbidge [Miss A. Darlow] (appeared for the Crown)
Mr J A Fisher (appeared for the Appellants Burley & Molnar)
Mr C B Nicholls (appeared for the Appellant Stanton)
[Mr A. Smith appeared for all appellants on 22.03.01]
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
1. On 12 May 2000 at Wolverhampton Crown Court, before His Honour Judge Allen and a jury, the appellants were convicted on count 1 of an indictment of a conspiracy to handle stolen goods. In relation to that count the verdict of the jury was unanimous in the case of the appellants Molnar and Stanton, and by a majority in the case of Burley. Count 2 of the indictment related to Burley only and count 3 related to Stanton only. They were counts relating to the handling of stolen goods, in both cases the same Jaguar motor car. On those counts Burley and Stanton were convicted by the unanimous verdict of the jury.
2. Molnar was sentenced to 6 years imprisonment on count 1. Burley and Stanton received 2 years imprisonment in relation to count 1 and 1 year concurrent in relation to counts 2 and 3.
3. The appellants appeal against conviction by leave of the single judge. Molnar alone seeks permission to appeal against sentence.
4. In relation to count 1, the case for the prosecution was that between April 1997 and July 1998 seven motor cars and a motor cycle had been stolen in the Irish Republic. False documents had been produced in relation to all of them. Six of the motor cars were brought to England accompanied by the necessary, albeit false, documentation, and were registered with the Birmingham Vehicle Registration Office. Certain of the vehicles were registered in England under false names. The motor cycle and one motor car never came to this country but an identity for those vehicles had been established in this country to await their arrival.
5. The appellants Burley and Molnar made admissions of all the underlying facts but disputed the assertion that they knew that the vehicles were stolen. The appellant Stanton did not contest the underlying facts either. In the result, much of the evidence of the prosecution was read. The only appellant to give evidence was Molnar and it would seem that his was the only live evidence called for the defence.
6. So far as counts 2 and 3 were concerned, these counts did not concern the appellant Molnar at all. Those counts related to a Jaguar motor car stolen from outside a house in Selly Oak on 11 June 1998. The appellant Stanton was stopped in it on 5 December 1998 by officers in Cardiganshire. Both the excise licence and vehicle registration document were forgeries. The car also bore false number plates. In interview Stanton said that he had purchased the car for £4,000. Burley told the police that he had purchased the car for £500, without obtaining a receipt, and that Stanton was going to sell the car for him. Stanton later agreed with this version.
Arrest and interviews
7. Stanton was arrested initially on 16 July 1998 and on subsequent dates thereafter. In lengthy interviews he told numerous lies. He at first would not identify the co-appellants as persons that he knew, but ultimately accepted that he did know them and that he had conducted business with them.
8. Burley was arrested on 2 March 1999 and he admitted knowing the two co-appellants. He told the police officers that all the dealings with the suppliers in Eire had been conducted by the appellant Molnar, upon whom he relied for his knowledge and belief as to the source of the vehicles.
9. Molnar was arrested a week later. In interview he told police that he and Burley worked together repossessing vehicles for finance companies. He explained that following a chance meeting on a garage forecourt with an Irishman called Mark Hennifen, he struck up a business relationship which led him to become involved in importing Japanese vehicles from Eire. Occasionally he used fictitious names on registering the vehicles in this country since he did not want to be seen to be running a business and become liable to tax. Aside from that, so far as he was concerned, everything else was above board.
10. During the trial, as already indicated, much of the evidence was read. It included evidence from a Mr Leslie Cooper who dealt with business relations with Mark Hennifen. In his statement Mr Cooper explained how Hennifen came to his business premises more than once offering cars for sale.
