Ensor, R. v

LORD JUSTICE AIKENS: This is an appeal against conviction. The single judge gave leave on one ground of the four raised in the application for leave to appeal. There is also a renewed application for leave to appeal against conviction on another ground, for which the single judge refused leave. There is a contingent renewed application for leave to appeal against sentence, on which we have not yet heard argument. Obviously, that is only relevant if the appeal against conviction is unsuccessful.

On 16th October 2008, following an eight day trial before His Honour Judge Eades and a jury in the Crown Court at Stafford, the appellant, who is now aged 56, was convicted by a majority of 11 to 1 of robbery, possessing a firearm at the time of committing an offence specified in schedule 1 of the Firearms Act 1968 and possessing, using or acquiring criminal property. The judge sentenced the appellant to 12 years' imprisonment concurrent for the offences of robbery and possessing a firearm. The appellant was sentenced to 2 years concurrent for the criminal property offence.

At the trial there was no dispute that a robbery had occurred at about 09.20 hours on 8th April 2006 on a travel agency in Cannock which was called "Going Places". One of the robbers had a holdall in which there was a sawn-off shotgun.

The issue was whether, as the prosecution alleged, the robber with the holdall was the appellant. The robbers were seen to get away in a dark colour Hyundai coupé car with the number plate M13 DPB. The car had been stolen five days before the robbery and its number plate had been changed. Cash and travellers cheques to the value of £52,000 were stolen.

On 8th September 2006, that is 5 months after the robbery, a search warrant was executed at the appellant's home address and at various garages with which he was said to have had some connection. In the appellant's house the police recovered a JJB carrier bag in which were found a peaked balaclava, tights and a pair of gloves. Also at the appellant's house, hanging behind the front door, was a set of keys, including a key which opened garage No 9A, as it was called in the trial. The appellant was renting that garage at the time.

The police used the key to open garage 9A. In that garage they found a black holdall which the prosecution said was the one used by the robbers. The police also found another key fob, described as a "Hyundai key fob", with five keys on it. Two further keys were found in garage 9A.

The holdall was subjected to forensic tests and a tiny fragment of firearm primer residue was found inside it.

The police executed a search warrant on another garage, called No 51. That garage was secured by padlocks. At that stage the police forced the garage open. In it they found the Hyundai car that had been used in the robbery. They seized the padlocks to the garage. Subsequently, on the prosecution case, the keys that had been seized from garage No 9A were tried on the two padlocks taken from garage No 51. The keys opened the padlocks, according to the prosecution evidence. The evidence concerning the 'continuity' of the custody of the padlocks and the keys is the subject of the renewed application for leave to appeal, ie the ground that was rejected by the single judge.

The appellant gave one "no comment" interview. At the second interview he provided a short written statement prepared with the assistance of his solicitor. There is nothing in that statement to indicate that his physical or mental condition would impede him from giving evidence.

At the trial there was also evidence of mobile cell site analysis before the jury. This showed that the appellant's mobile phone was in the vicinity of the robbery at the relevant time.

The trial began on 6th October 2008. The prosecution case was that all the circumstantial evidence, to most of which we have already referred, could make the jury sure that the appellant was the robber with the sawn-off shotgun. The defence case was that the circumstantial evidence was equivocal. The defence also argued that the prosecution had failed to prove the continuity of custody between the garages and the courtroom of the two keys found in garage No 9A and the padlocks on garage No 51 which it was said could be opened by those keys.

On 8th October 2008, ie the third day of the trial, Mr Metzger, who appeared for the appellant then and has done so today, submitted that the issue of continuity of custody of padlocks and keys should be the subject of a voir dire before the judge before the evidence that the keys fitted the padlocks could be put to the jury. Mr Metzger has told us today that at the outset of the trial, he had made a submission that the evidence relating to keys and padlocks should not be admitted at all because of the lateness of the various statements supporting that evidence. That submission was rejected by the judge.

The proposal of a voir dire was opposed by the prosecution. The judge ruled that the prosecution had to prove the connection between the keys and the padlocks and had to prove, by evidence, where they were found. The judge implicitly ruled, therefore, there was to be no voir dire and there was none.

