Small & Anor, R. v

LORD JUSTICE MOORE-BICK: Yes, Mr Swift.

MR BETHEL: My Lord, it is Mr Bethel. I appear for the Crown, the respondent in this matter, together with Mr Johnson. My learned friend Mr Malcolm Swift QC appears for the appellant Small and my learned friend Miss Richardson for the appellant Lancaster.

My Lords, counsel for the appellants have asked me to go first to explain the present position so far as the vital witness Nicola Richardson is concerned as we understand it to be at present. Your Lordship will know from the papers, I think, that that witness, having given evidence against the two appellants at the trial, then went on to a witness protection programme and was relocated to another part of the country. She eventually left the witness protection programme. At some stage she made the statement to a solicitor which has caused this appeal to be brought. But since then there have been difficulties in contacting her.

The Teesside police are plainly in a difficulty for two reasons. One is that they don't wish to be thought to be seeking to contact her to influence her in any way so far as this appeal is concerned. But the other is that they don't want to lead associates of the appellants to where she is at present for obvious reasons. But attempts were made last month to set up a meeting between the solicitor acting for Small and Miss Richardson.

LORD JUSTICE MOORE-BICK: It came to nothing, didn't it?

MR BETHEL: It came to nothing. She initially agreed that she would attend the meeting but she then in effect disappeared. She lost contact with the police and so that meeting could not take place. A witness summons was issued by this court to ensure -- to seek to ensure her attendance when the case is listed for the full hearing on 19th June. I am instructed -- and this is why I was asked to go first so that I can tell your Lordships about it -- I am instructed that that summons was served upon her this morning. I know not where, but where she is at present, save that it was served on her in a hospital, in a drug rehabilitation unit, where I am told she has been for the last ten days. The information I have, and I read this as it is passed to me, that she was very distressed at the appearance of the police. She said she did not wish to speak to the defence. The officers spoke to the consultant concerned with her treatment as to whether it would be possible for her to attend this court on 19th June. He said that she would be fit enough to travel in his opinion, if she had substantial support from, for example, the witness support agencies, but he expressed the opinion that "she was in a very fragile state". Whether that refers to her physical, mental or both states I know not. I simply quote the words that have come to me.

My Lord, there are in court two officers from the Cleveland Constabulary Witness Support Unit who did have dealings with her and knew her well when she was on the -- sorry, the Witness Relocation Branch of that force, so that when she was on the witness protection and relocation team they had a great deal of contact with her and knew her well. But they have not seen her for some two years -- sorry, for a year, although they have been in contact with officers in the area where she is at present. For what it is worth, they expressed the opinion that the likelihood is that she will discharge herself from the rehabilitation unit and will not make herself available for the 19th.

LORD JUSTICE MOORE-BICK: Do we know how long she is expected to be in the rehabilitation unit?

MR BETHEL: No.

LORD JUSTICE MOORE-BICK: All other things considered?

MR BETHEL: Sorry, I am told a further ten days, which would take us to the 19th when the hearing is listed. But, my Lord, that is the up to date position so far as we can take it and my learned friends asked me to give that information.

LORD JUSTICE MOORE-BICK: It follows from what you say, doesn't it, that you know where she is and how she can be contacted?

MR BETHEL: We knew where she was when the summons was served, whether she is still there we know not. There is no coercion, of course, to keep her in the drug rehabilitation unit.

LORD JUSTICE MOORE-BICK: It was served this morning, although she might have left already.

MR BETHEL: She might have left already and she has shown herself well capable of keeping out of the way of police officers in the past.

LORD JUSTICE MOORE-BICK: Yes.

MR BETHEL: But as of this morning they knew where to contact her, and the chances are I am told -- I did make this enquiry -- that even if she has left hospital the officers in the area know the sort of places to look for her and might well be able to find her.

LORD JUSTICE MOORE-BICK: But as far as we know she is in a condition which would enable her to talk to people if she wished to.

MR BETHEL: Yes. If we can assist in making further attempts to set that up, of course we will do so, but subject, obviously, to safeguards as to the desire not to lead associates of the appellants to her present whereabouts. My Lord, that is the position so far.

