R v Evaldas Smilginis

On 19 December 2022 two men, Sigitas Struiga and Paulius Gulbinas, were kidnapped and assaulted by a group of men. The prosecution alleged that this appellant, Evaldas Smilginis, was one of those involved. After a trial in the Crown Court at Stoke on Trent before Her Honour Judge Hancox and a jury, the appellant was convicted of six offences. He now appeals against his convictions with the leave of the single judge.

His grounds of appeal contend that the convictions are unsafe because the judge wrongly refused to grant a defence application for an adjournment, thereby preventing the appellant from adducing expert evidence concerning his autism.

In summarising the facts we shall for the most part refer to persons by their surnames only. We do so for convenience and intend no disrespect.

In the days leading up to the kidnappings, a defendant, Modestas Stoskus, made arrangements to meet Struiga at a McDonald's in Chesterton, Staffordshire. Struiga thought the purpose of the meeting was to talk. Stoskus, however, was arranging for the appellant and others to join him and had messaged a friend to say he was expecting "a big fight". It appears that Struiga was suspected of having stolen something.

The appellant indicated that he needed money before travelling from his home in London to Staffordshire. A man who was referred to at the trial as ‘Wanted Two’ transferred £100 to the appellant's account.

On the night of 19 December 2022, the appellant drove to Chesterton. He was accompanied by another man from London referred to as ‘Wanted One’. Stoskus sent messages making sure that the appellant was on his way and telling him to speed up. Stoskus directed the appellant to Meadow Street, which is a dead-end road surrounded by industrial buildings.

Others who travelled to Meadow Street from different parts of the country were Mohammed Nasar, Egidijus Saviokas and Karolis Seputis.

Struiga and Gulbinas travelled from Manchester to the McDonald’s in Chesterton. They met Stoskus and went with him in his car to Meadow Street, where they were attacked by the waiting group. Struiga and Gulbinas were dragged from Stoskus's car, sprayed in the eyes with pepper spray, assaulted with weapons and tied up. Struiga was interrogated. They were put into the boots of two cars and driven away. Gulbinas, whose injuries were not particularly serious, managed to escape. Struiga, however, had been very seriously injured. He had been stabbed repeatedly, suffered internal injuries, and his leg had been fractured. He was dumped, still bound, in a residential street. By good fortune, someone saw him and called the emergency services. He remained an in-patient in hospital until 5 February 2023.

The attacks and interrogation of the victims were filmed on mobile phones by some of those involved. It was the prosecution case that the jury could be sure that all but one of the videos was recorded by this appellant, because parts of his clothing could be seen on the recording and matched with earlier CCTV footage of the appellant.

When arrested and interviewed a few days later, the appellant said he had agreed to meet Stoskus for a meal. He accepted that he had driven to Meadow Street but said he had remained in his parked car and had not seen the assaults. The prosecution case was that all relevant vehicles were parked on a straight stretch of road so that the events which occurred would have been visible from where the appellant's car was parked.

The five accused were jointly charged with six offences:

Stoskus and Nasar pleaded guilty to all the offences. The appellant, Saviokas and Seputis stood trial together.

The case against the appellant included the following features.

The appellant, who is Lithuanian, gave evidence through an interpreter. He did so for most of the court day on a Thursday; on the following morning, Friday (the court not sitting that afternoon); and for part of the following Monday.

The appellant denied any participation in any of the offences. He gave evidence to the effect that he had travelled to Staffordshire to meet Stoskus and Seputis with a view to mending his former friendship with Seputis. He said that £100 had been transferred to him because Stoskus had owed him that amount for a long time. He said his passenger was a friend who needed to go from his home in London to Stansted Airport. The appellant said they had driven together to Meadow Street, parked where indicated and then remained in the car. He said he had not witnessed any assault. He had thereafter driven to Birmingham, where he had a meal with Stoskus and Seputis, and had then taken his passenger to Stansted Airport.

The appellant further gave evidence that he had not made any video recording. He had been told by Stoskus that he would receive some videos from a foreign number, which he should forward to Stoskus. The appellant said he did so without having looked at the videos. He accepted that the first batch of videos were sent by him to Stoskus at a time when he and Stoskus were eating together in Birmingham. In the absence of any data from the appellant's own mobile phone, there was no evidence to confirm or refute his assertion that the videos had first been sent to him from a foreign number. The only evidence was of him sending them to Stoskus.

On the Friday afternoon, during the period when the appellant was giving evidence, his solicitor (who is herself a Lithuanian speaker) sent an email to the court indicating that she had serious concerns about the appellant being autistic. She apologised for not having noticed that any earlier, but said that during the appellant's evidence on the Thursday she had noticed what she described as "many clear symptoms of autism". She asked permission to instruct an expert to assess the appellant during the following week, which was already scheduled to be a week when the court could not sit on this trial.

