Kevin O'dowd v R
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 12 May 2009 |
| Neutral Citation | [2009] EWCA Crim 905 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2007/03874/B1 |
| Date | 12 May 2009 |
[2009] EWCA Crim 905
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HH Judge Hawkins QC
Before : Lord Justice Scott Baker
Mrs Justice Rafferty Dbe
and
Mr Justice Beatson
Case No: 2007/03874/B1
MR R. KOVALEVSKY QC and MR J. HODIVALA for the Appellant
MRS P. MAY and MR K. BARRY for the Respondent
Hearing date : 2 April 2009
Mr Justice Beatson:
Introduction:
The court has to consider the safety of the conviction of Kevin O'Dowd of a number of offences against a woman to whom we shall refer as SS committed between 15 and 18 September 2004. He was tried at the Central Criminal Court before HH Judge Hawkins QC and a jury. The trial began on 6 December 2006 and the jury returned its verdicts on 22 June 2007, so the total length was about six and a half months. For a trial involving just one defendant and the relatively simple issues that the jury had to decide to have lasted for this length of time with the consequent vast cost to the public is not only disproportionate but a serious blot on the administration of justice. There is no single reason for the trial having lasted this long. Many of the delays could be justified individually but viewed collectively it is entirely unacceptable for the case to have taken anything like this length of time.
A major reason for the length of the trial was the introduction of bad character evidence admitted pursuant to the Criminal Justice Act 2003 (hereafter “the CJA 2003”) concerning three other allegations of rape, two of which related to events that occurred 22 and 17 years before the indicted charges. The first of these allegations, by RL, resulted in an acquittal, the second, by JD, in a conviction, and the third, by LB, was stayed on the ground of abuse of process. If ever there is a case to illustrate the dangers of satellite litigation through the introduction of bad character evidence this is it.
The overriding objective of the Criminal Procedure Rules 2005, S1 2005 No. 384 ( the Criminal Procedure Rules”) is that all criminal cases should be dealt with “efficiently and expeditiously.” This we regard as of core importance in the interests of justice. Those interests include the interests of the prosecution, the defence and, not least, the jury. We shall refer later in this judgment to the Protocol for the Control and Management of Heavy Fraud and Criminal cases 22 March 2005, although we would observe that this case was not in essence a particularly complex criminal case.
The Crown alleged the appellant had locked SS in her flat, frightened her so that she did not dare try to escape, threatened to kill her with a knife, made her consume largactil tablets, sexually assaulted her by making her masturbate him when she did not consent, and raped her vaginally and orally. The appellant was convicted by majority verdicts of 10 to 2 of falsely imprisoning, threatening to kill, twice raping, sexually assaulting, and poisoning SS. He was sentenced to life imprisonment on counts 1, 4 and 7 with a minimum term of 9 years before his case could be considered by the Parole Board, to 7 years concurrent on each of count 3 and count 6, and to 4 years concurrent on count 5.
Limited leave to appeal against conviction was granted by the Full Court. The court stated that, after giving due allowance for the reasons for the time taken, “the case took a wholly exceptional period of time”. Much of the hearing before us concerned the first ground. Mr Kovalesky QC, on behalf of the appellant, submitted that the trial judge was wrong to admit the bad character evidence of the three other allegations of rape because they were all disputed and to admit evidence of them was likely seriously to complicate and lengthen the trial and unfairly to divert its focus from the events charged on the indictment. These difficulties have been considered by this court on a number of occasions: see Hanson [2005] 1 WLR 3169 and Edwards and others [2006] 2 Cr. App. R. 4, and, since the judge's ruling in the present case, McKenzie [2008] EWCA Crim. 758 and DM [2008] EWCA Crim. 1544. None of those cases concerned a trial of anything like this length.
