Rogers, R v

These three appeals were heard together as they gave rise to general questions as to the circumstances in which s.23 of the Criminal Appeal Act 1968 (the 1968 Act) applies to fresh evidence or other information which an appellant may seek to adduce before this court on an appeal against sentence.

As was made clear in the judgment of Lord Bingham CJ in R v A&B (Informer: reduction of sentence) [1999] 1 Cr App R (S) 52 at 56, the Court of Appeal Criminal Division is, in relation to sentencing, a court of review. Its function is to review sentences passed below and not to conduct a sentencing hearing.

However, it is clear that s.23 of the 1968 Act (as amended) permits the court to receive fresh evidence on appeal against sentence (as that term is defined in s.50 of the Act), provided the conditions set out in the section are met.

“(1)

For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice—

(a)

order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;

(b)

order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and

(c)

receive any evidence which was not adduced in the proceedings from which the appeal lies.

(2)The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to—

(a)

whether the evidence appears to the Court to be capable of belief;

(b)

whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c)

whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d)

whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

(3)Subsection (1)(c) above applies to any evidence of a witness (including the appellant) who is competent but not compellable.

(4)For the purposes of an appeal under this Part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.”

There are circumstances, to which we refer at paragraphs 8 to 10, where the court will consider updates to information placed before the sentencing judge without the conditions in s.23 being applied, but otherwise s.23 of the 1968 Act is by its express terms of general application to all sentencing appeals.

In approaching s.23 of the 1968 Act, a court must always have in mind the observations of Lord Judge CJ in R v Erskine [2010] 1 WLR 183, [2009] 2 Cr App R 29, [2009] EWCA Crim 1425 at paragraph 39:

“Virtually by definition, the decision whether to admit fresh evidence is case- and fact-specific. The discretion to receive fresh evidence is a wide one focussing on the interests of justice. The considerations listed in subsection (2) (a) to (d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the “interests of justice” test will be satisfied.”

Thus the general principles in relation to the admission of fresh evidence in appeals against conviction will generally apply. In the context of one of the appeals before us (Georgina Rogers), where expert evidence was adduced before the sentencing judge as to whether a dog was dangerous, the principles set out by Lord Bingham CJ in R v Steven Jones [1997] 1 Cr App R 86 apply:

“Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury. If it is said that the only expert witness in an established field whose opinion supports a certain defence was unavailable to testify at the trial, that may be thought (save in unusual circumstances) to reflect on the acceptability of that opinion.”

In sentencing appeals the court will scrutinise intensely any application to give a factual explanation that was not before the sentencing court. The terms of the Criminal Practice Direction make clear the procedure which should be followed in relation to establishing the factual basis for sentencing: see R v Thames Water Utilities [2015] EWCA Crim 960, [2015] 1 WLR 4411 at paragraphs 8-12 and 24-25. It is therefore the duty of all advocates to deploy before the sentencing judge all the evidence, information and other material on which they seek to rely.

The circumstances in which the court will receive updated information not before the trial judge were described by Lord Judge CJ in R Roberts, R v Caines [2006] EWCA Crim 2915, [2007] 1 WLR 1109 at paragraph 44:

“From time to time, the court will be provided with updated information about the offender. This sometimes takes the form of prison reports, sometimes confidential information from the police. The sources vary. The information may serve to show, for example, that the prisoner has provided considerable assistance to the police; sometimes aspects of the mitigation are significantly underlined in a way which may not have been as clear or emphatic in the Crown Court; sometimes the information may indicate that the offender has made significant progress since the sentence began, a feature particularly relevant in cases involving young offenders. The formal procedures for the admission of fresh evidence are not followed. This court simply considers the evidence before it. So, for example, if a young offender has responded positively to his custodial sentence, and his progress is such that it may be counter-productive for him to serve the sentence actually imposed, it may be reduced on appeal, or changed to a non-custodial disposal, without any implied criticism of the decision of the Crown Court. In short, post-sentence information may impact on and produce a reduction in sentence (for a recent example of post-sentence evidence bearing on and explaining aspects of mitigation, with a consequent reduction in the minimum term following conviction for murder, see R v Sampson [2006] EWCA Crim 2669 ).”

As was explained in R v Beesley and Coyle [2011] EWCA Crim 1021, [2012] 1 Cr App R (S) 15 at paragraphs 33-36, the exception is strictly limited. It will include updated pre-sentence and prison reports on conduct in prison after sentence, but not fresh psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made. In such a case, the court will apply the provisions of s.23: see R v Hughes [2009] EWCA Crim 841 and [2010] EWCA Crim 1026 and R v Vowles [2015] EWCA Crim 45, [2015] 1 WLR 5131 at paragraphs 3 and 4. Compliance with s.23 is necessary for two reasons. First, because it is incumbent on those acting for the defendant to call all the evidence before the sentencing court, persuasive evidence is required to explain why it was not all called. Second, the court must consider whether it is in the interests of justice that it should be admitted notwithstanding that failure. If the advocate representing the applicant before this court did not represent the applicant at the trial or sentencing hearing, that advocate must obtain information from the advocate previously instructed as to why the evidence was not called: see R v Roberts [2016] EWCA Crim 71 at paragraph 40.

Another limited exception is an updated text, but the circumstances in which this exception will apply are likely to be highly unusual for the reasons explained in R v AXN and ZAR [2016] EWCA Crim 590.

In the third appeal before us (Beaman) we were invited to conduct in this court a Newton hearing or a hearing analogous to that. In R v Guppy (1995) 16 Cr App R (S) 25, this court conducted such a hearing in a case where the defendant wished to rely on certain alleged facts solely by way of disputed matters of mitigation. In such circumstances it was held that the evidential burden lay on the defendant to establish those facts on the balance of probabilities. In R v Malook [2011] EWCA Crim 254, this court considered reviewing the findings made by the judge in a Newton hearing on the basis of fresh evidence before the court, as the court had no power to remit the matter to the Crown Court. It is not necessary to consider the position further, as it is clear that there is no basis for such a hearing in this court in the appeal in Beaman - see paragraph 126 below.

GEORGINA ROGERS

On 7 November 2014, the appellant, Georgina Rogers, pleaded guilty at the Crown Court at Wood Green to being the owner of a dog which caused injury while dangerously out of control in public contrary to s.3 (1) of the Dangerous Dogs Act 1991; she also pleaded guilty to being the owner of a dog dangerously out of control. On 16 June 2015, Georgina Rogers was sentenced by Mr Recorder Etherington QC to a community order with an unpaid work requirement of 175 hours. A Destruction Order was made under s.4 of the 1991 Act in respect of the dog “Bailey” and a contingent Destruction Order under s.4A of the Act in respect of the dog “Socks”.

Her application for leave to appeal in respect of the Destruction Order was referred to the Full Court by the Single Judge.

A Newton hearing was begun before the judge, but not concluded as the facts became clear. As summarised by the judge in his very clear and helpful sentencing remarks, the facts were as follows.

