R v Hemmings
| Jurisdiction | England & Wales |
| Judgment Date | 06 October 1999 |
| Judgment citation (vLex) | [1999] EWCA Crim J1006-2 |
| Docket Number | No: 98/7756/X4, 98/7759/X4 and 98/7763/X4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 October 1999 |
[1999] EWCA Crim J1006-2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London W2A 2LL
Lord Justice Clarke
Mr Justice Bell
and
Mr Justice Nelson
No: 98/7756/X4, 98/7759/X4 and 98/7763/X4
MR M KELLY [MR H DAVIES] appeared on behalf of the Crown
MR D NATHAN [MISS P THOMPSON] appeared on behalf of the Appellants
This is the judgment of the court. On 26 th March 1997 the appellants Hoines and Hemmings were convicted of robbery (count 1) and kidnapping (count 2), the appellant Miller was convicted of theft (count 3) and all three appellants were convicted of conspiracy to steal (count 4). Hoines and Hemmings received sentences totalling 10 years and Miller, 4 years. They all appealed against conviction and on the 8 th May 1998 this court, comprising Hutchison LJ, Hughes J, and His Honour Judge Hyam, allowed the appeals, quashed the convictions and ordered a new trial. It gave its reasons on the 2 nd July 1998. In each case the order of the court was that the appellant be retried on a fresh indictment. Pursuant to that order, a fresh indictment was prepared containing the same counts as on the original indictment. Thus count 1 alleged robbery against Hoines and Hemmings, count 2 alleged kidnapping against Hoines and Hemmings, count 3 alleged theft against Miller and count 4 alleged conspiracy to steal against all three appellants and was based on their alleged involvement in a number of thefts other than the theft alleged in count 3.
As we understand it, the re-trial was due to begin on 24 th September 1998 on that fresh indictment. Mr Kelly represented the Crown and Mr Nathan, who had not appeared at the original trial or before this court, represented Hemmings. The other appellants were represented as they had been previously. Before the retrial began, Mr Nathan formed the view that it was in Hemmings' interest to be tried on substantive counts of theft rather than the conspiracy to steal which had been count 4 of the original indictment upon which he had originally been tried and in respect of which a retrial had been ordered. Mr Nathan took the view that in the event of conviction, it was important to know upon what allegations of theft the jury had found Hemmings guilty. In those circumstances, having discussed the matter with the other defence counsel, he approached Mr Kelly and, on the basis that the defence wanted the amendment in the interests of the appellants, Mr Kelly drew up appropriate theft counts. The judge, His Honour Judge Morris, approved the amendments on the basis that all parties agreed to them. The trial then proceeded on the amended fresh indictment until the close of the Crown case. All concerned consented to that course. Counts 1 to 3 were in the same form as in both the original indictment and the fresh indictment, but count 4 of the fresh indictment (which alleged conspiracy to steal on the part of all three appellants) was replaced by counts 4 to 9 which made substantive allegations of theft. The alleged thefts were the same as those which had formed the basis of the conspiracy to steal. Counts 5 to 7 concerned all three appellants, while count 4 involved only Hoines and Miller and counts 8 and 9 concerned only Hemmings.
At the close of the Crown's case, the judge invited Mr Kelly to consider whether it was appropriate to add a count of dishonest handling against Miller. He subsequently ruled that it was not, but in the course of the argument he was troubled as to whether the original amendment was legally possible. Subsequently, with a view to giving the defence the opportunity of appealing in the event of a conviction, he considered the matter briefly and ruled that it was. The trial continued.
