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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Berry, R. v [2020] EWCA Crim 1052 (06 August 2020) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2020/1052.html Cite as: [2020] EWCA Crim 1052 |
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ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
HER HONOUR JUDGE TURNER QC
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE WILLIAM DAVIS
and
HER HONOUR JUDGE MOLYNEUX
(sitting as a Judge of the Court of Appeal (Criminal Division))
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R |
Respondent |
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- and |
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JOHN PAUL BERRY |
Applicant |
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Carolyn Gardiner (instructed by CPS Appeal Unit (Special Crime Division)) for the Respondent
Hearing date: 30 July 2020
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Crown Copyright ©
Her Honour Judge Molyneux :
Introduction
The Facts
Trial Day One
i) The prosecutor decided to check the details of the Applicant's 2015 battery conviction for which he received a 4-month sentence. This was a domestic violence conviction in relation to his long-term partner, not the complainant. The facts were very similar in a number of ways to the instant allegation and strengthened the prosecution case against him.
ii) The police located a 7-minute YouTube video which had been made by the complainant in hospital two weeks after the incident. In the video, she recounted what had happened to her on the night in question. She also showed the stapled laceration to the top of her head, caused as part of the facelift she had to have because of the assault. She asked that whoever was hiding the Applicant would hand him in.
Fitness to Plead
Evidence of Mr Williams
"Addendum Defence Statement
1. Having seen the defence statement served on my behalf yesterday for the first time, I would like to add the following:
2. On the night in question, I was with a married Irish Woman in Edgware; the following day I went to Stanmore to do some work with my uncle.
3. Paragraph 9 of my defence statement refers to the complainant's new boyfriend. It should say that he was not a member of the travelling community."
Trial Day Two: Evidence of Mr Williams
" Endorsement
1. I remember that on the night of the incident I was with an Irish lady in Edgeware.
2. I do not want to name this woman or call her as a witness, because that would bring shame on her.
3. I am aware that this may damage my case and that I am likely to be cross examined about it."
"1. Because the complainant was so devious, he was convinced the jury would believe her.
2. He wanted to go up and 'put his hands up' in front of the judge.
3. He wanted to be sentenced today."
"1. John Berry went to Mary-Anne Connors' flat in the evening. They talked and drank together.
2. They eventually got into an argument. She was screaming. She came at him with a knife. He grabbed the knife and pushed her. His finger went into her mouth. She bit down. He slapped her. She bit down harder.
3. He punched her three or four times. The incident was very quick. She was knocked out on the floor andshehe walked off. That was the last time he saw her that night.
4. There was no weapon. There was no kicking."
" although the Applicant was by now clearly anxious (as many defendants are in similar circumstances), he was perfectly lucid: he gave a full and coherent account of what he said had happened; he was clear that he wanted to 'put his hands up' and plead guilty; he knew a long sentence would follow (I'll get 10 years won't I?); he asked to be sentenced today; and he was perfectly capable of raising whether I felt an extended sentence was likely (pointing out that probation had raised IPP sentence in the past when those sentences were still available: he knew, without any explanation from me, that IPP sentences were now a thing of the past."
"Endorsement Re Basis
1. I am at trial for a s18 offence. The prosecution say that I assaulted my ex-partner Mary Anne Connors in July 2017.
2. The complainant and her Mother are now at court. I have decided to plead guilty. I have set out in my basis of plea what I remember happening. I accept that I am guilty of the offence.
3. No pressure has been put on me to change my plea. My barrister has explained we are ready for a trial.
4. I would like my basis of plea to be given to the prosecution and considered with the complainant."
"The prosecution do not accept the basis drafted. What is written in my basis is true. I understand that we will need a Newton hearing. If the Judge finds against me I know I may lose what little credit may be left."