Shortly before 8 o’clock in the morning on 30 June 2014 Georgina Rogers was walking her two Staffordshire bull terriers, Bailey and Socks, in Watling Park Burnt Oak, London, HA8, near to a children’s play area, although there were no children there at the time. Socks is a male and then 10 years old; Bailey is a bitch and was then around 7 years old. Georgina Rogers had owned the dogs for several years, Bailey since she was a puppy.

Both dogs were on leads, but Bailey’s lead was retractable, extending its reach out of the appellant’s control. The judge found that it was a wholly inappropriate type of lead for an untrained dog especially one which was known to have behavioural issues, as Georgina Rogers accepted was the case in respect of both her dogs. The dog should have been on a short lead.

The dogs became involved in a fight with a Rhodesian Ridgeback named Zeus which was being walked by Mr John Gadigbe. Zeus should have been, but was not, muzzled. It was, the judge found, a frightening incident. The judge found it unnecessary for sentencing purposes to resolve a factual issue as to which of the dogs began the fight. At least two of the dogs, including the Ridgeback, were injured.

The judge found that Georgina Rogers had no idea how to bring either of her dogs under control, and lacked the strength or training to manage them, if they became involved in an incident such as this. She was running a serious risk taking them both out together into a public park without having the first idea of how to control them, using a retractable lead for one of them. Inevitably something would go wrong, as it did.

Another dog walker, Richard Bingley, spotted the fight and intervened to try and assist. He tethered his own three dogs to a tree. At some point during the disturbance, Bailey slipped her lead, ran off and attacked one of Mr Bingley’s tethered dogs, an Irish terrier, biting that dog’s hind leg. Mr Bingley tried to protect his dog and suffered serious bites to his hand, knees and ankle. The injury to his hand was so severe that he had to stay in hospital and missed five days’ work. It was fortunate that his hand was not permanently disabled. The judge rejected any suggestion that Mr Bingley was in any way to blame for his own injuries.

The judge found that Georgina Rogers had quite a limited understanding of why what had happened, happened. She had not the first idea what to do to control Bailey when it broke away from her to attack the other dog

Georgina Rogers adduced evidence before the judge in a written report dated 9 June 2015 from an independent expert, Dr Duncan Davidson, a Member of the Royal College of Veterinary Surgeons. Dr Davidson had graduated in Veterinary Science in 1975 and had been a principal of a small-animal veterinary clinic in the Home Counties since 1985. He ran a behavioural clinic for the treatment of behaviour problems in all domestic species. He had provided expert evidence for very many years in relation to dogs in both the criminal and civil courts. He had studied aggressive behaviour in dogs and was a member of numerous committees. He confirmed that he had complied with the requirements of what is now Crim PR Part 19 and that he had acted in accordance with the code of practice for experts.

In his report Dr Davidson stated he had examined Bailey on 22 December 2014 with his professional colleague, Jennifer Dobson, a Certificated Clinical Animal Behaviourist, whom he described as a highly skilled and experienced dog handler and trainer. Bailey was in a cage and then removed from the cage.

He described Bailey as “very excitable”. She was wary and defensive if handled around the legs and feet and threatened to bite if attempts were made to touch these, with a distinct warning growl and sharp threatening head movements, and a sharply waving tail (which Dr Davidson described as usual with agitated behaviour). It was not considered safe to examine her physically and completely as a result of her temperament. She had an excitable response to a jogger in her proximity.

Bailey became very excited when a middle-aged, calm, non-aggressive Labrador bitch was walked nearby, despite the fact that the Labrador was mostly ignoring it; she pulled very hard on her tether in attempts to get at the Labrador. Dr Davidson described Bailey as a large dog, over twenty inches in height and at least twenty five kg in weight, and said that even if muzzled she would have the strength to barge into or knock people over if running excitedly towards them.

Bailey was resentful to lead restraint at times, and also showed frustration at her tether restraint on several occasions. Dr Davidson said that although Bailey was basically companionable and interactive, and probably very friendly with people with whom she was familiar, she was most certainly not a dog that he would regard as being safe in any public place, except on a lead and wearing a muzzle, due to potential dog to dog aggression and her likely response to any challenge, her attempted chase behaviour and the tendency to use her mouth and teeth to grab at objects and hands in certain circumstances. She would require very strong and very confident handling, even if on a lead and muzzled, due to its limited tolerance of restraint. The court would have to be sure, if it decided to impose a contingent destruction order, that any person walking the dog in a public place would have the strength and ability to prevent the dog again escaping from restraint and causing apprehension or injury or damage by running and barging at any passer-by or any dog.

Dr Davidson concluded that, although potentially containable and controllable when muzzled and held on a leash, Bailey was “inherently a potentially dangerous dog”, and that would be:

“particularly dangerous if there was ever any occasion where:

i)

She might escape into a public area, un-muzzled, and come into close contact with people or animals with whom/which she was not familiar.

ii)

She might be able to remove her own muzzle, or have her muzzle removed, whilst in any public place, including a place to which the public have access, and feel challenged by people or dogs with which she was unfamiliar, where she might rise to that challenge with aggression, or displace her aggression on other persons or dogs in proximity.

iii)

She might feel challenged by persons unfamiliar to her conducting legitimate business at any address at which she was staying, and while she was not muzzled and controlled on a lead.”

He set out what he considered would be necessary if a contingent dog destruction order was made.

The offence under s.3(1) to which Georgina Rogers pleaded guilty is an aggravated offence as a person had been injured. S.4(1)(a) provides that the court must order the destruction of the dog where an aggravated offence was committed under s.3(1). However that consequence is qualified by s.4(1A):

“(1A) Nothing in subsection (1)(a) above shall require the court to order the destruction of a dog if the court is satisfied—

(a)

that the dog would not constitute a danger to public safety; and

(b)….

(1B) For the purposes of subsection (1A)(a), when deciding whether a dog would constitute a danger to public safety, the court—

(a)

must consider—

(i)

the temperament of the dog and its past behaviour, and

(ii)

whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog, and

(b)may consider any other relevant circumstances.”

It is clear that the judge must consider both the temperament of the dog and the capability of the owner. In R v Flack [2008] EWCA Crim 204, [2008] 2 Cr App R (S) 70, this court summarised at paragraph 11 relevant considerations applicable.

In the light of the evidence of Dr Davidson, which the judge set out at length in his sentencing remarks, the judge concluded that he could not possibly say that Bailey posed no danger to public safety, and accordingly he was required by law to order her destruction. He made a contingent destruction order in the case of Socks, recording that he had given considerable thought to ordering his destruction.

Miss Pamela Rose, who had not appeared for Georgina Rogers before the sentencing judge, contended on the application for leave to appeal that we should hear the evidence of another Member of the Royal College of Veterinary Surgeons, Dr Kendall Shepherd. She sought leave to adduce her evidence as contained in a report dated 29 August 2015 under s.23 of the 1968 Act. Miss Rose contended in her opening submissions that we should hear the evidence as the subject matter was a dog, the question was a matter of life and there was no graver penalty for a pet. Whilst she did not suggest that Dr Davidson was not a well-qualified expert, Dr Shepherd was an eminent dog psychiatrist and recognised as having a wealth of expertise in the field of small animal behaviour; she had examined Bailey on her own and (unlike Dr Davidson) she had video recorded the examination. Miss Rose also relied on a joint report signed by Dr Shepherd and Dr Davidson dated 2 May 2016.