Between the 4 th and 6 th November 1998 the appellants were convicted and sentenced as follows. Hemmings was convicted of robbery on count 1 and sentenced to 6 years imprisonment. He was convicted of kidnapping on count 2 and sentenced to 6 years imprisonment concurrent. He was not concerned with counts 3 and 4, but he was convicted of theft on counts 5, 6, 7 and 9 and sentenced to 4 years imprisonment on each count to be served concurrently, both as between themselves and with the sentences of 6 years for robbery and kidnapping. He was acquitted of Count 8. Hoines was convicted of theft on counts 4, 5, 6, 7 and 9 and sentenced to 4 years imprisonment on each to be served concurrently. Miller was convicted of theft on counts 3, 4, 5, 6, 7 and 9 and was sentenced to 42 months imprisonment on each count to be served concurrently. It should be noted that (as already stated) count 3 was on the original indictment at the first trial and concerned only Miller.
Hemmings now appeals against conviction on counts 5, 6, 7 and 9, but not on counts 1 and 2. Miller and Hoines appeal against conviction on counts 4, 5, 6, 7 and 9. Those appeals are all brought by leave of the single judge, who directed that the appeals be expedited. The single judge refused Hemmings leave to appeal against conviction on counts 1 and 2 and he has not sought to renew his application on those counts. As we understand Miller's notice of appeal, and as was confirmed by Mr Nathan, Miller has never sought to appeal against his conviction on count 3, which was not of course affected by the amendments to the fresh indictment.
It follows that if the appeals are successful, the position will be as follows. Hemmings' convictions on counts 1 and 2 will be unaffected, as will the concurrent sentences of 6 years imprisonment imposed on those counts. Miller's conviction on count 3 will also be unaffected, as will his sentence of 42 months' imprisonment imposed on that count. It further follows that the outcome of this appeal will have no practical effect upon the terms of imprisonment imposed upon Hemmings and Miller. The position of Hoines is different because not guilty verdicts were entered against him on counts 1 and 2 by direction of the judge, so that he was convicted only on the theft counts which were substituted for the conspiracy count by amendment. However, we were told by Mr Nathan that Hoines has now been released from prison in the ordinary way.
No problem would have arisen in this case if the theft counts had been substituted for the conspiracy count at the first trial. Although any convictions on those counts would no doubt have been quashed by this court, a new trial on the original indictment including those counts would have been ordered and would have taken place. In the event Mr Nathan suggested that the theft counts be substituted for the conspiracy count for very good reason. The amendment enabled the jury to focus on the substantive thefts (which were precisely the same as those considered by the jury at the first trial) and it enabled the jury to consider the part played or alleged to have been played by each appellant in the various thefts. Moreover, it would assist the judge if and when he came to pass sentence. Thus (as we have described earlier) not all the appellants were concerned in all the thefts and indeed Hemmings was acquitted of count 8. In short the suggestion made by Mr Nathan that the indictment be amended was eminently sensible, as evidenced by the fact that the other defendants, the Crown and the judge all agreed to it.
It is not suggested that the indictment could not have been amended in this way at the original trial. Plainly it could. Moreover it is not now suggested that if there was power to amend the fresh indictment the convictions were in any way unsafe. The question is, however, whether the amendment of the fresh indictment and the trial of the appellants on counts 4 to 9 is prohibited by section 7 of the Criminal Appeal Act 1968, which (in its present form) provides as follows:
7(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be re-tried.
(2) The person shall not under this section be ordered to be retried for any offence other than –
the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in sub-section (1) above;
an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or
an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence.
We shall call the alleged theft offences which form counts 4 to 9 of the amended indictment 'the theft offences'. It is submitted that the theft offences do not fall within any of the categories of offence described in Section 7(2)(a)(b) or (c) and that it follows that this court could not have ordered a retrial of the theft offences and that the judge therefore had no power to conduct a trial on those offences.
It is convenient first to consider whether the theft offences fall within any of the categories of events in Section 7(2). They are plainly not within Section 7(2)(a) because the offence for which the appellants were convicted was not theft but conspiracy to steal. They are equally outside paragraph (c) because the appellants were not charged in an alternative count or counts of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting the appellants of conspiracy to steal. The question is whether they are within paragraph (b), that is whether the theft offences are offences for which the appellants could have been convicted on an...
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