LORD JUSTICE MOORE-BICK: That is very helpful, Mr Bethel. Thank you very much. Yes.

MR SWIFT: I am obliged to my learned friend for the information that he has given us and the court this morning.

My Lord, the only suggestion we have that might assist to some extent in determining what the position is, my instructing solicitors who are Garstangs, who are a new firm, not the original firm who saw her in the first place, they -- and Mr Richard Sampson of that firm have suggested -- and it is a suggestion which we would make -- is that if we, that is Mr Sampson and I, reduced to writing the questions that we are anxious to have Miss Richardson answer, coupled with various questions about her attitude towards this appeal, whether it is still as it was when she was seen by the original solicitor, and questions to that effect, then at least then we would know what the position is going to be on the appeal, if she is prepared to answer those questions.

So the suggestion we make is that we reduce questions to writing, that we submit via the prosecution to the independent officers who are in touch with her at the moment, that those questions are asked and the answers provided, and then we assess where we go from there. Because on one scenario if she says it was all false and I was led into it, or there are reasons why I said these things, in other words a negative solution, the appeal won't go ahead.

MR JUSTICE FULFORD: Will you be content, Mr Swift, to deal with that on the basis of written answers given to your instructing solicitor, rather than a representative from Garstangs having an opportunity to speak to the witness directly?

MR SWIFT: Clearly, my Lord, the ideal situation is that the questions should be asked of her in the presence of or by the solicitor and if he asks them we would be more than content for the prosecution to have someone present to witness the asking of questions. But from what my learned friend says it sounds as though that sort of meeting is unlikely to materialise. If she is unwilling now, as she said this morning, to see the defence then it seems likely she is likely to retain that view.

LORD JUSTICE MOORE-BICK: You are suggesting really that we carry out this exercise in writing, at least initially. Depending on the outcome of that exercise, you will then take a decision as to what to do next.

MR SWIFT: Yes, that is right.

LORD JUSTICE MOORE-BICK: But at the moment a witness summons has been served to require her attendance here on Monday week.

MR SWIFT: It has, my Lord, and we are obviously concerned about that.

LORD JUSTICE MOORE-BICK: What are you doing about that?

MR SWIFT: My Lord, we are concerned for a number of reasons. (1) It sounds as though her position is particularly parlous at the moment. It sounds as if to force her by witness summons to attend this court on the 19th is perhaps somewhat draconian if she is in an unfit state.

LORD JUSTICE MOORE-BICK: Well, she may not attend of her own volition anyway. At that point the court has power to take steps to bring her here, but it won't be on the 19th probably, will it? So the whole thing is a bit suspect for the 19th, isn't it?

MR SWIFT: It is, my Lord, yes. I was going to suggest that if your Lordships thought, for instance, to reduce the questions in writing and for a procedure to be agreed between us and the prosecution for those questions to be put to her and her answers recorded, that if the court was willing to fix another directions hearing for, say, a month's time, or something of that nature, we would at least know by then what the position was hopefully, and could report back to the court and make a final decision as to what should happen to this case.

LORD JUSTICE MOORE-BICK: Can we just see what the picture is at the moment for the substantive appeal? It is fixed for the 19th for a day and a half.

MR SWIFT: It is.

LORD JUSTICE MOORE-BICK: The Crown have given notice that they wish to call a great string of witnesses, some of whom I assume you will want to have available for cross-examination.

MR SWIFT: Yes.

LORD JUSTICE MOORE-BICK: Can you give us a rough idea of how many you might want? I am just trying to see what will happen if it goes head on the 19th.

MR SWIFT: My Lord, in addition to the point your Lordship has just made, in our note to the court for today's hearing we have given notice that there are certainly four witnesses we would wish --

LORD JUSTICE MOORE-BICK: I was coming to those in a minute. Let us look at the Crown's position. There is a great list of people that they have served Form Ws for. I had assumed some you will wish to have present, if the appeal goes head ahead, and some you might not. I am not asking you at this point for a definitive decision. Is it likely you will want as many as half a dozen?

MR SWIFT: Perhaps not quite as many as half a dozen. My initial feeling was that I would need two witnesses as principal witnesses, namely the two who dealt with her originally, and possibly two to three of the remaining witnesses.

