John King v Colin Grundon
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Sharp |
| Judgment Date | 11 May 2012 |
| Neutral Citation | [2012] EWHC 2719 (QB) |
| Docket Number | Case No: IHJ/12/0217 |
| Court | Queen's Bench Division |
| Date | 11 May 2012 |
[2012] EWHC 2719 (QB)
The Honourable Mrs Justice Sharp
Case No: IHJ/12/0217
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH D IV IS IO N
Court No: 13
Strand London WC2A 2LL
Mr King appeared In Person
Mr J Scherbel-Ball appeared on behalf of the Respondent
This is an application by the Defendant, Colin Grundon, for an order striking out the Claimant's claim for libel pursuant to CPR 3.4(2) (b) on the ground that it amounts to an abuse of the process and/or asking for summary judgment pursuant to CPR 24.2(a) (i). Mr Jonathan Scherbel-Ball appears for the Defendant. The Claimant appears in person.
The Claimant issued a claim form and particulars of claim for libel on the 7th December 2011, complaining of one publication and was given permission to amend his particulars of claim on the 9th February 2012 to complain of an additional publication. Before setting those out, it is necessary to set out some of the underlying facts.
The Claimant is a former English barrister and a former member of the Honourable Society of the Middle Temple. On the 13th June 2003 (under his previous name of John Burrett) the Claimant and one of his co-defendants, his nephew, Matthew Payne, were convicted by a jury in New Zealand after a 7 week trial of two offences: (i) Conspiracy to unlawfully detain a person without his consent with intent to force him to be confined; and (ii) Possession of a pistol otherwise than for some lawful, proper and sufficient use.
The Claimant's conviction related to a plot to kidnap a businessman and to detain him in a large plywood box buried in the ground in a bush reserve. On the 18th June 2003, the Claimant was sentenced to seven years' imprisonment for those offences. On the 12th February 2004, his appeal against conviction and sentence was rejected by the New Zealand Court of Appeal: see R v Payne and others [2004] NZCA 3.
A third defendant, the Claimant's stepson, Simon Philpott, had earlier pleaded guilty to a charge of conspiring to unlawfully detain a person without his consent with intent to hold him for ransom and was sentenced to two and a half years' imprisonment.
The following facts appear from the Court of Appeal judgment, which has been put into evidence by the Claimant for the purpose of this hearing. The numbers that are referred to are the relevant sub paragraphs where they are set out:
1. "The Claimant was convicted after trial before a jury on one count of conspiring to unlawfully detain a person without his consent with intent to cause him to be confined and one account of possession of a pistol otherwise than for some lawful, proper and sufficient purpose.
2. The Claimant was acquitted on a charge of conspiring to unlawfully detain a person without his consent with intent to hold him for ransom.
3. The Claimant had been charged with attempted kidnapping, but the "attempt" charges were discharged by the trial judge as he was not satisfied that the actions of the Claimant and his co-conspirators, by the time they were apprehended by the police, constituted a "full attempt".
4. The Claimant was sentenced to seven years in prison as a result of his convictions.
5. The Claimant together with Payne was arrested on the evening of 22 July 2002 as they entered Wellington Botanic Garden, in possession of a bag containing a sawn off shotgun, live ammunition, overalls, balaclavas and other items capable of being used for the commission of a crime. They had been followed by police on 3 previous occasions when they had visited the Gardens.
6. Recorded covert conversations involving the Claimant indicated that a Wellington businessman who lived in close proximity to the location of arrest, at the top of Botanic Gardens was to be kidnapped. The Claimant did not dispute at trial what was said on the recordings.
7. The Claimant had been involved in the construction of a box or "bunker" built of plywood, big enough to hold a man, buried in the ground of a bush reserve. The box had a trap door, a supply of foods and words written on the inside wall "Welcome to your new home. We will not hurt you. Max. Stay 6 days." The Claimant did not deny that they had buried this box.
8. There was no dispute as to the primary facts and the only dispute was as to intent. The Claimant's defence was that he and his co-conspirators were playing a game of kidnapping and lacked any criminal intent. The box they said had initially been constructed for one of the Claimant's co-conspirators to live in but when they started the kidnap "game" the box became incorporated in that "game".