In the alternative Miss Rose argued that on the basis of the evidence of Dr Davidson, the judge was in error to have ordered the destruction of Bailey. He should have made a contingent order.

In the course of the hearing of the appeal, when the court asked for an explanation of the circumstances in which the joint report of 2 May 2016 had been agreed by Dr Davidson and Dr Shepherd, it emerged that:

After giving Miss Rose time to take full instructions and hearing further submissions, we decided in the light of the matters that had emerged to receive de bene esse the written and oral evidence of Dr Kendall Shepherd, leaving over until our judgment the issue of its admissibility under s.23 of the 1968 Act.

Dr Shepherd graduated in Veterinary Science in 1978. She had worked in a number of capacities, and since 1999 had specialised in animal behaviour and the links between medical and emotional disorders. She was the first veterinary surgeon to be accredited by the Association for the Study of Animal Behaviour (ASAB) as a Certified Clinical Animal Behaviourist; she had been a full member of the accreditation committee of the ASAB. She had worked closely with universities on the subject of animal behaviour. She had acted on many occasions as an expert. She was a contributor to the British Small Animal Veterinary Association Manual of Canine and Feline Behaviour. She also served on many bodies associated with small animals and their behaviours and had been actively engaged in peer review in the newly emerging field of animal behaviour.

In her report of 29 August 2015 which was accompanied by a DVD of her examination of Bailey, she described her examination of Bailey on 19 August 2015. She described Bailey as immediately friendly and showing no sign of aggression. She then carried out several tests and examinations which were fully described and shown on the DVD. Bailey showed no aggression even when Dr Shepherd’s dog was circling around her. Her conclusion was that she saw no evidence of aggression.

She accepted that Bailey was an excitable and boisterous dog. Bailey had a predisposition to respond adversely to other strange dogs. In Dr Shepherd’s opinion, Bailey did not need to be destroyed and public safety could be addressed by Bailey being kept on a lead and muzzled at all times in public places. Bailey’s owner should also take instruction from a qualified behaviourist to improve Bailey’s view of other dogs, general compliance and to reduce her tendency to be over-aroused.

In her oral evidence Dr Shepherd explained the importance in her view of the proper approach to the control of a dog and that the use of inappropriate leads could have adverse consequences. She was very critical of Dr Davidson and his lack of expertise as a behaviourist. In her view he was not qualified to give evidence. She had not met Georgina Rogers.

In answer to questions from counsel for the prosecution she said she did not know why Dr Davidson had changed his mind. Her answers to counsel’s questions showed she was unfamiliar with the provisions of the Criminal Procedure Rules relating to expert evidence.

Although Dr Davidson was present in court throughout the hearing of the appeal Miss Rose told the court that she was not going to call him to give evidence. As counsel for the appellant, she was fully entitled to make that decision.

After the conclusion of the evidence we afforded to the prosecution, Georgina Rogers and Dr Davidson the opportunity to make submissions.

It was the submission of the prosecution that we should afford little weight to the assessment of Dr Shepherd. The judge had found that Georgina Rogers was not able to control the dog. Substantial criticism could be made of Dr Shepherd’s evidence and her approach to the giving of expert evidence, but her evidence, even if accepted, could not displace the careful assessment of the judge who had taken the greatest care in assessing Georgina Roger’s ability to control Bailey.

It was submitted on behalf of Georgina Rogers that the DVD taken of the examination by Dr Shepherd together with her careful evidence showed that Bailey was a dog that could be safely made the subject of a contingent destruction order. That evidence should be admitted, supported as it was by Dr Davidson.

Dr Davidson made clear that, as he had not been asked to give evidence, he would not comment on the evidence or give any explanation of his position, other than to say that the court should not criticise him, because it had not heard from him.

As was properly accepted by Miss Rose, the way in which the expert evidence was presented to this court and to the judge was, as is evident from what we have set out, wholly unsatisfactory. There were obvious issues which arose from the matters we have set out, but as Dr Davidson did not give evidence, it would not be right for us to make any express findings in relation to his conduct. Nonetheless we must make clear that we were provided with (1) no explanation as to why the report before the judge had the opinion about Socks excised, (2) why Dr Davidson had agreed with the opinion of Dr Shepherd in May 2016 without providing any explanation and without disclosing to the court the existence of his unexcised report and (3) why the joint report did not set out the matters to which we have referred at paragraph 33 above. It would not be fair to Dr Shepherd or to Dr Davidson for us to make any further comments about their professional position other than that which is necessary to determine this appeal.

In addition there was a significant dispute between the experts as to issues relating to qualifications, expertise and to the video recording of examinations. Dr Shepherd appeared to insist, for example, that only those certified as Clinical Animal Behaviourists are sufficiently qualified to give evidence in this kind of case. We would invite the Royal College of Veterinary Medicine (to whom a copy of this judgment will be sent) to consider whether it should give guidance on these and other matters which would prevent similar disputes arising in the courts in the future. Very important issues relating to the safety of the public and very strong feelings on the part of owners and those injured by dogs can arise in cases under the Dangerous Dogs Act. For this reason it is a matter of some importance that the court should be able to have confidence that a person put forward as having the requisite expertise to give an opinion about matters, such as temperament, going to the heart of the issue whether a dog poses a danger to public safety, is appropriately qualified to express that opinion, and has sufficient data to support it.

As we have set out at paragraphs 28-29, an important issue, which in many cases will be determinative, is the capability of the owner of the dog to control it. This was an issue to which the judge gave the most careful consideration. There is no basis on which it could be contended that the findings he so carefully made could be in any way criticised.

The expert evidence must therefore be considered in the light of those findings of the judge which were seriously adverse to Georgina Rogers.

It is in our view first necessary to consider the evidence that is before us in relation to Dr Davidson’s original opinion as put before the trial court in his report of 9 June 2015 which had excised his opinion about Socks.

Although, as we have stated, we do not make any detailed comment in relation to Dr Davidson’s conduct in excising all reference to Socks from his report, the weight the judge was entitled to place on his evidence would have to be re-evaluated in the light of the evidence, if we admitted it, that at the request of the solicitors then instructing him, he agreed to withhold from the judge his expert opinion on Socks in respect of which it must have been appreciated that the judge would consider making a destruction order. Although we see the force of the contention of the prosecution that this withholding may not adversely have affected the judge’s decision in relation to Bailey, it must be in the interests of justice to admit the evidence in the report of 24 December 2014 under s.23 of the 1968 Act that an opinion in respect of Socks had been withheld from the court, especially since that opinion was based on an evaluation of the behaviour of both dogs on the same occasion and in each other’s presence.

