R v Samuel Miller & Anor

On 6^th April 2023, following a trial in the Crown Court at Newcastle Upon Tyne before Her Honour Judge Clemitson and a jury, the applicants, Samuel Miller and James Moss were each convicted by a majority (10-1) of false imprisonment (Count 1). Miller was acquitted by the jury of Counts 2 and 3 (further counts of false imprisonment).

On 23^rd June 2023, Miller was sentenced to nine months' imprisonment (less 132 days spent on qualifying electronic curfew), and Moss was sentenced to a Suspended Sentence Order of six months' imprisonment suspended for 18 months with a Rehabilitation Activity Requirement for a maximum of 20 days and a Curfew Order for three months from 19.00 hours 07.00 hours.

On 25^th September 2023, Miller's sentence was amended, pursuant to section 385 of the Sentencing Act 2020 to ten months' imprisonment (less 132 days on qualifying curfew), and he was made the subject of a Criminal Behaviour Order for an indefinite period.

Miller and Moss (collectively "the applicants") renew their application for leave to appeal against conviction, following refusal by the single judge.

The applicants are represented before us by their trial counsel acting pro bono: Miller by Mr Gordon Carse and Moss by Mr Peter Eguae.

The applicants' common proposed grounds of appeal are as follows:-

Miller advances additional grounds as follows:

We turn to the facts relating to the alleged offending. All counts arose out of Miller's membership of the Child Online Safety Team ("COST"), a voluntary organisation which sought to identify, confront, and apprehend online paedophiles. COST used decoy children to communicate with suspected paedophiles before carrying out "sting" operations to effect a citizen's arrest.

The prosecution case was that Miller used COST as a vehicle for bullying and self-publicity and, ultimately, to falsely imprison the complainants the subject of Counts 1 to 3.

On 6^th February 2020 the complainant, Phillip Morris, was detained by members of COST, following Morris' online communications with a COST decoy between 29^th January 2020 and 6^th February 2020. Morris' detention was recorded by Miller. That is the subject matter of Count 1.

In this regard, on 29^th January 2020, Morris used the application "Skout" to start communicating with a decoy using the name "Ebony" purporting to be 15 years of age. The communication ended on 6^th February 2020.

Count 1 arose out of COST's detention of Morris on 6^th February 2020, following Morris' online communication with the COST decoy between those dates of 29^th January and 6^th February 2020.

The detention of Morris was recorded by Miller and the footage was played to the jury. Morris' evidence in chief was given by way of an Achieving Best Evidence (“ABE”) interview.

Morris was interviewed on 7^th February 2020. When asked whether "hundreds of messages" were sent between him and Ebony "day and night", he replied: "Probably, aye". In respect of his intention on 6^th February 2020, he stated: "I was purely going for one reason only, to see this vigilante group" and "Honestly, the only thing in my head was 'I want to have my say with these, I want to have my say with these'. I knew very well what I was letting myself in for and obviously it's backfired because it looks I've done it again, but, hand on heart, no, I did not. I went to see this group, nothing to do with a child being underage, I went to see this group". When asked whether he intended to meet Ebony believing that she would be there to do whatever sexually, he said, "Nothing sexually at all, nothing sexually at all. I've got no [inaudible] of doing anything like that with a child at all, nothing whatsoever, although everything sounds totally different, but I've got no intentions, nothing towards kids whatsoever".

On the same day Miller telephoned the police to say that a decoy he had been running was in touch with a man called Phillip Morris. He said that Morris had not said anything sexual to the decoy and had broken no law; however, Morris did have a conviction for rape. In fact he does not. He had a conviction (following a guilty plea) for attempting to engage in sexual communication with a child between 3^rd April and 13^th July 2019.

Later the same day, at 18.00 hours, Miller attended a local police station having been asked to provide evidence. On arrival, Miller said that he had no evidence, but he said that Morris had again been in contact with a decoy he was running, though again had not committed any offence.

At 21.15 hours, Miller, who was then in the company of James Moss, called the police to tell them that he had decided to detain Morris. Events had been "live-streamed" on Facebook.

