Burt, R v

LORD JUSTICE JUDGE: On 11th July 2002 in the Crown Court at Maidstone before His Honour Judge David Croft and a jury, Gavin Burt was convicted of one count of kidnapping and a second count of having a firearm in his possession with intent to commit an indictable offence. On 11th July he was sentenced to six years' imprisonment on the first count and two years' imprisonment on the second to run consecutively, making a total sentence of eight years' imprisonment. Appropriate orders were made under the Firearms Act for forfeiture.

There were two co-accused. Both were convicted of the same count. They were called Collins and Keep. Keep was also convicted of a further offence of doing an act tended and intending to pervert the course of public justice. Collins was sentenced to a total of ten years' imprisonment and Keep to a total of 11 years' imprisonment. They appealed against their convictions with leave of the single judge. On 28th January 2004 the Full Court allowed the appeals and quashed the conviction and ordered a retrial. McCombe J, who sits as a member of this constitution, was a member of the Court which quashed the convictions of Collins and Keep. A detailed judgment was given by Thomas LJ. We do not propose to refer to that judgment. It is available for perusal if anybody wants to see it.

On 5th April 2004, following the order of the Full Court, at the plea and directions hearings at what was to be a retrial of Collins and Keep the Crown offered no further evidence. Thereafter, as the Crown had offered no further evidence, the present appellant applied to the Court to treat his abandonment of his application for permission to appeal as a nullity. On 9th November 2004 the Full Court concluded on examination of the authorities that it was unable to grant that application on jurisdictional grounds. The Court acknowledged that there was an injustice, expressed concern at the appellant's continuing detention and suggested that a rapid application should be made for the case to be considered by the Criminal Cases Review Commission. Again a detailed judgment is available and we need not recite it.

The Criminal Cases Review Commission, considered the application and has now referred the matter back to this Court. In the meantime the applicant was granted unconditional bail and he has remained on unconditional bail throughout.

The point in this case is that the allegations of kidnapping and possession of a firearm depended on the evidence of a witness Michael Hutchinson. Hutchinson was a man with a lengthy criminal record who was also a drug addict, but who was advanced as a witness of .....

On 10th October 2001 he drove to a police station, ran into it with blood on his face and hair, and apparently in a very poor state. He told the police that he had been to a house to sell cannabis and that he had been assaulted and forced into the boot of a car. A gun was pointed at him.

However, between the conviction of Keep, Collins and this appellant and the hearing of the appeal of Collins and Keep, on 28th January Hutchinson had made allegations of blackmail against another man. He asserted that this man had threatened him in order to get him to change his evidence about the kidnapping offence. He claimed that during the time that the appeal of Collins and Keep was pending the man had sent threatening messages and had gone to his house with a gun and threatened him. The man asserted complete ignorance about events at the original trial, and that such threats as he had uttered related to a business deal in which Hutchinson had taken his money and failed to provide the goods that he was contracted to provide. He also said that he had received a number of telephone calls from Hutchinson about the goods. Hutchinson denied knowing this man's telephone number.

As a result of the police investigation it was discovered that the assertions made by this man were true and that the allegations made by Hutchinson were false. The Crown considered that it would not be safe to rely on the credibility of Hutchinson as a prosecution witness in any potential proceedings against the third man, and, following that, they decided that it would be wrong to rely on him as a witness of truth at the forthcoming retrial of Collins and Keep. Accordingly, no evidence was offered against these two men. That meant, as a matter of logic, that the conviction of this appellant would be no safer than if any conviction which would have resulted from the retrial of Collins and Keep. The Crown accepts that it would be inappropriate for Hutchinson to be treated as a witness of truth in respect of any of the allegations involving the appellant. Accordingly, the Crown accept that the conviction should be quashed.

We have examined the papers. We think that is an appropriate and sensible response by the Crown to the harsh realities of this case. We shall therefore quash the conviction. We express our grateful thanks to the Commission for giving this case the rapid attention it has done.

MISS COTTAGE: My Lord, can I echo that. They were extremely helpful.

LORD JUSTICE JUDGE: That, too, will appear on the transcript and a copy of the judgment, together with those remarks, will be sent to the Commission. Thank you very much.