11. Molnar, when he gave evidence, repeated the account he gave in interview. He said that he was involved in the importation of Japanese vehicles or "grey imports" from Eire. He said that at no time did he know that the vehicles were stolen nor did he have any reason to suspect that this was the case. The only wrongdoing involved, as far as he was aware, was the evasion of duty or VAT. The checks he carried out simply confirmed that the paperwork was all in order. The vehicles were all found in their original condition and with their original markings. Moreover, all had been checked by HPI for finance, theft, accident damage or insurance claims. He assumed that that search would cover the situation whilst the vehicles were in Ireland. At no time did the DVLA query the documentation or indicate that they were not satisfied with the paperwork. He made it clear to the two co-appellants that they were dealing with legitimate imports.
12. Molnar said that for some time he had been involved in repossessing vehicles for finance companies. His business was called Nationwide Collections and the appellant Burley worked with him. He became interested in importing vehicles from Eire following a conversation with Mark Hennifen whom he met by chance on a garage forecourt in Halesowen. Hennifen had a vehicle for sale and was also himself involved with selling vehicles from Eire. On that occasion the appellant gave Hennifen his telephone number. He subsequently bought the vehicle from Hennifen which he had had on the garage forecourt. They then discussed the possibility of further sales. He said that Burley assisted him and would also often put up money, and that Stanton usually registered the vehicles and/or purchased them and sold them on. Occasionally they would use fictitious names since they did not want to alert Customs or the Inland Revenue and become liable to tax for running a business.
13. Counsel for the appellants Burley and Stanton put questions to Molnar. They did not challenge any aspect of Molnar's evidence so far as the co-appellants were concerned. Indeed, they sought answers from Molnar which he willingly gave which exculpated the co-appellants on the same basis as Molnar himself was seeking to be exculpated.
14. Molnar was also cross-examined by Mr Burbidge for the prosecution. Molnar accepted that he had taken the lead in the deals with Eire since he was the one who had the initial contact with Mark Hennifen. There was an occasion where a transaction was conducted in the car-park of a public house. Molnar's explanation for that was that he was keen to keep a barrier between Hennifen and Stanton so that Stanton would not be able to deal directly with Hennifen.
15. According to Molnar, Burley never completed, nor had any dealings with, the documentation in relation to any of the cars as such. He relied entirely on Molnar's supply of information in relation to them. He had no personal details of where to contact Hennifen and apart from his mobile `phone number had very little knowledge of him. He only used the fictitious names to shield himself from paying tax. He denied the suggestion that it was to hide the vehicles.
16. It was Burley's case that he, along with Molnar, had been engaged in buying cars from Eire via a contact of Molnar. He had done so on being informed that cars imported to Eire from Japan could be sold for a fraction of the normal price. He accepted that it was his part to provide money to start the enterprise and to transport Molnar on occasions to and from the sale. He accepted, as the evidence demonstrated, that he could be associated with 5 of the vehicles, numbers 1 to 4 on the admissions, and with number 8. He was so sure that they were legitimate transactions that he even registered one of them, the Nissan Primera, in his own name.
17. On behalf of Stanton it was pointed out that the out-of-date documents had not been queried or rejected on registration by the DVLA. If the DVLA were unaware that the Irish documents were obsolete how was he, as a layman, supposed to know this. He had no reason to doubt the authenticity of the documents and had no reason to contemplate that stolen vehicles were being dealt with.
Grounds of appeal
18. Certain grounds are common to all. Indeed, sad to relate, so far as this very experienced judge is concerned, there is a common theme demonstrating a disregard of basic and standard procedures in jury trials; a failure to discuss directions with counsel before commencing the summing-up; and a lack of structure and preparation in a summing-up, despite the very limited issues in the case. We will deal with the grounds in a chronological sequence.
Warning to the jury not to discuss the case
19. It seems that on the first day of the trial the judge gave no warning to the jury at the mid-day adjournment, or at the adjournment at the end of the day, that they should not discuss the case with anyone outside their number. This itself was a fairly extraordinary omission remembering the words of Widgery LCJ in R v Melvin John Prime 57 Cr.App.R. 632 at 637:-
"It is important in all criminal cases that the judge should on the first occasion when the jury separate warn them not to talk about the case to anybody who is not one of their number."
