Jamieson & Anor, R. v

These are the appeals of Jeffrey Hobden and William Jamieson who were both convicted on 4 April 2001 in the Crown Court at Bury St Edmunds, before HH Judge Beddard and a jury, on a single count of robbery and were sentenced to terms of 10 years imprisonment. There is also a renewed application for leave to appeal by Hobden on a number of grounds on which he was refused by the single judge. We will come to those matters at the end of this judgment.

We resolved these appeals and renewed application at the time of their hearing on 13 December 2003 by dismissing them, but reserved our reasons, which are now contained in this judgment.

The victim of the robbery was a 73 year old man who lived alone in an isolated cottage near Bury St Edmunds in Suffolk. At around 7.20 pm on 18 February 2000 a number of men broke in and robbed him of about £30,000 of antiques and some cash. The victim spoke of 3 or 4 men. One, described as “man 1” and later identified by the victim as Hobden, was masked by a scarf: he brandished a knife and made threats. The victim was tied up, blindfolded by having his own cardigan pulled over his head, and later locked into an upstairs linen cupboard. When he managed to break out of both his bonds and the locked cupboard he drove to the local police station to raise the alarm: he could not use his telephone which had been ripped out by the robbers. It was an admitted fact that he arrived at 9.47 pm, some 2½ hours after the beginning of the robbery. Items from the robbery were later recovered from an antique dealer’s shop in Brighton and from an auction house near Horsham, also in Sussex.

The prosecution said that there were four robbers, Hobden, Jamieson, Lee Padula, and Shaun Smith. Padula, who was then only 15 years old, pleaded guilty to this robbery in Suffolk as well as to other robberies in Sussex (the “Sussex robberies”) and gave evidence for the prosecution at trial. Shaun Smith, then 16, was found unfit for trial. Hobden and Jamieson were much older than the two teenagers, being 36 and 37 respectively. Hobden and Jamieson denied any involvement in the robbery, although as will appear below, to a large extent each of their defences involved cut-throat suggestions to the effect that, if Padula was telling the truth at all, there were only three involved, who did not include either of themselves.

The Sussex robberies, which unlike the robbery of the Suffolk cottage were of commercial premises, both preceded and followed the Suffolk robbery. The Crown said that the two earlier ones, on 9 and 14 February 2000, involved Hobden, Padula, Smith and a fourth man Medhurst. Medhurst was arrested prior to 18 February, the date of the Suffolk robbery. On 3 March 2000 there was a third Sussex robbery of the Alldays store in Lancing, which the Crown said was committed by Hobden, Padula and Smith. On that day those three were arrested in Jamieson’s car, a blue Vauxhall Cavalier registration number G782 ABP. Jamieson, however, was then in Scotland. The Sussex robberies were separately prosecuted in Lewes, and the trial had not yet taken place at the time of this trial before Judge Beddard in Bury St Edmunds. We mention them because two of the grounds of appeal considered on these appeals relate to the judge’s concern to limit information and cross-examination before the jury concerning Hobden’s alleged involvement in the Sussex robberies. At his subsequent trial in Lewes, Hobden was convicted of the Alldays robbery and of an ancillary count of possession of a firearm with intent, but the jury could not agree a verdict concerning the two earlier ones.

We revert to the robbery of the cottage in Suffolk. The evidence on which Hobden and Jamieson were convicted included not only the direct evidence of Padula that he was their accomplice in the robbery and, in Hobden’s case, identification by the victim at a subsequent parade (of which more below), but also a considerable amount of circumstantial evidence. It was not disputed that both Hobden and Jamieson lived in Sussex: Hobden at Lancing and Jamieson near Brighton; and that Jamieson was seen driving his Cavalier with three male passengers in it in Brighton on the afternoon of 17 February, of which one was a man of about 30 and the other two, in the back, were younger. Four men (Hobden, Jamieson and two younger men whom Hobden accepted were Padula and Smith) had later spent the night of 17/18 February together in two rooms at the Butterfly Hotel in Bury St Edmunds, only some one and a half miles by road from the victim’s cottage. There was unchallenged evidence read to the jury from a friend of Jamieson, Mrs Brenda Elsip, that he had telephoned her very early on 18 February to ask her to use her credit card to pay for two rooms at the hotel for him and Jeff (ie Hobden). He said he would pay her back. He told her that they had broken down and were semi-stranded. There was also evidence from the hotel night porter of these arrangements and of Mrs Elsip’s call to the hotel (at 12.51am as was admitted) to confirm her credit card details. He said that most of the talking was done by a man who had supplied identification in the form of a birth certificate in the name of Jamieson and address details (which were Jamieson’s correct details). He said that the men had said that they came from Portsmouth and were in the marines.

