IN THE HIGH COURT OF JUSTICE
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
H.H.J. KHAYAT Q.C.
T20080602
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE HOOPER
MR JUSTICE GROSS
and
HIS HONOUR JUDGE MOSS Q.C.
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between :
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SARA-JANE McCLUSKEY |
Appellant |
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- and - |
|
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THE CROWN |
Respondent |
MS. A. HAMILTON appeared for the Appellant.
MR. P. GLENSER appeared for the Respondent.
Hearing date : 24th June 2010
Judgment
Lord Justice Hooper:
At the conclusion of the hearing we announced that the appeal against conviction brought with the leave of the single judge succeeded and that the conviction was quashed. Rightly no retrial was sought.
Both at the trial and on the appeal the appellant was represented by Miss Amanda Hamilton, a barrister of nearly 15 years’ call and from chambers which specialize in criminal law.
On 14th December 2009 in the Crown Court at Snaresbrook (HHJ Khayat QC) the appellant pleaded guilty to one count of wilfully neglecting a child under the age of 16 (Count 1). On 18th December 2009 at the same court the appellant was convicted of one count of wilfully assaulting a child under the age of 16 , contrary to section 1(1) of the Children and Young Persons Act 1933 (Count 2).
During the trial on count 2 the jury was told about the plea to count 1 and heard evidence which substantiated the allegation in count 1, namely wilful neglect.
It was the prosecution’s case that between 1st February 2008 and 4th March 2008 the appellant wilfully assaulted her son aged 6 years old at the time. The appellant lived at 14 Williams House, Alfred Street, London E3 with her son. Evidence to support the assault came from Simon Straughn (“Straughn”), a drug addict with serious previous convictions, who had lived with the appellant until 1st March 2008, from a neighbour and from medical experts. A large number of bruises were found on the victim. It was the appellant’s case, supported by her evidence, that the child suffered from a physical disability which led him to fall easily and bruise and that the principal bruises found were caused by a fall down the stairs. There was medical evidence to support the existence of the disability and evidence from a foster parent who had been given the care of the child which to a limited extent supported the defence case. The medical experts called by the prosecution accepted that some of the bruises might have been caused accidentally but identified a number which, in their view, could not have been.
The involvement of the police in the investigation which led to the appellant being charged with counts 1 and 2 came about in the following manner.
On 1st March 2008 the appellant telephoned the police to report an incident involving Straughn. She alleged that the previous night he had kicked down her door and demanded her cash card at knife point. She subsequently discovered that he had withdrawn £50 from her account leaving her without money to buy food. Straughn was arrested and interviewed on 3rd March 2008. He accepted kicking down the door but denied robbery or the use of a knife. He said that she had given him the card and the PIN and that he had withdrawn more than he was supposed to have taken. He then, on his account, snapped the card before returning it to the appellant. During the interview on the robbery allegation on 3rd March, Straughn made a number of allegations about the appellant’s treatment of her son. The investigation of those allegations led to the appellant being arrested on 3rd March and later being charged. Straughn was released on police bail on 3rd March and made his formal statement on 4th March. In that statement he alleged that the appellant had seriously neglected her son and gave details. He also said that he had heard the appellant slapping her son and had later seen a bruise under his eye. He gave evidence to that effect at the appellant’s trial.
Subsequently no proceedings were taken against Straughn. The investigation into the robbery was hampered by the appellant’s non-cooperation and there was a witness who supported Straughn’s account.
Ground 1 concerns the decision made by the trial judge on Tuesday 15 December to reject a written application on the part of the appellant to adduce evidence of the bad character of Straughn, the application being supported by a skeleton argument. Straughn had a number of previous convictions, including convictions for robbery and manslaughter when aged 14, for which he received a sentence of 10 years’ detention. Leaving aside a number of other convictions before 2004, in that year, in addition to a minor drugs offence, he was convicted of two offences of common assault for which he received a short custodial penalty. In 2006 he was dealt with for a breach of a community penalty.
Miss Hamilton wanted to adduce the evidence that Straughn had been arrested for robbery to support the defendant’s case that the allegations of assault made by Straughn on 3rd March whilst under arrest were a fabrication designed to “take the heat” off him. Miss Hamilton wanted to adduce the evidence of the previous convictions to show both why Straughn would have been concerned to divert the attention of the police from what he had done to the appellant and to undermine Straughn’s credibility in his account of the appellant striking her son. In the skeleton argument Miss Hamilton made it clear that:
Miss McCluskey will say that the allegations set out in the statement of Simon Straughn are false and made in malice against her.