20. However, on the second day of the trial, defence counsel having prompted him, Mr Burbidge for the prosecution drew the matter to the attention of the judge. We are told that the judge's response was still not to give the jury that warning and that he simply indicated that the jurors had seen the video available to jurors when they commenced their jury service.
21. Mr Burbidge informed us that such a video does indicate to jurors that they should not discuss cases with any other persons. However, in our view, it is not enough for the jury to have been shown such a video. It is critically important that jurors are reminded by the judge of their obligation not to talk to persons outside their number, and indeed in most instances judges will explain the reason for that, that is to say that it is the jury who decides the case and the jury alone, and they should not be influenced by the views of others.
22. Ultimately in this case, when the jury brought in verdicts in relation to the appellants Stanton and Molnar, and were then sent home for the evening, the judge did give them a direction that they should not discuss the case with others. By that stage there had been three days of trial during which that direction had not been given. Furthermore, on this occasion, albeit it is not a point that has been taken by counsel for the appellants, the judge did not give the direction required when a jury is sent home for the night which includes the injunction not even to discuss the case amongst themselves from that moment until they return to court and continue their deliberations the next day.
23. These matters are of importance and cannot be lightly dismissed. It does so happen that in this case there is no evidence of any juror being influenced by others or having discussed the case with other persons, but, as counsel for the appellants has pointed out, there is furthermore no evidence that they did not.
The witness Molnar and the approach of the jury to his evidence
24. Clearly this was a matter which should have been discussed with counsel before a direction was prepared. So far as the appellants Stanton and Burley were concerned, consideration needed to be given as to whether the jury should have been warned about such evidence as Molnar may have given which was adverse to their case. Equally, consideration needed to be given to guiding the jury in relation to Molnar's evidence insofar as he may have given evidence which was in favour of those appellants.
25. In fact the direction given by the judge was as follows:-
"So far as a defendant is concerned who gives evidence, you treat them exactly as a witness in the case, but, on the other hand, the defendant in this case gives evidence which might or might not be construed by you as being evidence against other people. It is evidence in the case, unlike evidence given in private, that is what the defendants had to say to the police, of which you've got copies. I will deal with this in a little more detail, though I mentioned it to you earlier on, did I not?
But so far as Molnar is concerned, he has given evidence in court. That evidence is evidence in the case as a whole, for better, for worse. It is evidence in the case as a whole. But do bear in mind that he is a defendant, and, therefore, may have a reason for putting other people (in it), or distorting the truth. All right?"
26. Mr Fisher, on behalf of the appellant Molnar, complained about that direction as being unfair on his client. Having given a direction that Molnar should be treated like any other witness, he then gets classified as a defendant who might have a reason for distorting the truth. Counsel for the appellants Stanton and Burley complain about that direction because they say that in fact such evidence as Molnar had given was evidence in their favour and there was no question of Molnar attacking their clients in the evidence that he gave. Molnar was not attempting to put them in it and a direction that he might distort the truth was a positive direction to disregard that which he had said in their favour.
27. Mr Burbidge sought to defend the direction by reference to R v Knowlden and Knowlden 77 Cr.App.R. 94 CA as summarised at paragraph 4-404n in Archbold. The paragraph states that that case is now the leading case and continues as follows:-
"in exercising his discretion as to what to say to the jury, the judge is at least expected to give a clear warning to a jury where defendants have given evidence against one another (our underlining) to examine the evidence of each with care because each has or may have an interest of his own to serve."
