R v James Peppiatt

MR JUSTICE BENNATHAN: On 22 August 2023 in the Central Criminal Court before His Honour Judge Marks KC, the Common Sergeant, the applicant, then aged 23, was convicted by a majority of ten to two of murder. He applied for leave to appeal against that conviction, which was refused by the single judge. He renews his application for an extension of time, some 29 days, in which to apply for leave to appeal against conviction and renews that application itself.

We have had an explanation for the modest delay in lodging grounds of appeal and if we find substantive merit we will not refuse leave on that basis.

On 29 May 2021, Tony Eastlake ("the deceased") was stabbed in the back on Halliford Street, Islington, North London following an incident with the applicant. He collapsed and died in a car park a short distance from the scene. The applicant and the deceased were known to each other. Before his death the deceased had been in a relationship with the applicant's mother.

On 1 April 2021 the applicant's mother, tragically, committed suicide. Throughout the applicant's life she had struggled with her mental health, and she had issues with addiction. She had attempted suicide on other occasions. Her severe mental health episodes had been witnessed by the applicant. From an early age he had been his mother's carer, and he had provided her with financial support.

Although the applicant was aware of the relationship between the deceased and his mother, he was not close to the deceased. In the two weeks before her death the applicant's mother had made a further attempt on her life of which the deceased, at her request, had not made the applicant aware.

Following his mother's death the applicant and the deceased met each other on a number of occasions, once in a café, secondly at the deceased's flower stall, on the third occasion when the applicant invited him to the funeral and the prosecution were to say that on that occasion the applicant had found out about the earlier previous suicide attempt and the deceased believed the applicant was blaming him for his mother's death.

The fourth meeting was on 29 May 2021. At approximately 17.10 the deceased packed up his flower stall. At 17.14 he called the applicant's mobile phone and spoke to the applicant for just under two minutes. As he spoke to the applicant, he walked along Essex Road and arrived in Elmore Street, where the applicant was then living, arriving at about 17.20. The deceased was carrying a small black bag.

At 17.23 the applicant and the deceased were captured on CCTV walking down Ecclesbourne Road, where they stopped, and a fight broke out between them. The fight lasted about 30 to 40 seconds. Both men went to the ground and as a result of the fight both men were injured, but not seriously.

At 17.26 the deceased was captured on CCTV walking away bag in hand. The two men continued to exchange words. The deceased was captured on CCTV crossing the road and turning right into Halliford Street, then heading north, with the applicant following after him. As they approached Essex Road a witness emerged from an address on Halliford Street who saw the applicant approach the deceased from behind and punch him once to the left side of his back. The prosecution alleged that in fact the applicant was holding a knife and that when he 'punched' the deceased he in fact administered the fatal stab wound.

On 1 June 2021 the applicant handed himself into Islington Police Station where he was arrested for murder. He was examined by a custody nurse and his injuries were photographed. He answered no comment when interviewed under caution. Whilst he was in custody the addresses associated with him were searched but the knife was not recovered.

The prosecution case was that when the applicant first met with the deceased on Elmore Street, he had a knife concealed on his person. The allegation by the prosecution was that as the deceased had walked away after the first fight, he was deliberately stabbed in the back by the applicant.

The evidence called by the prosecution at trial included the following:

The defence case was that it was the deceased who had the knife and was the aggressor. The applicant's case was that he had acted in lawful self-defence, and he stabbed the deceased in the course of trying to wrestle the knife away from him whilst they were both on the floor.

The applicant gave evidence. He spoke of his history and becoming aware of his mother's difficulties. He knew there had been earlier suicide attempts. In late 2020 he became aware of a relationship between his mother and the deceased, which he approved of because the deceased did not drink.

In April 2021 he was told that his mother had committed suicide. He was involved in arranging the funeral. He saw the deceased at the end of April and told him that he did not blame him for his mother's death. They exchanged phone numbers. Later he saw the deceased at his flower stall and the deceased gave him flowers to leave outside his mother's house. On another day he met with him and told the deceased of the date of the funeral.

He had found out by then about the previous suicide attempt and he asked the deceased why he had not told him. The deceased told him that his mother had asked him not to do so. He understood this and they were to see each other next at the funeral.