Jamieson made no comments at interview and gave no evidence at trial, so he never explained what he was doing at the Butterfly Hotel or thereafter. Hobden at interview said he had continued his journey early in the morning in the Cavalier and was back in Sussex by midday. He later admitted that that was a lie, concocted when he was in a state of shock soon after being picked out by the victim at the identification parade (the “first alibi”). At trial he said that he left Bury St Edmunds about 4 or 5 pm and was back in Brighton at around 7 pm (ie at about the time of the robbery), but that the journey was done not in the Cavalier but in a red Astra belonging to someone identified as Archie Andrews (the “second alibi”). (We comment: the first alibi, being linked to the Cavalier, put Hobden in great difficulties, for, as will be seen below, that car was effectively identified close to the victim’s cottage at about 9.30 to 10 am and again at about 7 pm that day.) What had he been doing in Bury St Edmunds? The evidence which embraced his second alibi was as follows. His work involved escorting cash, and on 17 February Jamieson offered him a job. That evening he and Jamieson left Sussex in the Cavalier and drove to the area of Bury St Edmunds, where Jamieson received a call from Padula to say that the money in question was to be collected in Bury St Edmunds and taken to Hull. A little later they came across Padula and Smith at a petrol station. Padula and Smith were in a blue Ford Sierra estate. (The registration number of this car was G775 PCD. It was not disputed that it had been parked outside Hobden’s home in Lancing at 10.30 am that morning. Hobden said that it also belonged to Jamieson, but he was doing some repair work on it. It is another significant car, because a blue Sierra estate was also seen close to the victim’s cottage at about 10.30 am and again at about 7 pm on the day of the robbery. Moreover, at 10.26 pm later that evening, as was admitted, a blue Sierra estate registration number G775 PCD overtook a police car on the A23 at Handcross travelling in the direction of Brighton. Handcross is on a route from Bury St Edmunds to Brighton, 127 miles from the scene of the robbery.) Hobden’s evidence continued to the effect that he and Jamieson drove to the Butterfly Hotel. The younger two had already arrived there in the Sierra. The arrangement was to pick up the cash at the Sugar Refinery at Bury St Edmunds at 11 am the next morning, but that time was put back, and in the event the rendezvous never happened. The four of them met up at a café in mid-afternoon, where they were joined by Archie Andrews, the owner of the red Astra. Hobden wanted to return to Brighton, but Jamieson did not, and in the end he drove himself home, leaving at between 4 and 5 pm, in Andrews’ Astra. He believed that Padula had substituted his name as a party to the robbery for that of Andrews, a man of violence who had threatened Padula. He, Hobden, had himself been threatened by Jamieson, if he did not take the blame. He also said that Jamieson had also told him to concoct an alibi around Mr Jamieson’s alibi and in this connection had given him a piece of paper in the cells at Mildenhall Magistrates’ Court, which he had not read but passed straight on to his barrister (the “note”).

One of Hobden’s difficulties was that three shoe prints were found on an envelope at the cottage. One conclusively matched Padula’s trainers. One conclusively matched Smith’s trainers, viz trainers recovered from a bramble patch in Brighton having been thrown on 28 February 2000 by Padula out of a car in which Smith was also travelling: the trainers matched Smith’s shoe size 9. The third almost certainly matched Hobden’s black leather shoes, which he was wearing when he was arrested on 3 March. Hobden accepted that he was also wearing those shoes when he went to Bury St Edmunds. How then did the shoe print get on to the envelope at the scene of the robbery? He did not know, but he said that he had taken a change of clothes with him to Bury St Edmunds and had left his black shoes in a hold-all in the Cavalier, after he had changed into a pair of Caterpillar boots, before returning to Brighton.

There was other evidence (apart from Padula) to connect Hobden and Jamieson not merely with the Butterfly Hotel but also, in part via the Cavalier and the Sierra cars, with the cottage. At about 9.30 to 10 am a local couple saw an unattended blue Cavalier parked on the verge close to the cottage. At about 10.30 am the victim came across two strangers walking up his drive. They asked him for directions to Sudbury. He was suspicious, for Sudbury was well marked on signposts all around. He described “man 1” as about 6'1" in height, dark brushed back hair, about 30, polished black shoes. “Man 1” was also identified as the robber with the knife, whose face had been covered with a scarf. “Man 2” was shorter, about 5'10", also aged about 30, light brown hair. (Hobden is 6'4" tall, had short ginger hair at his identification parade and at trial, a missing right little finger, and has lost a bit of one ear. Jamieson is 5'8" tall.) He went with them to their car, a blue saloon, where there was a young man behind the wheel, and they looked at a map together. They drove off. About 20 minutes later, he looked out of his bedroom window and saw “man 1” standing at the porch. There was a conversation through the window: the man said they had had a puncture, and could he use the telephone? The victim refused, but offered a lift, which “man 1” declined. The victim was sufficiently suspicious to get into his own car to go looking for a car with a puncture, but he did not find them. Also about 10.30 am a local coalman saw a blue Sierra, possibly hatchback, G or H registration, near to the cottage with someone in the driver’s seat and three men walking towards it (so four in all): one of the three was about 30 and over 6' tall. Later that evening at about 7 pm, a mother and her schoolboy son were driving down a nearby lane and saw two cars backed into field gateways. The son identified both as blue, and one as a Ford Sierra estate. The mother, being suspicious, drove past again at about 7.10 pm: only one car remained, which had a Christmas tree air freshener attached to its rear view mirror and the letters ABP in its number plate, ie the Cavalier. It was not disputed that when Mr Jamieson bought the car it had a Christmas tree air freshener in that position.