The situation in this case was that, as pointed out by Mr Burbidge, there were passages in the evidence of Molnar which appeared to contradict certain things that Stanton and Burley had said in interview. On page 12 of the summing-up are examples of such matters. Molnar, for example, said that he was a close friend of Burley, whereas Burley in his interview had denied knowing Molnar well at all. But, by the time of the trial, Stanton and Burley were accepting the inaccuracies in their interviews and, as between the appellants, they were not seeking to give evidence one against the other. It is thus doubtful whether any warning was called for at all. But if a warning of some sort was to be given, this was clearly a case for discussing the appropriate warning with counsel before making a decision as to how to direct the jury. It is possible that some fairly neutral phraseology could have been used. It could have been said that "Stanton and Burley rely on answers given by Molnar in his evidence to support their case. The prosecution on the other hand assert that Molnar may be seeking to support those appellants as a friend or business colleague. Molnar in some areas may be said to be giving evidence that does not assist his co-defendants. Members of the jury you have to examine the evidence with care because a witness may have an interest either of his own or of some other to serve."
28. We think that the sentence suggesting that Molnar as a defendant may have a reason "for putting other people in it or distorting the truth" was unbalanced and a serious misdirection.
Direction on lies
29. The position was that the Crown were relying on the fact that Burley and Stanton had told lies in their interview and were seeking to rely thereon in support of their case. The Crown was also asserting that Molnar had lied in interview and in his evidence, but the lies asserted against Molnar are related closely to the issues at the centre of the case. If Molnar had been tried alone it is very doubtful whether a Lucas direction of any sort would have been necessary. As it was, the judge gave a direction in the following terms:-
"Various defendants undoubtedly, you may think, indeed they admitted it, told lies. A lie in the end is only significant to you if it is told deliberately. Otherwise it is not a lie, is it? But it has got to be told deliberately and it has got to be told with the idea of pulling the wool over your eyes, or pulling the wool over the police, somebody who is properly investigating the matter, over their eyes. Then it may be significant.
But people tell lies for a whole range of reasons. I think the reason was given this morning of somebody who will, because he's ashamed of what he was doing, tell a lie even though the case was a perfectly good case that he'd got. Now, that's the sort of situation in which you get lies and that is why I say a lie in the end is only significant to you if it is done with the object of pulling wool over the eyes, and you know what I mean by that, don't you? In other words you've got to know that you are guilty and be deliberately telling a lie to put people off the scent. All right? Then, and then alone, is a lie relevant to you."
30. Mr Fisher, on behalf of Molnar, criticises that direction for not distinguishing between the appellants Stanton and Burley, and Molnar. Mr Fisher would indeed suggest that even if a direction was called for in relation to Stanton and Burley, no Lucas direction so far as Molnar is concerned was required at all.
31. Mr Nicholls, on behalf of Stanton, criticises the above direction suggesting that it does not make clear that if there was an innocent reason for a lie, or if the reason was connected with hiding some other form of dishonesty, no notice should be taken of it; he further criticises it for the fact that there is no direction that the jury cannot convict on lies alone.
32. Once again, so far as a direction on lies was concerned, this was clearly an occasion when discussion with counsel would have assisted. One reason for that is that a direction, so far as Stanton and Burley was concerned, was clearly needed and the question that would arise would be how Molnar should be dealt with. We are doubtful whether it would have been possible not to give some form of direction, so far as Molnar was concerned, once Stanton and Burley had been dealt with. But if a direction, so far as Molnar was concerned, was going to be given it required a clear direction that the jury should be sure that he was lying and a direction that in his case the real issue before the jury was whether he was lying and thus the Crown were not relying independently on some separate lie in order to support their case.
33. Mr Burbidge sought to defend the direction but in our judgment was unable to do so. It is quite clear that a distinction needed to be drawn between Molnar and the other two appellants. We are equally clear that it would have been much safer to tell the jury that if they had concluded that there was an innocent reason, or that there might be a innocent reason, or that the reason for lying was connected with hiding some other form of dishonesty e.g. a tax evasion, they should take no notice of it. Furthermore, there was no direction that the jury should not convict on lies alone. There was thus a misdirection on this aspect.