On 29 May 2021 he bought a suit for the funeral. At 5.14pm that afternoon he was at home when the deceased telephoned him and asked him why people kept ringing him up and blaming him for the mother's death. The applicant had not spoken of such things to anyone, nor did he think the deceased was to blame. The deceased, the applicant recounted, was angry. The deceased asked him where he was and the applicant told him he was at home. The deceased said that he would come round.

A few minutes later the applicant heard a knock at the door. It was the deceased. He went outside and they shook hands. He asked if the deceased was alright. The deceased was upset and repeated his concerns that people were phoning him and blaming him for the applicant's mother's death. The applicant told him to ignore them but mentioned that he wished he had told him (the applicant) about the previous suicide attempt.

The deceased said to him, the applicant recounted, "Where the fuck was you? It's your fault that she killed herself. You think you're a big man because you paid the rent." The defendant told the deceased that he was just upset because his free ride was over. The deceased became agitated and shouted, "Don't piss me off, I've taken a lot." The deceased dropped the bag he was carrying, was aggressive and moved as if he was going to punch out at the applicant.

The applicant said he tried to punch the deceased, but it did not connect. The deceased then hit him to the left-hand side of his face. A fight broke out and they ended up on the ground. The deceased climbed on top of him and punched him in the face three times. He tried to put the deceased in a headlock to stop the punches. The deceased bit him on the arm. He tried to get up. The deceased grabbed him and pulled the hooded top he was wearing over his head and started to knee him in the stomach. He got out of his hoody and flicked it towards the deceased to try to put some distance between them. The deceased then walked off.

The applicant accepted that he was still angry and asked the deceased where he was going. The deceased responded, "You know where I am." The deceased walked up Halliford Street and he followed. The deceased said, "Do you want me to smash your head in?" The applicant responded on his account, "Do you think you can bully me, like you bullied my mum?" The deceased then turned and said something deeply insulting and offensive about the applicant's mother. The applicant replied, "Don't talk to me like that" and the deceased started laughing. He said to the deceased, "Say that again." The deceased turned around and said, "Come here and I'll say it."

The applicant said he walked up to the deceased and the deceased looked over his shoulder and then span around. He had a knife in his right hand. The applicant grabbed the knife with his right hand and then grabbed the deceased's shirt. They ended up on the ground again and struggled over the knife. The deceased rolled on top of him and tried to pin him down. He, the applicant, tried to wriggle out of his grip. He managed to get his right hand free and punched the deceased in the ribs with a hook-type punch, which he accepted was a stabbing motion. He did not intend, the applicant said, to kill the deceased or cause him any injury. He was not even sure that he had realised he had hold of the knife at the time. The deceased got off him and he got up. They walked away in different directions. He did not realise the deceased was seriously injured. What happened haunts him every day.

As he walked away, testified the applicant, he realised he had hold of the deceased's knife and there was blood upon it. He started to 'freak out.' He saw specks of blood on the floor. He walked back to his mother's address and his father answered the door. He told his father that he had just had a fight with the deceased. He told his father that he had taken the knife from the deceased and might have caught him with it. Later his uncle telephoned and said that the deceased had been stabbed. He went to his aunt's house in case the deceased, who knew where he lived, came back. His Aunt learnt from a phone call that the deceased had died. The applicant panicked. His father rang a solicitor. The applicant wrapped the knife in tissue and put it in a plastic bag. He took his clothing off and assumed someone got rid of it. The next morning, he went to the canal and threw his phone and the knife into the canal. Later he handed himself in to the police station.

His defence statement was drafted by the firm of solicitors who still act for him now. They were not the firm who acted for him at the police station. The applicant accepted, under cross examination, that the defence statement was different to the evidence he had given. He said the defence statement contained errors, as it was only a draft. He stated that he had asked his solicitors to correct the errors. It had been rushed as the solicitor had said that it was overdue. He accepted that he had read the statement before it was lodged with the court. He did not sign the statement. Due to the Covid pandemic there were no face-to-face legal visits at the prison. He instructed his solicitor not to submit it but the solicitor disregarded his instructions and told him not to worry. He confirmed that he had re-read the statement before the trial and maintained that he had asked his legal team to correct the document.

The defence relied on four character referees:

The issues for the jury were whether the knife that caused the fatal injury to the deceased was produced by the deceased or whether it was produced by the applicant. If it was produced by the applicant then whether or not the applicant honestly believed it was necessary to use force to defend himself, and if so whether the type and amount of force used by the applicant was reasonable.