LORD JUSTICE MOORE-BICK: So we are going to be having five police witnesses here --

MR SWIFT: Yes.

LORD JUSTICE MOORE-BICK: -- on the substantive appeal. You then want to call, or at least you say you may need to call, three other witnesses in addition to Miss Richardson.

MR SWIFT: Four.

LORD JUSTICE MOORE-BICK: Four others? I have only got three: Janice Sain, Keith Harcourt and Greta Edwards.

MR SWIFT: Julie Richardson is not the complainant, not the witness. She is the sister.

LORD JUSTICE MOORE-BICK: Have we got Form Ws in respect of any of those?

MR SWIFT: Not yet. You will.

MR JUSTICE FULFORD: And statements as well.

MR SWIFT: Yes. We were hanging fire a little because our witness statements are not yet complete, but I was giving advance notice of them.

LORD JUSTICE MOORE-BICK: When will they be complete?

MR SWIFT: Three of them are complete and the fourth is almost complete, in the sense that the statement from Janice Sain is not finalised yet.

LORD JUSTICE MOORE-BICK: You see, at the moment it seems to me that while this appeal has some life in it, whether it goes ahead on the 19^th or not, it would better to get it as much organised as we properly can and then the court is in a position to move ahead when the time comes. Is there any reason why you couldn't serve Form Ws and statements by the end of next week?

MR SWIFT: Subject, as I say, to the problem with Janice Sain, the answer is yes.

LORD JUSTICE MOORE-BICK: Can you tell me the nature of the problem? I am not inviting you to breach any confidence, but I don't want to impose unreasonable deadlines if there is information we ought to have.

MR SWIFT: No, it is just she is no longer a solicitor and it has been very difficult to get hold of her to obtain a statement from her. Because of the limitations on my instructing solicitor's legal representation order, he has not himself been able to go and meet with her which ideally he would like to do.

LORD JUSTICE MOORE-BICK: I said the end of next week, but, of course, at the moment the appeal starts on the following Monday.

MR SWIFT: Yes.

LORD JUSTICE MOORE-BICK: And The Crown has got to have this material sufficiently far ahead of any substantive hearing to assimilate it and also to consider whether there is further rebuttal evidence to which it gives rise.

MR SWIFT: Of course, my Lord, I entirely accept that. I am just a little concerned that if we make all these arrangements for the 19th and the witnesses attend and so forth, then Nicola Richardson turns out to be unavailable.

LORD JUSTICE MOORE-BICK: The reason I was asking the question was to see what sort of pickle we will get into if we hold the date of the 19th.

MR SWIFT: My Lord, may I respectfully say I entirely agree. My own view is that we will be in a pickle on the 19th.

MR JUSTICE FULFORD: I just want to ask Mr Bethel a question. Mr Bethel, really all of this, it seems to me, turns on whether or not the complainant is going to give evidence that Mr Swift and Mr Nolan consider to be helpful.

MR BETHEL: Yes.

MR JUSTICE FULFORD: The complainant is clearly in a position at the moment where she can talk about these events, although it may be that there are certain difficulties for her because she is in a drug rehabilitation unit.

MR BETHEL: That's as we understand it, my Lord, yes.

MR JUSTICE FULFORD: Absolutely. Obviously she may have disappeared and there is nothing one can do about it. Would it be conceivable, possible and practicable for her to be taken to a local neutral convenient location where a police officer, or someone from the witness protection unit, can be present, so that a representative from Garstangs can speak directly to Miss Richardson to see what her attitude is going to be? Because it seems to me that before the case gets adjourned for what may be a long period of time, enormous arrangements made in relation to other witnesses, one needs to establish first whether or not there is going to be any basis for this appeal at all. I was wondering whether a meeting of that kind could be set up for next week so that Mr Swift can then take stock as to whether or not this appeal has any life in it.