Dishonesty
34. The judge directed the jury as to the ingredients of the offence from page 3G through to 4E. In that passage he concentrated on whether the jury could be sure that the appellants knew or believed that the items had been stolen. The judge was then prompted by Mr Burbidge at page 6A in the following terms:-
"Your Honour did not use the word `dishonestly' which is used, in effect, in the charge. I know your Honour has covered knowing or believing, but the word `dishonestly' is in the definition, and the other . . . ."
The judge said:-
"This is referring to handling, it has got to be dishonest."
35. Now there is a dispute as to the way in which the judge answered the prompting. Mr Burbidge suggested that the judge turned to the jury at that stage saying "it has got to be dishonest" whereas Mr Fisher and Mr Nicholls suggested that he did not do so, although they accept that he made the comment in the presence of the jury.
36. It is clear that the judge did not go any further so far as dishonesty was concerned.
37. We take the view that it is unfortunate that the judge did not use the word `dishonestly' when directing the jury on page 4 because `dishonestly' is part of what has to be established, in addition to knowing or believing goods to have been stolen. But on the other hand, in this particular case, there was no suggestion that the appellants might have known or believed the goods to be stolen and were handling them for some innocent purpose. It is thus difficult to think that the failure to use that word at that stage would mislead the jury in any way. But, that said, and counsel having prompted the judge, we do think that it would have been better to spell out more clearly that `dishonesty' was a requirement.
Separate consideration
38. At the same time as prompting the judge in relation to `dishonesty', Mr Burbidge suggested to the judge that he had also not dealt, up until then, with separate consideration of defendants and charges. (See page 6D). In relation to that the judge then judge said at page 6F:-
"Now, I am rightly reminded, though I was coming on to it, you must regard these matters as separate. Separate, that is, for defendants, separate in counts 2 and 3 for, I suppose, defendants, but they are separate counts on the indictment. They don't concern Mr Molnar at all. And you will be asked, you will have to ask one of your number to speak for you when you do return, whoever that is will be asked by my clerk if you have agreed upon a verdict, but you will then be asked about the individuals and about the various counts which they face, and that person can only give a sensible answer if you've applied your minds to those matters."
39. We are worried as to whether the shorthand writer may have got all the words down that the judge used, but certainly have anxiety about whether the jury were properly directed to consider each of the defendant's cases separately. However, in this instance, it is at least possible to say this, that the jury did bring in verdicts unanimously so far as Molnar and Stanton were concerned. They then retired the next morning and only after being given a majority direction did they convict Burley by a majority. Thus, so far as count 1 is concerned, they certainly seemed to have considered the case against each defendant separately. So far as counts 2 and 3 are concerned, no complaint can be made that they were not directed to consider those counts separately.
Inference to be drawn from the evidence
40. So far as Molnar and Burley are concerned they attack the passage in the summing-up commencing at page 8C through to page 9C. In that passage the judge is suggesting that the knowledge of Molnar, as to who the seller was, is nil or "very nearly nil". To support that the judge said, amongst other things:-
"But so far as Hennifen is concerned, he got a mobile telephone number and really nothing else, had he. He meets him on a pub car park, he wants cash, not that that matters, for the deal, and what else does he know about this man Hennifen who's not, according to him, Hennessy? And take with that the fact that he's giving false names about different people."
41. So far as Burley is concerned it is the next passage on which he relies where the judge says:-
"Well they got their information from the same source, didn't they? In other words, you may think pretty well nil, a mobile telephone of somebody whose address, name and address is never written down and who comes from Ireland may not be very substantial, to say the least of it."
42. The complaint made is that the witness Cooper, for example, had dealt with visits to business premises by Hennifen but the impression being given by the judge was that all transactions took place in a pub car park.