Next Steps
The Ruling
"One, I did not put any pressure on Mr Berry to plead guilty. The suggestion that he might change his plea came from him. He told me that he wanted to put his hands up in front of the judge and asked if he could be sentenced on the same day. He signed an endorsement confirming, among other things, that pleading guilty was his choice. I had read it to him in full.
I was ready for trial, having done a great deal of work on the case over the weekend and on the first day. We had been given all the disclosure we had requested. And the prosecution had conceded all the non-defendant bad character applications.
Two, I did not say that 'the charge would be reduced' and am not entirely sure what that refers to. I had made it clear that the prosecution would not accept a section 20 in relation to sentence. I think we discussed that some limited credit might still be available, particularly if the complainant did not want to have to be put through the experience of having to give evidence.
In any event, this was after he had told me that he wanted to plead guilty. It was not offered as an incentive.
Three, because the prosecution had raised the possibility of accepting a basis, I reminded Mr Berry about this when he said he wanted to change his plea to guilty and asked him to tell me exactly what he remembered happening. I summarised what he had told me in the written basis and read it to him before he signed it. From memory, when we were going through it, Mr Berry told me to change 'she' to 'he' in the third paragraph. The correction is visible in the document. I asked him in terms, whether what he was saying to me was what had really happened, given the importance of the decision he was making at such a late stage. He told me it was 'God's honest truth.'
As set out in the attendance note, Mr Berry seemed to be to be anxious but lucid when he decided to plead guilty and when he went through his basis of plea. It was only when I saw him later on, after lunch, that he told me he was hearing voices.
Finally, the submissions states that the basis of plea is equivocal and raises self-defence. I had considered this point. If a jury accepted that Mary-Anne Connors came at Mr Berry with a knife after an argument and then bit down on his finger when he pushed her away, my view was that the force he said he ended up using in response, punching her three or four times hard enough to knock her out and to break multiple bones in her face, would even in the heat of the moment, have been considered excessive."
"He also conceded that there had been no specific reference to intent and the words 'intent' and 'reckless' had not been used. But he went on to say that he had canvassed section 20 with the prosecution and had made clear to the defendant that that was not going to be acceptable. He, for his part, had taken the view that this line was simply 'not a runner'. He made clear, and I entirely accept, that he had thought about self-defence and had discounted it. He had also, I entirely accept not least in the context of his reflection on section 20, thought about recklessness and had considered that. He said in evidence and again, I accept, that it was his view that there was not the slightest room for doubt that the defendant, on the account he was giving, was guilty of section 18 on the basis reduced to writing.
That was something that he said he was completely confident of. He said that he and Mr Berry had discussed a section 20 and he had made it clear that that was not possible. At that stage, the only count on the indictment was the section 18. And he said Mr Berry was in no doubt that he was pleading to the count on the indictment. Mr Williams said that he was completely confident that he knew that he was pleading to the count on the indictment. Had Mr Berry given any instructions to the effect that he had 'not meant to cause the injuries', or something of that sort, he Mr Williams said that he would have gone on to discuss recklessness and intent, more fully. But Mr Berry was very clear, he said, that he had caused the injuries as a result of the force he had used.
In those circumstances, Mr Williams explained, his view was that if he had punched her repeatedly, deliberately and sufficiently forcefully to cause the constellation of injuries recorded, it would be simply completely unrealistic to have suggested that recklessness might have got anywhere. He said that for his part, he was content that Mr Berry had had ample time to discuss and make the necessary decisions concerned. It was put very fairly and carefully to Mr Williams, that in a fairly high-pressured situation, the defendant was perhaps rushed or that he had perhaps, not fully taken on board the issues of intent and the like, which are so central to section 18. That was not something which Mr Williams could or would accept. He did not agree with the suggestion made by Mr Bird that the defendant had somehow made a mistake or there had been a plea to create some sort of damage limitation exercise in response to a high-pressured situation.
