R v Foster and other appeals
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 30 November 2007 |
| Neutral Citation | [2007] EWCA Crim 2869 |
| Docket Number | Case Nos: 2007 02896/D4, 2007 02895/D4, 2006 05952/D3, 2006 03598/D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 30 November 2007 |
[2007] EWCA Crim 2869
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT STAFFORD
The Hon Mr Justice Goldring (1)
ON APPEAL FROM THE CROWN COURT AT BASILDON
His Honour Judge Clegg (2)
ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON
Mr Recorder Hughes (3)
THE CROWN COURT AT LIVERPOOL
His Honour Judge Globe QC (4)
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
Lord Justice Latham, Vice President of the Court of Appeal Criminal Division
Mr Justice Grigson
Mr Justice andrew Smith and
Mr Justice Pitchford
Case Nos: 2007 02896/D4, 2007 02895/D4, 2006 05952/D3, 2006 03598/D3
& 2006 04599/B1
Mr Henry Blaxland QC for Foster
Mr Roderick S Henderson for the Crown (1)
Mr Benn McGuire for Newman
Miss Samantha Leigh for the Crown (2)
Mr Michael Mansfield QC for Kempster
Mr Gordon Bebb QC for the Crown (3)
Mr Jonathan Goldberg QC and Gary Grant for Birmingham
Mr Jonathan Clarke for the Crown (4)
Hearing date: 18th October 2007
Judgement
These appeals against conviction by Foster, Newman and Kempster, raise important questions about the ambit and application of the decision of the House of Lords in R v Coutts [2007] 1 CAR 60. In advance of the hearing it appeared possible that Birmingham's application for leave to appeal against conviction might do so, but in the result it did not, and we shall deal with Birmingham's application at the end of the judgment in the appeals.
Mark Foster
Mark Foster was convicted of attempted murder on 20th January 2003 in the Crown Court at Stafford before Goldring J and a jury. On 13 th June 2003 he was sentenced to 9 years imprisonment. An application to appeal against conviction was refused on 30 th October 2003. The Criminal Cases Review Commission (the Commission) referred the conviction because, contrary to the decision in Coutts, the judge failed to leave to the jury the possibility of conviction of an alternative offence, assault occasioning actual bodily harm, or attempt to do so, or attempt to do grievous bodily harm with intent.
The complainant was a working prostitute. On 14 th July 2002 she made arrangements to meet a client at a lorry park, where she had worked for about two years. She left the vehicle of one client at about 11.10 pm. After speaking to two acquaintances, she made her way across the lorry park to go home. The appellant was a long distance lorry driver, parked in the same truck stop. The appellant paid her for sexual intercourse. They climbed into the bed at the rear of the cab. Sexual intercourse began, but the appellant was unable to gain a full erection. He withdrew and she masturbated him until he ejaculated. None of these facts was in dispute.
According to the complainant, while she was getting dressed, suddenly and without warning she was pulled backwards and felt something tighten around her neck. She started to choke and was unable to speak, and to begin with, unable to free herself. She began to struggle furiously, kicking and lashing out with her arms. She was then dragged by whatever it was round her neck to the driver's seat and then felt it loosen. The appellant jumped on top of her. She screamed, and in an effort to stop her screams, he placed his hand over her mouth and nose, which prevented her breathing. He told her that if she stopped struggling he would let her go. When she stopped struggling he released the pressure from her mouth, but instead reached out for a pillow and tried to place it over her face. She was so terrified that she defecated, and in desperation began to struggle violently again. She managed to open the driver's door, and with her arms extending out of the vehicle pulled herself against the steps of the cab, falling head first onto the ground. She quickly got to her feet and ran screaming for help. The appellant drove away from the scene.
Noting the complainant's hysterical state, another driver relayed the registration number of the appellant's vehicle to the police. When the police arrived the complainant was still distressed, and reported that she had lost one of her earrings and a training shoe during the struggle. A medical examination disclosed injuries to her neck which were consistent with her version of events, and she also suffered bruising to her left elbow and buttock. Petechial haemorrhages were noted in her eyes, typical of an asphyxial episode, which would have lasted about 20 seconds, (according to the expert for the Crown) or between 20 and 30 seconds, (the defence expert).