Various identification parades were held, but the only identification relied on by the prosecution was that of Hobden by the victim. The hotel night porter failed to pick out Hobden or Jamieson. The local coalman failed to pick out anyone he saw that morning. The victim picked out volunteers on parades attended by Jamieson and Smith. He did however later identify Hobden. That parade took place on 22 May 2000, ie three months after the robbery. The circumstances of the parade were the subject of two voire dires (the second one was held after it emerged for the first time in the course of the victim’s evidence that “man 1” had entered the cottage with a scarf over his face). Complaint was made that the victim’s description of “man 1” did not fit Hobden’s short ginger hair; that the volunteers did not resemble Hobden in age, height, general appearance and position in life; that Hobden, who came from prison, had taken the parade in track suit bottoms and had not been provided with appropriate civilian clothing; that details of the “first description” served prior to the parade were not an accurate statement of the details given by the victim at the police station on the evening of 18 February but an amalgamation of a number of pieces of information provided by the victim in the days following the robbery but even so omitted the “e-fit” prepared by the victim on 21 February; that the inspector conducting the parade did not know that the victim had had three opportunities to identify “man 1” (ie two on the morning as well as the robbery itself) or that “man 1” had been masked at the time of robbery (even though the victim said that he had informed the police that he was); that these matters constituted numerous breaches of Code D; that the parade was confusing for the victim in that he was asked to identify the person who entered his home on the night of the robbery, whereas he purported to identify the person he saw in the morning; that the victim’s identification was not positive because he had said “I think”, which had been omitted from the inspector’s record; that at the second voire dire the victim said he did not see enough of “man 1” during the robbery when he was masked to identify him by sight alone, and that his identification relied on a combination of his two earlier sightings, glimpses during the robbery when the victim was able to peep out of his own blindfold and “man 1’s” mask had slipped for a moment, and an identification of his voice with that of the man he had spoken to twice in the morning; and all in all that the evidence of identification was so unsatisfactory that all evidence of it should have been withdrawn from the jury on classic Turnbull principles.

The video of the parade was shown to the jury at the request of the defence. The victim was cross-examined on behalf of Hobden, and was unable to explain why there was no reference in his police statement to the fact that “man 1” was masked when he entered the cottage nor to his recognising his voice. He had told the police that “man 1” in the morning had an “uncultured voice” and in the evening had an “Irish accent”.

No complaint is made at all, however, of the judge’s summing up on the question of identification. It included this passage:

“You have seen and heard on the video how the parade went…We can re-show that video certainly if you want to, but just to remind you, the final exchange went like this, after [the victim] had walked the line twice and taken quite a long time to do so. He ends up by saying to the Inspector: “I’m pretty certain it’s number 5.” Of course, Mr Hobden was at number 5. The Inspector says: “I must ask you now: can you make a positive identification?” [The victim] says: “Yes, I think 5.” Well, it is a matter for you whether you regard that as a hesitant or a confident identification.”

Padula’s evidence naturally involved direct incrimination of both Hobden and Jamieson. He said that he agreed to help with the robbery because he was offered cocaine (there was controversy about whether his supplier was Hobden or Jamieson). The four travelled in convoy in the Cavalier and Sierra to Bury St Edmunds, where they arrived soon after midnight on 18 February and stayed at the Butterfly Hotel. In the morning, they went to case the cottage. Jamieson (at that time in Padula’s evidence called “Mr X”) and Hobden went off and returned with a man (the victim) and he was asked to pass a map to them. That night he and Smith were told to wait outside while the other two went in, and to fetch the Sierra up to the door of the cottage. A few minutes later there were boxes outside the door for loading. He and Smith went in to help with packing and fetching. At first the victim was nowhere to be seen but later he saw Hobden walking him out of sight, with a garment over his head. Hobden was using an Irish accent. They were in the house for some twenty minutes.

The judge gave the jury a powerful direction “to exercise considerable caution” in acting on Padula’s evidence “unless you find that his evidence is strongly supported by other evidence in the case”. He pointed out that he had pleaded guilty to a number of robberies, was or had been a cocaine addict, and had yet to be sentenced in circumstances where he knew that it would be in his own interest to give Queen’s evidence. The matters principally relied on by the Crown as supporting his evidence were the ways in which the details of his evidence meshed with the details of other witnesses: for instance concerning the stay at the Butterfly Hotel, the reconnoitring of the cottage in the morning, the events of the robbery itself.

There was also evidence of continued association of Hobden and Jamieson, both with each other, and with Padula, and with the two blue cars, and (through an antique dealer) with the proceeds of the robbery, following their return to Brighton. This evidence arose because of police observations. To disguise the existence of those observations from the jury, the results of them were dealt with by admissions. Thus it was admitted that in the afternoon of 19 February, the day after the robbery, Jamieson was driving the Cavalier with Padula as a passenger and Hobden was driving the Sierra: both visited a car sales yard. A few minutes later, at another address, both Jamieson and Hobden were seen carrying cardboard boxes out of a house and into the Sierra. Padula’s evidence was that smaller antiques had been packed into boxes at the cottage. Half an hour later the Cavalier was seen parked outside the home address of the antique dealer in whose shop items from the robbery were subsequently found. A large object covered by a blanket was removed from the car. On 8 March the dealer’s antique shop was searched by the police: in its rear storeroom two old English mahogany knife trays stolen from the cottage’s dining room were found.

These appeals have been argued against the background of these facts. We will deal first of all with Jamieson’s two grounds. Ground one is that the judge should have excluded Padula’s evidence in its entirety under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) on the basis that its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. There were three strands to this submission, of which Ms Griffin on behalf of Jamieson put most stress on the first. This was that Padula’s original confession to the police was obtained in such circumstances that it would not be admitted in evidence against him, and therefore should not be relied on against Jamieson. The second strand was that there had not been full disclosure of all matters leading up to Padula’s decision to assist the police, or of the documents generated by the Sussex robberies. The third strand was that Padula used the pseudonym of “Mr X” for referring to Jamieson (whereas he named his other accomplices) at all times until in cross-examination on behalf of Hobden he identified Mr X with Jamieson. It was submitted that this was unfair to Jamieson as the jury could all along identify Mr X with Jamieson for themselves and it indicated a concern on Padula’s part about his relationship with or fear of Jamieson.