Furthermore, Dr Davidson accepted without qualification in his joint report with Dr Shepherd dated 2 May 2016 the view of Dr Shepherd that Bailey did not present a danger to the public per se. Although we again see the force of the view that little weight can be attached to this opinion, as the opinion was not backed by reasoning, it nonetheless undermines, to an extent, the opinion on which the judge relied. Again it must be in the interests of justice to admit that report under s.23. It follows, on the evidence that we have admitted, that the expert evidence before the judge may not have been as reliable as he believed it to be. However, Dr Davidson’s opinion on the threat to public safety, if Bailey is not properly controlled, remains valid. The result is that, on any view, the appellant cannot rely on Dr Davidson’s opinion to support the suggestion that Bailey is not a danger to the public. The alternative grounds of appeal which we have summarised at paragraph 32 must therefore fail, even if it could be argued that the evidence was sufficient, which it was not, to have allowed the judge to make a contingent order.

For the reasons we have given, this is an extraordinary case in that what has been put before us by the appellant has undermined the evidence of an expert on whom the appellant sought to rely at Crown Court. Yet even if that evidence had not been undermined, it did not establish that Bailey posed no danger to public safety, and the Judge’s evaluation of the owner’s inability to control her would have provided an insurmountable obstacle to a successful appeal in any event.

Should we admit the other evidence of Dr Shepherd contained in her report of 29 August 2015 and her oral testimony? It is clear from the decision in R v Stephen Jones that it is not usually permissible to adduce expert evidence which could have been called before the judge.

We have very carefully considered Dr Shephard’s evidence. However, we cannot see any basis on which we should admit it, as the conditions in s.23 have not been satisfied. It was available to be called at the trial. We cannot consider that it is reliable; it did not appear that Dr Shepherd had a sufficient understanding of the duties of an expert in the context of this case; moreover the joint report from her and Dr Davidson had been put before us without in any way disclosing the matters to which we have referred in paragraph 33 as we have observed at paragraph 45 above. In any event the evidence would not have made any difference. She described Bailey as an “excitable and boisterous dog” with a “predisposition to respond adversely to other strange dogs”. Bailey displayed that predisposition on 30 June 2014 by attacking at least one dog who was no threat to her and the dog’s owner. There is plainly a threat to public safety unless Bailey is kept firmly under control at all times. We have seen in the DVD recording the way Bailey behaved when under the control of Dr Shepherd, but Dr Shepherd’s evidence did not deal with the ability of Bailey’s owner, Georgina Rogers, to control Bailey. The judge made very clear findings on this issue (as we have made clear at paragraph 47) and there is nothing which in any way addresses those findings.

Although we have some sympathy for Georgina Rogers and the position in which she finds herself, it is, in our view, clear that the judge made a decision which, even if we admitted the evidence of Dr Shepherd, contrary to the views we have expressed, there is no basis on which the appeal could succeed.

Although in the circumstances we grant leave to appeal, we dismiss the appeal.

TAPECROWN LIMITED

The applications by Tapecrown Limited (“Tapecrown”) arise out of Orders made at the Crown Court at Oxford after Tapecrown had pleaded guilty on 6 March 2015 to four counts of knowingly causing or permitting the operation of a regulated facility and one count of operating a regulated facility at the site without a permit in contravention of Regulation 12 and Regulations 38(1)(a) and (b) of the Environmental Permitting (England and Wales) Regulations 2010 (the 2010 Regulations).

The applications are for:

At the hearing of the applications we dismissed each of these applications for reasons to be given later. These are our reasons.

All commercial waste activities are regulated by the Environment Agency. Whenever waste is stored or treated, the operator is required to hold an environmental permit, or, if the waste activities are low risk, to register an exemption from that requirement. Regulation 38(1)(a) of the 2010 Regulations makes it an offence to operate a regulated facility without an environmental permit (or exemption).

Chowle Farm was a site managed by Tapecrown’s co-accused, David Crossley-Cooke, who was described by Tapecrown’s sole director, Mr Ismail, as the company’s “authorised surveyor”. Crossley-Cooke denied being an officer of the company, although he was the sole point of contact for the Environment Agency and acted as the face and voice of Tapecrown throughout the period to which the charges related.

Between April 2010 and June 2013 various waste operations took place at the Chowle Farm site. No exemptions or permits were in force for any operation at the site, and the waste activities were unlawful.

On numerous occasions between April 2010 and March 2011, environment officers attended the site and saw, amongst other things, skips filled with a variety of different types of waste, large piles of waste on the ground, and frequent occurrences of waste being burnt on a large scale.

In December 2011 David Ham, who operated a skip hire business at the site, pleaded guilty to depositing controlled waste and operating a regulated facility without a permit. When Ham’s operations ceased, large piles of waste were left behind. He was ordered by the court to remove them, but he failed to do so. In July 2013 Ham pleaded guilty to further offences of failing to comply with a court order to remove waste and keeping controlled waste likely to cause pollution to the environment or harm to human health.

Another person, Wayne Clarke, pleaded guilty on 17 December 2012 to one offence of operating a regulated facility (recovering metal components from wheels of vehicles and storing or depositing the tyres) without an environmental permit at the site between 31 October 2011 and 4 January 2012.

On 17 December 2012, environment officers discovered yet another person, Philip Cook, operating a mini digger in the area where Ham’s waste remained. Cook stated that he had been tasked by Crossley-Cook to tidy up and sort out and extract hardcore from the waste to use in filling in a hole at the equestrian centre on Little Coxwell estate. One of the officers of the Environment Agency, Mr Cave, visited that estate and spoke to Crossley-Cooke, who admitted that he intended to put the hardcore into the land and cover it with dressing.

On 12 April 2013, Mr Cave visited the Faringdon site, and noted that further tyres were stacked in an abandoned Portakabin and on the hard standing outside, which had not been present at his last visit on 16 January. On 1 May 2013, on a further visit, he noted further tyres recently cut from their rims deposited in unit 5. He photographed these tyres and tyres on the apron outside unit 5, on the hard standing further out, and in the old Portakabin. These tyres remained where they had been deposited until at least 5 June 2013.

Tapecrown was charged with four counts of knowingly causing or permitting the operation of a regulated facility and one count of operating a regulated facility at the site without a permit in contravention of Regulation 12 and Regulations 38(1)(a) and (b) of the 2010 Regulations. The counts related to various periods within an overall period of three years up to and including 5 June 2013.

The prosecution contended that the company’s officers (including for these purposes Crossley-Cooke) knew that the unlawful waste operations were taking place, given the prolonged period during which they occurred. The Environment Agency relied on the fact that they had written to inform Tapecrown what had been witnessed; the fact that Crossley-Cooke was present during many of the Environment Agency visits and lived a few hundred metres from the site; and the fact that local councils had written to the company expressing concerns. Ham and Clark both remained paying tenants at the site after the company was informed that offences were being committed. No adequate steps were taken to remove the operators from the site or to prevent waste being brought onto, kept, or treated on the site.

On 6 March 2015 at the Crown Court at Oxford, Tapecrown changed its plea to one of guilty to all the charges.