Miss Hamilton also wanted to go into the issue of Straughn’s behaviour to show that shouting heard by a neighbour at 2 a.m. on 2nd March was not directed at the child. The prosecution invited the jury to conclude that it had been. We do not need to go into this matter in any detail because, although the ruling to which we now turn did not deal with this argument, a further ruling of the judge later that day appears to have given Miss Hamilton what she wanted in this respect. We will come to that ruling shortly.
The judge did not call on the prosecution and ruled against the application. The transcript of the ruling reads as follows:
I am satisfied beyond peradventure that this application has no merit. The real issue in the case is simply this. Can the jury be satisfied that she has physically -- I use the word abused -- or used physical force on her six year old child.
The mere fact that it came to the attention of the authorities, as a result, possible of anger between the parties is neither here nor there.
It is not essential to the case to have satellite litigation. Indeed, the higher courts have specifically said that satellite litigation ought to be discouraged. What the defence are saying is they intend to try, if they can, to prove that he is guilty of robbery on that one occasion.
With enormous respect, it does not matter, because the logic of it simply is this. It does not stop the defendant saying what he says is untrue and "I say that the reason for it was that there was bad blood between us". That does not necessitate going into all sorts of things.
I look at the Act, itself, and it says, "For the purpose of sub-section 1(a), evidence is important explanatory evidence if, without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case".
Clearly, that is not so in this case. The issue is really a simple one. Secondly, by itself this does not matter. This goes towards why the police were involved -- i.e. the attention of the police -- and drawn to the way the defendant was living with her six year old son.
Thereafter, it is really more the medical evidence and the general circumstances of the way she lived that is relevant. It does not go to the heart of the matter.
In the application, I am told, that it would be unfair not to introduce that evidence. I see absolutely nothing unfair about it.
Unfortunately -- and I am not levelling this as an accusation against this particular counsel -- far too often the word 'unfairness' is bandied around the courts as if it is some sort of mantra that it excuses everything. It is not the position here. No question of unfairness.
I totally refuse that application.
It seems clear to us that the judge failed to deal with the submissions of Miss Hamilton. Miss Hamilton did not want the evidence in to show “why the police were involved”. She did not want it in because of “anger between the parties”. When the judge said: “Thereafter, it is really more the medical evidence and the general circumstances of the way she lived that is relevant”, he appears to have overlooked the fact that Straughn was the only person giving direct evidence against the appellant that she had assaulted the child.
The judge having failed to address the application properly, we must ask ourselves what the judge should have decided if he had turned his mind properly to the application. In our view the evidence was admissible for the principal reasons put forward by Miss Hamilton, albeit that we might well have imposed limitations on how far the matter could be explored. Alternatively the judge might have ruled that the evidence of Straughn added so little to the prosecution case that any concern about satellite litigation could be met by the prosecution not calling Straughn.
Miss Hamilton, not sure of the breadth of the ruling, returned to the issue on the same day. The transcript reads as follows:
MISS HAMILTON: Of course, I know I cannot re-open any application for bad character, but as far as Miss McCluskey's defence is concerned, there are some questions I would wish Mr Straughn. Because one of the reasons Mr Poulter was so concerned to get Stephen away from the home into hospital was because there was no food in the house.
Miss McCluskey's defence is that Mr Straughn had taken her money. She could not get any food. But the other aspect of the evidence that the Jury has heard is from Mr Pina that on the night before the police arrived -- so the 1st -- there was an awful lot of noise which made him think he has had enough. He is going to call the NSPCC and he had heard some banging.
Well it is Miss McCluskey's case -- and it is there in the interview. In any event she has told the police what happened. Mr Straughn had kicked the door down and had a knife and threatened her. He took her cashpoint card, took the card and took £50 and gave the card back to her. She could not check the balance until the next day when the banks opened. That, I want to put to Mr Straughn. I do not wish to take it any further so far as his arrest or the investigation.
JUDGE KHAYAT: No, that is not the point, Miss Hamilton. I agree that you are entitled to say, "My client put an allegation against you".