The first strand, relating to Padula’s original confession, was based on an attempt to render analogous the circumstances which might govern the use of a confession by a defendant against himself (see Code C and section 76 of PACE) with the circumstances whereby evidence ultimately originating in such a confession could be used by a prosecution witness against his accomplices. In this connection Ms Griffin drew attention to the history of events relating to Padula’s arrest and interviews and subsequent co-operation with the police. He was originally arrested on 3 March 2000 in relation to the Alldays robbery. While in the cells at the magistrate’s court he said that he was scared of going to prison. On his first police interview relating to the Suffolk robbery, on 4 April, he made no comment. On 28 April he stood on an identification parade in relation to the Suffolk robbery and was not picked out. He was then interviewed again and made no comment. In interview he was asked whether he was a bit player or a main player. It was suggested to him that he was a mere lackey, who had assisted in removing the proceeds. He was asked if he was happy to take the blame for this serious offence. Following that interview, he was taken by the two interviewing officers in a police car from Ipswich to Bury St Edmunds, a journey of just under half an hour. In the course of that car journey, he confessed to the Suffolk robbery and implicated Hobden and Jamieson. On 7 June in a further police interview he repeated the confession on tape. He said that until the police told him on 28 April about how the victim had been threatened with a knife, which he said was a disgusting way to treat an old man, he did not know of these details. Over six months later, after he had pleaded guilty to his various offences, he made a police statement on 21 December, describing Jamieson as “Mr X”.

Ms Griffin submits that the original confession in the police car on 28 April was obtained in breach of Code C (no caution, no access to legal advice, no appropriate adult present, no contemporaneous recording, nothing shown to him for his agreement and signature) and under pressure from the police who had asked him at his immediately previous interview if he wanted to take the blame for a serious offence. It was conceded by the prosecution in argument at trial that in such circumstances they would not have sought to rely upon such a confession against Padula. Ms Griffin also submits that the vices of that original confession continued to taint Mr Padula’s later evidence. In this connection she relied on R v. McGovern [1990] 92 Cr App R 228 at 234 where Farquharson LJ said:

“…when an accused person has made a series of admissions as to his or her complicity in a crime at a first interview, the very fact that those admissions have been made are likely to have an effect on her during the second interview. If, accordingly, it be held, as it is held here, that the first interview was in breach of the rules and in breach of section 58, it seems to us that the subsequent interview must be similarly tainted.”

However, Ms Griffin was able to cite no authority for her submission that if a confession were unreliable as against a confessing defendant it would be similarly unreliable by way of Queen’s evidence against accomplices. She submitted simply that a confession which was unreliable and could not fairly be admitted in one set of circumstances remained unreliable and unfair in other circumstances too.

We are unable to agree with that submission, for which no authority was cited to Judge Beddard or to this court. Section 76, not cited directly rather than by way of analogy, is dealing with conditions for admission of a confession made by an accused person “against him” (section 76(2)). McGovern was similarly concerned with the confession of a defendant and the direct application of section 76(2). Moreover, the second interview which was held to be tainted by the first occurred on the very next day. In the present case, the witness statement which formed the basis of Padula’s evidence at trial was given more than eight months after the occasion on the car journey, after he had had full opportunity for advice from his lawyers, and after he had pleaded guilty to the robberies for which he had been arrested including the one in Suffolk. We do not regard Padula’s evidence as tainted by any breaches of the Code in relation to the conversation in the car. It was in any event plainly evidence given voluntarily, whose value it was a matter for the jury to assess.

Of course, it is of concern that an accomplice who turns Queen’s evidence may do so not only to gain the advantage of a guilty plea but also to obtain the further advantage of having assisted the prosecution. In any event the evidence of accomplices is typically subject to a cautionary warning. In the present case the judge gave the jury a strong warning to which we have referred above and which brought directly to the jury’s attention the self-interest that Padula had in assisting the police and the need to look for supporting evidence.

No one at trial disputed that Padula was telling the truth so far at any rate as concerned his own guilt of involvement in the robbery. The question was as to the involvement of Hobden and Jamieson. The present ground of appeal is argued only on behalf of Jamieson, but it raises the valid question as to why, apart from self-interest, Padula’s evidence so far as it implicated Jamieson and Hobden might be unreliable. The prosecution of course are not obliged to call a witness whom they do not believe to be a witness of truth. At trial Ms Griffin “positively asserts that Padula is telling the truth in saying that Hobden was involved” (summing up at 51C), and Hobden did not suggest that he was lying in saying that Jamieson was involved. Why should he tell the truth about one and lie about the other? The prosecution asked this question at trial, and it is a valid one. If Hobden was not involved, but Padula told the police he was, how would that help Padula if Hobden came up with a good alibi, which, since on this hypothesis he was not involved, he was quite likely to be able to do? Similarly with Jamieson.