On the same date, it entered into an agreement with the Environment Agency under which the latter undertook to offer no evidence against Crossley-Cooke (who had been charged with consenting to or conniving in the commission by Tapecrown of the offences) provided that Tapecrown complied with certain conditions, including the removal of the waste from the site by 6 June 2015. However, Tapecrown failed to comply with those conditions.

Before us, Mr Cramsie (who did not appear in the court below) sought to argue that no undertaking was given to the court by Tapecrown; that the judge was wrong to characterise the agreement in that way. However, that was, in our view, purely an argument about semantics. In substance, Tapecrown was agreeing to take certain steps that were otherwise likely to have been imposed on it by order of the court; it was in effect an undertaking. Although this agreement had the attraction for Tapecrown of not being expressed in a form which would lead to proceedings for contempt if disobeyed, to all intents and purposes it was the equivalent of an undertaking given in lieu of a mandatory injunction or a remediation order.

HH Judge Eccles was fully entitled to deprecate Tapecrown’s failure to adhere to the terms of that agreement and to treat it as a factor militating against exercising his discretion to allow Tapecrown any further indulgence.

Since Tapecrown had failed to remove the waste from the site, on 15 June 2015 the Environment Agency applied for a Remediation Order pursuant to Regulation 44 of the 2010 Regulations. On 16 July 2015 the judge made an order for the removal of “uncontested waste” from the site and directed that issues relating to “contested waste” be adjourned part heard to a later date.

The “contested waste” initially consisted of a large pile of waste identified as P8. By the time of the hearing on 24 September 2015, a further large pile identified as P9 had been created out of waste that had not been removed in compliance with the order of 16 July 2015 and this also became “contested waste”. There were two further piles of waste at P10 and P11. The issue was whether Tapecrown should be permitted to recover any of the waste in P8 or P9 for use in the proposed construction of a garden centre on the site, or whether it should be required to remove all of the waste to an appropriate disposal facility.

In order for any recovery on site to occur, Tapecrown either had to ensure that the material achieved “end of waste” status or else obtain a permit from the Environment Agency. At the time of the hearing, it was envisaged that in order to achieve end of waste status Tapecrown would have to make an application to a panel. If the application failed, Tapecrown would then have to seek a U1 exemption for construction use. Tapecrown’s expert, Mr Coleman, assessed the chances of achieving end of waste status through the panel at less than 50 per cent; Mr Rice, the Environment Officer responsible for the management of the site at Chowle Farm, was more pessimistic.

The waste contained unknown quantities of contaminants such as asbestos, mineral oil and lead. Whilst Tapecrown believed that these quantities were at non-hazardous levels, further sampling was required to confirm this. Even if such confirmation were forthcoming, the presence of the contaminants had implications for the recovery and re-use of the waste. Tapecrown could not be certain how much, if any, of the waste could be re-used on site without further treatment and analysis. Tapecrown argued that either the application or the date for compliance with a Remediation Order should be adjourned or postponed for a period of six months, to enable Tapecrown to treat the waste in P8 and P9 on site and arrange further analysis.

At the adjourned hearing, on 24 September 2015, having heard evidence from both parties, including expert evidence from Mr Coleman and Mr Rice, the judge decided that what Tapecrown proposed was not technically feasible. The judge described Mr Coleman as an impressive witness with a wealth of experience, but the fact that Tapecrown had sought his advice so late in the day meant that he had had insufficient time to present his proposals in a form where they could be immediately and successfully implemented. The judge concluded that there was no realistic prospect of Tapecrown implementing the proposals successfully and in an economically viable way or in a timescale acceptable to the court, which had to bear in mind the overall environmental impact.

The judge made it clear that he was not minded to grant Tapecrown the indulgence of further time for Mr Coleman to work on the proposals, even if such an indulgence were sought, because of its previous criminal conduct and what he described as its disobedience to its undertaking to the court – a reference to its failure to abide by the terms of its earlier agreement with the Environment Agency to remove the waste. For those reasons, he made a Remediation Order requiring Tapecrown to remove P8 and P9 from the site. He made it clear that it would be up to Tapecrown to decide whether to dispose of the waste off-site, or have it treated and the re-useable material brought back, but in either case the material had to be off the site within eight weeks.

Crossley-Cooke was subsequently convicted after trial of five of the six counts against him on the indictment, including a count of consenting to or conniving in the commission of the operation by Tapecrown itself of a regulated facility at the same site without a permit between 6 March and 9 June 2015 (namely the illegal sorting and burning of waste). The jury was therefore satisfied that, far from adhering to the terms of its agreement with the Environment Agency, Tapecrown was continuing its unlawful activities at the site after 6 March 2015. Crossley-Cooke was sentenced to a fine of £4,000 in total or 3 months’ imprisonment in default of payment. In his sentencing remarks Judge Eccles said that he was perfectly satisfied that Crossley-Cooke was the controlling mind of Tapecrown and that its director, Mr Ismail, was merely a figurehead.

At the sentencing hearing on 25 January 2016, HH Judge Eccles also sentenced Tapecrown for the offences to which it had pleaded guilty and ordered it to pay a fine of £20,000. The question of costs was adjourned until 1 April 2016, when Tapecrown was ordered to pay costs of £30,107. These financial penalties took into account the fact of the Remediation Order and the associated costs of compliance with it, which were assessed as being approximately £250,000 on the basis of evidence adduced at the time of the September 2015 hearing. Tapecrown’s most recent financial accounts indicated that as at 31 March 2015 it held net fixed assets worth in excess of £2 million.

Logically, the application to adduce fresh evidence must be considered first, as it has implications for the substantive appeal.

The evidence in question consisted of a further expert report from Mr Coleman. Mr Cramsie accepted that in order to be able to adduce fresh evidence, Tapecrown had to satisfy the criteria set out in s.23(2) of the 1968 Act which we have set out at paragraph 3 above. There was no dispute that the evidence was capable of belief and was admissible in the court below. So far as the condition in subsection (2)(b) was concerned, Mr Cramsie submitted that the evidence did potentially afford a ground for allowing the appeal. If Tapecrown could deal with the waste in accordance with the CL:AIRE (“Contaminated Land: Applications in Real Environments”) Code of Practice it would not need to apply to the panel for “end of waste” status for the material in P8 and P9. He acknowledged that there were still significant uncertainties as to whether or not the waste could be dealt with in accordance with the CL:AIRE Code, but submitted that if it could be so dealt with, then it would increase the chances of Tapecrown being able to recover the waste within a reasonable time. Therefore, if it had been available at the hearing of the application for a Remediation Order, this information would have had a material effect upon the balancing exercise to be carried out by the court when exercising its discretion.

As for the condition in subsection (2)(d), Mr Cramsie submitted that there was a reasonable explanation for the failure to adduce the evidence before HH Judge Eccles. Tapecrown had engaged an expert to advise it and relied upon him, but, as Mr Coleman had accepted in his witness statement dated 28 April 2016, he did not know about the CL:AIRE Code of Practice until certain contractors on the site told him about it, which occurred only a matter of days before the hearing, leaving insufficient time for him to carry out further research and produce an addendum report. The judge had not permitted Mr Coleman to give oral evidence to supplement his expert report because the Environment Agency had objected to that course being taken. Although the judge had said it was regrettable that Mr Coleman had not been instructed sooner, he was instructed two months before the hearing, and it was not Tapecrown’s fault that Mr Coleman had not discovered the Code in that time.

