R v Flook (Robert Daniel)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STADLEN,LORD JUSTICE HOOPER,MRS JUSTICE COX |
| Judgment Date | 09 July 2008 |
| Neutral Citation | [2009] EWCA Crim 682,[2008] EWCA Crim 1790 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2007/5165/C1,No: 200800170/A4 |
| Date | 09 July 2008 |
[2008] EWCA Crim 1790
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Hooper
Mrs Justice Cox
The Recorder Of Nottingham
No: 2007/5165/C1
Mr D Nathan QC and Miss S Rodham appeared on behalf of the Applicant
EXTRACT FROM PROCEEDINGS AND SHORT JUDGMENT
My Lord, I would like the court to have a transcript —the one I am particularly keen on having my Lord is the transcript of the exchange that took place when we discussed with the judge what could properly be said about the failure to x-ray. It was a matter that was raised just after the end of the prosecution-—
Can you identify that for the Registrar?
Yes, my Lord. It is 2.30 in the afternoon, my Lord, on 8th August.
The respondent will need how long to respond? If we say until some time in September for their reply.
In fairness counsel may well have commitments in August.
Yes. Why do we not say 19th September.
Forgive me, my Lord, could I ask for six weeks for our documents?
Let us get the dates then.
Six weeks for us.
We are now on 9th July. You give us the dates.
Can we say the end of August for us and the end of September for the prosecution?
The appellant to serve on the respondent and the court by 31st August a full skeleton argument with any necessary documents attached. The respondent to do the same by 30th September. By 24th October both parties must agree on a core bundle, which may take some of the stuff out of your skeleton argument, but there must be a core bundle. Is that practical in this case?
My Lord, ostensibly yes.
You have 21,000 documents but I cannot imagine we need those to resolve the appeal. An agreed core bundle by Friday 24th October. There will not be any authorities to look at.
My Lord there are some authorities I think in our bundle.
An agreed bundle of authorities by the same date and by that day any reply you want to do to the respondent's skeleton. Agreed?
Yes, my Lord.
Hearing to be listed some time in early November and for the moment we will say two days for preparation followed by two days for the hearing. If that needs to be altered either down or up it is important that the court be told.
My Lord, yes.
Anything else?
No, thank you, my Lord. My Lord I take it that the representation order runs from this hearing so we will be covered for today?
We backdate them to when you started the work. The work you do up to the moment of the single judge is covered by your original order. So it is before today but only back to when you had an order following the trial.
On 29th August 2007 at the Blackfriars Crown Court before His Honour Judge Marron and a jury, this applicant, Robert Flook, was convicted by a majority verdict of conspiracy to import cannabis on count 1 and conspiracy to import cocaine on count 2. He was subsequently sentenced to 26 years' imprisonment on count 2 with 13 years' imprisonment on count 1 to run concurrently. His co-accused, David Norris, who was jointly charged on the indictment, was acquitted of both offences.
Before us today the applicant has renewed his application for permission to appeal against conviction following refusal by the single judge. In view of the fact that we have decided to grant permission to appeal, we shall give just a brief summary of the case in this judgment.
The prosecution case in summary was that the applicant and Norris conspired with others to import cannabis and cocaine from South Africa over a period between approximately October 2001 and September 2006. The arrangement was for garden furniture to be imported from South Africa to a company named Playaway Events Limited in the UK and for mirrors to be imported to a company named P & G Mirrors in the UK. The items were not delivered to container ports in South Africa, as would be the usual practice, but were first sent to rented premises in South Africa where the garden furniture was repackaged to contain the cannabis and the mirrors were repacked with cocaine.
The applicant was a director of Playaway Events, a company incorporated in July 1998 which was at that time a legitimate business arranging corporate hospitality at, in particular, rugby matches and rugby tours in the United Kingdom, South Africa and Australia.
The defence case was that the applicant had initially incorporated Playaway Events Limited with someone called Roy Strickland in order to import marquees from South Africa for use in corporate hospitality events. He had known the other men alleged to be involved, namely John Tutton and Tommy McKinnon for a number of years and he had later fallen out with Strickland. In 2001 he then used Playaway Events Limited to import garden furniture from South Africa supplied by Josgo Limited with the assistance of Tutton. In early 2004 he found the business to be unprofitable owing to the increased value of the Rand. He was aware that Tutton had made efforts to establish his own export business. He maintained that Tutton was continuing to use Playaway Events Limited to trade. He denied any association or knowledge of the warehouse in South Africa where the consignments were taken for repackaging before being shipped to the United Kingdom and he denied any association with P & G Mirrors, the business operated by the co-accused. The issue for the jury was whether or not the applicant was knowingly involved in the importation.
The grounds of appeal sought to be pursued are to be considered against a background of an allegedly confusing and chaotic presentation of the Crown's case. It appears that a few days into the case the jury sent a message to the judge that they were having difficulty in understanding the case. Jury bundles and appropriate schedules were not initially available in a complex case which apparently lasted for some seven weeks. It is said both that prosecution counsel accepted in open court that the Crown's case was not in good order and that the judge expressed concern and was critical of prosecution counsel at various stages during the trial. It is in these circumstances that Mr Nathan QC for the applicant contends that the judge's summing-up was fundamentally unbalanced and amounted in effect to a second speech for the Crown. He seeks to emphasise a number of aspects of the summing-up against which the criticisms made of it are to be judged. He draws attention first to the fact that the judge effectively ignored or invited the jury to disregard what the defence had painstakingly sought to demonstrate was in fact revealed on a proper analysis of the documentary exhibits in the trial bundle. Further, he submits that the judge's comments throughout the summing-up from time to time crossed the line into the giving of evidence and it is said that the judge failed properly and fairly to summarise this applicant's defence to the jury. He therefore contends that the summing-up was extremely unfair to the applicant and that the conviction is unsafe.
Grounds such as these, when the particular passages relied upon are to be viewed in the context of a summing-up as a whole, are not easy to sustain before this court. However, there are a number of unusual features in this case. Having considered Mr Nathan's submissions this morning and read with care the summing-up as a whole and had regard in particular to various passages to which Mr Nathan has referred us, together with some of the trial documentation, we are of the view that these grounds raise properly arguable issues which merit consideration by the full court with the assistance of submissions from the Crown.
For those reasons we grant permission to appeal against conviction in this case.
[2009] EWCA Crim 682
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Gage
Mr Justice David Steel
Mr Justice Stadlen
No: 200800170/A4
Mr P McCartney appeared on behalf of the Appellant
On 30th November 2007 in the Crown Court at Stafford, the appellant pleaded guilty to wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861, and on that day was sentenced to detention in a young offender institution for public protection, pursuant to section 226 of the Criminal Justice Act 2003, with a minimum term of 2 years less 118 days spent in custody on remand. He appeals against that sentence by leave of the Single Judge.
The facts of the offence can be summarised as follows. The 17-year-old victim had...
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Subject Index
...AppR 239 . . . . . . . . . . 345R v Reed and Reed; R v Garmson [2009] EWCACrim 2698,[2010] 1 CrApp R 23 . . . .161–169,250–251R v RF [2009] EWCA Crim 682, [2010] 1 Cr App R30 . . . . . . . . . . . . . . . . . . . . . .341–342, 343, 344R vRongonui [2009] NZCA279 . . . . . . . . . . . . . 178......