Holliday, R v

LORD JUSTICE SCOTT BAKER: This is an appeal by Michael Shaun Holliday, aged 45, in a case referred by the Criminal Cases Review Commission.

On 18th October 1996 in the Crown Court at Bradford before Judge Cockroft he pleaded guilty to two offences of robbery and was sentenced to 12 years' imprisonment concurrent for each, but consecutive to a sentence that he was already serving. He was released on licence in September of 2004.

For convenience we shall refer to the two robberies as the Mirza Travel robbery and the Lunn Poly robbery. The Criminal Cases Review Commission referred the Mirza Travel robbery to this Court to review the conviction, notwithstanding that the appellant pleaded guilty. The basis for the reference is that the appellant's confession and admission by his plea of guilty were not true. The conviction is, therefore, unsafe. The Commission did not refer the Lunn Poly robbery, but in the event that Mr Holliday's appeal succeeds on the Mirza Travel robbery he seeks an extension of time, approximately eight years, for leave to appeal against the conviction on the ground that the Mirza Travel robbery confessions taint the Lunn Poly confessions and that that conviction likewise is unsafe. If the Lunn Poly conviction application and appeal are unsuccessful, but the appellant succeeds on the Mirza Travel conviction appeal, then he seeks in turn leave to appeal out of time against the sentence on the Lunn Poly conviction, his argument being that 12 years is manifestly excessive for just the one robbery. In fact he sought leave to appeal against sentence in respect of both robberies, but was refused by the single judge in January 1997, so his sentence application is for a renewal out of time. That application we grant in respect of the Lunn Poly offence.

The appellant confessed to both offences during interviews and later entered pleas of guilty. He initially asked for six other offences to be taken into consideration, but later changed his mind about this when his case came to court.

The circumstances of the Mirza robbery were as follows. It was alleged that he robbed Robina Ann Ryan of £15,000. At about 5 minutes to 6 on the evening of 21st February 1995 a securicor vehicle, driven by a Mr Spinks, was making a scheduled stop at a shop known as Mirza Travel in Lumb Lane in Bradford in order to collect £15,000 that were the day's takings. The vehicle stopped directly outside the shop and one of the security officers, Miss Ryan, went into the shop to collect the money. Mr Spinks remained in the vehicle.

After Miss Ryan had collected the money she went outside. When he was standing near the rear the security vehicle, she became aware of a male running towards her down the pavement away from the direction of the centre of Bradford. In his right hand he held and pointed at her a gun. The man came face to face with her, and with his left hand took hold of the cash box which she was carrying and tried to snatch it away from her. Miss Ryan resisted with the result that the man became violent and pushed her to the side of the vehicle. Miss Ryan continued to resist, but did not release the cash box. It was at this stage that the man pointed the weapon towards her head and fired it. She became aware of a flash and heard a bang, but the bullet missed her. However, Miss Ryan immediately released the box. The man took the cash box and turned and ran off down Lumb Lane in the direction of Bradford. He was chased by Miss Ryan. He headed towards and entered a red motor car which was parked about 100 yards down the road. There was a driver waiting inside the car and the man escaped in this vehicle. Miss Ryan gave a description of the man and compiled on the following day an e-fit impression of him.

The robbery was witnessed by a Mr Mohammed Khan who was in his motor car travelling down Lumb Lane. He saw a man running away and getting into the front passenger seat of a Ford Sierra of which he took the number and which he thought was red in colour. He described the man.

Another witness was Mr Anthony Bodle. He saw a man running past the window of the Sweet Centre restaurant in Lumb Lane. He described him.

The cash box was discovered on 21st April 1996 under a hedge. There was no forensic evidence to connect the appellant to it. A .35 mm bullet was discovered to have penetrated the window of the Alice Street pharmacy at 120 Lumb Lane and to have become embedded in the window frame. The bullet casing was found on the pavement near the securicor van. There was no forensic evidence to link the appellant to the bullet or the casing.

A press statement in relation to the robbery was released to the media. This statement did not include any mention of the height of Miss Ryan, the fact that the security officer was female, or the amount of money that had been taken. The car that was used in the robbery was subsequently recovered by police. Again, there was no forensic evidence connecting Mr Holliday to it.

