R v Nichola Hartwell

LORD JUSTICE WARBY:

APPENDIX TO JUDGMENT

REASONS OF THE SINGLE JUDGE FOR REFUSING LEAVE TO APPEAL

30 SEPTEMBER 2024

“REASONS FOR DECISION

I have considered the papers in your case and your grounds of appeal. I have refused your applications for the reasons explained below.

After trial by jury, you were convicted of two counts of theft, which related to what were said to be thefts from funds that the complainant (a former friend: “PA”) had placed into one of your bank accounts. You were subsequently sentenced to two years imprisonment, suspended for 18 months.

By your application, you apply for leave to appeal against your conviction, seeking an extension of time in order to do so, and also applying to rely on what is described as fresh evidence (which relates to the interactions between your trial counsel and an individual described as your “appointed advocate”). I have carefully read all the documentation you have supplied in support of your applications, together with the responses from your trial lawyers (and your annotations on those responses), the respondent’s notice and the trial documentation and transcripts available to me. Having done so, for the reasons set out below under each of your proposed grounds of appeal, I am satisfied that there is no arguable basis for thinking that the jury’s verdicts were unsafe.

Ground 1: by this ground you say that the office in the case (“OIC”) DC Chan committed perjury by lying about emails received and sent to/from an email address that she denied using. You say that the OIC’s evidence in this regard - specifically her denial that she had received emails from you sent to the address in question - was relied on by the prosecution to discredit you in the eyes of the jury.

I understand this ground of appeal to relate to an evidential dispute regarding an email you said you had sent to the OIC on 11 December 2017. You relied on this email as setting out your explanation regarding PA’s monies more accurately than your police interview in March 2018. The OIC was recalled on 12 January 2024 to answer questions regarding this email, which she denied receiving. It was her evidence that she used a different email address to the one to which the disputed message had been sent and that had she received this email she would have exhibited it to a witness statement, as she had with other correspondence she had had with you. Other emails to/from the OIC in the jury bundle showed a different email address to the one used in the 11 December 2017 email. You have, however, provided a copy of an email sent to your solicitor on 24 July 2023, which has four pdf documents attached: your email of 11 December 2017 and three emails which seem to be from the OIC to you, all using the same email address. You have said that this is a matter you have referred to the Independent Office for Police Conduct and is currently being investigated. At this stage, however, I am unable to see that simply showing pdf versions of emails going to a different email address than that claimed by the OIC would be sufficient to demonstrate that she had perjured herself. I am, moreover, unable to see that this would be a matter that could render the jury’s verdicts unsafe: you were able to put the email of 11 December 2017 into evidence and to give your own account of what you had said, and why that was more reliable than the record of your answers in the March 2018 police interview. The jury heard your account and that of the OIC and, to the extent the jury considered it necessary to resolve this dispute, it was able to do so.

Ground 2: you state that the complainant, PA, lied whilst giving evidence and that there was evidence available to show that he had done so. It is your case that PA lied about having chronic fatigue syndrome (“CFS”), and about his concerns about his claims to the DWP, and about the fact that he was living far beyond the means afforded to him by the benefits he claimed. You say that you provided your legal representatives with significant evidence demonstrating these points but they failed to utilise this and/or to properly make the points in question.

Trial counsel has explained that the question whether PA had CFS was explored at a pre-trial hearing and PA’s diagnosis of CFS was established by the disclosure of a GP’s letter to this effect. As this is a condition in respect of which symptoms can fluctuate, the fact that PA was able to lead an active life at times when he was not experiencing symptoms meant that many of the points taken would inevitably go nowhere. It is, however, apparent that, pursuant to your instructions, your counsel did raise questions of PA in this regard at trial. Similarly, in relation to PA’s receipt of benefits and evidence regarding his lifestyle and expenditure, your counsel has explained that, although some evidence was put to PA in this regard, other material you had supplied did not make good the points you contended. As for questions of PA’s credibility in relation to his DWP claims, this is something you raised in your own evidence to the jury; in your counsel’s advice on appeal, it is explained that during your cross-examination, you accused PA of lying and fabricating evidence in other proceedings, which led the prosecution to make an application to admit evidence of your own previous convictions for offences of dishonesty. Although that application was refused by the judge, it was a legitimate concern for your legal team that the possibility of the admission of this evidence was kept in mind when making attacks on the character of PA.