MISS HAMILTON: Yes.
JUDGE KHAYAT: There is no difficulty with that. Equally, there is no difficulty in saying, "Well, the night before, you and she quarrelled", which meant he broke the door down or even took a knife in the circumstances. But what I am reluctant to permit is to have satellite litigation -- and I do mean those two words -- literally that this case stops being about a child being beaten and becomes as to whether she, your client, is the unfortunate victim of a robbery. Do you see the difference between the two? It is a question of emphasis.
MISS HAMILTON: Yes.
JUDGE KHAYAT: I will not stop you factually putting anything, but I am afraid I will stop you if it goes beyond that.
MISS HAMILTON: Your Honour, I will put no more than she has told the police in interview, that he got the card from her because he had a knife.
JUDGE KHAYAT: Fine.
MISS HAMILTON: And that he took Stephen upstairs and he had a knife.
JUDGE KHAYAT: Well, I ought to consult -- do you have any objection to that?
MR GLENSER: Well I have no objection to what your Honour proposed at all. He was to admit in interview that he knew she was in, got angry and kicked the door open with his foot. There is no problem about that at all.
I am a little unhappy about the suggestion of robbery. I am unhappy about it for a number of reasons. Having obtained a crime report number from the police, which would entitle her to go back and obtain the money again, she completely failed to cooperate with the investigation. It is not right that there was no investigation. Officers attended, telephoned time and time again to try and investigate this matter.
The account that Mr Straughn gave in interview was confirmed by the witness, Terry Lax, and your Honour is absolutely right when your Honour says satellite litigation, because despite all of that, the fact is that this complainant -- this defendant, when she was a complainant in the robbery just was not believed.
Her story was not backed up by anybody. Quite the reverse. While he was still in custody Mr Lacks gave a statement supporting Mr Straughn's version of events.
JUDGE KHAYAT: Mr Glenser, let me stop you there. I follow what you are saying and I am fully aware of that. The difficulty -- if that is the right word -- is that firstly, the defendant is entitled to say, "I was not beating my child up. I was not shouting at him. I knew I was being beaten -- or was beating -- my ex-room mate, my ex-friend, my erstwhile friend".
MR GLENSER: Yes.
JUDGE KHAYAT: "And it had nothing to do with my hitting my child".
MR GLENSER: I agree.
JUDGE KHAYAT: "And the reason why I say -- I, the defendant -- I was doing that is because we have quarrelled about the ownership and the use of my debit card".
MR GLENSER: Yes.
JUDGE KHAYAT: Now, in those circumstances, I cannot control to what extent counsel puts it, but the principle is clear. She is entitled to say it. But I am making -- and I have given, you know, as it were a ruling, saying if it goes beyond that and becomes, "You are a nasty piece of work. You are really a robber. You have robbed me" -- and so on, I will stop counsel doing that. And secondly, I will hold it irrelevant because she has already admitted count 1, not feeding the child. So in those circumstances, how, I ask myself, "Is it relevant towards whether I hit my child or not?"
MR GLENSER: Your Honour, we are entirely ad idem. I had thought my learned friend said she was going to put the use of the knife, whatever.
MISS HAMILTON: Yes, that is what I am going to put. Because she did not hand the money card over to him. She did not voluntarily give him the card. That is what she has told the police. She would not have given it to him unless he had --
JUDGE KHAYAT: No, I follow the reason for it. I cannot see; firstly, whether it matters and secondly, whether I can or should stop it.
MISS HAMILTON: Your Honour, there is another factor in that she was frightened because of what had happened with him to cooperation with the police. She will be saying that in evidence.
JUDGE KHAYAT: No, that is beginning to go beyond what is permissible. If and when she gives evidence and she says that, that is another matter.
Yes, thank you. Now the jury.
MISS HAMILTON: Your Honour, I am still not clear as to what I can ask this witness.
JUDGE KHAYAT: I have already indicated more than once. What is the difficulty? What are you finding difficult?
MISS HAMILTON: The difficulty is they were not having an argument.
JUDGE KHAYAT: I am sorry?
MISS HAMILTON: The difficulty is they were not having an argument. That is not her case. The difficulty is that he kicked the door down by force, which Mr Pinar --
JUDGE KHAYAT: I have already said that you can put that in, yes.