Two reasons are submitted why this conviction is unsafe, notwithstanding the plea of guilty of the appellant. We should say that the Crown have indicated that they do not seek to oppose this appeal, the evidence of unsafety, in our judgment, being very strong indeed. The first reason is that there is clear evidence that somebody else committed the offence and the second reason is that the admissions made by the appellant in interview are unreliable.

As to the other person committing the offence, Derek Elener was convicted by his plea of guilty of this robbery and he was convicted of some ten other robberies. There was a common mode of operation in respect of each of the robberies and there was also ballistic links showing that the same weapon had been used in respect of five of the robberies, which included the robbery at Mirza Travel. The appellant was in prison at the time of the other four robberies.

As to the appellant's interviews, suffice it to say that in the course of them the appellant made broad generalisations, and a number of specific details, for example about Mirza Travel, were wrong. He could not tell the police the colour of the vehicle. He said the shooting was an accident; in fact the gun was discharged deliberately. He did not realise that it was a woman security guard. He did not know where the car was stolen from, or where it was left. He did not know what he did with the cash box. He would not say what he did to the security guard. He added, "I can go to trial and deny everything I ever said". We have no hesitation whatsoever in concluding that this conviction is unsafe and therefore we allow the appeal.

At the commencement of the appeal there was initially some concern about the question of jurisdiction, simply, we would add, because the question of jurisdiction had been questioned by Mr Worsley QC on behalf of the Crown in a skeleton argument and supporting documents that he had lodged before the hearing. However, in response to questions from the Court, he no longer seeks to take any point. In our judgment, there is no difficulty about jurisdiction. This case was referred by the Criminal Cases Review Commission to this Court under section 13 of the Criminal Appeal Act 1995 on the basis that the Commission considered that there was a real possibility that this Court would not uphold the conviction. The Criminal Cases Review Commission was not only entitled to reach such a conclusion, it was plainly right to do so. It was on that basis that the Commission referred the case to us.

Pursuant to section 9(2) of the same Act, once referred to this Court the application proceeds in all respects as an appeal under section 1 of the Criminal Appeal Act 1968. In our judgment, it was perfectly lawful for the Criminal Cases Review Commission to refer this case to us. Section 9(2) was triggered and the case proceeded thereafter as an appeal under section 1 of the 1968 Act. There is no question of jurisdiction to trouble this Court, either on the part of the Commission in referring the case, or in this Court having power to hear the appeal.

In truth the position seems to us to be this. The case has been properly referred to us and now is to be treated as an appeal against conviction under section 1 of the 1968 Act, but as a matter of practice the cases in which this Court will go behind a plea of guilty are few and far between. The circumstances will have to be exceptional, but we would not wish to define what every category of exceptional circumstances might be. The bottom line is whether the conviction is unsafe. As Mr Mansfield pointed out, this is, on any view, an exceptional case. We, therefore, allow the appeal in respect of the Mirza Travel robbery.

As to the Lunn Poly offence, here the allegation was that the appellant robbed Joanne Walker of just under £7,000. About 10 minutes to six on the evening of 24th May 1996 two members of staff of the firm of Lunn Poly, Emma Throup and Joanne Walker, were in the shop which had closed for business for the day at Shipley in Bradford. The front door remained unlocked. Miss Throup heard a loud bang at the main entrance door and saw a man wearing a pair of black tights over his head and a black woollen hat on top of the tights. The man walked over to her, pulled out what appeared to be a black handgun and demanded money from Miss Throup. At this point Miss Walker, the manageress, came out of the office and witnessed the events that were taking place. The man made a number of threats and several attempts were made to open the safe until it was eventually opened after Miss Walker had obtained the security number of the safe from her filofax. Following the opening of the safe, the cash contents, totalling some £7,000, were taken by the man who threatened the staff and warned them not to contact the police. The man left the shop and locked the door after him.

Miss Throup described the man as white, in the age bracket 25 to 35, 6 foot in height, medium build, with bushy eyebrows and clean shaven. He had very piercing eyes which she thought were brown in colour. She identified the appellant in a photograph album of 12 photographs and later at an identification parade picked him out as the person who had committed the robbery.