In our judgement this is a case falling far short of compliance with the criteria in s.23(2). The evidence on which Tapecrown sought to rely could have been obtained by it with due diligence prior to the hearing. Tapecrown could have found out the same information from its own contractors as Mr Coleman did, and much sooner. As the Environment Agency pointed out, it did not require a criminal conviction or an Order of the court for a site owner to make the necessary inquiries or arrangements to enable it to put forward viable proposals for remediation.

In any event, Mr Coleman’s lack of prior knowledge of the Code would call into question the value of any evidence that he would be able to give about it, and taken at its highest that evidence would not engender any greater confidence that the plans for recovery of the waste could be successfully implemented within a reasonable time. Insofar as Mr Coleman sought also to give evidence about the costs of Tapecrown’s proposal, so as to enable a comparison to be made between those costs and the costs of removal of the waste, there was no excuse at all for the failure to adduce that evidence at the time of the hearing before HH Judge Eccles. An appeal is not an opportunity for a litigant to make good the deficiencies in the way in which its case was prepared or presented before the original court. We therefore refuse the application to adduce the further evidence of Mr Coleman.

We turn to the substantive grounds of application for leave to appeal. The judge was exercising a discretion under Regulation 44 of the 2010 Regulations. The proposals put forward by Tapecrown were dependent upon various permissions being granted, either by the special panel which grants “end of waste” status, or by the Environment Agency itself. They involved a substantial degree of uncertainty, as Mr Cramsie was constrained to accept.

Despite this, Mr Cramsie challenged the judge’s negative evaluation of the prospects of successful recovery and treatment of the waste in P8 and P9. He pointed out that removal was a remedy of last resort, and submitted that in accordance with the waste hierarchy the court should have given Tapecrown every chance to treat the waste unless the Environment Agency could show that there was no prospect of its doing so. He submitted that, because of the contaminants, it was inevitable that Tapecrown would be unable to say how much of the waste could be recovered and re-used until it had been treated; there was inherent uncertainty in what it was seeking to do, but the judge unfairly put the onus on Tapecrown to prove that it was certain.

We were unable to accept those submissions. The assessment of the evidence and the terms of any Remediation Order were essentially matters for the judge. He accepted that in principle the waste hierarchy applied to illegal waste and that outright disposal should be the solution of last resort, subject to an evaluation of the overall environmental impact in a case such as this, where the illegal deposit of waste has been permitted by the relevant undertaking to persist for a long period of time. He carefully considered the feasibility of Mr Coleman’s proposals and evaluated the environmental impact of remediation as against implementing the proposals as best he could on the information before him. He came to a conclusion that he was entitled to reach on the evidence. He did not require Tapecrown to prove that reclamation was certain; on the contrary, he found that there were so many hurdles for Tapecrown to overcome, and its plans were so inchoate, that the court had little confidence that they could be successfully implemented. That conclusion was plainly open to him. There was no merit in the application.

Mr Cramsie also criticised the judge’s treatment of Tapecrown’s previous conduct. The judge had said that if it should be argued that the environmental benefits of on-site treatment were such that Tapecrown should be permitted further time for Mr Coleman to work on his proposals, he would be firmly of the view that Tapecrown’s criminal conduct and disobedience to its undertaking to the court disqualified it from any such indulgence. Mr Cramsie submitted that there was a distinction between punishment and a Remediation Order and that the conduct of the offender should not be taken into account as a ground for refusing an adjournment, because that would be tantamount to punishment.

There is no substance in that criticism. The judge was entitled to refuse Tapecrown any further time to improve its proposals, in the light of its previous conduct, which he rightly described as deplorable. Its failure to comply with its agreement with the Environment Agency had effectively bought it an additional six months in which to do something with the waste on site or come up with proposals for treating it; however, far from taking steps to remove the waste or even to investigate the feasibility of recovery of much of the waste that it continued to accumulate on the site, Tapecrown continued its unlawful activities. The lengthy period during which the unlawful waste had already been on site by September 2015 was plainly a material factor that the judge was entitled to take into account. Tapecrown’s failure to do what it had expressly promised the Environment Agency in the past was bound to have an adverse effect on the court’s assessment of the likelihood that it would do what it said it intended to do with the waste in the future.

Finally on the first appeal, Mr Cramsie contended that the judge had made no reference in his sentencing remarks to the economic consequences for Tapecrown of requiring it to remove the waste. In the light of the fact that Tapecrown could plainly afford to remove the waste, and the contrary argument was never raised, this point goes nowhere.

For all those reasons leave to appeal against the Remediation Order is refused.

We turn to the application for leave to appeal against the refusal of an extension of time for compliance with the Remediation Order, the second application before us. Once again the application for leave to appeal concerns a challenge to the exercise of judicial discretion.

Tapecrown, which was then without legal representation, sought an extension of time for compliance with the Remediation Order until its appeal against that order was determined. In support of that application, it sought to rely on Mr Coleman’s further expert report as demonstrating that the appeal had a real prospect of success, and upon further evidence purporting to show that it would cost Tapecrown much more to remove all the waste from the site than to give effect to its proposals to re-use some of the waste. It was accepted that this financial information was not put before the court at the time when it made the Remediation Order. We have already refused to allow Tapecrown to adduce that evidence in support of its first appeal, since there was no excuse for the failure to adduce it before HH Judge Eccles.

The application for an extension of time was initially listed for hearing on Tuesday 17 November 2015, immediately after a directions hearing in the continuing proceedings against Crossley-Cooke. We have read the transcript of the proceedings before HH Judge Ross. The judge was initially unaware that he was due to deal with any matters pertaining to Tapecrown on that date, and because nobody was present who could represent Tapecrown (Mr Crossley-Cooke, who denied being an officer of the company, could not speak on its behalf) the judge indicated that he was minded to adjourn Tapecrown’s application to a later date.

It was pointed out to Judge Ross by counsel for the Environment Agency, Mr Badger, that Regulation 44(3) of the 2010 Regulations mandates that any application for an extension of time be heard before the period for compliance expires. Since the two months allowed in the Remediation Order was due to expire on Friday 20 November 2015, Tapecrown’s application had to be heard before then. Judge Ross therefore directed that the matter be re-listed for hearing on the morning of Thursday 19 November 2015.

However, later that day the judge became aware from the listing officer that Crossley-Cooke had contacted the court on the morning of 11 November 2015 to seek an adjournment of the directions hearing in his case, originally listed for 12 November 2015, stating that he was unwell. The court emailed him with a substitute date of 17 November 2015 and also rang the phone number he had supplied. The listing officer spoke to a woman, who said that Crossley-Cooke could not be contacted because he had gone back to bed, but that the new date would be passed on to him.