MR BETHEL: My Lord, that, if I may say so, is what they tried to set up in the middle of last month. But the arrangements that were made in co-operation with the force in the area where she is at present was that she was to be contacted and asked if she was prepared on neutral ground to meet the solicitor for the appellant and she agreed to do so initially. So what was put in hand then was a rather clandestine arrangement. The gentleman from Garstangs, who is in court, agreed to the arrangement that he was to meet the police at some location and was then to be taken by them to some unspecified location, the desire being to seek to avoid that he was followed by anybody else purporting to act for perhaps other reasons on behalf of the appellants, and it was all to be set up that he was to -- the solicitor was to meet her in the presence I believe of her social worker, or some other such person, in order that he could do precisely that which your Lordship suggests. But it was a few days before that she broke contact with the police and all attempts to contact her on the mobile number, which was all the means of contact they had, thereafter failed.

MR JUSTICE FULFORD: I had not appreciated from Garstangs' letter that precisely this arrangement had been set up before. Don't worry about finding it. That answers the point. You say that trying to do this again is likely to go nowhere.

MR BETHEL: That is what the police tried very hard to facilitate last month and it failed because she disappeared.

LORD JUSTICE MOORE-BICK: Mr Bethel, while you are on your feet, just tell me this. If we pursue the written question and answer process that has been suggested, what are the prospects for the substantive appeal starting on the 19th? I am just thinking, the document won't be delivered to Miss Richardson before Monday, presumably. Then she will have to consider whether she wants to co-operate at all, if so, what answers to give and get it back and those answers have to be considered and so we go on. We will get to the end of next week without anything clear emerging, maybe.

MR BETHEL: My Lord, perhaps I can say this, and perhaps my learned friend Mr Swift will have to be rather more circumspect. We would submit that her conduct demonstrates that she does not wish to give the evidence that she presaged in the statement she made to Miss Sain in December of 2004. I think that the reality of the situation is that the solicitor instructing my learned friend Mr Swift, if he were to be satisfied that she does not now voluntarily wish to give evidence to this court, retracting her original evidence, then there is no point in proceeding with the appeal. As I understand it, the intention of asking her to answer these questions is to see whether that is indeed her position, and, if so, as I understand it, it may be that the appeal could be abandoned.

MR JUSTICE BURTON: I think implicit in what you are saying is that it is better to keep the date of the 19th in mind so that everyone is concentrating on that date and yes or no has to be reached before that.

MR BETHEL: I had not really thought that far ahead. I don't express --

MR JUSTICE BURTON: Implicit in what you are saying is if we get the answer in the next two or three days, Tuesday or Wednesday, if it is a yes it means she will turn up on the 19th, and if, as you postulate, it is no, it is better we don't have the thing going off into limbo.

MR BETHEL: Perhaps so. I confess I had not thought that through. I am not necessarily expressing enthusiasm for being here rather than in Yorkshire on the 19th, but there --

MR JUSTICE BURTON: It would need to be coupled with notification to the court and to the parties two days before as to whether the case is or is not --

LORD JUSTICE MOORE-BICK: Exactly. Although I could see the force of keeping it open for the time being, what I had in mind was that we can't allow it to limp on to the 19th and find it has collapsed if we can avoid that. Would it make sense to pursue the written question approach that Mr Swift has adumbrated, direct that the appeal be relisted for a mention by, say, next Thursday, by which time I would expect a pretty clear indication of what is going to go on? (Pause). If it has become clear before then, one way or the other and it might be possible to dispense with a formal hearing, then the office could be informed. I am just concerned to keep some grip on this.

MR BETHEL: My Lord, of course I appreciate that. It is occurring to me while I am on my feet that there are a number of possibilities if we pursue the questionnaire route, if I can so call it. One is that she may have disappeared. She may have already disappeared and the police may not be able to administer the questionnaire to her. Another is that when attempt is made to put the questions she simply refuses to co-operate, from which I suppose we would submit a conclusion is to be drawn as the viability of the appeal. And then the other two possibilities are (1) she says very, well, my evidence was false and I will come and tell them that in London, or (2) that it wasn't false and my statement in December 2004 was false for all sorts of reasons.

LORD JUSTICE MOORE-BICK: What I really have in mind is that the court is informed before the end of next week whether the appeal should remain listed for the 19th or not. It might be that it should not remain listed because it is abandoned, or may be that it should be adjourned for other reasons. I just don't know. We can't just -- we have got to take some steps to try and get an indication.