Miss Walker described the man as white, in his late 30s or early 40s, 6 foot in height, slim build, long legs, dark greasy hair, bushy eyebrows and a sunken face with prominent cheeks. She, too, identified the appellant on an identification parade as the person who had committed the robbery. Part of a stocking and an earring were recovered by the police from a waste bin near the shop, but there was no forensic evidence to connect either of these items to the appellant.

On the next day, 25th May, the appellant visited a jeweller's shop in Leeds and purchased with cash a Rolex Cellini watch. He gave his details as Mr Holliday of 22 Parkway, Carlisle.

At 25 past 11 on the morning of 1st June there was a road traffic accident in Canal Road, Bradford involving a Ford Sierra and a Citroen. The latter vehicle was driven by Mr Christopher Worsley. The driver of the Sierra left the scene. Police searched the boot of the Sierra and discovered a Rolex watch, a Rolex watch guarantee and a Rolex catalogue. The appellant's fingerprints were found on the watch case. Mr Worsley, too, gave a description of the man.

The appellant was arrested in Carlisle on 3rd July 1996 for the Lunn Poly offence and interviewed in relation to it. Mr Mansfield QC, who has submitted that we should grant leave to appeal against this conviction out of time, told us that the appellant was interviewed five time over two days, producing something like 200 pages of transcript. He says, and we entirely accept this, that there is a sizeable element of bravado in the answers given in interview, that it is plain that the appellant is a fantasist. He also reminds us that on the custody record it indicates that a doctor was summoned at the time of the interview because of concerns that the appellant was a drug addict and that there was a risk of his experiencing flashbacks. Mr Mansfield submits that the terms of the answers, are, in a word, extraordinary, and that in the course of all of his interviews he admits no less than 32 robberies, some of which he certainly could not have committed because he was in custody at a time.

Nevertheless, in his interview about the Lunn Poly robbery the appellant told the police the time the robbery was committed, that Miss Walker had to get the number for the safe from her filofax, that there were two bags of money, that he locked the door when he left, that he had a hat and a stocking mask, that he used a 22 calibre gun, that there had been three members of staff before one of them had left, that he obtained about £8,000 from the robbery and that he had brought a Rolex watch. All broadly can be described as details that can only have been known to the robber. It was during the interview for the Lunn Poly offence that he began to admit the Mirza Travel offence, in, as we have said, very different terms, and the various other offences.

The evidence against the appellant in respect of the Lunn Poly offence comprised far more than just his admissions. He was identified by Miss Throup from a photograph album of 12 photographs and then at an identification parade and Miss Walker too picked him out on a parade. Furthermore, on the day after the robbery he bought for cash the Rolex watch to which we have referred. There is also a distinction between the two robberies in that in respect of the Lunn Poly robbery he told the police a good deal of detail about the robbery that could only have been known to the robber.

Although we would have granted an extension of time if we had thought that there was any substance in Mr Mansfield's submission, which is that you really cannot believe a word that this man said in interview because of his fantasising and seeking to put himself in a higher criminal league than that to which even he belonged, we do not think that there is any arguable basis for granting permission to appeal. In our judgment, there is no question about the safety of the Lunn Poly conviction.

We turn, therefore, to sentence in respect of the Lunn Poly conviction, which now, of course, stands on its own without the concurrent sentence of 12 years for the Mirza Travel robbery. The appellant was 37 at the time of sentence and already serving a sentence of 21 months for drug offences and failing to surrender. Also he had previous convictions that include nine years for robbery in 1988 and six years for burglary and firearms offences in 1996.

For the Lunn Poly robbery on its own, in our judgment, the sentence of 12 years was too long. The offence was, nevertheless, robbery of £7,000 with a firearm from a shop where the victims were no doubt terrified. We think the right sentence for a single robbery of this nature, following a plea of guilty for a man with the appellant's record, was one of ten years. Accordingly the appeal against sentence is allowed to the extent that the sentence of 12 years will be replaced with one of ten years.