Ultimately, the jury had the opportunity to form its own view on your evidence, and on the evidence of PA, on the crucial questions at the heart of this case. I do not see that the points made under this ground are such as would arguably render your convictions unsafe.

Ground 3: it is your contention that the prosecution withheld evidence, having taken evidence out of the main bundle relating to PA’s dealings with the DWP, without your, or your lawyers’, consent. You further say that your legal representatives were negligent to not present the evidence on discovering it had been taken out.

It is unclear precisely which documents you are referring to in this regard. Addressing the substance of this allegation, however, I understand that prior disclosure had addressed the points made in the defence statements regarding the question whether the money in issue (some £26,000 that PA had inherited and which he subsequently placed into one of your accounts) would have affected PA’s access to benefits. The answer to that question was in the negative, which may well have rendered much of the material relating to this point irrelevant. In any event, there seems to be no dispute that PA was still cross-examined on this issue and that you gave evidence on the point. To the extent that the jury would have considered this relevant to PA’s credibility it was thus able to take these points into account. I cannot see that you have identified anything under this ground that would arguably suggest that your convictions were unsafe.

Ground 4: you characterise this ground as relating to “Jury Tampering”. You are referring to the fact that, during the course of the trial, a juror sent a note to the judge explaining that they had seen the complainant outside of court; you state this was outside the Royal College of Art (“RCA”) and contend that “On balance of probability to us it seems unlikely that it was by chance”, pointing to the fact that the RCA is “on the other side of London and a very specific place”. You complain that the court failed to take any action when there is a suspicion that the juror may have been compromised.

I have seen the jury note in relation to this incident and the record on the court log at 10:14 on 12 January 2024. The juror was in fact referring to having passed the RSA (which I take to be the Royal Society of Arts), when they saw PA filming; they had no interaction with PA and did not know whether PA had seen/recognised them, but wished to bring this to the attention of the court. Having drawn this to the attention of the parties, the judge recorded that all were content that there was nothing to be concerned about. That was an entirely understandable reaction: the juror had acted entirely properly and there was no evidence of any interaction between them and PA. I do not know who is being referred to as “us” in this ground, but I can see no basis whatsoever for considering that this was other than a chance meeting. Certainly there is nothing that would begin to warrant an allegation of jury tampering (indeed, the fact that the juror had drawn the encounter to the court’s attention would strongly counter any such suggestion).

Ground 5: by this ground you make a number of complaints about legal representatives, including an allegation that you were shown forged documents by your solicitors relating to a transfer of instructions.

Your legal representatives have explained how they read all the documentation you supplied to them and made themselves available before and after court to discuss the case with you. Prior to the trial, your counsel attended at least two Zoom conferences with you and, once instructed, attended each of the pre-trial reviews in person, on each occasion, sitting down to discuss the case with you both before and after the hearing. You have provided one email to your solicitor which suggests that on one day he might not have been able to get to court sufficiently early to attend a pre-hearing meeting, but otherwise I can see nothing that would contradict this record.

The areas of dispute between you and your legal team seem to have arisen from (1) your wish for the matters referenced above to be put more forcefully, albeit your lawyers were concerned that this might (a) backfire in terms of your credibility with the jury, and/or (b) invite an application for bad character evidence to be admitted in respect of your previous convictions for offences of dishonesty; (2) interventions by two people who accompanied you to court, when your counsel was concerned to ensure that he was communicating directly with you; (3) continuing requests by your lawyers for you to provide access to your computer/your copies of relevant email messages with PA. In relation to this last point, it is apparent that this was a very significant issue at trial. PA had produced emails from July 2017 which included what might be seen as admissions on your part. Your evidence was that the crucial emails were fraudulent; you did, however, accept that you had received some of the emails from PA that were in the chain in question. That inevitably begged the question as to why you would not have produced what you claimed was the true version of the email chain. In your annotations to the various responses that have been received that effectively make this point (it being of obvious significance at trial) you say that you repeatedly told your lawyers that there were no such emails. That, however, does not accord with your evidence at court, as recorded in the judge’s summing up to the jury at (for example) pages 41-42, 44-45, and 48.