9. The Court of Appeal regarded the evidence against the Claimant as
10. "strong". The trial judge stated that the Claimant's offending was of the gravest kind and consequently imposed upon him the maximum term of imprisonment on the conspiracy charge and a two year concurrent sentence on the firearms charge with a minimum term of two thirds to be served of each sentence.
The Court of Appeal upheld the maximum sentence on the conspiracy charge against the Claimant. In doing so, the Court of Appeal stated that the judge was entitled to regard the Claimant's action in this case as being at the most serious end of offending of this nature. The presence of the sawn off shotgun and ammunition for it was a serious aggravating factor, as was a proposal to detain someone in an underground bunker. The traumatic effect of such a detention had it been carried out was obvious.
I will not set it out, but the decision of the court should obviously be read in full. It is to be noted that the Claimant was represented by counsel, that the analysis of that court was, as might be expected, very thorough and that though not uncritical of certain aspects of the trial judge's summing up, the Court of Appeal came to a very clear conclusion that there was no ground to disturb the conviction.
It is also to be noted that the crucial issue at trial, as it was described by the Court of Appeal at paragraph 12 of its judgment, was whether the Crown could prove beyond reasonable doubt that 'What the appellant had done was not a game, but was a conspiracy to commit the crime of kidnapping.'
A decision by the Disciplinary Tribunal of the Council of the Inns of Court to disbar the Claimant and expel him from the Honourable Society of The Middle Temple was brought into effect on the 29 July 2005. The Claimant had already been informed of the finding and sentence, but did not then appeal against the finding or the sentence within the 21 days provided for.
The Disciplinary Tribunal took the decision it did as a result of its finding that the Claimant was guilty of the offence of professional misconduct, the particulars of which were as follows:
'John Burrett engaged in conduct which was discreditable to a barrister and was or likely diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute in that:
A) On the 13th June 2003 you were convicted by a jury at the High Court of New Zealand, Wellington registry of offences of:
1) Conspiracy to unlawfully detain a person without his consent with intent to cause him to be confined and
2) Possession of a firearm, namely a pistol (a cut-down shotgun) otherwise than for some lawful, proper and sufficient purpose.
B) On the 18th June 2003, at the same court, he was sentenced to a period of seven years' imprisonment in respect of the above offences.'
The Tribunal noted it had seen a certified copy of Mr Burrett's conviction, that all avenues of appeal had been exhausted and also what was said in the sentencing remarks of the judge. Due to the gravity of the offences, for which seven years' imprisonment had been imposed, and where no remorse had been shown, the Tribunal's conclusion was that Mr Burrett was unfit to be a member of the Bar.
The Privy Council refused the Claimant leave to appeal against his conviction. The Claimant tells me that this is because the case was not a 'capital one' and was not one therefore in which the Privy Council would interfere. He was subsequently deported from New Zealand.
All these matters, that is the Claimant's conviction, his sentence and his expulsion from the English Bar were widely reported in this jurisdiction. Examples of those reports are exhibited to the witness statement of Mr Grundon. They include the following.
Reuters news agency published accounts of his conviction on the 13th June 2003 and then his subsequent sentencing. The latter report, included the judge's sentencing remarks, which describe the Claimant as a ' highly manipulative person… you are oblivious to the results of your actions on those around you. There should be no doubt who the central villain in this case is.'
These matters were also widely and prominently reported in various local newspapers. The Birmingham Post's report of the sentencing recorded the judge's remarks about the Claimant's ' sheer nastiness' and the ' utterly damning' police recordings of the Claimant. One of those recordings included the Claimant stating, ' Having a shotgun stuck up his nose should be enough to make him do what he is told.'
Both the Birmingham Post's report and the Kentish Gazette's report also describe the judge's concern about the manner of the Claimant's self-representation which had hugely and unnecessarily protracted the trial.
The fact that the Claimant was disbarred was also reported in this jurisdiction. PA News carried the story, repeating the details of his conviction which led to the Bar's disciplinary action. When the Bar Standards Board announced in 2007 that barristers who were found guilty of misconduct would be publicly named, the...
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