MISS HAMILTON: And that he used a knife thereby frightening her and Stephen.
JUDGE KHAYAT: Yes?
MISS HAMILTON: I thought my learned friend objected. So I was clarifying.
JUDGE KHAYAT: Whether he objects or not it is my ruling that matters. I have already indicated that you can.
MISS HAMILTON: Thank you.
JUDGE KHAYAT: Have the jury in.
As a result of this discussion Miss Hamilton was able to put to Straughn that he had knocked down the door, threatened her with a knife and taken and used the card. She felt unable to submit that he had robbed the appellant and she, of course, could not advance her case that Straughn had fabricated the allegations against her in order to divert police attention from her allegation of robbery nor use his previous convictions to support the case of fabrication case and the attack on Straughn’s credibility.
Before leaving this count we refer to another matter which concerns us. In the course of cross-examining the appellant it was suggested to her by the prosecution that she made the report to the police about Straughn in order to obtain a crime reference number for the purposes of obtaining more money from the Benefit Agency. Understandably Miss Hamilton stood up to object. The prosecution were in effect suggesting that the appellant had attempted to pervert the course of justice in making an allegation to the police about what Straughn had done. No application to adduce bad character had been made and it is strongly arguable that this was an attack on the appellant for which leave was required. Contacting the police on 1st March does not seem to be evidence of misconduct to do with the alleged facts of the offence or in connection with the investigation of the offence which did not start until Straughn had been arrested for robbery.
Upon Miss Hamilton standing up, the judge said “What now?” in a manner, so Miss Hamilton says, which demonstrated that the judge was impatient with her. The jury were then sent out and the judge ruled that the questions were admissible. We do not have a copy of that ruling.
Thus the jury heard the prosecution allegation that there had been no robbery whilst Miss Hamilton was prevented from exploring whether there had been.
In his summing up the judge said this about the evidence of Straughn:
Mr Simon [Straughn] also gave evidence in court and you were able to assess him and the story he gave is that he had met the defendant. She was begging in the street. She had Stephen with her and he spoke to her. She had asked for £3 order to fill up the key for the electricity. He did not have any but he said he would bring her some.
He had been living with his sister. He was a drug addict -- class A drugs -- and had spotted that he was in the same condition. When he did bring the money he said, "Well give me the key. I will top it up for you", and she said, "No, no", she would want the money. So he said to her, asked her straight out whether it was really for drugs, and she said "Yes". He did give her the money and over a period of two weeks he kept bumping into her, seeing her. And then, in the end, what happened is because of his drug taking, his sister with whom he was living, kicked him out of the house. So he was homeless.
He asked Miss McCluskey whether he could stay at her place, she said, "Yes" and he duly did so. And he was helping out to a certain extent out of the benefits he was receiving.
Well, he was not happy with her treatment of the child. The child, according to him, was frequently sent upstairs to his room and he feared that Miss McCluskey was hitting Stephen but never actually saw it, because it was not in front of him. But he was not happy with that.
It does seem as if relationships soured between Simon and Sarah-Jane and as a result, he left the house and came into the position that when he spoke to the police he told them about the child. Back to the child and Doctor Armstrong.
Although the judge did not mention it, we understand that Straughn did say that he had heard the appellant slapping her child and saw a mark.
In our judgment the judge was wrong to rule against the application to introduce Straughn’s bad character.
We turn to ground 2 which concerns the judge’s ruling about the evidence of Dr Ruth Caudwell. She had been involved in the care of the victim for some time. She made a statement dated 14 September 2008 which was served by way of what appears to be the third notice of additional evidence on 15 January 2009, the PCMH having been in June 2008. The statement referred to earlier reports which were served as unused material later in 2009.
The notice of additional evidence made it clear that Dr Caudwell’s statement would be read unless her presence was required. Unfortunately those advising the appellant did not require the attendance of the witness. This was notwithstanding that she had written in her statement: “Although [the victim] does have more falls than the average child of his age these would not be sufficient to cause the bruising found in March 2008”. The same point was made in the next sentences.
On the first day of the trial Miss Hamilton realised that Dr Caudwell’s presence was required. The prosecution understood that Dr Caudwell was on leave and that her whereabouts were unknown. The prosecution asked the judge for permission to read the statement. The transcript reads, in part:
JUDGE KHAYAT: Is there any objection?