Mr Williams stressed that the defendant had taken care to say to him that this was 'God's honest truth' and that had been in the context of the discussions about the basis of plea, which was carefully prepared in writing, in the defendant's presence, read back to him and then, at least in the context of another document, specifically corrected. The defendant knew that a Newton hearing would inevitably follow. He knew that the ABE interview would inevitably be played. Whether there was some confusion in his mind between the ABE interview and the content of the YouTube recording, seems an entirely secondary matter. What matters is that Mr Williams says he was clear that the defendant had been fully, carefully and properly advised."
"I am bound to say he was agitated during his evidence in court, here but he, nevertheless, was adamant that he was not guilty.
He did not dispute the basic narrative. On the second day there was an issue about whether some tramadol tablets had been taken without food and he said he had something of a big head rush, but in fact, that aspect of any difficulty on the 18th, was not pursued further. He said that he was agitated and anxious that day and was adamant that he wanted to prove his innocence. His frustration about lawyers generally and indeed, even Mr Bird, clearly striving to help him today, was apparent."
The Judge said:
"Mr Berry told me that he had 'never been listened to' in his whole life. He was strident today in his oral evidence to me, 'I never did this. Nobody's listening to me. I've got beyond caring. I don't care what you do'. What he did say about the section 18 matter was that he was simply, never near his former partner's place at the time. He persists with his alibi. He said that Mr Williams didn't explain section 18 to him. That Mr Williams didn't discuss self-defence. That Mr Williams didn't explain the differences between section 20 and section 18. And he, Mr Berry, was simply admitting to it all so that he could be sentenced today to get it over and done with. He said that he told Mr Williams, he had never done it. And he persisted in that account before me. He was adamant that the complainant was lying in her ABE. He said she was 'drugged out of her head'. She was 'contradicting herself'. And he added, 'You can see she's a liar'. He went on to say that he was determined not to plead guilty to something he hadn't done. He said that Mr Williams had told him that he would get '12 years IPP'. And he, in response had said that he would then plead guilty. He added, 'God as my witness, I've never done it'.
He was very, very distressed when Mr Bird touched very gently and delicately on the question of whether he'd heard voices. Voices had been raised in the previous psychiatric reports, the aetiology or even the genuineness of the voices is in question. But it was plain that Mr Berry was not remotely willing to discuss the voices. 'That's no one's business but mine', he said angrily, to Mr Bird, who touched on the matter. 'You shouldn't have mentioned it', he rebuked, Mr Bird. Ms Gardiner, on behalf of the prosecution asked Mr Berry in terms, why if this was true, he had put in a written basis of plea which he had signed. And he said that he had done so only because Mr Williams had asked him what he was saying and he 'had to say something'.
He said that the narrative which emerged in the basis of plea, was something that he had simply made up. He said it was 'a load of lies'. He said, 'I gave a load of lies to Mr Williams. I was frightened. I had been beaten up in jail. I wanted it over with. I'd had enough. I came up and thought I'm not going to plead guilty to something that I'd not done. A lot of bad things have happened to me. All through my life, I have been blamed for things I can't recall. I couldn't take anymore.' He didn't dispute that he'd signed the various documents and he said that Mr Williams was 'telling me to go guilty'. He 'said the judge wouldn't take account of anything I said'.
He said that the judge, 90 per cent of the time, would listen to the other side and would take her word for it, that he was 'fighting a losing battle'. He said Mr Williams had told him that 'her DNA is in my nails and on a can of Coke'. And he, the defendant had replied, 'What's the point?'. He said Mr Williams told him different things and he said to him, 'Are you sure you want to go through with this?'. And he said that he thought he would be better off telling the truth. Now, Mr Berry insisted, he was telling the truth."
"I've not, I confess, found this an altogether easy decision and I have pressed Ms Gardiner on whether, on its face, the basis of plea does have a flavour of equivocality or ambiguity which may need further unpacking. But I regret to say that, having looked at the matter overall, I am very far from persuaded that this is a case where anything of significance has gone wrong in the process. To that extent, I have reached a clear conclusion that this is not one of those very exceptional cases which falls within the Shake principles, where I should allow a represented defendant to change his plea.