The appellant was arrested in the early hours of the following morning. His immediate response was to indicate that he had been involved in a fight in a pub. It was noted that he had superficial scratch marks on left side, lower front thigh and knee area, the back of his left and right hands and his right forearm. His vehicle was searched, and an earring identical to the complainant's earring was found, together with a quantity of hair. The tachograph indicated that the vehicle was stationary at the time of the incident. In view of subsequent events, we need not narrate the development of the evidence which demonstrated that, contrary to his denials, the appellant was responsible for the attack on the complainant.
The appellant's evidence at trial presented an emphatically different account of events. Owing to his inability to perform full penetrative intercourse, the complainant made derogative remarks to him, so he asked for his money back. When she refused, he attempted to grab the money from her, and she punched him in the face. In order to restrain her, and prevent her continuing with the attack on him, he grabbed the collar of her jumper. When she began to struggle, he panicked and released his grip and let her out of the cab. He accepted that he had caused the physical injuries which she sustained, including injuries consequent on asphyxia, but denied that he intended to kill her.
At the end of the evidence, Goldring J invited counsel to make submissions whether assault occasioning actual bodily harm should be left to the jury. The Crown submitted that they were contending that the appellant had deliberately attempted to kill the complainant, and that it would confuse the jury if they were asked to consider anything else. 'Our case is essentially all or nothing'. Counsel for the appellant submitted that the issue of assault had arisen, and that it was a proper case for 'obvious reasons' for the judge, on his own initiative, ordering the addition of a count of alleging assault occasioning actual bodily harm. Goldring J approached the problem as if it was a matter for the Crown, and he declined to add such a count. He also indicated that he would give a formal direction in relation to self-defence, making it plain that this issue was not being raised on the defendant's behalf.
The jury was directed with unequivocal clarity that the appellant should not be convicted unless they were sure that he tried to strangle the complainant intending to kill her. He could only be guilty if the jury was sure of that fact. The summing up ended with a further reminder of the essential issue.
Lee N ewman
Lee N ewman was convicted of attempted murder on 15 th May 2006 at the Crown Court at Basildon before His Honour Judge Clegg and a jury. On 19 th June he was sentenced to imprisonment for public protection, with a minimum term of seven years, less 310 days spent on remand in custody. He appeals against conviction with leave of the single judge in the light of the decision in Coutts.
The appellant worked at a garage in Wickford. The director in charge of the business was the complainant, Mrs Francine Spurr. On 10 th August 2005, in the late afternoon, she was returning a set of car keys to the cupboard in the showroom when the appellant attacked her by putting his hands around her neck and gripping it hard. The prosecution case was that the appellant had a sado erotic fantasy about strangling Mrs Spurr to death, and that when he attacked her on 10 th August he was fulfilling that fantasy. The allegation was based on evidence discovered later which showed not only a number of photographs of Mrs Spurr, but also a story written by him in which he described in graphic detail how ' Lee put both his hands around her neck and began to strangle Fran, watching her as he finally strangled her to death'. The defence case was that the appellant did not intend to kill or harm the complainant.
The evidence at trial included evidence from a number of women who had been treated in a bizarre way by the appellant. A former girl friend described an incident when he grabbed her by the throat, and how when she screamed, the appellant released his grip, saying that he was sorry, but then grabbed her again by the throat, so that she screamed and ran for help. When questioned, the appellant said that he did not intend to hurt his girl friend, and so the charges were dropped, and he was bound over to keep the peace for 12 months. A receptionist at the same garage, who was friendly with the appellant, began to feel uncomfortable with him from about the beginning of 2004. On a number of occasions he would appear out of nowhere as she was going to her car after work, saying words to the effect, that he hadn't beaten her up for a while. Although the words were spoken in a jocular way, he would corner her against the wall and put a hand around her throat. On the last occasion,...
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