No application for an adjournment was made at that stage, either on the Friday or on the Monday. The appellant continued and completed his evidence.

Professor Baron-Cohen prepared a report dated 20 August 2023. He did so on the basis of video interviews of the appellant and video discussions with the appellant's partner and mother. The principal conclusions in Professor Baron-Cohen's report were as follows:

The prosecution indicated, having received that report, that its contents were not accepted and that they would wish to have an opportunity to obtain expert evidence in response. Counsel then representing the appellant then applied, on the Monday when the court returned after the week's break, for an adjournment.

The judge refused that application. She summarised the history which we have just related. She noted the key features of Professor Baron-Cohen's report to which we have just referred. She emphasised that the appellant's defence had always been that he had travelled to Staffordshire to meet with friends and that he had neither seen nor played any part in the events in Meadow Street and that nobody had sought to persuade him to become involved in any criminal activity. His case was, she noted, that the appellant had driven to Stoke, waited around for his friend, took no part in any discussion of or perpetration of criminal activity, drove back to Birmingham, had a meal and then drove his passenger (who seemed to have had no involvement either in any criminal activity) to Stansted Airport.

The judge reflected on which aspects of that defence case could involve influence attributable to the appellant's diagnosis of autism. She accepted that, however late it had come, there was now a diagnosis of autism. But, she said, she had a concern as to for what proper purpose that diagnosis could be put before the jury. She concluded that the application to adjourn for the receipt of further medical information, and for that to become an issue in the case, was refused.

The trial then continued. The appellant, as we have said, completed his own evidence. Seputis gave evidence to the effect that he had travelled to Meadow Street with Stoskus not knowing of any intended fight. He had seen the fight in Meadow Street and had tried to stop it, but someone had sprayed him with pepper spray and he thereafter could not see. It is submitted by the prosecution that in Seputis's case, in contrast to the appellant's case, there was no evidence pointing to active involvement in the kidnappings and attacks.

Saviokas for his part did not give evidence.

No complaint is made as to the judge's directions of law to the jury.

The jury convicted the appellant and Saviokas of all counts. They acquitted Seputis of all counts.

The appellant now appeals against his conviction. He makes a fresh evidence application pursuant to section 23 of the Criminal Appeal Act 1968 seeking to introduce the evidence contained in Professor Baron-Cohen's report. The appellant's solicitor has made what may be described as a Gogana statement, explaining the circumstances in which this issue was raised at a late stage of the trial.

For the appellant, Mr Hewitt submits that the judge's decision refusing an adjournment was an improper exercise of her discretion, which had the effect of excluding evidence which was relevant and admissible on an important issue. He submits that the convictions are therefore unsafe. Mr Hewitt argues that the prosecution case was that the appellant had travelled from London knowing of the plan to kidnap and assault Struiga and Gulbinas and was an active and willing participant in the offences. The appellant's case was that he had been persuaded by Stoskus to travel to Meadow Street for a different purpose, had been told to wait in Meadow Street whilst the offences were committed, which he said was out of his sight, and had been told to forward the videos which he would receive. Mr Hewitt emphasises that the prosecution's cross-examination of the appellant and closing speech to the jury poured scorn on that account. Mr Hewitt submits that the expert evidence of Professor Baron-Cohen, to the effect that the appellant may have been more open than others to being manipulated and misled, was capable of supporting the appellant's account. He submits that the appellant was therefore denied the opportunity to adduce evidence which could have supported his innocent explanation for being present at or near the scene and for sending to Stoskus the videos of the offences being committed.

Mr Hewitt accepts that the prosecution would wish to challenge Professor Baron-Cohen's evidence, potentially as to the diagnosis of autism and also as to the consequences of it for the issues in this case. Mr Hewitt suggests that the principal basis of that challenge would be that the Professor had largely relied on the self-report of the appellant during what was a remote rather than a face-to-face interview. Mr Hewitt submits that those are matters which could have been tested in cross-examination and went only to the weight which the jury might give to the evidence, not to its admissibility. His core submission was that the expert evidence was relevant to important issues in the case; was therefore admissible; and if admitted, could have assisted the appellant in the eyes of the jury by providing an explanation why his account of events may be more credible than the jury may initially have thought it.

Mr Williams, representing the respondent in this court as he did at trial, opposes the appeal. He submits that the judge was correct to refuse the adjournment for the reasons which she gave. He argues that the diagnosis of autism, even if correct, was not relevant, or was of very little relevance, to any issue in the trial. In the alternative he submits that even if the judge's ruling was wrong, the strength of the prosecution case was such that the convictions are in any event safe.