MISS HAMILTON: There is an objection, your Honour, because she is the community paediatrician. So she has examined Stephen, both in 2006 and 2008. She raises important issues as to his mobility. So she is required by the defence.
JUDGE KHAYAT: That may be. But why were the prosecution told within the relevant period that she was required by the defence?
MISS HAMILTON: I am afraid I am not assisted. I cannot help. It is an error for which I have to apologize.
JUDGE KHAYAT: Well someone has to pay for the error. Why should it be the Crown?
MISS HAMILTON: Well your Honour, what we can say is that it is a very serious allegation. She is an important witness.
JUDGE KHAYAT: I know it is a serious allegation.
MISS HAMILTON: She is an important witness.
JUDGE KHAYAT: Yes.
MISS HAMILTON: If she was not available, I would submit that there is some duty on the Crown to let the defence know that she was not going to be here. It is not that she is a police officer. She is an expert witness.
JUDGE KHAYAT: No, no, you cannot shift the blame on to someone else. You chose -- or your solicitors chose -- not to bother to say, "We want this witness in court". Now that being the case, at the very last stage -- namely yesterday -- you then said, "No, no, I take the view she is very important and I want her here". Why, in those circumstances would it be unfair to say, "Well, they can make reasonable efforts to see if she can be here. But if she cannot, sorry, but she will have to be read"?
MISS HAMILTON: Because the nature of her statement is that she needs to be asked questions so the defence can advance the nature of the defence.
JUDGE KHAYAT: But that statement you had a long time ago.
MISS HAMILTON: The statement we have had, your Honour. But the difficulty is that we have had a tranche of unused material which is her two reports. They were served at a later date. I do not know when, because I do not have the front sheet relating to secondary disclose. But it is the unused material, namely, here reports, that are important. What is in them needs to be explored.
JUDGE KHAYAT: Yes thank you.
(To prosecution counsel): I will hear a fuller application at the relevant time, but almost certainly I take the view that you are likely to be able to read that statement.
MR GLENSER: I am grateful.
JUDGE KHAYAT: However, I do want an effort made to see whether she could be here back on time. I know you are telling me she is abroad. But, equally, you may have to make an application under section 116.
MR GLENSER: So be it, your Honour.
JUDGE KHAYAT: But you can only make it after you have made reasonable efforts to get her here. (Underlining added)
We are not sure what the judge meant by the words which we have underlined. The judge when using the word “pay” may have been referring to a possible wasted costs order. The risk of using such words is that the impression may be given that the defendant should be somehow punished for the failures of her legal advisers.
By the next day it had been discovered that Dr Caudwell was in the country in Yorkshire but snowed in. Miss Hamilton told us that given the judge’s stated view that “almost certainly I take the view that you [the prosecution] are likely to be able to read that statement”, she did not press the matter.
To his credit Mr Glenser decided, when reading the statement, to omit the sentence: “Although [the victim] does have more falls than the average child of his age these would not be sufficient to cause the bruising found in March 2008” and the following sentences to the same effect. He also agreed that the two reports which Dr Caudwell had prepared in 2006 and September 2008 could be read in. The reports showed that the victim had been admitted to hospital on two occasions as a young child with viral meningitis and then meningococcal meningitis. He had not walked until 19 months. He did not talk until 4 years.
The 2008 report referred to the fact that although he was able to walk and run and can run upstairs, he cannot run downstairs. It will be remembered that it was the appellant’s case that the principal injuries had been caused when the child fell downstairs. Dr Caudwell recited the foster mother’s concern in August 2008 that while the child gets the typical bruises on his limbs that children get during play, there seem to be more on his right arm and leg than his left. In the report he was described by Dr Caudwell as having “immature gross motor skills”. She concluded:
In my opinion, the nature and persistence of his difficulties with language and co-ordination, especially in the presence of normal growth and cognitive development, indicate an underlying problem with the brain. It is not possible to identify a specific medical cause, but the two episodes of meningitis may have contributed to this.