As for the second strand concerning discovery, the main complaint relates to discovery which was protected by Padula’s legal professional privilege. There can be no valid criticism on that score. A subsidiary complaint relates to incomplete discovery of material in the hands of the Sussex police relating to the Sussex robberies, in particular in relation to the question as to why Padula may have wanted to give evidence against Jamieson. Of course the Sussex robberies implicated Hobden, but not Jamieson, but any material which would undermine Padula’s credibility would have been of equal concern to the prosecution as to Jamieson’s defence. Therefore both the disclosure officer in Suffolk and prosecuting counsel at the Suffolk trial, Mr Bate, who also appears on this appeal, reviewed all the Sussex material including the unused material and were in direct contact with their respective counterparts in the Sussex matter. On the second day of the Bury St Edmunds trial Ms Griffin gave to Mr Bate a note of questions she had in relation to Padula, which Mr Bate answered in a 22 page fax within three days and in a further response two days later, all before Padula was called. The judge was satisfied when this matter was argued before him immediately prior to Padula taking the stand that even if all the unused material in Sussex had not been disclosed, nevertheless there had been substantial disclosure of the Sussex material and the defence were at no disadvantage in cross-examining Padula. He said that he would warn the jury of Padula’s self-interest in giving evidence for the Crown, which he certainly did, and added that if Padula might have reasons of his own for wanting to see either defendant wrongly convicted, their counsel had presumably been put in possession of the relevant material or information. Ms Griffin submits that complete disclosure is inviolable, but neither then nor now has anything but speculation been raised as to anything which Mr Bate may have missed.

The third strand concerned the use, until the direct question was asked on behalf of Hobden, of Padula’s “Mr X” for Jamieson. We see no problem about that. Padula confirmed it was Jamieson. When asked why he had used the pseudonym, he said: “I did it because I did. I don’t have no reason. I have people to think about, my family.” The judge told the jury: “But do not read too much into that, one could put all different shades of meaning on that.”

We have taken account of all these submissions on Jamieson’s first ground. The judge considered them for himself, and no error of law has been shown in his careful ruling. In our judgment he was right to reject the application to exclude Padula’s evidence. There was nothing unfairly prejudicial in admitting it.

We turn therefore to Jamieson’s second ground. This is that the judge should not have limited cross-examination about the Sussex robberies. The judge was concerned in Hobden’s interest that he should not be tarred, at a time when he was still awaiting trial in respect of the Sussex matters, with mere evidence of propensity to rob. There was an added difficulty in that Hobden was arrested on 3 March in Jamieson’s Cavalier (Hobden was driving) together with Padula and Smith in connection with the Alldays robbery earlier that day. Jamieson had an interest in showing that his car, the Cavalier, was used in his absence (he was in Scotland on 3 March) by Hobden, Padula and Smith. If, therefore, there were only three robbers at the Suffolk cottage, the suggestion made by Ms Griffin (of course Jamieson gave no evidence) was that they were Hobden, Padula and Smith (Medhurst, who had been involved in the earlier Sussex robberies, having been removed from the scene by his arrest prior to 18 February). If there were four robbers, then the suggestion was that the fourth was Andrews, whom Hobden put on the scene, and that Padula had substituted Jamieson for Andrews. Hobden’s case was that Padula and Jamieson had agreed to name Hobden in place for Andrews, on the somewhat illogical basis that Jamieson had a longer criminal record than Hobden. Hobden also said that Jamieson supplied cocaine to Padula and Smith to involve them in crime (Padula said that Hobden was his supplier).

The judge sought to reconcile the interests of Hobden and Jamieson respectively by permitting evidence to be drawn out that Padula and Smith were arrested together with one other unnamed person in Jamieson’s Cavalier on 3 March when Jamieson was in Scotland, but otherwise not to permit Jamieson to cross-examine about Hobden’s involvement in other robberies, on the basis that that was irrelevant and undesirable. Only Padula’s credit could be attacked by reference to the Sussex robberies.

Ms Griffin submits that this ruling was wrong in law and unfair to Jamieson. On his behalf she was prevented from cross-examining as she would have wanted as to Hobden’s leadership of the Sussex gang, his supply of cocaine to the youngsters involved, the circumstances of Hobden’s arrest in the Cavalier on 3 March, the discovery of weapons in the car, the recovery of a knife found at Hobden’s home that had been used in a Sussex robbery, and the arrest in this context of Medhurst, enabling the submission to be made that the original Sussex team of four had been reduced to three, each of whose shoe print was recovered from the scene of the robbery at the cottage. Ms Griffin also submits that the judge was wrong to reject a subsequent application to discharge the jury so as far as concerned Jamieson, so that he could stand trial separately after the Sussex trial when he would not be restricted in putting his defence by potential prejudice against Hobden. She says that discharging the jury was the only way Jamieson could have secured a fair trial in the circumstances.

Mr Bate seeks to support the judge’s ruling as to the extent of cross-examination in that it enabled the essence of Jamieson’s defence to be put, while at the same time going no further in prejudice to Hobden than was strictly necessary. As for the supplying of cocaine, Ms Griffin was permitted to ask questions of Padula to show it was Hobden who supplied him; moreover there was an admission that Padula had told his GP that Hobden had supplied him. The judge reminded the jury of this evidence. As for severing Jamieson from the trial, Mr Bate submits that justice not only permitted the maintenance of a joint trial but demanded it.

In our judgment, there is a distinction to be drawn here between cross-examination of a prosecution witness, such as Padula, and cross-examination of a co-defendant, such as Hobden. As for the former, defence counsel has the right to cross-examine on any matter relevant to his defence, whether or not it causes prejudice to his co-defendant. If, therefore, the evidence which Ms Griffin sought to elicit from Padula concerning the Sussex robberies, and Hobden’s arrest in the Cavalier with Padula and Smith, and Medhurst’s prior role, were relevant to Jamieson’s defence, which we think it was, then the judge had no discretion to exclude it. Section 78 applies to evidence which the prosecution seeks to adduce, not that which the defence seeks to adduce. Thus in R v. Myers [1998] AC 124 at 133F/G, Lord Slynn of Hadley approved the statement of Devlin J in R v. Miller [1952] 2 All ER 667 at 669, 36 Cr App R 169 at 172, that –

“No such limitation applies to a question asked by counsel for the defence. His duty is to adduce any evidence which is relevant to his case and assists his client, whether or not it prejudices anyone else”

and added (at 134A) –

“…it seems that relevance is the appropriate test even if the admission of relevant evidence at the suit of one defendant will cause prejudice to the other accused.”