43. We think that there is substance in what this submission in essence comes to, which is that the defence of Molnar, in particular, was not fully put. Molnar had given evidence, and with our papers there are many pages of transcript of that evidence. What is more Molnar had relied on the evidence of Cooper in relation to his case that these were bona fide deals, so far as he Molnar was concerned. There is no mention of Cooper's evidence in this regard and so far as putting the defence case is concerned, as it seems to us, there is really only one sentence which does that. That sentence appears at page 15E of the summing-up where the judge said:-
"Well, members of the jury, I have looked at all three in a little detail. You will want to take very much more time and look at the interviews, in particular, as I say. All three say if there was a scam, it was purely a tax scam, it had nothing to do with handling stolen property. All right?."
Thereafter the judge in fact put points which were prosecution points between page 15E and 15H before sending the jury out.
44. The case against these appellants was undoubtedly a very powerful one, but even in such cases the defence are entitled to have the case they make put. Molnar, in particular, was entitled to have the evidence that he had given summarised so that the judge made clear to the jury the points that Molnar made.
45. Thus it is that we take the view that there were serious inadequacies and misdirections in the summing-up. Before considering finally the safety of the conviction, there are certain other points which need to be dealt with.
Ruling on prejudicial statements
46. In his earlier interviews the appellant Stanton did not identify Burley and Molnar as people with whom he dealt. In later interviews he did. When in the first interview he was being pressed about his dealings he said as follows:-
"He said he can be contacted by Heaney and there are two other men he deals with. He said he was not in a position to give their names they are not nice people."
47. In Burley's first interview, summarised for the benefit of the jury, Burley told the police "and to be perfectly honest you know I have an unwritten rule with Karl, I said look you know, I don't mind trying to help you out, but if there's anything anything at all I said, I don't want to hear it, I don't want to know".
48. On behalf of Molnar, Mr Fisher submitted to the judge that the sentence about not being nice people and the quotation from Burley's interview should be expunged from the summaries that went before the jury. Mr Fisher's argument was that those sentences were of little probative value so far as Stanton and Burley were concerned, but they were seriously prejudicial to his client.
49. Mr Burbidge before the judge, and also before us, submitted that the sentences were probative of Stanton's and Burley's involvement in dishonest dealings and thus he was entitled to have those sentences in.
50. The judge ruled that the sentences should remain in. He made clear that he would direct the jury that the evidence of any defendant in interview was evidence only as against that defendant and that it was not evidence against any other defendant. We are told that when the summaries of the interviews were put before the jury the judge directed the jury in those terms.
51. Certainly in the summing-up the judge made reference to the fact that he had given this direction to the jury and made the matter absolutely clear at page 5C in these terms:-
"I've mentioned this before, but what one person says in the absence of others is only relevant to him. We make the point, but we make it strongly in this case, because the various defendants were interviewed quite a number of times by the police, perfectly properly, there is no complaint about that, but what they said may be relevant to the person who is saying it, it is not relevant to anybody else in this case. All right?"
52. Mr Fisher submitted that the judge was plainly wrong in ruling in the way that he did. In the alternative he submitted that if these sentences were probative, so far as Stanton and Burley were concerned, the judge was bound to direct separate trials on count 1 so far as the three appellants were concerned.
53. We reject Mr Fisher's submission on these points. Firstly, there is the obvious point that it certainly does not follow that simply because a statement may be prejudicial, so far as one defendant is concerned, that separate trials must be ordered. It would be most unusual to order separate trials of co-conspirators, and we cannot think that in the circumstances of this case it would ever have been right to do so.
54. We do think that these sentences were probative in the case of Stanton and Burley and the only question is whether a proper direction was given to the jury in this regard. As it seems to us it was wise of the judge not to point up the particular aspect of the interviews to which objection was being taken, since that might have emphasised any prejudice that could be suffered by Molnar. What the judge did was correct in making quite clear that the evidence in those interviews was only evidence against the particular interviewee.
Should counts 2 and 3 have been tried separately?
55. No application was made to have counts 2 and 3 tried separately. On appeal the point that they should have been tried separately is taken by Molnar alone. We think that if an application had been made at the trial it would have been wise for counts 2 and 3 to have been severed and for a separate trial to have taken place on those counts. It is unnecessary to take that matter further having regard to the decision which we have reached in this case.