When interviewed by the police in relation to the allegation of false imprisonment, Miller answered "no comment" to all questions, but served a prepared statement in which he said as follows:

In an Addendum Defence Case Statement Miller stated:

At trial, Miller gave evidence, stating that Morris was lawfully detained in circumstances where he, Miller, honestly and reasonably believed that:

When Moss was interviewed, his legal representative stated: "My client denies any criminality and on legal advice will be making no comment to all questions". Thereafter, he answered "no comment" to all questions.

In his Defence Case Statement Moss stated, amongst other matters:

At trial, Moss, who gave evidence, put forward the same defence as Miller. The prosecution's case was that the applicants' actions amounted to false imprisonment.

At trial, the prosecution did not concede that Morris had committed an offence of attempting to meet a child following grooming. However, they did agree that the defendants had reasonable grounds to suspect that he had.

There was no dispute between the parties that in respect of each count the actions of the defendants would amount to false imprisonment in the absence of any lawful justification for their actions.

The applicants argued that such justification could be derived from several distinct sources, namely section 3 of the Criminal Law Act 1967, section 24A of the Police and Criminal Evidence Act 1984 (“PACE”) and common law.

Section 3 of the Criminal Law Act 1967 (the "CLA") provides:

Section 76 of the Criminal Justice and Immigration Act 2008 ("CJIA") provides, amongst other matters, as follows:

Section 24A of PACE provides:

In so far as Count 1 was concerned, the defence case was that Morris was committing an offence of attempting to meet a child following grooming at the time he was detained. The applicants detained him to prevent him from committing this offence and from committing offences in the future, as they considered that he posed an ongoing danger to children based upon their understanding that he was already under investigation for a similar offence and had shown himself prepared to meet a child.

The prosecution contended that the applicants could not have been acting to prevent the crime they say Morris was committing at the time because he had committed it by the time he was detained and could not have committed the offence of meeting a child and nor could he have committed an offence of sexual violence towards the child because there was no child for him to meet. It was impossible for him to commit the offence of meeting a child following grooming and there was no need to prevent him from committing the inchoate offence; therefore, it could never be reasonable to use any force to prevent it.

The applicants argued that they were entitled to use force to prevent a breach of the peace. The nature of the complainants' offending was such that it was reasonable to suppose that they each presented an ongoing risk of communicating with real children and that contact offences might be committed which would result in actual physical harm.

The applicants argued that section 3 of the CLA should be given its ordinary meaning, without any gloss. The words of the statute did not limit the defence to particular types of crime and must therefore apply to inchoate offences as much as any other type of offence. The fact that there was no real child would be a factor that the jury would have to weigh up when determining whether the force used was reasonable, but it was a matter for the jury to decide. The prosecution argued that it could never be reasonable to use any force to prevent a crime which risked no actual harm and that the defence should therefore be withdrawn from the jury.

In her ruling, the judge stated as follows:

In relation to section 3 of the Criminal Law Act 1967, the judge considered R v Jones (Margaret) & Others (supra) and DPP v Stratford Magistrates' Court [2017] EWHC 1794 (Admin). From those two cases the judge said that she could distil the following principles:

The judge continued in her ruling:

The applicants' common proposed grounds of appeal are as follows:

Miller advances two additional grounds. The first additional ground (Ground (3)) was that the judge erred in admitting the hearsay evidence of Sydney and Tracey Wilkinson. The complainant in Count 3 was David Wilkinson, the son of Sydney Wilkinson and brother of Tracey Wilkinson. Although Miller was acquitted of Count 3, it is submitted that the evidence of Sydney and Tracey Wilkinson undermined Miller's credibility generally.

The material and disputed part of Sydney Wilkinson's statements was his assertion that the tall male (accepted to have been Miller) "came through the doorway without [his] authority"; or to similar effect, that Miller and his group "forced their way into [his] address". The material and disputed part of Tracey Wilkinson's statement was her assertion that Miller "came into the hallway" from the front door and "shouted something like 'I'm working with the police'".

It was submitted that the Leaned Judge was wrong to admit the hearsay statements under section 116(1), based on condition 116(2)(c) (fear); that it was for the Crown to prove beyond reasonable doubt that a witness' refusal to give evidence was through fear; and that the evidence did not establish that, but that even if it did, and having regard to the interests of justice and the factors set out in section 114(2) as identified at paragraph 34 of the proposed Grounds of Appeal, the hearsay evidence should not have been admitted.