The trial then continued, and the prosecution finished its case at the midday break on 13th October 2008. At about 1.40 pm that day Mr Metzger handed to Mr Drew, who was prosecuting counsel then and who appears for the Crown today, a psychiatric by Dr Sain, dated 30th September 2008. Dr Sain is a consultant psychiatrist who is approved under section 12(2) of the Mental Health Act. Mr Metzger told Mr Drew that the appellant would not be giving evidence and that the defence would seek to rely on the contents of the psychiatric report in support of that decision. Mr Metzger has told this court today that the decision not to call the appellant was made on that date, ie on 13th October, after Mr Metzger had been through the psychiatric report and after he had had a conference with the appellant.

The report of Dr Sain is five pages long. It states in its first paragraph that it had been prepared at the request of M & N Solicitors, acting on behalf of the appellant. It states that one of the sources of information for the report was a personal interview with the appellant on 25th September 2008. The conclusion of the report at paragraphs 5 and 6 of the "opinion and recommendations" is as follows:

When the court resumed at 2.00 pm on 13th October 2008 Mr Metzger told the judge that the appellant was not going to give evidence. Mr Metzger sought leave to adduce the psychiatric report in evidence before the jury. He stated that the report had been received by the defence solicitors on the weekend before the trial started, that is between Friday 3rd and Sunday 5th October 2008, and that it had only been seen by defence counsel on the first day of trial, that is 6th October 2008. Mr Metzger has told us that his attention was distracted at the outset of the trial by the issues raised by the "continuity" evidence concerning the keys and the padlocks, which he said was served late.

The judge was not told when the report had been commissioned, nor whether it had been commissioned at the request of defence counsel or was obtained on the initiative of the defence solicitors. Mr Metzger has told us that he did not commission it; he only knew about it on 6th October 2008. There was no explanation to the judge of whether the solicitors or counsel knew of the gist of the report before 3rd October, although the report is dated 30th September. Furthermore, there was no explanation of why the defence did not inform the prosecution of the existence and contents of the report prior to 1.40 pm on 13th October, other than the suggestion that the defence's eye was taken off the ball by the issue of the "continuity" concerning the padlocks and the keys.

At the hearing at 2.00 pm on 13th October 2008, Mr Drew, for the prosecution, said that the Crown did not accept the conclusions Dr Sains' report, to which we have referred, and that the Crown objected to the report going before the jury.

The judge ruled:

The defence did call other evidence including evidence from a witness of fact that the appellant suffered from panic attacks. In his closing speech for the defence Mr Metzger asked the jury to infer that the appellant had an "excuse", (the judge's expression in his summing-up, see page 29G), for not giving evidence so that the jury should not draw any adverse inferences against the appellant for not doing so.

In his summing-up the judge dealt with the evidence relating to the padlocks and the keys and the use of the garage No 51 at pages 20G to 22F. He directed the jury at page 21F that they would have to decide whether the keys and padlocks were recovered as the police said they were. He said if they were so satisfied then that created "a direct link between garage 9A which is the defendant's garage and garage 51 where the Hyundai was found."

Later on in his summing-up the judge gave a direction pursuant to section 35 of the Criminal Justice and Public Order Act 1994 ("the CJPOA") on the possible inference that the jury could draw from the fact that the appellant had not given evidence. As already indicated, the judge specifically referred to the evidence of one witness that the appellant suffered from panic attacks. The judge referred to Mr Metzger's submission to the jury that this was an "excuse" for the appellant not giving evidence so the jury should draw no adverse inference from that fact: (see summing-up page 29G to H).

On the ground of appeal for which leave has been given, Mr Metzger submits that the judge was wrong to refuse the defence leave to adduce the psychiatric report. The report contained evidence, he submits, that would demonstrate to the court that the mental condition of the appellant, as the accused, was such as to make it "undesirable for him to give evidence", within the meaning of section 35(1) paragraph (e) of the CJPOA. He submits that if the court had been satisfied of that then by virtue of section 35(1), the jury would not be entitled to draw such inferences as seemed proper from the failure of the appellant to give evidence as it otherwise would, pursuant to section 35(3) of that Act. Therefore, Mr Metzger submits, the judge would have been obliged to direct the jury that it was not to draw any such adverse interferences. Mr Metzger has drawn our attention, in particular, to the decision of this court in R v Anwar & Ors [2008] 2 Cr App R 36, at page 532.