MR BETHEL: My Lord, yes. The only undertaking I can give is that the officers in court, and for that matter those instructing me, will see that any such questionnaire that your Lordships may approve, or perhaps it doesn't need your Lordships' approval, but any questionnaire which the defence asks us to put to the witness that steps are taken in the area where she now is to put that to her. Of course there is no coercion of any kind if she refuses to attend the police station or refuses to meet the officers to do that, then there is little we can do.

LORD JUSTICE MOORE-BICK: That is very helpful.

MR BETHEL: Yes.

LORD JUSTICE MOORE-BICK: Mr Swift, speaking for myself I am attracted to the course that you suggest and I do think that the court needs to be informed before the end of next week as to what the progress is and how you see it.

MR SWIFT: Yes.

LORD JUSTICE MOORE-BICK: Whether that should be done by way of listing it for further hearing, or in some other way, I am more neutral on because I realise that if we have a hearing a lot of people have to come to court maybe just to tell us something they can tell us by e-mail.

MR SWIFT: Yes, I agree with your Lordship. Exactly. We can undertake, subject to receiving the questions -- the answers to the questions next week we will immediately communicate to the court what we believe should happen next.

LORD JUSTICE MOORE-BICK: What makes a realistic deadline for you to communicate with the court, assuming that we are now able to accept, as we are, communications by e-mail so that you can make that pretty instantaneous?

MR SWIFT: Yes.

LORD JUSTICE MOORE-BICK: I said Thursday for a hearing, but how about Wednesday night? Is that a bit too tight?

MR SWIFT: My Lord --

MR JUSTICE FULFORD: It is one question, Mr Swift, really, isn't it, which, if either, of the accounts she stands by? It is not a long list of questions.

MR SWIFT: It is not. No. It was already short even before your Lordship suggested that.

MR JUSTICE FULFORD: If that is the case, if she is still at the drug rehabilitation unit, it should be possible either today or Monday for that question to be put to her and for you to be in a position to communicate with this court by e-mail by the Tuesday or Wednesday night.

MR SWIFT: My Lord, I entirely agree and I am sure that can be done. Subject to her being seen and answering the question or questions, we can do that and I undertake to do that.

My Lord, may I put into the melting pot just one other problem? That is the input that the appellant Mr Small has into this because clearly we would have to take his instructions about anything that occurs next week. The difficulty is that yesterday his son, who had been very seriously injured in a road accident -- in an assault, sorry, not a road accident, had been on life support and the life support system was switched off yesterday and his son died. He has been having compassionate leave from prison to see his son whilst he was on life support. My instructing solicitors indicate that he is in an extremely distraught state.

LORD JUSTICE MOORE-BICK: That is understandable.

MR SWIFT: I don't know at the moment when the funeral is planned; it is too early to know that, but I suspect he is unlikely to be in a condition next week to give us much in the way of instructions. I thought I should mention it.

LORD JUSTICE MOORE-BICK: No, you are right to mention it. Can I just ask, Miss Richardson, you have been sitting there very patiently while others have been purporting to decide your fate.

MISS RICHARDSON: I don't have anything to add.

LORD JUSTICE MOORE-BICK: Is there anything you want to add to what has been said so far?

MISS RICHARDSON: No, my Lord. The position, so far as the appellant Lancaster is concerned, is that he very much aligns himself with all that my learned friend has said.

LORD JUSTICE MOORE-BICK: And you would be content to adopt this written question approach, at least at this stage?

MISS RICHARDSON: Yes.

LORD JUSTICE MOORE-BICK: And would you be content for your part to report back to the court by 4 o'clock next Wednesday?

MISS RICHARDSON: By e-mail? Yes, I would undertake that for my learned friend Mr Nolan.

LORD JUSTICE MOORE-BICK: I want to give you as much time as possible but I want something in writing that is why I suggested e-mail rather than telephone.

MISS RICHARDSON: Clearly any list of questions that my learned friend on behalf of the appellant Small produces will be looked at by those instructing me.

LORD JUSTICE MOORE-BICK: Before they are offered to the witness.

MISS RICHARDSON: It can be done at the same time. I wouldn't have thought there would be anything I would wish to add.