Miss Hamilton submits that the judge should not have dealt with the matter in the way that he did. We have to ask ourselves whether the fact that Miss Hamilton could not cross-examine Dr Caudwell renders the conviction unsafe. In our view it does not. If Dr Caudwell had given evidence it seems very likely that she would have said that the child’s condition would not be sufficient to cause the bruising found in March 2008. Thanks to Mr Glenser’s agreement to delete those words from her statement when he read it, the appellant was not denied a fair trial by reason of Miss Hamilton being unable to cross-examine Dr Caudwell. We reject this ground.
Miss Hamilton submits that the judge inadequately summed up this evidence (and that of the foster mother) which formed an important plank in the defendant’s case. Miss Hamilton makes the point as part of ground 3 but we shall deal with it now. In summarising Dr Caudwell’s written evidence the judge said:
The medical examination does show -- because we come back, now, to Doctor Caudwell -- when he was first examined and subsequently what Doctor Caudwell said was this. He had -- or the evidence was that he did have a mild loss of hearing in one of his ears and so from that point of view that might explain, because they were testing him for to see whether he was autistic, because they would say something and he would take a while to react.
In those circumstances, you will appreciate -- using logic and your knowledge of the outside world, he sometimes does not hear very well -- that it may take a while for him to figure out what exactly was being said to him. So that could slow him down.
But on achieving the various points in growing up he was a little bit slower than others -- that is the growth factor in it -- but that otherwise that did not affect him because that was mild in nature.
So far as running or walking, he could run upstairs but he walks downstairs. That may be relevant as to whether he ran and fell down the stairs, but that is something that you put into your deliberations. Also, he was steady and his feet. However, if he stood on one leg then he was not that steady and especially if it was the left leg. But otherwise he was steady and his feet and he was about average for a seven year old.
Another matter of general interest is he (sic) talks of development. He is left handed and so he would have some difficulty in writing and sometimes he inverted the letters that he was writing. Again, as you can well imagine, it is not unusual; it is a quite well known phenomena, that children do, especially if they are left handed because of the way they have seen things.
Miss Hamilton complains that the judge did not remind the jury of the evidence in the reports to which we referred above. Although he mentioned a mild loss of hearing and the fact that he was left handed, the judge did not mention, for example, the meningitis, the immature motor skills and the inability to run downstairs. We see some force in these submissions but, any failure to summarise the evidence more fully, would be insufficient to render the conviction unsafe by itself.
We turn to the third ground. Miss Hamilton submits that the appellant did not have a fair trial because of judicial hostility and bias. In Miss Hamilton’s words:
HHJ Khayat Q.C showed bias towards the defendant in a number of ways including:
• an indication that she would be tried in her absence even though her failure to attend court on time was the responsibility of those holding her in custody;
• sending her to the cells when she called out from the dock thereby sending a message to the jury that she was a disruptive person whereas she had barely spoken;
• allowing sarcastic and unnecessarily punitive cross-examination by prosecution counsel;
• allowing cross-examination that suggested reprehensible behaviour on the part of the defendant on which there was no evidence or bad character application (that Miss McCluskey reported Mr. Straughn merely to get a crime reference number for the Benefits Agency);
• refusing to allow defence counsel to present her speech without interruption;
• failing to properly correct his own error in summing-up when this had been pointed out by defence counsel. The Learned Judge erred in his summary of Maxine Offley’s statement [the foster mother]. What she told the police was “I have received 14 reports from Stephen’s school since he has been in my care. These refer to incidents where Stephen has hurt himself though he has not suffered a bruise on each occasion. 8 of these 14 incidents state ‘bumped head to head’”. The Learned Judge did not correct the omissions.
...
• failing to accept that Miss McCluskey had not committed a Bail Act offence when there was no evidence to the contrary;
• interrupting Lee Barlow during his evidence [“get to the point” “answer the question that had been put] who confirmed that Miss McCluskey was a loving and gentle mother. In his summing up the Learned Judge referred to Mr. Barlow’s evidence but made no mention of the fact that Mr. Barlow found Miss McCluskey to be a good mother to Stephen. [In the course of argument Miss Hamilton told us that the judge had also said to Mr Barlow words to the effect “So you had to leave her also”]
Instead, the Learned Judge used the evidence as a further opportunity to cite Miss McCluskey as a person who Mr. Barlow had to get away from to clear his drug habit;
It is submitted that the overall effect of hostility towards Miss McCluskey and her counsel was cumulative and caused her prejudice in the eyes of the jury.
