R v Henworth (Frank)

JurisdictionEngland & Wales
JudgeLORD JUSTICE KENNEDY
Judgment Date19 January 2001
Neutral Citation[2001] EWCA Crim 120
CourtCourt of Appeal (Criminal Division)
Docket NumberNo: 199906765/X4
Date19 January 2001
Regina
and
Frank Henworth

[2001] EWCA Crim 120

Before:

Lord Justice Kennedy

(Vice President of the Queen's Bench Division)

Mr Justice Henriques and

Mr Justice Owen

No: 199906765/X4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

MR W CLEGG QC appeared on behalf of the Appellant

MR B J HIGGS QC and MR C MAY appeared on behalf of the Crown

17

th January 2001

LORD JUSTICE KENNEDY
1

On 21st September 1999 at the Central Criminal Court this appellant was convicted of one count of murder and was sentenced to life imprisonment.

2

On 15th June 1995 between about 7.00 p.m. and midnight at 14 Christchurch Court, Dover a man named Patrick Clarke, often known as "Nobby", was murdered. The Crown alleged that the deceased was killed in a violent frenzy and that it was the culmination of the breakdown of the relationship between the appellant and the deceased who lived under the same roof. The appellant denied that he had killed the deceased. It must have been done, he submitted, by two armed intruders who broke into the flat after he had left at about 9.45 p.m.. The issue for the jury was, therefore, whether the appellant was the murderer.

3

On 10th February 1996 the appellant was convicted of murder at the Crown Court at Canterbury. In May 1998 that conviction was set aside by this Court. In July 1998 a retrial took place which resulted in the jury being unable to agree. The appellant now contends, as his first effective ground of appeal in his notice of appeal, that after this point there should have been no retrial, the matter having gone to a jury on two occasions.

4

In July 1999, after a delay to suit the convenience of counsel, a second retrial began. The jury empanelled for that trial was discharged as the appellant was conducting his own defence after a certain period of time and found himself not in a position to do so.

5

The Crown had evidence to show that at times there were arguments between the appellant and the deceased. There was objection to the admission of that evidence, but the judge ruled that the relationship between the two men was relevant and the evidence was admissible on that basis. It was not so prejudicial that it ought not to be admitted. The admission of that evidence from two witnesses named Green and Parry is the second effective ground of appeal before us. There are also two complaints in relation to the content of the summing-up.

6

For about 18 months prior to the murder the appellant had lived with the deceased in the two bedroomed flat at the address at which the deceased died, 14 Christchurch Court, Dover. The deceased was in his mid 70s and the appellant was about 40 years of age. A body of evidence was called as to the relationship between them. One witness said that he never saw any arguments or violence. Another, the landlady of a public house, said that she saw them behaving amicably towards each other during the afternoon or early evening of 15th June 1995, the day of the murder. There were a number of other witnesses who gave broadly similar evidence.

7

But Amanda Green, who lived next door, occasionally heard raised voices and once heard the appellant say that he would "kill the old boy". And Jane Parry, who helped out in the Alma public house, said that they were always arguing and that a month or two before the murder she had heard the appellant call the deceased a "bastard" and that they then squared up as though for a fight.

8

It was admitted at the trial with which we are concerned that on 22nd June 1995 the deceased was due to give evidence against the appellant in connection with the allegation that the appellant had stolen the deceased's pension book and had attempted dishonestly to obtain £100. So it may be thought that there was some motive for ill feeling between them.

9

Eventually, having done some supermarket shopping on the evening of the day on which he died, the deceased was taken home by taxi from the Roman Quay public house at about 7.00 p.m.. He was plainly drunk but the taxi driver who knew him had seen him worse. No one other than the appellant is known to have seen the deceased alive thereafter, and whether the appellant saw him or not was, of course, the issue which the jury had to decide.

10

The appellant was seen in various public houses during the evening but there were periods when he was not accounted for and there was evidence to suggest that he made a telephone call from his flat at 8.39 p.m.. At 12.10 a.m. he flagged down a police patrol car and said that he thought there was a dead body in his flat. He said he last saw the deceased when he left the Roman Quay public house with his shopping.