The second additional ground advanced by Miller is that the judge erred in her directions about Miller's bad character. It is said that they went beyond his credibility (Miller having made an attack on another person's character for the purpose of section 101(1)(g), and extended to his propensity to commit offences of the kind with which he was charged.

The judge’s direction was in these terms:

It is submitted that such direction amounted to directing the jury that Miller's bad character was ultimately capable of demonstrating a propensity to behave in the way suggested by the prosecution (that is, unlawfully and for the purpose of self-gratification) and/or a propensity to be dishonest without the safeguard in R v Hanson [2005] EWCA Crim 824 being considered, and in circumstances in which the prosecution had conceded that the bad character did not go to propensity.

The Crown served a Respondent's Notice. In relation to Grounds 1 and 2, advanced by both applicants, it raises the following points:

So far as Grounds 3 and 4 are concerned that are raised by Miller, the points raised in the Respondent's Notice are:

We are most grateful to Mr Carse and Mr Eguae, who appear pro bono, on behalf of the applicants, Miller and Moss for the quality of their written and oral submissions. There is, however, upon examination, nothing in the grounds advanced on behalf of the applicants and we do not consider that any of the grounds is arguable, essentially for the same reasons as given by the single judge in refusing leave.

In relation to Ground 1, the judge held that the defendants were entitled to rely on the defence under section 24A of PACE, and section 3 of the CLA in so far as it permitted the use of force in the course of a lawful arrest. On the agreed facts, she was not arguably wrong to hold that the defence could not rely on any additional defence under section 3 of the CLA. That provision only allows 'reasonable' force to be used. The feared crime (against an adult decoy) did not involve any risk of harm. It would not have been open to the jury to conclude that it was reasonable for force to be used to prevent the crime. Nor was it open to the jury to conclude that it was reasonable for force to be used to prevent possible future crimes that were not imminent. Nor was the force used to assist a constable to arrest: at the time the force was used no constable was present.

Section 24A of PACE does not itself give rise to a power to use force. That power arises from section 3 of the CLA (and, in the case of a constable, section 117 of PACE). That only permits the use of reasonable force. The judge was right to direct the jury as to the reasonableness of the force that was applied, and to do so by reference to Jones [2006] UKHL 16. The judge correctly directed the jury in accordance with the Route to Verdict which was placed before the jury.

The judge correctly directed herself as to the law and made reference to the relevant evidence. She was entitled to conclude that the prosecution had established to the criminal standard that the witnesses were too afraid to give evidence and that it was in the interests of justice for the evidence to be adduced as hearsay. In this regard, and prior to her hearsay ruling, the judge had the benefit of watching the BWF showing Sydney and Tracey Wilkinson's fear at the time of the incident and the defendant Ian McCutcheon stated in his evidence that Tracey Wilkinson was 'terrified'. David Wilkinson's evidence both in chief and in cross-examination is that he believed the defendants were the police which supported the assertion that the defendants forced entry and identified themselves as being associated with the police. The judge's ruling in relation to her decision to admit the hearsay evidence applied the correct legal test and she did not arguably err in concluding that it was in the interest of justice to admit the evidence. The judge directed the jury appropriately in relation to the hearsay evidence and had the opportunity to address the jury on it (as well as having had the opportunity to put before the jury evidence taken from the body worn footage in the form of an agreed fact). Such evidence in any event only related to Count 3, on which Miller was acquitted. As such, and as was recognised in the submissions before us, it does not arguably render the convictions unsafe.

Miller concedes that the bad character evidence was properly adduced because the applicant had attacked the character of the complainant, and it was therefore relevant to the applicant's credit. However, the complaint is that the judge directed the jury that they could take it into account to establish propensity. She did not do so. As is apparent from the direction quoted above, her direction to the jury was limited to the question of whether the defendant was telling the truth or telling lies. It was not a propensity direction and did not amount to the same. In any event, such direction, even had it been inappropriate, did not arguably render the conviction unsafe."

Accordingly these renewed applications for leave to appeal against conviction are refused.