As to the issue of the Bail Act offence, the background to this was as follows. The trial started on 14th December 2009, some 21 months after the incident for which the appellant faced trial. The delay may well have been due in part at least to the appellant’s pregnancy. A tragic letter written by the appellant to the court in late November (and which was, we are told by Miss Hamilton, before HHJ Khayat), explains that on 2nd November she had given birth to a daughter and that the child was immediately taken into care and the appellant was informed that she would be adopted. She wrote that she and her partner were devastated: “If I lose my newborn daughter, my life is not worth living”. She admitted that she had wrongly walked out of the care centre with her daughter and returned her within some 15 minutes. She made serious complaints about her solicitors’ failure to conduct the case properly, complaints which, on the face of it, were not unfounded. The trial would have started on the 7th of December but the appellant failed to attend and a warrant was issued for her arrest. Miss Hamilton submits that the judge persisted in examining whether the appellant had committed a Bail Act offence on 7th December when he ought not to have done. Miss Hamilton wrote in her advice:
On 14th December, at approximately 15h30, the learned judge concluded the day by having a Bail Act offence put to Miss McCluskey. The defendant gave clear instructions that she was not aware of the hearings on 3rd or 7th December 2009 as the solicitors had not informed her of them. There were no solicitors in attendance and these details could not be clarified. The judge ordered that a list officer should attend and verify whether or not the solicitors had been notified. Whilst waiting for the officer, information came from the list office that the relevant officer could not attend. His Honour Judge Khayat commented that the delay was being caused due to defence counsel’s failure to accept that Miss McCluskey was guilty of the Bail Act offence. He asked defence counsel “Do you agree that she failed to attend this court when required to do so? Why are you refusing to accept it?” There was no evidence that Miss McCluskey had ignored correspondence. It illustrated the bias and animosity that the judge felt towards the defendant and demonstrated that he expected Miss McCluskey to be dealt with in an expedient rather than a fair fashion.
We do not feel that it is necessary to decide this issue in particular because the jury knew nothing about it.
Miss Hamilton also complains that the judge on the first day of the trial gave an indication that she would be tried in her absence even though on 14 December she was in custody and even though the prosecutor had been delayed by the weather and had not arrived. She submits that this demonstrated that he was not treating the appellant fairly from the start.
We turn to the judge’s decision in the presence of the jury to order the appellant’s removal from the dock. Evidence was being given by a doctor who described that the child’s toenails had not been trimmed for some time and were curly (it is not immediately apparent why this was relevant on the charge of assault). The appellant said (although the recording device did not pick it up): “That’s not right.” The judge immediately said to the defendant “Be quiet” and to the dock officer “Take her down”. She was taken down on the way saying “This is shit”. In the presence of the jury Miss Hamilton said that she wished to raise something. The transcript reads:
MISS HAMILTON: Your Honour, I wish to raise something.
JUDGE KHAYAT: I am sorry?
MISS HAMILTON: I wish to raise something before the evidence continues.
JUDGE KHAYAT: Certainly. You are dropping your voice.
MISS HAMILTON: I wish to raise something, your Honour, before the evidence continues.
JUDGE KHAYAT: Yes. What is it you want to raise?
MISS HAMILTON: That this is the most important part of the trial.
JUDGE KHAYAT: That may be. But if she chooses to be disruptive, she would know that she cannot remain in court.
MISS HAMILTON: Well, your Honour, it is disruptive, but it is a very emotional part of the trial. In this case it is talking about her son.
JUDGE KHAYAT: No, that does not give any reason at all.
MISS HAMILTON: And she is entitled to hear this evidence.
JUDGE KHAYAT: Let us not talk over each other. I will give you an opportunity if you want, to go and have a word with her and say if she behaves, she is welcome to come back. It is her right to be in court. Equally, it is her duty to remain silent.
MISS HAMILTON: I understand.
JUDGE KHAYAT: If she wants to turn it into a market place shouting match, she will go downstairs. It is as simple as that. I will not tolerate this behaviour.
MISS HAMILTON: I will explain that.
JUDGE KHAYAT: I will give you 15 minutes to do so and we will take it from there. (Inaudible).
(The court adjourned for a short while at 2.50 p.m.)