The second ground upon which leave to appeal was granted concerned the judge's directions as to the use the jury could make of the bad character evidence. This ground has two limbs. The first concerns the direction that the bad character allegations were capable of mutually supporting the truth of the other allegations. The second is that the judge failed to direct the jury adequately or at all as to the weaknesses the defence alleged in relation to each bad character allegation. Mr Kovalesky did not pursue the first limb. He was right not to do so. It was unarguable in the light of the decisions of this court in Wallace [2007] 2 Crim App. R. 30; DM [2008] EWCA Crim 1544, and Freeman and Crawford [2008] EWCA Crim. 1863.
The decision to admit the evidence of bad character was made by the judge on 15 February 2006, after a two-day pre-trial hearing. On 5 December 2006, the day before the trial was listed to start, he rejected an application to exclude the bad character evidence under section 78 of the Police and Criminal Evidence Act. On 20 February 2007 at the conclusion of the prosecution's evidence relating directly to SS's complaints, and before the bad character evidence was called, the defence submitted there was no case to answer and that the bad character evidence should not be admitted. The judge rejected these submissions.
The circumstances of the trial:
Following the ruling permitting the admission of the bad character evidence it was estimated that the trial would last four months and would end in the middle of April 2007. In the event it started on 6 December 2006 and lasted six and a half months. The defendant completed giving evidence and the defence case was closed on 23 May 2007. The judge started his summing up on 7 June. The jury retired on Thursday 14 June and returned verdicts on Friday 22 June. We have set out the chronology in an Appendix to this judgment. Before turning to the facts of the case and the rulings concerning the bad character evidence, we refer to the factors other than the bad character evidence that contributed to the length of the trial.
There were anticipated breaks for holidays including Christmas and New Year, and Easter. The condition of the appellant's health meant that there had to be frequent short breaks during the trial to enable him to take medication. There were also other breaks to enable his condition to be assessed by Matron at the Central Criminal Court and for him to receive treatment. The trial was adjourned between 10 and 23 January 2007 (during SS's cross-examination) because the appellant went into hospital for colon surgery. The Crown's skeleton argument states that because the defendant had apparently instructed his legal team not to concede any point the Crown was required to prove matters which in many trials would have been uncontentious or admitted. The unpredictability of breaks because of the appellant's health and his general approach undoubtedly made the judge's task a difficult one.
After the judge's ruling on 20 February 2007 (see [7] above) the appellant dispensed with the services of his counsel, Mr James Turner QC and Mr Hodivala. He was given some days to consider his position and decided to represent himself. It appears from the court record that the appellant acted on his own behalf between 23 February and 21 March 2007. Following an application by the Crown that the appellant not be allowed to cross-examine the three women whose allegations of rape were admitted as bad character evidence (see rule 31.1(2) of the Criminal Procedure Rules) the judge instructed Mr Bruce Houlder QC to cross examine them.
Mr Houlder and the applicant were provided with papers and given time to read and prepare. The court did not sit between 24 February and 6 March to enable Mr Houlder to prepare his cross-examination of JD. The evidence relating to JD's allegations was heard on three days and completed on 9 March. The court did not sit between 10 and 14 March to enable Mr Houlder to prepare his cross-examination of RL. The evidence relating to RL's allegations was heard on 6 days between 15 and 20 March.
During this time the jury sent a note expressing concern at the appellant's ability to represent himself, and he chose to reinstruct counsel. Mr Hodivala was able to return to the case but professional commitments precluded Mr James Turner QC from doing so and the defendant did not wish to instruct Mr Houlder. A second leading counsel Mr Kovalevsky QC was instructed. There was a further adjournment and delay between 21 March and 17 April while Mr Kovalevsky was given time to read and prepare. The trial thus resumed at about the time the judge had told the jury it would end.
The defendant was admitted to hospital on various dates between 16 and 22 May, while he was being cross-examined, because of concerns about his health. Mrs. May, who led for the Crown at the trial, informed us that, after the defence case was closed on 23 May, there was a two week break in the trial to accommodate a pre-booked holiday by a juror.
The charges on the indictment; SS's allegations
We return to the allegations that led to the charges concerning the index offences. SS was a registered drug addict. She said that she met the appellant on 8 September 2004 at the home of a man called Owen Brown...
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