The material available suggests that your lawyers were assiduous in seeking to ensure that they fully considered every point you raised and conscientiously took every point that could properly be taken on your behalf. To the extent that judgement calls had to be made as to how certain points were put, I am unable to see that your lawyers did other than act entirely properly. Certainly your ground of appeal identifies no failings on the part of your legal team that would arguably render your convictions unsafe.

Ground 6: you here object that PA’s claims that he had memory loss were not substantiated by medical evidence and allowed him to lie. You contend that your counsel failed to argue this point or obtain expert medical evidence in this regard.

To the extent that PA was able to claim that he suffered memory loss due to suffering CFS, there was medical evidence (in the form of his GP’s letter) to confirm his condition. As to whether he in fact suffered memory loss as a result, that would inevitably depend on PA’s own reports; in the circumstances it is difficult to see what further evidence could be obtained in this regard. In any event, the more important point was that PA was robustly cross-examined about inconsistencies in his evidence and it was put to him that his poor recollection of various interactions and events meant that his evidence was unreliable. The jury was thus able to form its own view as to whether PA’s evidence should be accepted. There is nothing in this ground to suggest that your convictions might have been unsafe.

Ground 7: by this ground you raise concerns as to what are said to have been failures to make reasonable adjustments for you at trial. You refer to the fact that you have severe dyslexia and that this was something you told your representatives before the trial but say that no allowances or provisions were made for your disability, putting you at a disadvantage. You say that you told the court yourself of your difficulties, and asked for an “assisted person” to aid you, but that was refused, and your barrister and solicitor said you did not need assistance so no reasonable adjustments were made. In support of this ground you have provided report from a dyslexia consultant, dated 10 May 2024, which refers to a diagnostic assessment carried out in 2013. The author does not appear to have attended your trial, but makes various observations about what is said to have taken place.

I have checked the court log for the trial and can see that at an early stage (at the end of the prosecution opening) there was an exchange between your counsel and the judge, where your difficulties with concentration were raised and it was said that reasonable adjustments could be made. Subsequently, before you began your evidence, your counsel raised your condition with the judge, saying that you may need breaks. The judge asked whether you would need assistance with your reading and, after taking instructions from you, counsel is recorded as saying you would just need breaks. Upon the jury’s return, the judge explained that you had a condition whereby you would need to take breaks during your evidence. In the circumstances, I am unable to see that you were placed at a disadvantage in being given the adjustments you sought at trial: consistent with the guidance under the Equal Treatment Bench Book, the judge was alive to your condition and to the requirement to check with you what adjustments you might need; your counsel took instructions from you at the time, and the adjustment identified was put into place. To the extent you suggest that you should have been assisted by your “advocate”, I am unable to see that would have provided a reasonable adjustment in the circumstances. There is nothing to suggest that this was a case where an intermediary was required or that, with regular breaks, you were unable to speak for yourself. I have considered the proposed new evidence relating to your condition, but am not persuaded that assists in determining the question whether you were in fact prejudiced in any way at trial, and I note that your experienced legal team found you to be well able to provide instructions and to fully participate in the proceedings. Certainly, I cannot see any basis for considering that you were deprived of your right to a fair trial or that your convictions are rendered unsafe by the conduct of your trial. For completeness, I further observe that the fact that the judge permitted your “advocate” to speak for you at the sentencing hearing - when you were otherwise acting in person - says nothing about whether this would similarly have been a reasonable adjustment when you were legally represented by experienced counsel.

Having thus considered your individual grounds of appeal, I have also sought to stand back and look at the picture formed overall. So doing, I am confirmed in my view that there is nothing that would suggest that your convictions are unsafe.

Given the view I have formed as to the merits of your proposed appeal, no purpose would be served by my granting your application for an extension of time.”

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