The grounds of appeal as drafted before us were settled by Dean George KC and he has attended today pro bono with Mr Milner of counsel. We are grateful for them attending and for the submissions they have made. We will list those grounds of appeal and then address them in turn:

Discussion

What Mr George does not address in his written grounds of appeal is section 6E of the Criminal Procedure and Investigations Act 1996, of which subsection (1) states:

It seems to us that section is a complete answer to the suggestion that the judge was wrong to allow the defence statement to be adduced until the jury were made sure that it was fully approved by the applicant. It also suggests the legal directions were overly generous to the applicant but that need not detain us.

It is right to say that the judge examined the various differences between the applicant's account in evidence and that set out in the defence statement, and other judges might not have felt the need to engage with quite that level of detail. The applicant, however, had the protection of the written legal directions which set out his arguments about why the jury should not attach any significance to any failings in the defence statement, as well, of course, as the standard direction that the facts were for the jury not the judge.

Mr George also suggests before us that the judge did not make clear to the defence, or indeed the prosecution, whether or not the jury would be given a physical copy of the defence statement itself. We have no transcripts of the terms of any such discussion and, without doubting Mr George's recollection, the words used in such a debate might be important. In the end it was conceded that the parts of the defence statement the judge referred to were in evidence through the prosecution's cross-examination. On that basis while it might have been better, going on Mr George's recollection, for the judge to have told the parties the process he had in mind, that deficiency if it occurred in the way Mr George recollects, does not even begin to raise an arguable ground of appeal.

In the course of our discussing the arguments about legal directions, Mr George told us that parts of the exchanges between counsel and the judge were by email. That may well be convenient in a busy criminal trial but if there are significant exchanges by way of email they should, in some form, eventually be uploaded to the Digital Case System. We would also think it advisable that normally any significant discussions are at least summarised in open court. Otherwise, this court may not be able to understand what had happened at trial and, in addition, and importantly, the public have no way of knowing what has occurred in what are, or should be, transparent and open court proceedings.

The judge, by way of introduction of the legal directions, told the jury that if he had got the law wrong, "a higher court would correct it". The suggestion made in this application is that such a reassurance somehow might have made the jury less conscientious about their task. We simply cannot see how that follows. The Judge's passing comment was true and, if anything, might suggest the jury could follow the legal directions without any concerns and focus their own decision-making powers on the facts. Once more, it is not a comment all judges would make, but we can see no basis whatsoever for saying it was improper or somehow renders the applicant's conviction in any way unsafe.

The suggestion of an unbalanced summing up focuses on aspects that overlap with other grounds, such as the pathological evidence and the defence statement, but also look in particular at two parts of the second part of the judge's split summing-up, namely a comment about the time frame and how the evidence of the witness Jonston was expressed to the jury.

The need for judges to be fair and impartial has been stressed by this court and others on many occasions. To take but one example, in Marchant [2018] EWCA Crim 2606, Leggatt LJ said [15]:

The judge pointed out to the jury, as part of his factual summing-up, that it was agreed that the period when the applicant and the deceased were out of the view of any CCTV cameras, the same period in which it was agreed the fatal violence had occurred, was 28 seconds. The judge added:

“One of the questions you may want to ask yourselves is if a fight as described by the defendant could have occurred in that relatively limited amount of time."

This was not an argument that had been advanced by the prosecution, at least not in those terms. This was clearly a question that pointed out an issue that might not assist the defence case. Some judges might not have posed the question, and posing a great number of such questions might reach the stage such as to render the summing-up unfair. On a similar note, it might have been better if the judge had flagged that question up to the parties in the absence of the jury before closing speeches, thus allowing them to deal with it. In our view however, in the context of the evidence and the remainder of the summing up, this was not an observation that was improper, either by itself or in combination with the remainder of the judge's summation of the evidence.