Lord Hope of Craighead (at 145C/D) said this:

“It is beyond question, as a general rule, that an accused person has the absolute right to lead all relevant evidence in his defence. He is not subject to discretionary control by the court, which has no power to exclude such evidence on the ground that it may prejudice a co-defendant or because it was obtained by improper or unfair means. This point was recently reaffirmed in Lobban v. The Queen [1995] 1 W.L.R. 877. As Lord Steyn explained, at p. 889B, the principled objection to the argument that there is a discretion to exclude such evidence is that it conflicts with a defendant’s absolute right, subject to considerations of relevance, to deploy his case asserting his innocence as he thinks fit. Thus the trial judge does not have a discretionary power, as between co-defendants, to exclude relevant evidence on the ground that he is choosing the course which involves the lesser injustice as between the defendants.”

In the present case the judge seems to have thought that evidence elicited from Padula about Hobden’s involvement in the Sussex robberies went only to propensity. But it seems to us that it also and primarily went to the defence that Jamieson wished to run, that Hobden was the leader of a gang, whom he supplied with cocaine, and who committed robberies in Jamieson’s absence and even using his car.

Where, however, a defendant wishes to cross-examine his co-defendant, he is subject to the terms of section 1(f)(iii) of the Criminal Evidence Act 1898, viz –

“A person charged in criminal proceedings who is called as a witness in the proceedings shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than one with which he is then charged, or is of bad character, unless…

(iii)

he has given evidence against any other person charged in the same proceedings.”

When, however, a defendant has given evidence against his co-defendant, the right of the co-defendant to cross-examine is again unfettered, subject to the test of relevance: Murdoch v. Taylor [1965] AC 574, Myers at 140C/D. In the present case, it seems to us that Hobden had “given evidence against” Jamieson, when he said that he had been threatened by Jamieson that he “would be put in the shit if he didn’t take the blame” and when he also gave evidence about the note which he said Jamieson passed him in the cells at Mildenhall magistrates court to help him concoct an alibi around Jamieson’s alibi. Therefore, for that reason too, we think that Jamieson would have been entitled to cross-examine Hobden about the Sussex robberies: although the right to do so under section 1(f)(iii) was not invoked by Ms Griffin during trial.

We think therefore that the judge erred in his ruling in limiting cross-examination to the extent that he did. We will consider below, after dealing with Hobden’s grounds of appeal, the question of safety and the linked question of severing Jamieson’s trial.

Hobden has been given leave to appeal on his grounds 7 and 8. Ground 7 relates to the note passed to him by Jamieson at Mildenhall, to which Hobden referred in his evidence in chief. The question subsequently arose as to whether the note could itself be produced in evidence, not, as is submitted by Mr Atkinson on behalf of Hobden, as evidence of the truth of its contents, but as “real evidence”, to show what it was that Jamieson had passed to Hobden. The judge ruled that the note was inadmissible and maintained that view, even though the jury asked the judge if they could be shown it. He did so, on the basis of the submission of the Crown that (a) it had not been shown that Jamieson had written the note and (b) Hobden had said in cross-examination that he had not read its contents. Mr Atkinson submitted, however, that the note was admissible and would have supported Hobden’s case.

In our judgment the note was admissible. We do not agree with Mr Bate’s submissions supporting the reasoning of the judge. He sought to rely on the principles discussed at Archbold 2003 at para 8-135 relating to the strictness of the rules for proving authorship of a document, and on R v. Windass [1989] 89 Cr App R 258, which decided that a document admitted as against one defendant as its author could not be used to cross-examine another co-defendant, who was not its author. That reasoning would have been all very well if it had been a question of seeking to rely on the note for the truth of its contents, in which case it would have been hearsay. Where, however, it was said to be relied on as “real evidence” (see Archbold 2003 at para 9-7), we think that the test is simply, as there stated, whether there is a sufficient foundation to link the document with Jamieson. We think that that test was here met in circumstances where the evidence was that Jamieson handed the note to Hobden for the purposes described by Hobden, and where the note’s contents show that it is written in the first person (sc Jamieson), refers to “my car” (sc the Cavalier) and to “JH” (ie Hobden), and amounts to a complete template for putting Archie Andrews on the scene at the Butterfly Hotel plus an alibi for Jamieson (“I then left you”).

Having said that, we are however at a complete loss as to what use Hobden really intended to put the document to. It seems that Hobden’s trial counsel, Mr Fullerton, may have been similarly in some uncertainty about the matter, for we are told that at the time when the jury asked to see it, he objected: and that it was only subsequently that he seems to have come round to the view that he would prefer it to be in. On the appeal, Mr Atkinson was not really in a position to explain how its admission would have been used, beyond what was already achieved by Hobden’s evidence in chief, viz to cast Jamieson as the villain. We think that if it had been produced, it would have been disastrous to both co-defendants: as a conspiratorial attempt to share a fabricated story seeking to give to their presence at the Butterfly Hotel together with Andrews (who is said to have shared a room there with Padula and Smith) an innocent explanation, namely to rescue Jamieson’s broken down Cavalier which Hobden is supposed to have let Andrews use and which Andrews is supposed to have taken to Bury St Edmunds. We therefore think that in the end there is nothing whatever in this ground to affect the safety of Hobden’s conviction.