Jury bailiffs not sworn and majority direction
56. Two points arise so far as the appellant Burley is concerned. On the third day of the trial, a Thursday evening, the jury unanimously convicted Stanton and Molnar on count 1. They convicted Stanton and Burley on counts 2 and 3 but had failed to reach a decision on count 1 so far as Burley was concerned. In those circumstances the jury were sent home for the evening and reassembled the next morning. We are told that prior to the jury being asked to retire again no jury bailiffs were sworn. It seems that the judge took the view that since the same jury bailiffs were on duty in the morning as had been on duty on the previous afternoon there was no necessity so to do. Our understanding is that the judge was requested to swear or re-swear jury bailiffs on this occasion but he refused to do so.
57. It seems to us that the judge was wrong not to swear or re-swear the jury bailiffs. The position is that by sending the jury home, as he had done the evening before, the jury bailiffs had been released from their oaths. The whole purpose of having the jury assembled the next day is to check that they are there and to put them back in charge of the jury bailiff. We would have thought it was standard practice in every court for the jury bailiffs to be re-sworn on that occasion whether they are the same bailiffs or different bailiffs. It may well be that no harm was done so far as this failure was concerned, but these procedures are important and should be maintained.
58. To the above must be added the very strange conduct of the judge when giving a majority direction. The jury came back into court 40 minutes after having retired. No suggestion is made that that was not an appropriate moment at which to give a majority direction. However, it was only Burley's case which was still before the jury, and when the jury returned Mr Fisher rose immediately to say "Your Honour, Mr Nawaz is not yet here, who represents Mr Burley". The judge said "No, bad luck. He should be". Mr Fisher said "I think the usher has only just gone to look for him. No announcement has been made". Despite this intervention by Mr Fisher the judge then allowed the clerk to continue with the procedure asking the foreman of the jury to stand. A majority direction was then given in the absence of Mr Nawaz, counsel for Burley.
59. Once again it may well be that no harm can be shown to have been done. But perhaps one cannot be so sure of that, in that the jury must have thought it strange that Mr Nawaz was absent and that the judge was apparently not prepared to wait for him to come into court. We cannot think of any, other than the most exceptional, circumstances in which it is right for a judge to give a direction to the jury relating to a defendant in the absence of the counsel for that defendant. The normal course, prior to giving a majority direction, is to seek the comments of counsel. Clearly that cannot be mandatory but counsel must at least be entitled to be there to hear the direction that is being given.
60. If the summing-up in this case had been properly structured, and if we were clear that proper directions had been given in relation to the evidence of Molnar, and on lies, and if we had been clear that the defence case had been fully and properly put, then the other irregularities might not have led us to conclude that the conviction was unsafe. But we would still stress that it is only by sheer good fortune that that would have been so, since the points are serious and basic ones. But, the fact is that the summing-up simply was not of a quality which allows us to be sure that this conviction was safe, despite the strength of the case against these appellants. It is sad that we should have to make these strictures against a judge of the experience of this judge and against a judge who has normally kept standards of the very highest order.
61. We do think it possible to distinguish between counts 2 and 3, and count 1. The whole of the attack has related to count 1 matters, and we, having regard to what we have said in the previous paragraph, would hold that the convictions on counts 2 and 3 were safe. We must however hold that the convictions on count 1 are unsafe and it seems to us that it is appropriate that there should be a retrial. It was submitted on behalf of Stanton and Burley that since they were now released, having served their sentences, it was contrary to the public interest to order a retrial. It was equally submitted on behalf of the appellant Molnar, that if a retrial was to take place it was only fair that it was a retrial which related to all three appellants. We are quite clear that it is in the public interest that there should be a retrial and that it is in the public interest that the retrial should be of all three appellants. If a conviction results from that retrial then the sentencing judge will be able to take account of the sentence already served by Burley and Stanton and need impose no further penalty. But there is no basis on which they are entitled to have their conviction quashed and not be exposed to the possibility that a jury may yet find them guilty of the offence with which they were charged.