(The court re-convened at 3.12 p.m. and the following occurred in the absence of the jury.)
JUDGE KHAYAT: Yes.
MISS HAMILTON: Your Honour, I am grateful for the time and I apologize on Miss McCluskey's behalf. There will be no further disruptions.
JUDGE KHAYAT: I will say before the jury come in, the slightest disruption -- and dock officer you hear this -- the slightest disruption and out she goes.
Thank you. We will have the jury back.
The appellant had not interrupted before.
Miss Hamilton submits:
It is submitted that the learned judge’s response was swift, excessive and prejudicial to the defendant. He gave the jury the impression that this was a woman who had to be contained and quietened. Given the nature of the case, such a reaction to Miss McCluskey’s single outburst could only have dimmed her further in the eyes of the jury. It is commonplace for defendants to be warned about their behaviour before being removed from the court. Miss McCluskey, however, was given no time to apologise or compose herself. It is submitted that the extreme response served no purpose in the proceedings and was a symptom of the judge’s bias against her which was, as a result, communicated clearly to the jury. It was an additional illustration that His Honour had no intention of treating her as a mother who was distressed to see freshly produced photographs of her son, and every intention of ensuring that the jury viewed her in the worst possible light.
As Miss Hamilton points out the appellant was in the puerperium period and had had immediately after birth her newborn daughter removed and she had later learnt that the child would be adopted. Whilst accepting that trial judges have a difficult task to perform and must be given considerable latitude to conduct cases as they see fit, we see no justification for the manner in which the appellant was treated.
Mr Glenser denies that he was sarcastic and punitive. Although we see force in Miss Hamilton’s criticism of the questions suggesting that the appellant had made up the “robbery” in order to obtain child benefit, we are unable on the material available to us to resolve the issue between the parties.
Miss Hamilton complains about how the judge treated her request just before the adjournment on Thursday 17 December to make her speech the next day. The transcript reads as follows:
JUDGE KHAYAT: Miss Hamilton, how long might you be?
MISS HAMILTON: About 25 minutes, your Honour.
JUDGE KHAYAT: So we better have ten minutes of that now and the rest tomorrow. Thank you.
MISS HAMILTON: I would like to do it all in one, please, your Honour.
JUDGE KHAYAT: Yes, I know. But I do not want to waste time so please start.
MISS HAMILTON: Well, I would like to do my speech all in one, please. I have only just finished the end --
JUDGE KHAYAT: No. I have said -- my ruling is no.
MISS HAMILTON: Your Honour, yes.
JUDGE KHAYAT: Do not question the ruling. Get on with it.
We are told by both counsel that after seven minutes of the speech, the judge interrupted Miss Hamilton and told the jury it was time to stop.
All that we feel able to say is that many judges would not have behaved in this manner and would have treated the request with more respect.
Miss Hamilton complains that the judge “reacted to every application or objection made by defence counsel with lack of courtesy, boredom, eye-rolling and hostility”.
Mr Glenser told us that, in his view, the judge treated both counsel in an even-handedly robust way. He gave an example of his own treatment. He stood up to thank the judge for allowing him not to be present on the last day. The judge immediately said in a sharp tone of voice: “Be quiet, sit down, I will not be interrupted…” before he had said anything. Mr Glenser described the judge as wanting to run a “tight ship”.
Mr Glenser submits that at the end of the day the appellant had a fair trial and that the medical evidence against her was very strong. Miss Hamilton submits that given that the appellant was a drug addict who had had pleaded guilty to the neglect of the child (evidence about which the jury heard in detail), it was particularly important that the judge treated her and her counsel fairly and in an impartial manner.
We have considered the appeal with some care. On balance and notwithstanding the strength of the prosecution case, we have reached the conclusion that in the light of what we have said about grounds 1 and 3, the appellant unfortunately did not receive the fair trial to which she was entitled so that her conviction is unsafe.
We have already commented on the latitude which must be given to trial judges to conduct cases as they see fit. Nothing we say in this judgment is intended to be prescriptive let alone unduly prescriptive. Nor is anything said in this judgment intended to discourage trial judges from taking robust case management decisions. To the contrary. But the position here is that the complaints to which we have acceded under grounds 1 and 3, especially taken cumulatively, took the matter outside the wide and permissible ambit of the judge’s case management powers.