Hobden’s ground 8, on which he also has leave, takes us back to the question of the Sussex robberies. Whereas Jamieson’s complaint is that he was not given fuller or free range to cross-examine Hobden about them, Hobden’s complaint is that, such was the prejudice to him of even the limited information which did emerge about those robberies, his trial should have been severed from that of Jamieson. In this connection the ultimate focus of the complaint was that, although the judge sought to disguise from the jury the fact that Hobden had been arrested in Jamieson’s Cavalier on 3 March 2000 in the company of Padula and Smith as a result of a robbery in Sussex, the jury could nevertheless have put two and two together from the information that they did have. Thus the Crown had opened, and it was an admitted fact, that Hobden had been arrested on 3 March. Ms Griffin for Jamieson had later cross-examined Padula to the effect that he had been involved in and had pleaded guilty to other armed robberies in Sussex involving the use of firearms, knife and baseball bat; that he and Smith had been arrested in Jamieson’s Cavalier on 3 March by armed police, that Padula was a passenger in the front and Smith in the back, that a third person had been driving, and that a knife and gun were found in the car; and that on 3 March Jamieson was in Scotland, but Hobden was in Sussex. It is submitted that such cross-examination was in breach of the judge’s ruling and that in any event the eliciting of this evidence deprived Hobden of a fair trial. An application was made to sever the trial of Hobden, but was refused by the judge.

This ground is linked with a further ground, ground 9, on which Hobden makes a renewed application for leave to appeal. This ground arises from the fact that immediately upon an adjournment in the summing up, as the jury were filing from the court room, Jamieson created a disturbance, the earlier part of which is on the transcript and the latter part of which can be reconstructed from submissions on the transcript which then took place in the absence of the jury. The transcript reads:

“Jamieson: Excuse me.

Ms Griffin: Mr Jamieson, sit down.

Jamieson: I have to give evidence.

Ms Griffin: Sit down.

Judge Beddard: I will rise now. If there is any point…”

The tape was then turned off, but later, in the absence of the jury, the transcript reads:

“Mr Fullerton: …your Honour…I believe you were through the door when Mr Jamieson became more vocal and he called out to his counsel and stated: “I have to give evidence. Lynn,…I’ve got to give evidence.” He then commented: “They’ve used my car on other robberies; it’s unbelievable.” This is as jurors are filing out, some still here. Clear as a bell…In my submission, what occurred in the presence of the jury was nothing short of a deliberate and calculated attempt to compromise either this trial, or lay the grounds for an appeal on the basis of safety of conviction, either on the basis that a retrial be ordered with some possibility of severance. In any event, whatever his motivation, it was clearly deliberate. It has undoubtedly prejudiced not Mr Jamieson but Mr Hobden.”

Mr Fullerton then made an application that the trial be abandoned in respect of Hobden. Ms Griffin resisted that application and submitted:

“…I was telling him to be quiet over the top of it. We don’t know how much the jury heard. I cannot even say with any certainty what words Mr Jamieson was using as I heard. The one thing that we can say with certainty, if Mr Fullerton is right that what he said was: “They’ve used my car in other robberies”, well, that is not telling the jury anything that they don’t know because it is clear on the evidence that Mr Padula and Mr Smith have used his car –

“Judge Beddard: And were being arrested for robbery on the day that Padula was arrested.

Ms Griffin: Yes, when he was in Scotland, so –

Judge Beddard: And we have been at pains not to say who else was in the car.”

The judge refused Mr Fullerton’s application to discharge the jury in Hobden’s case. He was prepared to accept Ms Griffin’s assurance that the outburst was not deliberately calculated to bring the trial to a halt. He ruled:

“What I will do is tell the jury that there was a bit of an outburst just as I rose, Mr Jamieson has apologised about it; and that obviously they pay no attention to anything they hear in outburst from the dock.”

On the jury’s return he said to them:

“…you may remember that Mr Jamieson was a bit upset and started shouting out from the dock. He was asked by his counsel to be quiet. He has through her asked me to apologise to you for that. Trials are a strain for everybody concerned in them, obviously. I am sure you will pay no attention to the words of somebody just in an emotional state speaking from the dock.”

We do not think that there is merit in either of these grounds. We have already said, in relation to Jamieson’s second ground, that he should not have been restricted in his cross-examination of Padula on the Sussex burglaries. Mr Hobden received the benefit of those restrictions. We have also said that Mr Hobden could in any event have been cross-examined directly under section 1(f)(iii) of the 1898 Act. In any event, we do not think the jury would have assumed that Hobden was the driver of the Cavalier on 3 March: even if they had speculated on it, we think they would have concluded that if he had been the driver, they would have been told of it. As for Jamieson’s outburst, we agree with the judge that it went no further than the evidence already before the jury. We agree with the way in which the judge dealt with it.