LORD JUSTICE MOORE-BICK: You have completely identical interests, don't you.

MISS RICHARDSON: Yes.

LORD JUSTICE MOORE-BICK: We are very grateful to you all for your suggestions. It seems to us that the sensible way forward is to pursue the written questions and answers route, so we will leave it to you, Mr Swift, in conjunction with others, to formulate those questions and to take whatever steps are necessary to get them into the witness's hands and to obtain a response. But we do think we ought to have a report before the end of next week. So we are going to direct that both appellants report to the court by e-mail not later than 4 o'clock on Wednesday afternoon of next week, that is the 14th, advising the court what developments have taken place, and, if it has become clear that the appeal will or will not go ahead, to make the position quite unequivocal. Obviously you had better copy that to the Crown. If it is less unequivocal than that, you had better tell us as much as you can. As the presiding judge I will no doubt be asked to decide what should happen for the listing for the 19th. If either of you have representations to make about that in the light of the report sent in, perhaps you could make those as soon as possible after you receive the report.

MR BETHEL: The only enquiry I would make is about the e-mail to use. There is one on the letter heading for the Criminal Appeal Office. Then there is this caveat on the bottom that the Criminal Appeal Office will not accept service by e-mail.

LORD JUSTICE MOORE-BICK: Can I suggest that you send it to that address and copy it to my clerk?

MR BETHEL: Then if we could be given your clerk's e-mail address.

LORD JUSTICE MOORE-BICK: Yes. Can I suggest that you have a word with her after the hearing? Copy it to my clerk and then one way or another it should get to me together with all the other communications, if you have representations about whether the appeal should be stood down or not. Then I shall know what you say. I don't want to find that everyone is here on the Monday for no purpose.

MR BETHEL: Thank you.

LORD JUSTICE MOORE-BICK: The other thing we haven't formally covered is the question of your additional witnesses, Mr Swift. While the hearing is still fixed for the 19th it seems to me that you should get your tackle in order and in pretty short order.

MR SWIFT: Yes. I can certainly undertake -- I know I can serve the Form W and the witness statements in the case of three of the four witnesses and I am hopeful that within a very short time, and I mean a day or two, I should be able to serve the fourth one.

LORD JUSTICE MOORE-BICK: Do you mean literally a day or two? If I said by 4 o'clock on Tuesday, is that going to embarrass you?

MR SWIFT: It might, it might not.

LORD JUSTICE MOORE-BICK: I think the Crown would like to have them as soon as possible for obvious reasons.

MR SWIFT: I quite understand that. I was trying to do everything together at one time, but it may not be possible to do that.

LORD JUSTICE MOORE-BICK: Unless you tell me you need the extra 24 hours (and I am not sure that you are telling me that).

MR SWIFT: For three we can do it straight away.

LORD JUSTICE MOORE-BICK: You have problems with the fourth and if you have to apply to serve it late, well, that is something you will have to consider. I am going to direct that any further Form Ws and witness statements relating to them that the appellants wish to rely on be served by 4 o'clock on Tuesday.

MR SWIFT: Tuesday?

LORD JUSTICE MOORE-BICK: Tuesday, yes.

MR SWIFT: Thank you, my Lords. Yes.

LORD JUSTICE MOORE-BICK: Thank you very much. Is there anything else that anyone thinks should be raised now while you have the chance?

MR SWIFT: No.

MR JUSTICE BURTON: You have noted what counsel for the Crown has said in the skeleton argument, a factual assertion which Miss Richardson alleges, which you may or may not want to be prepared to deal with.

MR SWIFT: Thank you for reminding me of that point.

MR BETHEL: My learned junior points out something that we ought to keep an eye on, that a witness summons has been served that is still in force for the 19th, so steps should be taken to discharge it and communicate the discharge of it if it is decided that the case will not heard.

LORD JUSTICE MOORE-BICK: That is remaining in place for the time being, but you are quite right. Maybe your junior could remind the court of that when the e-mails start flying on Wednesday and Thursday. But that is a very fair point.

MR BETHEL: Thank you very much.

LORD JUSTICE MOORE-BICK: Thank you all very much indeed.