In reminding the jury of the evidence of the eye-witness Jonston the judge did both introduce and conclude his summary be stressing the witness's importance. He also said:

The judge also pointed out to the jury that there were aspects of the agreed evidence, such as the location of the fatal wound on the deceased's body, that were consistent with the account Mr Jonston gave. This witness, however, was indeed potentially very important. If the jury were sure his account was correct, then his account of the applicant walking up and striking the deceased a blow to his back, was indeed fatal to the defence of self-defence. The judge also pointed out there were potential issues with the witness: he was a crack cocaine user with imperfect vision and he had only come forward sometime after the event he claimed to have witnessed. As the passage in Marchant makes clear, it is no part of a judge's duty to play down a strong case and this witness, independent of either party, provided a powerful piece of evidence if the jury accepted his account. We can find no fault with how the judge dealt with this part of the case.

Turning to the ground of appeal about how the judge dealt with the pathological evidence. The criticism of the judge's treatment of a defence submission about the nature of the fatal wound is that the judge wrongly suggested this defence argument was based solely on the evidence of the pathologist. This posed a difficulty for the defence as Dr Swift had said in terms that in his expert opinion the wound could have been caused by either of the two scenarios suggested by the prosecution and defence. This error was pointed out to the judge, and he later corrected his mistake in terms. That correction, it is then submitted, lacked the cogency and force of an argument which, on the defence case, was said to be compelling.

We are not impressed with this submission. The jury heard the defence closing speech. The judge later identified correctly the nature of their submission. No party has the right to expect the judge will express their argument to the jury in exactly the terms they would wish.

Similarly, an argument is made about how the judge dealt with the evidence about the cut to the applicant's hand. The pathologist had said it could have been caused by the applicant using the knife or by his grasping it to take it from the deceased. There was a defence submission to the jury that the combination of the wound to the deceased and the nature of the injury to the applicant supported his, the applicant's, account. That was a submission Mr George was absolutely permitted to make but there cannot be an expectation that a trial judge will slavishly rehearse each and every defence argument in his necessarily selective summing-up of the evidence.

The final ground of appeal is expressed as, "The learned judge erred by not providing to the parties a copy of all of the jury notes submitted for matters to be addressed." This submission has been modified in oral argument, but as it was placed before us in writing we need to address it.

In this trial there was a note from the jury that led to the judge giving the majority direction. Counsel were not shown the note as it was described as a "numbers note". We will adopt the same expression.

We have seen all the notes. In his written grounds of appeal Mr George KC accepts the judge followed a long-standing practice by indicating the broad effect of the note without sharing it. But, argues Mr George, that procedure is outdated and illogical, not least as when, as in this case, the jury convict after a majority direction they are asked to reveal whether they have done so unanimously or by a majority, and if the latter, by what majority. Numbers, it is submitted, are thereby revealed. So there can be no logical reason, it is argued, not to disclose them when they are set out in notes from the jury. The closest this Court gets to any legal analysis of the rules governing how such numbers notes are dealt with is a paragraph in the grounds of appeal that asserts: "The perception created in such circumstances ... fail the Article 6 Human Rights Act and common law/open justice and due process fairness tests".

Leaving aside the distinct but important issue of how such an alleged procedural failing would render the applicant's murder conviction unsafe, we do have to observe that an attempt to overturn so well-established a procedure requires a much more considered approach to the law than has been proffered to us by the applicant. However, as the point is raised, we now need to address it with the care it deserves.

The way in which a trial court deals with a numbers note has been established in our system for at least well over 30 years. In Gorman [1987] 85 Cr. App.R 121 Lord Lane, CJ, drawing on earlier decisions of this court, said:

The law concerning the confidentiality of a jury's deliberations is not just a matter of judicial decision making. The current statute governing these matters is the Juries Act 1974. Therein, section 20D states, as far as is relevant to this issue, under the heading "Offence: disclosing jury's deliberations":

The exceptions are duly set out. In Section 20E which, so far as relevant, under the heading "Offence of disclosing jury's deliberations: initial exceptions", states:

A final and possibly relevant part of the same Act is section 21(5) which states:

Drawing together the threads of these various sources:

The applicant's reference to Article 6 of the ECHR does not assist. The guarantees of that Article closest to this issue are the right to a "fair and public hearing" and that “judgement shall be pronounced publicly" (emphasis added in both phrases). The applicant had both. There is no right to a court's deliberations being made public. This Court does not deliberate in public, nor indeed does the European Court of Human Rights.

For all these reasons there is no arguable basis for an appeal to be found in any of the many arguments advanced on the applicant's behalf. We therefore refuse the extension sought and refuse these applications.