11

The deceased had probably been struck with a hammer head which was inside a sock and which was found at the scene. That was an implement which the appellant had borrowed a fortnight earlier saying that he had locked himself out. There was no blood on the appellant's clothing at the time when he was arrested. That is a point on which Mr Clegg, understandably, relies, and, no doubt, relied in the court below. The deceased had sustained at least 15 blows. There were also some circular injuries, not inflicted by the hammer head, but which could have been inflicted by an instrument such as a weight lifting collar.

12

When interviewed the appellant expressed great affection for the deceased who had taken him in when he had nowhere else to go. He said that he, the appellant, had returned to the flat between 8.45 and 9.45 p.m. and had had a meal. He said that at that time the deceased was not there. However, he said the answerphone was working and no one used it. That was in conflict with the evidence of a woman named Pauline Houlker, the step-granddaughter of the deceased, who said that she used the answerphone at 9.30 p.m. and got no reply.

13

The appellant claimed that when he found the body at about midnight he went to the Alma public house and told the manager of that public house, a man named Doran, that he had found Nobby and that he was dead. The manager's evidence was that the appellant did appear at about that time but simply asked if the "old boy was around". When Doran asked who he meant, the appellant said that he meant Nobby and asked for a pint which Mr Doran refused to provide.

14

The appellant said that a collar from a weight lifting piece of equipment was in the sink at the time when he was first arrested but none in fact was found, possibly because it simply at that stage was not looked for.

15

He did give evidence at the trial, which was the first trial to which we have referred. He did not give evidence at the trial with which we are concerned.

16

Ground 1 before us, or rather grounds 1 and 2, are presented by Mr Clegg in this way. He submits that it was an abuse of process for the prosecution to proceed with the retrial which began originally before the Recorder of London after the first disagreement and which numerically might be described as trial 3. That trial was in effect restarted before Judge Forrester after the jury had been discharged at the request of the appellant.

17

Mr Clegg points to the convention which he said exists and which is well-known to every criminal practitioner in this jurisdiction, to the effect that if a jury has disagreed on two occasions the prosecution by convention does not seek a further trial. He submits that that convention should apply in the different circumstances of this case where the jury on the first occasion convicted. That conviction was set aside by the Court of Appeal. The jury on the second occasion disagreed and on the third occasion was discharged at the request of the appellant. In those circumstances, Mr Clegg submits, that should have been the end of the matter.

18

We suspect that at least part of the rationale for the convention to which Mr Clegg has referred is that the prosecution should only proceed against any given defendant if they consider that there are real prospects of obtaining a conviction from a jury. If two juries have disagreed when presented with substantially the same evidence inevitably the prosecution must carefully reconsider its position.

19

We see no reason to conclude that it should apply in the sort of circumstances with which we are concerned in this case. Furthermore, we would not elevate it into a proposition of law. We do have to have in mind, for example, the situation which might arise if one jury which disagreed was shown consequently to have been interfered with, or some highly persuasive piece of evidence were to emerge during the course of a retrial, too late perhaps to be used in that trial but capable of constituting devastating evidence on behalf of the Crown if there were to be further proceedings.

20

As to abuse of process the important matter in our judgment to bear in mind is that it is, and must always be, closely related to the facts of the instant case. We were invited by Mr Clegg to consider part of the advice of the Privy Council given by Lord Slynn in Charles v The State [2000] 1 WLR 384. That was a murder appeal from Trinidad and Tobago. The timetable in that particular case is of some significance. The offence took place on 31st July 1987. The arrests were made on 1st August 1987 and the first trial did not begin until November of 1991. The verdicts of guilty were recorded on 3rd December 1991. That was then the subject of an appeal. Those convictions were quashed in June 1994 and a retrial was then ordered. That retrial took place in April of 1995 and the jury was unable to agree. There was then the second retrial, beginning on 19th September of 1996, in which the defendant was convicted and...

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