Courts of Appeal
| Published date | 01 May 1981 |
| DOI | 10.1177/002201838104500202 |
| Date | 01 May 1981 |
| Subject Matter | Courts of Appeal |
Courts
of
Appeal
Comments
on
Cases
JOINDER OF TWO SEPARATE ROBBERIES IN INDICTMENT
R. v. Blackstock
A wine shop was broken into by two robbers wearing stockings masks
and carrying guns and money was stolen. Five days later, three men
wearing stocking masks and carrying guns broke into the flat of the
owner of the shop and robbed him of a further sum of money. The
police found balaclava helmets and guns at the address of the men
and a sawn-off shot-gun in a garden nearby. In R. v.Blackstock [1979]
70 Cr. App. Rep. 34, the indictment based on these events contained,
inter alia, four counts which were paired - one
of
robbery and one of
carrying a firearm, each related to each
of
the two robberies.
It
was
conceded that this was a case in which the evidence admissible in
respect of one robbery was inadmissible in respect of the other,
although the two robberies were not dissimilar in character. On this
basis, the trial judge was asked to sever the indictment, but he declined
to do so. During the trial, it was obvious that some of the evidence
was common to both pairs of counts, but the judge clearly directed the
jury to consider the counts separately. In the event, the jury convicted
on one pair of counts and acquitted on the other, but an appeal was
brought against conviction, on the ground that the counts should have
been severed, since this was not a 'similar fact' case.
On appeal, it was submitted that the trial judge was under no oblig-
ation to sever the indictment and to order that each of the pairs of
counts be tried separately. The Crown contended that the case fell
within rule 9 of the Indictments Rules, under which charges may be
joined in the same indictment if founded on the same facts or if they
form part
of
a series of offences
of
the same or a similar character.
The two robberies were armed robberies by robberssimilarly disguised,
within a short time
of
each other, to steal money from a shop and from
the shop owner. They were not "strikingly similar", but
"of
similar
character" within rule 9. The Court
of
Appeal concluded that neither
the fact that the robberies were not "strikingly similar" nor the fact
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that evidence of the one was inadmissible on a charge
of
the other
sufficed to support the argument that the trial judge was bound to
excerise his discretion only one way, namely to sever the two pairs
of
counts. For many years, judges have permitted such joinder and juries
have been able to act in accordance with the judge's direction to treat
each count separately and to remember that evidence on the one
cannot be used as evidence when considering the other. Indeed, in the
present case, the jury, it will be recalled, convicted on one pair of
counts and acquitted on the other.
In dismissing the appeal, the court empahsised that the decision
whether to sever is one within the trial judge's discretion and that the
Court of Appeal will not interfere with his exercise of that discretion
unless he applied his mind to the wrong principles. In fact, the basic
argument addressed to the trial judge in the present case was that, in
view of the recent decisions in
D.P.P.
v.Boardman [1975] A.C. 421 and
R. v. Novae [1977] 65 Cr. App. Rep. 107 and R. v. Scarrott [1977] 3
W.L.R. 629; [1978] 42 J.C.L. 73, he must order a severence. The judge
rightly rejected this submission. There is no reason why, under rule 9,
the two robbery charges should not have been tried together and no
injustice resulted, since the jury was clearly directed that evidence on
the one pair of counts was not evidence on the other. Nor, in the
court's opinion, was this direction nullified by the judge's drawing the
jury's attention to the fact that some of the evidence was common to
both pairs of charges. There was thus no misdirection and the appeal
was dismissed.
PLEA BARGAINING AGAIN
R. v.
Coward
The appellant in R. v.
Coward
[1979] 70 Cr. App. Rep. was charged on
indictment with rape, attempted rape, unlawful sexual intercourse,
attempted unlawful sexual intercourse and indecent assault - all
charges relating to a girl aged fourteen, on the one occasion. The
prosecution were doubtful whether the evidence would support the
charges of rape and attempted rape. Defence counsel asked prosecuting
counsel whether a plea of guilty of indecent assault would be accepted,
to which prosecuting counsel invited a plea to attempted unlawful
sexual intercourse. Both counsel then decided to ask the judge in
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private whether he would accept that plea. In the course
of
their inter-
view with the judge, defence counsel asked him whether he would
indicate what sentence he would pass on a plea of guilty of attempted
unlawful sexual intercourse and Crown counsel asked him whether he
should accept that plea. The judge refused to
give
any indication as to
sentence. Thedefendant pleaded guilty to that charge and was sentenced
to six months' immediate imprisonment. The Court
of
Appeal stated
that, on principle, that sentence was right, but, as the appellant had
not continued to force his attentions on the girl after she had indicated
that she was unwilling to have sexual intercourse, the sentence was
reduced to three months.
The court dealt at some length with the propriety of counsel's action
in seeking advice and information from the judge. Lawton L.J.
emphasised that those advising an accused have to make up their own
minds as to what advice to
give
and they should not try to
put
off
that
responsibility by askingthe judge to shoulder it.
It
is, moreover, only in
the most exceptional circumstances that counsel should ask the trial
judge to
give
any guidance whatsover upon the kind
of
sentence he may
impose. If a judge wishes exceptionally to
give
such guidance, he must
proceed in accordance with the guidelines laid down in R.
v.
Turner
[1970] 2 Q.B.321, 327; 34 I.C.L. 240. Moreover, it is for prosecuting
counsel himself to decide what pleas, if any, he is prepared to accept.
If the judge disapproves
of
his decision, he must do so in open court
and it is for prosecuting counsel alone then to decide what course he
will take in the light of what has been said. Counsel should never, as a
matter
of
course, see the judge 'behind the scenes' to obtain advice
as to pleas.
In the present case, the appeal was heard on the basis of a notice of
appeal drafted by counsel, in which he complained that the had been
told by the judge that he (the judge) "could be trusted", from which he
inferred that, on such a plea as had been mentioned being accepted, any
custodial sentence that might be imposed would be suspended. Before
the Court of Appeal, counsel sought to defend the course which he had
taken by saying that it was common practice. To this Lawton L.J. said:
"We wish to state firmly that in our experience outside London it is
not common practice. We wish to make it clear that if it is common
practice in the London area, it is one which should stop." When counsel
suggested that the Court of Appeal's ban on plea bargaining would be
to the detriment of the administration
of
justice, he was sharply told
that "the opposite is the position".
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