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[2025] EWCA Crim 1558 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT HARROW (HIS HONOUR JUDGE ALLISTER WRIGHT) (01MP1262523) CASE NO: 202402682 A1 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE STUART-SMITH
MR JUSTICE BRYAN
HER HONOUR JUDGE DE BERTODANO
REX
v
JAKE VIDGEN
_________
MR SILAS LEE appeared on behalf of the Appellant
MR LIAM GREGORY appeared on behalf of the Crown
_________
JUDGMENT
JUDGE DE BERTODANO:
On 27 November 2023 in the Crown Court at Harrow, the appellant (then aged 31) pleaded guilty to one offence of conspiracy to rob and one offence of possession of an offensive weapon.
On 4 July 2024 he was sentenced by His Honour Judge Alistair Wright to a total of 5 years and 8 months' imprisonment.
He appeals against sentence by leave of Johnson J.
Facts
The defendant pleaded guilty to conspiracy to rob between 4 and 7 May 2023. This related to two robberies and one attempted robbery of a petrol station and two post offices.
His basis of plea states that on release from prison he started using drugs again and ended up owing his co-defendant money. His co-defendant assaulted him and he committed these offences under a high level of coercion and intimidation which fell short of duress.
On 10 June 2024 HHJ Wright heard a trial of issue and found against the appellant. It is his finding in that hearing which forms the subject of today's appeal.
It is common ground that throughout his ruling on the trial of issue the learned judge misdirected himself as to the law. He was under the misapprehension that the appellant had to prove his case on the balance of probabilities. In fact, it was for the prosecution to prove beyond reasonable doubt that the appellant's case was untrue.
The learned judge carried out a detailed analysis of the many features of the appellant's evidence that he found to be unsatisfactory. He concluded his analysis and his ruling by saying this:
"It seems to me that these are central pieces of evidence from the defendant himself in-chief, by and large, which substantially undermine his credibility and so undermine the accuracy and reliability of the evidence he's given before me. It follows that I'm not satisfied on the balance of probabilities and even before considering the myriad opportunities to remove himself from the various robberies or attempts, in particular overnight from 5 to 6 May, that the defendant was acting under coercion or intimidation. It seems to me that the drugs, their funding and consumption was the issue here. The defendant basically said as much when he was arrested, as shown on the body worn footage: 'I keep going on a merry-go-round in circles. I'm quite sure that the evidence of the defendant does not undermine the Crown's case as alleged. It follows that the defendant will be then sentenced based on the Crown's case."
The appellant appeals against sentence on the sole ground that the judge misdirected himself as to the burden and standard of proof to be applied at the trial of issue. He argues that in ruling as he did the judge rejected an account given by the appellant which might have been true. The appellant was entitled therefore to be sentenced in accordance with his basis, which would attract a lower starting point.
The respondent, while acknowledging that misdirecting himself as to the burden and standard of proof was a serious error on the part of the judge, which was not noticed or corrected by the parties at the time, argues that nevertheless the judge made it clear that he had comprehensively rejected the appellant's account that his involvement was due to coercion, intimidation or exploitation. The respondent states:
"As the evidence of 'coercion, intimidation or exploitation' was wholly within the knowledge of the defendant, in circumstances where the account of the defendant was found by a Judge hearing that account, to be wholly undermined by their lack of credibility, the prosecution have satisfied the burden and standard of proof by satisfying the Judge that the defendant’s account is not true AND therefore notwithstanding the burden and standard of proof applied by HHJ Wright during the Newton, HHJ Wright’s assessment of the evidence of the defendant and the overall assessment of the appropriate sentence ought not to be interfered with."
Discussion
We start by saying that the judge made a basic error in this case in applying the wrong burden and standard of proof. It is clear that this was not merely a slip as he restates it several times in the course of his ruling. It is well established that the burden of proof remains on the prosecution throughout. In R v Nabil Ahmed [1984] 6 Cr App R (S) 391 Parker LJ giving the judgment of the court said at 393:
"... the defence version of the facts must be accepted, unless a jury or the judge, as the case may be, is sure that it is wrong."
We must go on to consider whether despite this misdirection the judge in fact found that the prosecution had proved their case to the criminal standard.
We have considered the judge's ruling with care. He rejects throughout the suggestion that the defendant was acting under coercion or intimidation. He also makes it clear that he does not consider the appellant a credible witness. He says in the paragraph quoted in full above:
"It seems to me that these are central pieces of evidence from the defendant himself in-chief, by and large, which substantially undermine his credibility and so undermine the accuracy and reliability of the evidence he's given before me."
We then consider the following sentence:
"It follows that I'm not satisfied on the balance of probabilities and even before considering the myriad opportunities to remove himself from the various robberies or attempts, in particular overnight from 5 to 6 May, that the defendant was acting under coercion or intimidation" [emphasis added].
It seems clear to us that he is saying that he is not satisfied on the balance of probabilities, even apart from the opportunities the appellant had to remove himself. It is implicit in what he says that the additional consideration (namely his failure to remove himself) reinforces his level of certainty so that it goes beyond the standard he had mistakenly set himself.
But the conclusive point, in our judgment, is that he then goes on to say:
"I'm quite sure that the evidence of the defendant does not undermine the Crown's case as alleged."
That is the language of certainty. Despite the misdirection, he makes a finding that he is quite sure that the evidence of the appellant did not undermine the prosecution case.
In short, this is a case in which the learned judge heard the evidence of the appellant and rejected it. The misdirection on the law as to the burden and standard of proof was most unfortunate and avoidable. However, the critical question is whether his ultimate conclusion was no more than a finding on the balance of probabilities. In our judgment it went beyond that. The use of the word "sure" is the language of certainty to the criminal standard of proof; otherwise it serves no purpose, as the judge had already expressed his conclusion on the balance of probabilities. His conclusion that he was sure is not affected by his earlier self-misdirection.
We therefore dismiss the appeal.