On the afternoon of 11 November 2015 the Environment Agency contacted the court office and asked if the Tapecrown matter could also be listed for 17 November. They told the listing office that since Tapecrown was no longer represented by the solicitors who had previously acted in the matter, it would have to contact the company directly. Accordingly, the listing officer rang Tapecrown’s office and asked to speak to the company director who had signed the application, i.e. Mr Ismail. They were told by someone in the office that Mr Ismail was receiving hospital treatment (as was indeed the case) but that they could put them through to someone else. That person turned out to be none other than Crossley-Cooke, who confirmed his understanding that someone from Tapecrown or who could speak for Tapecrown was required to attend the next hearing.

Counsel for Crossley-Cooke explained his client’s recovery to the judge on the basis that Crossley-Cooke had just come back from Egypt with a stomach complaint. The judge was plainly sceptical about that explanation, and remarked that on the face of it Crossley-Cooke appeared to have lied to a court officer.

However, it is clear from the transcript that the important factors derived from this information by the judge were (a) that Crossley-Cooke was speaking on behalf of Tapecrown during the afternoon conversation, and (b) that Tapecrown were aware that the hearing was listed for 17 November 2015, despite which they had sent no-one to court to pursue the application. It was the latter information that caused the judge to change his mind about the 19 November date and proceed to dispose of the application for an extension of time on 17 November 2015, as originally listed.

There was nothing unfair to Tapecrown about that. It had adequate notice of the hearing and sufficient time to arrange for representation. It failed to do so. Given that it had failed to appear on the appointed day to persuade the court to grant the extension of time, the court was justified in deciding to refuse the extension. In any event, the grounds for seeking an extension of time were without substance and based, to a large extent, on evidence that had not been adduced previously. They stood no real prospect of being allowed to be adduced on appeal by this court.

Mr Cramsie contended that it was unfair and wrong in principle for the judge to have concluded that Crossley-Cooke had told a lie to the listing officer about his health, without hearing evidence from Crossley-Cooke. However the judge’s views on that matter (which were expressed as being “on the face of it”) had no bearing on his decision to hear Tapecrown’s application on 17 November 2015 as originally listed.

It was further submitted that the judge should have allowed Crossley-Cooke to provide an explanation for his appearance on behalf of Tapecrown and to request a short postponement. However, given that Crossley-Cooke was running a defence on the basis that he had no authority to act on behalf of Tapecrown save on an ad hoc basis as a surveyor from time to time, it would have been contrary to the position he was adopting for the court to have treated him as having the status to make any requests on behalf of the company.

There is for these reasons no merit whatsoever in this further application for leave to appeal; the application for leave to appeal is also refused. It is therefore unnecessary for the court to make a decision on the application for an extension of time to seek leave to appeal out of time.

BEAMAN

On 17 November 2014, at the Crown Court at St Albans, the appellant, Beaman, having earlier pleaded guilty to possession of a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968, was sentenced by HH Judge Griffith to a sentence of five years’ imprisonment. He appealed well out of time. Leave was given together with a very significant extension of time. After hearing argument, we allowed the appeal by substituting a sentence of 2½ years’ imprisonment. We said we would give our reasons later. These are our reasons.

In the early hours of the morning of Sunday, 15 June 2014 Beaman was among a group of people in Parliament Square, in the town centre of Hertford. At around 2.25 a.m., door staff thought that they had seen one of the group with a stun gun and alerted some police officers who were on foot patrol. The officers went to investigate. As they did so, they heard the distinctive crackling sound of a Taser type device being activated. On approaching the group, they saw Beaman crouching down behind a parked car. He appeared to be trying to hide something and was detained. A bag of 40 diazepam tablets and what appeared to be an Apple iPhone 4 were recovered from the floor. The apparent iPhone turned out to be a form of stun gun. The officers tried the machine out; it was functioning and produced thick blue sparks and made the crackling sound that they had heard.

Beaman immediately stated that the bag contained Valium, which he said was “not illegal”. He added that he had got the drugs on prescription and obtained them in Thailand. His home address was searched: nothing was seized. He made no comment in police interview and was bailed to return. On 29 August 2014, he telephoned the police station and stated that the iPhone was “a novelty item that he bought at the market and he didn’t know it was dangerous”.

On 13 October 2014, in the Crown Court at St Albans, Beaman pleaded guilty to possession of a controlled class C drug (diazepam) and to possession of a disguised firearm contrary to section 5(1A)(a) of the Firearms Act 1968. There was no written basis of plea.

The appellant was born on 27 August 1987. He was 27 years old at the date of the offences. He had a conviction for possession with intent to supply cannabis in 2004, when he was 17 years old, for which he received a Referral Order. His subsequent offending was for unrelated matters and was of a relatively minor nature. He had been out of trouble for some years.

A pre-sentence report was prepared in which Beaman’s version of events was recorded as follows.

The author of the report expressed the view that Beaman did have some understanding that he was committing an offence, but that he was not aware of its seriousness or of its possible consequences.

The appellant’s account of having purchased the stun gun as a novelty item in Bulgaria was supported by a statement from a Mr Petkov, who also confirmed that it was not illegal to possess such items in Bulgaria.

At the sentencing hearing on 17 November 2014, Beaman’s advocate (who did not appear on the appeal) sought to persuade the judge that there were exceptional circumstances in relation to Beaman and his possession of the disguised stun gun, which would otherwise attract a mandatory sentence of 5 years’ imprisonment. Reliance was placed upon the fact that Beaman had bought the item legitimately in the open market in Bulgaria; the fact that he had had it for a short period of time; the evidence of an expert instructed by the prosecution to the effect that the weapon was marketed as an non-lethal high-voltage self-defence weapon; evidence that until shortly before the sentencing hearing such items could be bought on Amazon, and that it was through the appellant contacting Amazon that such items had now been withdrawn by them from sale; and finally, Beaman’s professed ignorance of the prohibited nature of the article in question.

So far as the last of these factors was concerned, the judge asked why, if that was the case, Beaman had tried to hide the stun gun when the police approached him. His advocate responded, consistently with the explanation given by Beaman to the probation officer, that he had panicked and put both of the articles down; he felt that the police might think that the bag of pills contained some other form of drug and that is why he got rid of them and the stun gun at the same time.

The judge rejected Beaman’s assertion that he was unaware of the illegal nature of the disguised stun gun, because of his behaviour in trying to get rid of it when he was approached by the police. He accepted that the offending was wholly out of character, but he concluded that there were no exceptional circumstances, and passed the mandatory sentence of 5 years’ imprisonment with a concurrent sentence of 28 days’ imprisonment in relation to the possession of the diazepam.

On the appeal, Mr Wakerley, who had not represented Beaman in the court below, first submitted on his behalf that in a case of this nature the key facts upon which the appellant wished to rely as giving rise to “exceptional circumstances” should not be treated as matters relating purely to mitigation, since in a sense they were also relevant to the circumstances of the offending. Therefore, if there was to be a trial of an issue to determine a key fact in the context of determining whether there were exceptional circumstances, it should be treated as a Newton hearing.