We therefore turn, briefly, to the other grounds of appeal on which Hobden seeks to renew his application. Grounds 1, 2, 4, 5 and 6 concern the identification evidence relating to him (see paras 10/11 above). Ground 1 is that the judge was wrong to rule that the victim did not have to give evidence on the first voire dire to clarify matters related to the identification. Ground 2 is that the judge wrongly exercised his discretion following the first voire dire in ruling that the identification evidence was admissible despite what were said to be breaches of the Code. Ground 4 is that the judge wrongly exercised his discretion in continuing to rule that the identification evidence was admissible after the victim’s evidence that “man 1” had been masked on entry into the cottage; and ground 5 is that the judge wrongly exercised his discretion in refusing to discharge the jury in the light of the victim’s evidence about the masked “man 1”. Grounds 4 and 5 relate to applications made before the second voire dire at which the victim did give evidence. Ground 6 is that the judge wrongly exercised his discretion in corresponding applications to exclude the identification evidence and to discharge the jury after the victim had confirmed in the second voir dire his evidence about the masked “man 1” and how he had set about his identification. At the end of the day Mr Atkinson accepted that the essence of his renewed applications in this connection could be summed up under ground 6 as amounting to the submission that in all the circumstances the victim’s identification of the masked intruder was so poor, so brief, and altogether so unsatisfactory, that it should not have been left to the jury, and that having been opened to the jury, they should have been discharged.

We see no merit in these applications and we refuse them. The judge had ample opportunity to consider these matters carefully, as he did, in soundly reasoned rulings. No error in his reasoning is identified: it is simply said that he was wrong. He did not accept that any breaches of the Code had occurred, or that if they had, it would have made any difference. Mr Atkinson was unable to tell us what difference the breaches complained about would have made. The jury were able to see the video of the identification parade for themselves. The victim was no doubt well cross-examined on the points made about the security of his evidence. In truth he had more than an adequate opportunity to identify the robber. He had always identified “man 1” as someone he had seen on three occasions: the first two in the morning, when he had every opportunity to mark the man, of whom he was always suspicious, and the third in the evening, when his opportunities for identification were no doubt less favourable, but he was seeing, and hearing, the man for the third time. Discrepancies, such as the ginger hair, were well in the jury’s mind.

Ground 3 relates to the admissions concerning to the post robbery sightings in Brighton, and is that the judge erred in exercising his discretion by ruling that evidence of such sightings was admissible. The submission is that the admissions were only made because otherwise evidence of the police surveillance which had led to those sightings would have been permitted by the judge’s ruling. As it was, the admissions were highly redolent of such surveillance and thus unfairly prejudicial. We see no merit in this ground either. We regard this evidence as strongly probative of guilt and can see no error in the judge’s exercise of his discretion. It was he who suggested, rightly we think, that it would assist the defence if the matter was dealt with by admissions.

We have already dealt with ground 9. Grounds 10, 11 and 12 do not widen the scope of the grounds already dealt with, but seek to express them under the headings of article 6(1) of the ECHR and the requirement of a fair trial, the concept of equality of arms as between the two co-defendants, and the concept of safety. So far as Hobden is concerned, they take none of the matters already discussed any further.

In the case of Jamieson we have held that the judge had erred in restricting cross-examination regarding the Sussex robberies and said that we would visit the question of safety at the end of this judgment. We turn, then, finally to that question, which we will reconsider in the case of Hobden as well, seeing that we have also held that he should have been allowed to produce the note as real evidence (see paras 37/38 above). In that context we will also consider the fairness of this joint trial, bearing in mind Jamieson’s submission that the trial should have been severed.

In our judgment the convictions of both appellants are entirely safe. The evidence against Hobden was overwhelming. In his case Padula’s evidence was supported by the victim’s identification of him as “man 1” and by the discovery of his shoe print at the scene. He was present at the Butterfly Hotel with the other three, whom he did not dispute had committed the robbery; and he continued to be associated with Padula and Jamieson in Brighton on the very next day and in circumstances which connected him with the proceeds of the robbery. He admitted that his first alibi was false, and his second alibi and his explanation of his presence at Bury St Edmunds, quite independently of the direct evidence against him which of course made him part of the robbery, were wholly unrealistic and presented grave difficulties in themselves. Although he should have been permitted to produce the note as real evidence, it would have been disastrous for him if he had.

In Jamieson’s case, the prosecution lacked an identification and a shoe print, but in all other respects the evidence against him was damning. There was no good reason for Padula to lie about Jamieson’s involvement, and it would have been very dangerous for him to have done so. He was obviously not lying about Hobden. Jamieson’s presence at the Butterfly Hotel in association with the others, who his defence positively asserted had committed the robbery, was entirely unexplained by him, and to the extent that it was explained as part of Hobden’s second alibi, that was a story which would have harmed rather than helped him. In his case too there is the firmly probative evidence of the Brighton sightings. He gave no interview and no evidence. This is the context of the judge’s error in not permitting him to develop his case that he was not involved in the Sussex robberies, whereas Hobden and the other three had been. Nevertheless, the critical evidence that Padula and Smith had been committing robberies in Sussex, and had done so on an occasion with the use of his car, when he had been in Scotland, was before the jury. There was no suggestion that he was involved in the Sussex robberies. What Jamieson lacked was further evidence against Hobden; but whereas that might have been material (but unnecessary) if there was only one further slot to fill in a total of only three robbers, there was perfectly good evidence of four robbers. There was convincing evidence of full association with Hobden on this occasion, and no evidence from Jamieson to explain it. We therefore conclude that his conviction is also entirely safe.

In these circumstances the judge can be in no way faulted for declining to sever the trials of Hobden and Jamieson. He rightly considered that their trials should be joint even though he sought, wrongly in our view, to give Hobden protection against the prejudice of exposure on the Sussex robberies. As has often been said, the jury are entitled in the public interest to see such matters in the round. And even though the judge made the fact of joint trials a reason for wrongly limiting cross-examination on behalf of Jamieson, we have concluded that that error can in no way affect the safety of Jamieson’s conviction.

In conclusion, these appeals are dismissed and Hobden’s renewed applications are refused.