Attorney General's Reference (No. 82a of 2000); R v Lea; R v Shatwell
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 28 January 2002 |
| Neutral Citation | [2002] EWCA Crim 215 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2000/05858/R1 |
| Date | 28 January 2002 |
[2002] EWCA Crim 215
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Aikens and
Mr Justice Pitchford
No. 2000/05858/R1
2000/05794/S3 & 2000/05837/S3
Attorney General's Reference No. 82 of 2000
Under Section 36 Of
MR DAVID PERRY appeared on behalf of the ATTORNEY GENERAL
MR MARTIN CALLERY appeared on behalf of THE OFFENDER APPLICANT LEA
THE APPLICANT SHATWELL was not represented and did not appear
Monday 28 January 2002
: There are three applications before us, two by the applicants and one by Her Majesty's Attorney General. The applications raise two principal issues. The first is:
Does the principle of equality of arms mean that if the Crown instructs Leading Counsel, a defendant who is being defended by junior counsel at public expense should be entitled to be defended by Leading Counsel?
The second question is identified by Mr Perry who appears on behalf of the Attorney General in these terms:
Does the Court of Appeal have power to review a sentence which appears to the Attorney General to be unduly lenient in circumstances in which that sentence was imposed by a judge of the Crown Court following a retrial ordered by the Court of Appeal, the conviction having been quashed, notwithstanding the fact that the judge on the retrial was bound to impose a sentence of no greater severity than that passed on the original conviction?
The background to the applications can be shortly summarised. On 16 April 1999, following a trial in the Crown Court at Manchester, the applicants were convicted of two offences, one of robbery, and the second of possessing a firearm at the time of committing the robbery. The applicant Lea was sentenced to concurrent terms of three-and-half years' imprisonment. For an offence of common assault he was sentenced to three months' imprisonment to run concurrently with the other sentences, making a total of three-and-a-half years' imprisonment.
The applicant Shatwell, following his conviction was subject to the automatic provisions for a life sentence to be imposed upon a person convicted for two serious offences, as specified in the relevant legislation, unless there are exceptional circumstances. There were no exceptional circumstances. Consequently he was sentenced to life imprisonment.
The evidence against the applicants was that of identification of a not unduly complicated nature.
The facts of the offence showed that the persons who were responsible for the offence carried out an armed robbery at a residential address. One of the offenders carried a loaded shotgun during the robbery and displayed it so as that the six adults who were present at the address were frightened. The person who was said to be carrying the loaded firearm was the applicant Lea. A victim of the robbery was assaulted, as a result of which he required stitches to a wound on his head. Jewellery to the value of £625 was stolen.
Following conviction the applicants appealed. Prior to their appealing, the Attorney General made an application in respect of Lea pursuant to section 36 of the Criminal Justice Act 1988, to refer his sentence to the Court of Appeal for review on the ground that it was unduly lenient. However, in consequence of the applicants' appeal against conviction successfully on 16 June 2000, the Attorney General did not proceed with his application. A retrial was ordered.
On 12 September 2000, at the Crown Court at Manchester, this time before His Honour Judge Swift, the applicants were again convicted. The applicant Lea was sentenced to concurrent terms of 42 months' imprisonment in respect of the offences of robbery and possession of a firearm. That term was exactly the same as had been passed by the judge at the first trial. Shatwell was again sentenced to life imprisonment in respect of both offences.
The applicants applied for leave to appeal against conviction solely on the first of the two issues we have identified, namely the refusal of the trial judge to allow Leading Counsel to represent them in the court below. The case is put very simply and straightforwardly on behalf of the applicants. Their contention is not that junior counsel who had represented them was not competent, but that because the Crown had instructed Leading Counsel it was unfair for them to be deprived of the benefit of Leading Counsel.
The reason why Leading Counsel had been instructed on behalf of the Crown was simply that the retrial took place shortly after the vacation period and junior counsel who had represented the Crown at the first trial was no longer available. Leading Counsel was instructed because a junior counsel of the appropriate experience could not be found.
Complaint is made that not to have equality of arms (here equal representation by Leading Counsel) contravenes Article 6 of the Human Rights Act and is unfair.
In our judgment, there is no substance in this argument. The principle of equality of arms is as readily identified in the common law as it is in the Human Rights Act. It is a principle that entitles any defendant to a fair trial. However, a fair trial does not necessarily entail representation by a Queen's Counsel merely because the Crown are represented by a Queen's Counsel. The importance is to have an advocate, whether he be a barrister or a solicitor, who can ensure that a defendant's defence is properly and adequately placed before the court.
In this case it is quite clear that the arguments advanced on behalf of the applicants were adequately presented by the counsel who represented them. In our judgment, the single judge was right to refuse leave to appeal on that point which is without substance.
With regard to the other principal question which is before us the correct answer is not so clear. However, having received the usual quality of assistance which this court has come to expect from Mr Perry, we are satisfied that the argument which the Attorney General wishes to advance is without substance, though we understand the reasons why he thought it appropriate to bring the matter before this court, and we grant leave.
In order fully to appreciate the arguments which are advanced by the Attorney General it is necessary to have in mind the relevant statutory provisions. The starting point is the Criminal Appeal Act 1968. The power to order a retrial is contained in section 7. Section 7 provides:
"(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.
(2) A person shall not under this section be ordered to be retried for any offence other than—
(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1) above;
(b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence;
…."
Section 8 provides:
"(1) A person who is to be retried for an offence in pursuance of an order under section 7 of this Act shall be tried on a fresh indictment preferred by direction of the Court of Appeal but after the end of two months from the date of the order for his retrial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave."
The reason for section 8(1) being included in the legislation is apparent. If an offender is to be subject to two trials for the same offence, the second trial must be pursued with diligence.
Section 8(4) provides:
"Schedule 2 to this Act has effect with respect to the procedure in the case of a person ordered to be retried, the sentence which may be passed if the retrial results in his conviction and the order for costs which may be made if he is acquitted."
Paragraph 2 of Schedule 2 provides:
"(1) Where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorised by law, not being a sentence of greater severity than that passed on the original conviction."
The policy in that paragraph of the Schedule appears clear. The intention of the legislation is that if an offender is to be subjected to a retrial, he will be at jeopardy for being convicted again. But if he is convicted again, the policy is that he should not be in jeopardy of receiving a sentence of greater severity than that passed following the original conviction. Paragraph 2 of Schedule 2 provides:
"(2) Without prejudice to its power to impose any other sentence, the court before which an offender is convicted on...
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