He next submitted that the provisions of Crim P.D. VII Sentencing B10 applied. The judge should not have proceeded to make an adverse finding as to the appellant’s awareness that the disguised stun gun was illegal without first hearing evidence from him. Mr Wakerley submitted that, at the very least, the judge should have asked the defence advocate who represented Beaman at the sentencing hearing whether he proposed to call his client to give evidence, or given some forewarning of his intention to make an adverse finding as to his state of knowledge. That reflected the possibility that a defendant might make a tactical decision not to engage in the process in case an adverse finding was made by the judge which would result in his losing some of the credit that he might otherwise have received for his guilty plea. Although the advocate then representing Beaman had not sought a Newton hearing, fairness demanded that there should have been a Newton hearing and as the case could not be remitted, this court should hold such a hearing.

The paragraphs of Crim P.D. VII Sentencing section B consolidate the practice developed by the courts in relation to determining the factual basis for sentencing when the facts are or may be in issue. The Practice Direction does not explicitly deal with the determination of a dispute of fact in relation to whether “exceptional circumstances” existed. We do not consider that the provisions of Crim P.D. VII B14 apply. That paragraph is concerned with a basis of plea where the basis of plea, although it should not have set out matters relating to mitigation, set out matters of mitigation which were closely aligned to the other facts. Nor is the position expressly covered by paragraphs B7 to B13.

However, in R v McCleary [2014] EWCA Crim 302, this court treated a hearing before the judge in relation to disputed facts which were said to give rise to a contention that there were exceptional circumstances as a Newton hearing with the consequence that, as the judge had disbelieved the defendant, he lost some of the credit to which he would otherwise have been entitled. In R v McCarthy [2013] EWCA Crim 2500, although the court did not describe the hearing at which disputed matters in relation to exceptional circumstances were resolved as a Newton hearing, this court concluded that the defendant had substantially reduced the mitigation which would have arisen by virtue of his guilty plea.

In our judgement the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. As was explained in Lashari [2010] EWCA Crim 1504, if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant’s account of the circumstances in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant’s version is correct. It does not, of course, follow that the judge, even if he accepts the defendant’s version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one.

The offence here was one of strict liability, but Beaman’s state of mind was relevant to the level of his culpability. He specifically sought to rely on his alleged lack of awareness that possession of the disguised iPhone was illegal as a reason why the judge should find exceptional circumstances exist and he should not pass the statutory minimum sentence.

However, this aspect of the case does not assist Beaman. His advocate did not seek a hearing and there is no obligation on the judge to accept a defendant’s assertions without hearing from him, or to alert his legal representatives to the potential consequences for him if he decides not to give or call evidence to substantiate his claim as to his state of mind, knowledge or intention.

In the present case, Beaman did not challenge the prosecution’s account of what happened when the police officers approached him in Hertford town centre. On the face of it, therefore, in the absence of evidence to the contrary, the judge would be entitled to draw obvious inferences about the appellant’s state of mind from his behaviour in seeking to hide both the drugs and the disguised stun gun. The possibility that an adverse inference might be drawn was an obvious one, and even if it had not previously occurred to the defence advocate, the judge flagged the matter up by raising an express query about it in the course of his mitigation. It was up to Beaman to seek a hearing on the issue; failure to do so ran the risk that the adverse inference would be drawn. There was no onus on the judge to forewarn him that in the absence of a trial of the issue, he might reach a view that was contrary to the submissions made by his advocate.

In the event, no request was made to the judge to call Beaman to give evidence to resolve any issue as to whether he was aware that possession of the disguised iPhone was unlawful. Mr Wakerley, in accordance with his duties to the court, caused inquiries to be made of the advocate who represented Beaman at the sentencing hearing as to why a hearing of the issue was not sought. He informed us that that advocate had told him that this was not the result of any consideration that Beaman might lose credit for his plea if adverse findings were made – after all, he was facing a mandatory minimum sentence. Rather it was because he, the advocate, did not consider that such a hearing was necessary.

We reject the suggestion that there should be a Newton hearing in this court. This is not a case which satisfies the criteria for the calling of fresh evidence under s.23 of the Criminal Appeal Act 1968. That evidence could and should have been adduced at the sentencing hearing. A deliberate decision was taken not to ask the judge for a Newton hearing, but to proceed on the basis of what was said in the pre-sentence report. That decision was well within the ambit of discretion conferred on the defence advocate at the time of the sentencing hearing.

Even if, in hindsight, it might now be felt that it would have been better to have taken a different course, that is no justification for treating Beaman’s evidence as fresh evidence and allowing it to be heard before this court. The application to adduce that evidence therefore fails.

In the alternative, Mr Wakerley submitted that in any event, the judge was wrong in principle to find that there were no exceptional circumstances in the present case. He relied upon R v Rehman and Wood [2005] EWCA Crim 2056, [2006] 1 Cr App R (S) 77, R v McCleary; R v McCarthy; R v Zhekov [2013] EWCA Crim 1656, [2014] 1 Cr App R(S) 69 and R v Withers [2015] EWCA Crim 132. Withers, which deals in detail with earlier authorities concerning stun guns disguised as mobile phones, was decided after the appellant was sentenced, but none of the other cases appears to have been cited to the judge. If they had been, his conclusion may well have been different.

As Globe J stated in Withers, at paragraph 14, the approach to exceptional circumstances needs to be conducted in a structured manner in accordance with the statute and the principles within R v Avis [1998] 1 Cr App R (S) 420 and R v Rehman and Wood. The question as to whether exceptional circumstances exist depends on the facts of the particular case. Previous authorities have demonstrated that exceptional circumstances may exist even if the defendant is aware that it is illegal to possess the disguised stun gun.

In the present case, the four Avis questions are to be answered as follows: as to the type of weapon, it was marketed as a self-defence weapon. It did not shoot bullets; it was assessed by the expert as applying a non-lethal but high voltage electrical shock. It was purchased legitimately on the open market in Bulgaria. Possession of a similar item which was not disguised as a mobile phone or a torch would not attract a mandatory minimum sentence under the Firearms Act. As to its use by Beaman, it was in his possession for only five days. For most of that time it was kept in his bag. It was not used by him at all save to demonstrate to a friend what it did, and in demonstrating it the appellant administered the shock to himself and not to another person. However, he chose to do this in a crowded public place in the early hours of the morning.

As to the reasons why Beaman was in possession of it, he had bought it as a novelty item. His previous convictions were of no particular relevance to this offence. Although his behaviour in seeking to hide it when the police arrived indicated that he may well have been aware that it was unlawful, and the judge so held, after his arrest he did take active steps to warn others, including Amazon, that possession of such items is unlawful in the UK and this led to them being withdrawn from sale by Amazon. He pleaded guilty at the earliest opportunity, and there was genuine remorse as well as positive character references.

This is a case in which, on balancing all the relevant factors, the sentencing judge was undoubtedly right to conclude that there had to be an immediate custodial sentence. However, on the facts, the judge was wrong to conclude that there were no exceptional circumstances justifying a departure from the minimum term. On that basis, the appropriate sentence would have been one of 2½ years’ imprisonment. We therefore quashed the five year term and substituted one of 2½ years. To this extent the appeal was allowed.