Mr Drew submits that the judge was entitled to refuse to permit the evidence to adduce the report in the circumstances in which the leave was sought and therefore the judge took the right approach in his summing-up in giving his directions in the way he did.

Sections 35 subsections (1), (2) and (3) of CJPO Act 1994, state as follows:

Section 35(1)(b) of CJPOA makes it clear that subsection (2) will not apply if "it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence." The phrase "it appears to the court" must mean that there has to be some evidence before the court of the physical or mental condition that will entitle the court to reach the conclusion that it would be undesirable for the defendant to give evidence. If a ruling is to be sought from the judge, such evidence has to be adduced in a voir dire. But the judge can decline to make a ruling in advance. The defence must then produce evidence before the jury, otherwise the judge is not obliged to direct the jury in relation to the effect of that subsection.

It is important to note the precise terms of subsection 35(1)(b). The physical or mental state has to be such that it is "undesirable for the accused to give evidence." That must mean that because of the defendant's physical or mental state, if he gives evidence it will have a significantly adverse effect on him, such as to make it "undesirable" for him to give evidence. Stanley Burnton J pointed out in R (DPP v Kavanagh) [2005] EWCA 820 at paragraph 18, [2006] Crim LR 370, that a physical or mental condition that may merely cause some difficulty in giving evidence is not enough to satisfy section 35(1)(b) of CJPO. We agree with that statement.

The Criminal Procedure Rules came into effect in April 2005. In the words of Thomas LJ in DPP v Chorley Justices [2006] EWHC (Admin) 1795, at paragraph 24, the rules effected a "sea change" in the way which criminal cases should be conducted. Rule 1.2 imposes a duty on the participant in a criminal trial to prepare and conduct the case in accordance with the "overriding objective" set out in rule 1.1 ie that criminal cases be dealt with justly. One of the requirements of doing that is that the case will be dealt with efficiently and expeditiously: (see Rule 1.1(2)(e). Rule 1.2 also imposes a duty on participants in a criminal trial to comply with the CPR. Rule 3.2 imposes a duty on the court to manage cases actively. This duty includes the early identification of "the real issues" and ensuring evidence is presented in the shortest and clearest way. Rule 3.3 imposes a duty on each party to a criminal trial to assist the court in discharging its duty under CPR 3.2, either without a direction, or with one if necessary.

Part 24 of the CPR deals with expert evidence. CPR 24.1(1) stipulates that any party who proposes to expert evidence from the proceedings shall "as soon as practicable" furnish the other party and the court with a statement in writing of any findings or opinion which he proposes to adduce by way of such evidence and to notify the expert of this disclosure.

In our view the effect of CPR Parts 1.2 and 3.3 together is that it is incumbent upon both prosecution and defence parties to criminal trials to alert the court and the other side at the earliest practical moment if it is intending or may be intending to adduce expert evidence. That should be done if possible at a PCMH. If it cannot be done then it must be done as soon as the possibility becomes live. The nearer the start of the trial, the greater the urgency in informing the court and other side of the possibility of adducing expert evidence so that appropriate steps can be taken by the court and the other side to manage the expert evidence in an efficient way.

In this case the defence failed totally to comply with either the spirit or the letter of the CPR. The report of Dr Sain must have been commissioned well in advance of 25th September 2008 when Dr Sain saw the appellant. No one informed the prosecution or the court. The report is dated 30th September 2008, so that Dr Sain must have formed the view on the issues he had dealt with before then. If he informed his solicitors orally that did not result in anyone else being alerted. Even accepting that defence counsel did not get the report until 3rd October, there is, in our judgment, no excuse for the failure between the 3rd October and 1.40 pm on 13th October 2008 to inform the prosecution that the defence might wish to adduce this expert evidence in support of a decision not to call the appellant to give evidence.

We entirely agree with the judge's view that the defence was in grave breach of the Criminal Procedure Rules. We also agree with his view that the decision not to serve his psychiatric report until a final decision had been taken not to call the appellants to give evidence as a witness was a "deliberate tactical ploy" by the defence. It was nothing less than an attempt to ambush the prosecution.