I am satisfied that across the 17th and 18th of December, there was ample time fully to discuss the key issues. Someone of Mr Williams' experience, I am satisfied, gave the defendant adequate advice in relation to the centralities of what was implied in his guilty plea. I am satisfied that guilty plea was voluntary, that it was understood and that it was properly entered. I am satisfied that the essential law was shared between counsel and client. I do not discern any deficiencies in the advice Mr Williams gave or the approach he took.
I am satisfied that he, at each stage, spelt out sufficient to undergird what was being said by Mr Berry in terms of the causation of injuries.
There was no dispute about the injuries themselves and the shift from alibi and blaming someone else, to acceptance himself, was so significant that it cannot but have been something about which, Mr Berry thought carefully. Where his evidence conflicts with that of Mr Williams, I overwhelmingly prefer the evidence of Mr Williams. He struck me as an experienced, careful and wise barrister. I found his attendance note, drawn within 48 hours of this episode, a carefully prepared, rounded and balanced document. I am satisfied that there has been no injustice whatever to Mr Berry in this case and I therefore, refuse his application to vacate his guilty plea."
The Newton Hearing
Mrs Connors
Grounds of Appeal
The Applicant's Submissions
i) On any view, the basis of plea asserts self-defence. The account says that the Applicant accepts causing the injuries to the complainant. Crucially, it does not say that he intended to cause the injuries sustained by the complainant, or that he intended to cause grievous bodily harm. On those two points, the basis on which the plea was made is plainly equivocal.
ii) The decision to enter a plea of guilty came at a time of particular stress to the Applicant and must be viewed against his considerable pressure of circumstances. The speed of his change of mind gives cause for concern.
iii) As a result of the unconventional sequence in which the Applicant's plea was entered, this was not caught by the usual safeguards of a careful review by prosecuting counsel and the trial judge. The plea was entered before either had the opportunity to review and consider the basis of plea in detail. There appears to have been some degree of hurry in getting the Applicant to enter his plea, with the basis left to one side for further discussion later.
iv) Defence counsel conceded, in his witness statement and in his live evidence, that he had not specifically advised on the issues of intention and recklessness and the defence of self-defence. The issue of intention/recklessness is the key distinction between offences under section 18 and section 20 of the Offences against the Person Act 1861, and should have been discussed in detail with the Applicant.
v) Self-defence is one of the primary defences to any charge of assault and so ought to have been discussed with the Applicant.
vi) In R v McCarthy [2015] EWCA Crim 1185 a similar issue arose. Whilst a number of the issues in that case are different, on the central point it is very similar to the Applicant's situation. The key paragraphs are [78]-[82]. Just as Jamie McCarthy's freedom of choice was improperly narrowed by the inadequate advice offered to him namely the absence of advice on the issue of intent so in this case the Applicant's freedom of choice was improperly narrowed by the absence of advice on both that issue and on a primary defence that could have been open to him.
vii) The principal prosecution witness, Mrs Connors, the mother of the complainant, has admitted that she lied in her original police statement. Her admissions fundamentally undermine the prosecution evidence in the case.
viii) Mrs Connors acceptance that she has invented an account to secure the conviction corroborates one of the primary motivations behind the decision to enter a guilty plea. The Applicant's fears that the complainant was devious were well-founded.
ix) In Mr Bird's oral argument, the concerns about Mrs Connors were developed. It was submitted that the decision of the Applicant to enter a guilty plea was based, at least in part, on his belief that Mrs Connors would give evidence against him. He believed her to be a manipulative and devious woman and was concerned that she would be believed and that her evidence would lend weight to that of the complainant.
x) Further, it was Mrs Connors who introduced the Applicant's name to the complainant. In the ambulance, the complainant named "Baxter". Mrs Connors told her to tell the truth, and it was only then that she named the Applicant. There is a very real possibility that Mrs Connors gave the name of the Applicant to her daughter. She may have encouraged her daughter to lie.