Mr Williams, in the course of his submissions, emphasised that the prosecution case was not solely based on the appellant's explanation being fanciful. It was, rather, substantially based on the evidence which pointed to the appellant's active participation in the commission of the offences. He submits that the evidence that it was the appellant who recorded the majority of the videos was very clear. Moreover, Mr Williams tells us, and we accept, part of the footage recorded by the cameraman (said to be the appellant) showed the cameraman putting his foot on the head of Struiga, who was lying on the ground bound, and indeed kicking Struiga's head. Mr Williams tells us that the prosecution did not accept the diagnosis of autism, based as it was on self-report by a man who had just finished giving evidence in his own defence. Nor, says Mr Williams, could the prosecution accept the suggested significance of the diagnosis of autism if correct. If the evidence was to go before the jury, it was therefore necessary for there to be an adjournment so that the prosecution could obtain expert evidence on their own behalf.

We are grateful to counsel for their assistance with the issues in this case.

The issue of the appellant's autism was first raised whilst the appellant was giving evidence and was therefore unable to speak to his legal representatives. Professor Baron-Cohen's report was later served on the court and on the parties, and it was only then, after all the evidence in the trial had been completed, that an application for an adjournment was made. The consequence of that sequence of events is that the respondent had not had any opportunity to obtain the expert evidence in response which it would have wanted to obtain if Professor Baron-Cohen's evidence was to go before the jury. That has a further important consequence at this appeal stage.

The respondent challenges the admissibility of Professor Baron-Cohen's evidence on grounds relating to its relevance, or, as the respondent would say, irrelevance, to the real issues in the trial. But this court does not know whether expert evidence obtained by the respondent would have provided any further basis for challenging the admissibility of Professor Baron-Cohen's evidence, for example because of a different diagnosis or because of a different expert opinion as to relevant characteristics of those suffering from autistic spectrum disorder. We must therefore proceed on the basis of an assumption for present purposes that Professor Baron-Cohen's evidence would not have been ruled inadmissible on any ground other than relevance.

We would add that, even if it was relevant to an issue in the case, it does not follow that the whole of Professor Baron-Cohen’s evidence would have been admissible as part of the defence case at trial. The exact parameters of which parts of the witness's opinion might have been admissible would have depended in part on whether there was any, and if so what, expert evidence in response. We will assume (but without deciding) that the defence would have been able to adduce evidence of the following: the appellant is autistic; as such, he may have had greater difficulty than others in "seeing the bigger picture"; he may have been more trusting and less questioning than others might have been; and he may have been more vulnerable to exploitation than others might have been.

Any analysis of the relevance, and therefore admissibility, of evidence must depend on a clear identification of the real issues in a case. In this case, even making the assumptions we have indicated in the appellant's favour, we accept the respondent's submission that Professor Baron-Cohen's evidence was at best of marginal relevance to any real issue at trial. The appellant's case, as we have said, was that he was unaware of the planned kidnaps and assaults before they happened, or while they were happening, and played no part in them. He gave evidence that he did not even see them happening and only found out about them when dining with Stoskus later on. It was not his case that he was told what was going to happen but naïvely failed to ask any questions or to oppose the plan. It was not his case that he had in some way been manipulated or misled into taking part in committing the offences. Professor Baron-Cohen's evidence could not be admitted on the basis that it might assist the appellant if the jury disbelieved his evidence but were hypothesising about a version of events which no one in the trial had suggested.

As to the submission that Professor Baron Cohen's evidence was admissible to support the appellant's evidence as to why he travelled to Staffordshire that night, and why he forwarded videos showing the commission of serious crimes, we share the view of the judge that it is unclear how that could be so. The expert evidence could only be relevant to why the appellant might have been misled by a false account of the reason for wanting him in Staffordshire, but it could not help him on the fundamental issue of why Stoskus (who admittedly was intent on kidnap and violence) would want to trick the appellant into travelling a long distance in order to sit in his car, with a passenger who wanted to go to Stansted Airport, whilst on the appellant's account a violent attack took place just out of his sight. In other words, it seems to us that the challenge to the appellant's credibility related to the sheer implausibility of Stoskus bringing potential witnesses to the scene in that way, rather than relating to whether the appellant might have been more inclined than others to refrain from questioning Stoskus's proposal.

Plainly, Professor Baron-Cohen's evidence could not be relevant to the issue of whether the jury could be sure that it was the appellant who had filmed most of the videos subsequently found on Stoskus's phone.

In short, the relevance of Professor Baron-Cohen's evidence to the real issues in the case was at best marginal, and to admit it would have given rise to very substantial difficulties in the continuing trial of the three defendants. The suggestion on behalf of the appellant that the judge should at that stage have severed the appellant's case from those of his co-accused is, in our view, unrealistic. In those circumstances the judge was, in our view, clearly entitled and indeed correct to refuse the application to adjourn.

In fairness to the appellant, we have nonetheless considered whether there is any other reason why the judge's ruling may render the convictions unsafe. We are satisfied that it does not. The case against the appellant was very strong. The jury disbelieved his evidence. We can see no basis for suggesting that their decision might have been different if they had been aware of Professor Baron Cohen's opinion. This appeal accordingly fails and is dismissed.