LORD JUSTICE WALLER: We direct that a fresh indictment be preferred and we direct that the appellants be rearraigned on the fresh indictment within two months unless time is extended or abridged by the court.
We imagine that there will be a need for legal aid for the retrial?
MR SMITH: My Lord, yes.
LORD JUSTICE WALLER: They were on legal aid previously, is that right?
MR SMITH: All three were, yes.
LORD JUSTICE WALLER: Then there will be legal aid for the retrial. In relation to Molnar, his position is that he is in custody. Is there any application for bail so far as he is concerned.
MR SMITH: My Lord, in relation to each three of the appellants there is an application for bail. May I first of all extend the apologies of my learned friends Mr Nicholls and Mr Fisher, who appeared before your Lordships earlier this month, for their absence today.
My learned friend who appears for the respondent today was taken somewhat by surprise when I told her a few minutes ago that notice had been given to her instructing solicitor of applications for bail by each three of these defendants. Certainly in relation to Mr Stanton that was an application made on notice in writing. Messrs Molnar and Burley was an oral notice.
LORD JUSTICE WALLER: Oral notice to whom?
MR SMITH: To the respondent, as I understand it, having spoken to Mr Fisher.
LORD JUSTICE WALLER: Just before we get on to bail, let us deal with the programme because that is also relevant to any applications for bail. So far as the location of the retrial is concerned, there is no reason why it should not be retried in the same court, presumably, but that should really be in the discretion of the presiding judge of the circuit.
MR SMITH: I quite agree, my Lord.
LORD JUSTICE WALLER: Obviously a retrial should take place as soon as possible. What we have directed so far is a fresh indictment to be preferred. It is almost certainly better to try to lay down some form of programme for drawing up that indictment. How long do you need, Miss Darlow? It is not a difficult indictment to draw up.
MISS DARLOW: My Lord that should be done within a very short time.
LORD JUSTICE WALLER: I am asking you how long you need. Is it because it may not be you? I suppose that is really one of the problems.
MISS DARLOW: My Lord, yes. I was given no instructions whatsoever regarding today's appearance and I apologise to the Court and my learned friend for that shortcoming. I would anticipate that such could be done within seven days.
LORD JUSTICE WALLER: Yes. Seven days to draw up a fresh indictment and although we directed that rearraignment be within two months, it seems to me that rearraignment should be as soon as possible and that can go in the form of order. But again that is going to have to be within the discretion of the presiding judge and the court administration. That deals with those matters.
(There then followed bail applications on behalf of all appellants).
LORD JUSTICE WALLER: Molnar should be remanded in custody for the present moment but without any prejudice to his right to apply for bail at the Crown Court.
As regards Stanton and Burley, they should be on bail. Is there a residence you can identify where they would be prepared to be?
MR SMITH: In relation to Mr Stanton I have an address now. In relation to Mr Burley an address could be provided. I understand there is one but counsel for that appellant is not in my chambers and when I spoke to him yesterday evening he did not have an address to provide. I understand that could be provided at very short notice.
LORD JUSTICE WALLER: We cannot grant bail without their being an identified address.
MR SMITH: I quite accept that, my Lord. May I give you an address in relation to Mr Stanton or would your Lordship permit me a little time in order to ascertain an address of Mr Burley?
LORD JUSTICE WALLER: The right course for this, so that no further time is taken up in open court, is that you can put through the normal channels via the clerk both addresses and we will grant bail on condition of residence at those identified addresses once they are supplied and the order will be drawn up at that stage. You can do that during the morning, can you?
MR SMITH: My Lord, I can.
LORD JUSTICE WALLER: That is what we will do. Do you have any observations, Miss Darlow?
MISS DARLOW: My Lord, no.