If Dr Sain was not to give oral evidence about the contents of his report, then as section 30(2) of the Criminal Justice Act 1988 makes plain, the evidence in his report could not be adduced without the leave of the court. In the circumstances we have set out the judge would have been fully entitled not to permit the report to be put to the jury if Dr Sain was not to give oral evidence.

If, as has been stated by Mr Metzger today, it had been intended to call Dr Sain, so that section 30 of Criminal Justice Act 1988 did not apply, the judge was, in our view, entitled to refuse to permit that evidence to go before the jury for two reasons. First, because of the irregular way in which it was sought to adduce this expert evidence, as we have already pointed out.

However, there is a second, substantial, reason. In our view, the opinion of Dr Sain, as expressed in the concluding paragraphs of his report which we have quoted, does not demonstrate that the mental condition of the accused made it "undesirable for him to give evidence" within the meaning of section 35(1)(b) of CJPOA. The conclusion of the report says, first, that the appellant would have "extreme difficulty in giving evidence". That is quite common among defendants and other witnesses who give evidence in criminal trials. That does not in itself make it "undesirable" that that person should give evidence. The report says next: "The stress and appearing in the court in person could become counterproduction towards his mental health." That states a possibility only. There is no degree of certainty that the experience of giving evidence will adversely affect the mental health of the appellant, so that it is therefore "undesirable" that the appellant should have given evidence. Lastly the report states that it is "very unlikely that he will be able to cope stressors to appear in the court." That sentence is a little difficult to understand but virtually all witnesses in court experience stress, sometimes considerable stress. The comment says nothing about how the experience and stress might affect the appellant's physical or mental health.

As for Anwar, on which Mr Metzger relies, that is an entirely different case. In that case, as is plain from the report at paragraph 28, when the judge received the reports from Professor Nell and Dr Lord, he accepted the two medical experts' evidence and concluded that it was undesirable for the appellant to give evidence on that basis. The judge only changed his mind about the direction that he was going to give to the jury because of the even later production of the information that the accused in that case had been the subject of a previous conviction to which the judge had not been referred before. Therefore the circumstances in that case were entirely different from the present. We are not convinced that it is of any value in the circumstances of the present case.

Once the judge had rightly held that the evidence should not be put before the jury, then there was no basis within section 35(1)(b) to prevent the judge from giving an "adverse interference" direction to the jury. Of course he retained a discretion on what he directed: see R v Cowan [1996] QB 373 at 380E. But the judge decided to give the adverse inference direction in the terms that he did and he cannot be criticised either for deciding to do so or for the terms of the direction. Therefore, this ground of appeal is dismissed.

We can deal shortly with the other ground concerning the evidence relating to the continuity of custody of the padlocks and the keys. At the time that Mr Metzger made his submission to the judge on 8th October that there should be a voir dire on this issue the judge had seen the witness statements of the police officers concerned. During the submissions on the voir dire he was referred to parts of their statements. The judge could decide there and then whether on the face of statements of the police officers, there was credible evidence to go to the jury to prove the connection between the keys found in garage 9A and the padlocks removed from garage 51. The judge was plainly satisfied that there was such evidence. In those circumstances, there was no point in having a voir dire. The judge's ruling was correct.

That application is therefore refused.

The appeal on conviction is therefore dismissed.

LORD JUSTICE AIKENS: Mr Metzger has renewed the application for leave to appeal on sentence.

The applicant was found guilty of participating in an armed robbery in which some £52,000 in value was taken in all. By its verdict the jury found that the applicant was armed with a sawn-off shotgun and was disguised.

The applicant had a bad criminal record including offences of violence, although we accept that nearly all of those convictions are old offences.

Mr Metzger has pointed out that there was personal mitigation available to the applicant. First of all, the judge did, by the time that he came to give sentence have before him the psychiatric evidence of Dr Sain. Also Mr Metzger submits that a very strong mitigating factor was that, in the course of the armed robbery, no injury was inflicted on anyone. No one was ill-treated and the gun was neither pointed at anyone, nor used in any way.

Despite these submissions, in our view, in the circumstances of this case, the sentence of 12 years' imprisonment was fully justified. We cannot regard that sentence as one that was either wrong in principle or was manifestly excessive.

Therefore, the application for leave to appeal on sentence must be refused.