The Crown's Response
i) On the second day of the trial, defence counsel approached Ms Gardiner and asked whether a plea of section 20 would be acceptable. She refused the offer, as had been anticipated by defence counsel.
ii) Whilst on the face of it, the basis of plea may look equivocal, it was understood by the parties that the Applicant was admitting his guilt to the offence charged, and further discussion was to take place which may lead to an agreement between the Crown and the defence as to the basis of that plea, taking away the need for a Newton hearing.
iii) The Applicant's basis of plea was then a work in progress. The parties were to be given time to discuss it. The judge did not wish to detain the jury, who had already suffered considerable delay.
iv) To argue self-defence in light of those injuries was, in the Crown's view, "ludicrous". The possibility that there was no intent to cause grievous bodily harm, flies on the face of common sense.
v) Mr Berry accepted causing the injuries. On that basis, a Newton hearing could have taken place immediately to determine the facts before sentence. Thereafter, he changed his mind claiming he was not responsible and was not even present when the complainant was assaulted despite signing the basis of plea and his counsel's endorsements
vi) The Applicant did not receive flawed legal advice. He was represented by experienced counsel, who subsequently gave evidence to the court during the application to vacate plea, that he was satisfied the Applicant was fully aware of what he was pleading guilty to. The judge accepted that evidence.
vii) The Applicant is not a stranger to the Courts. He is 31 years old, and has 13 convictions for 40 offences including assaults and a section 20 wounding in 2009.
viii) Mrs Connors approached counsel at the Newton hearing and said she had "over egged" her statement. The police then took her for interview under caution. However, her change of evidence does not assist in the defence application to vacate the plea because Mrs Connors was not a witness to the assault and the change in her evidence does not diminish the force of the prosecution case when looked at as whole. If there were to be a fresh trial, she would no longer be relied on as a witness of truth for the Crown.
ix) An extremely serious assault took place on the complainant. She has not retracted or altered her statements to police. She is the only witness to the assault, and, other than the brief reference to "Baxter" has consistently named the Applicant as her assailant. Immediately after the reference to "Baxter", she named the Applicant as her attacker when asked to "tell the truth".
Discussion
"This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen very often."
"The principle does not mean and cannot mean, that the defendant making his decision must be free from the pressure of the circumstances in which he is forced to make his choice. He has, after all, been charged with a criminal offence."
The Lord Chief Justice went on (in [12]) to emphasise that a defendant is "entitled to be given and should receive forthright advice" from his lawyers.
"Before the applicant could properly and freely plead guilty to an offence of wounding with intent contrary to section 18, his advocate had to explain all the elements of the offence to him and the applicant had to understand that he was thereby accepting that when he stabbed the complainant he intended to cause her really serious bodily harm."
"79. We can find no reference to Mr Wallace [i.e. defence counsel] ever explaining to the applicant in appropriate terms the nature of the intent necessary to constitute a section 18 offence; not even in Mr Wallace's own account. Mr Wallace's advice on sentence and his email to his instructing solicitors both seem to equate taking the knife to the scene with the necessary intent for a section 18 offence. A plea of guilty on the 'full facts' was said to be on the basis that the applicant, rather than the complainant, was in possession of the knife. No mention is made of the applicant's intending to cause really serious bodily harm when he stabbed [the complainant].
80
81. In our view, this is one of those exceptional cases where we should intervene. We are far from confident that when the Applicant pleaded guilty to the offence of wounding with intent he had a proper understanding of the elements of the offence. In that sense, his freedom of choice was improperly narrowed. It cannot be argued that he had no defence on a charge of wounding with intent. The prosecution case on wounding and offensive weapon may have been strong, but the applicant may have persuaded a jury his appalling behaviour did not extend to intending to cause really serious bodily harm ".
Conclusion