R v McLeod
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART SMITH,MR JUSTICE GAGE |
| Judgment Date | 28 March 1994 |
| Neutral Citation | [1994] EWCA Crim J0328-14 |
| Judgment citation (vLex) | [1994] EWCA Crim J0328-4 |
| Date | 28 March 1994 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 90/3132/X4 (McLeod) |
[1994] EWCA Crim J0328-14
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before Lord Justice Stuart Smith Mr Justice Ian Kennedy and Mr Justice Gage
No: 90/3132/X4 (McLeod)
90/3403/X4 (Ellington)
MR L.D.KERSHEN QC appeared on behalf of the Appellant McLeod Non-counsel application on behalf of the Appellant Ellington
MR N.SWEENEY appeared on behalf of the Crown
Monday 28th March 1994
Because I am suffering from the aftermath of a cold I shall ask Mr Justice Gage to read the judgment of the Court, which has, in fact, been prepared by me.
On 2O September 1988 an armed robbery was carried out against a Securicor van. Four men were involved in the attack. The Appellant, Hartgeald McLeod, the Applicant, Dennis Ellington, Louis Miles and a man called Wilmot. Wilmot escaped and has not been brought to justice. The other three were convicted at the Central Criminal Court on ll May 1990. McLeod was sentenced to 18 years imprisonment for the robbery, 7 years concurrent for having a firearm with intent to commit an indictable offence and 3 years consecutive for using a firearm to resist arrest, making a total of 2l years. He now appeals against his conviction by leave of the Full Court and against sentence by leave of the single judge. Ellington was sentenced to 18 years for the robbery, 7 years for having a firearm with intent to commit an indictable offence and for two offences of possessing a firearm without a licence sentences of 3 and 2 years were passed. In Ellington's case all sentences were concurrent. He applies for an extension of time in which to appeal and leave to appeal against sentence after refusal by the single judge. At the conclusion of the argument we dismissed McLeod's appeal against conviction, but allowed his appeal on sentence; we quashed the sentence of 18 years and substituted for it one of l5 years, reducing the total to 18 years. We gave leave to Ellington to appeal and reduced the sentence of 18 years for robbery to l5 years. He is entitled to seek a further reduction since he has not been heard in support of his appeal; but we do not encourage him to do so. We now give our reasons for these decisions.
The four men had been observed over a period of several months by the police during which time Wilmot and McLeod were seen to be involved in the movement of a number of stolen cars which were used in the robbery. In particular they frequently moved from place to place a white Ford Transit van which was used as the attack vehicle. By 19 September 1988, five stolen vehicles were parked within 2 miles of McLeod's house, some of them very close. On 2O September, McLeod was seen to pick up Wilmot, who was wearing dark clothes, gloves and carrying a hold-all. They went to the attack van, whitened out the rear windows and drove to a car park where they picked up the other two members of the team, who were both wearing dark clothes and carrying hold-alls. The van was parked near a Building Society where the attack was to take place.
That night, when the Securicor van arrived and the guards were preparing to make their delivery, the attack van drove up and stopped level with the Securicor van. Four armed and masked men jumped out. A sawn-off shotgun was pointed at one guard who was made to lie on the ground. Another was grabbed by her clothes, bundled into the security van and hit on the side of the head in the process. One robber drove off in the attack vehicle, but was later apprehended. The other three robbers got into the Securicor van and drove off at speed. It was chased by the police and eventually crashed. The robbers ran off taking one cash box with them, which was later recovered. The police gave chase. McLeod was seen to discard his balaclava and was recognised. He was carrying a gun; when told to stop, he ran on and fired two shots at the police officer who was unarmed. Shortly afterwards the gun and balaclava were found.
McLeod was later seen to return to his own van. He drove home but left shortly afterwards on a motorcycle. He was followed by police and arrested. He struggled violently and said "What's happened to the others?"
At interview he admitted being one of the robbers but would give no details. There was scientific evidence which showed traces of firearm's residues on his motorcycle gloves and hat. The jacket he was wearing at the time of the robbery was found some days later. Fibres linked him to the attack vehicle.
McLeod gave evidence. He said he had nothing to do with the robbery; the police had created a false case against him. He had been with Wilmot on three occasions in the attack vehicle; he did not know it was stolen and he gave an innocent explanation of those occasions. He was elsewhere at the time of the robbery and he called witnesses to support his alibi. The admission in interview was fabricated by the police. Since his defence involved a wholesale attack on the police, Mr. Kershen, his counsel, anticipating that he would be cross-examined on his previous convictions, asked him briefly about them in examination in chief. McLeod expressed a willingness to deal with the details of the convictions if he was asked. In respect of a number of offences the Appellant had said he was found guilty, but was not in fact guilty.
In the course of his cross-examination, prosecuting counsel sought leave to cross-examine on the convictions pursuant to the Criminal Evidence Act 1898, s.l(f)(ii). The application was not opposed. He was asked first of all about eight court appearances between 1974 and 1977 when he was convicted of a number of offences of dishonesty, some involving motor cars. No objection is taken to those matters. He was then asked the following questions about four offences, including two for robbery between 1978 and 1982, for convenience we have numbered them:
l."Q.On l2th June, 1978, at the Central Criminal Court, for an offence of robbery, five years' imprisonment. That is the one with Mr. Ellington involved as well, is it not?
A.Yes.
Q.Was that a robbery of a man, something in the order of £l,2OO?
A.Yes, I think so.
Q.And the prosecution allegation was that you got away from the scene of the robbery, was it not?
A.Yes, that was.
Q.And you pleaded not guilty, did you not?
A.Yes, I did.
Q.What was your defence?
A.How do you mean?
Q.What was your defence? Was it an alibi?
A.Yes.
Q.Did you give evidence in support of that alibi?
A.Yes.
Q.And you were convicted.
A.Yes, I was.
2. Q.On llth April, 1979, at the Central Criminal Court, for an offence of robbery, was that breaking into someone's home and taking £26,OOO worth of jewellery and antiques?
A.Yes, it was.
Q.The person being locked up in a cupboard under the stairs while it was all going on?
A.I don't know. I didn't go into the house.
Q.Four years' imprisonment on a plea of not guilty.
A.Yes.
3. Q.On 26th April, 1979, at the Inner London Crown Court, theft of a motor car and driving whilst disqualified, was that stealing a motor vehicle in the Wembley area, parking it in the street for a number of days, and then changing the plates on it to a false registration?
A.Yes.
Q.Two years' imprisonment consecutive to the five years as well—correct?
A.Correct.
4. Q.27th May, 1984, at the Acton Crown Court, dishonest handling of a motor car on false plates.
A.Wrong.
Q.Dishonestly handling of what, do you say, Mr. McLeod?
A.It's the right offence; wrong date.
Q.You say it is 1982, do you?
A.Yes.
Q.A Ford motor car with false plates; six months' imprisonment.
A.Mmmmm."
No objection was taken to these questions at the time they were asked. But shortly afterwards Mr. Kershen submitted that questions as to the details of the offences should not have been permitted on the basis that it was gravely prejudicial to the Appellant. The nature of the objection seems to vary somewhat in respect of each offence. Thus, in respect of some it is said that the detail bears a similarity to what was alleged in the instant case and was therefore unduly prejudicial. Thus, in relation to the robbery in 1978, the fact that the appellant got away and put up a false alibi was said to be similar to his defence in the present case. In respect of the offences relating to motor vehicles in 1979 and 1984, it was said that the fact that cars were taken from the Wembley area and fitted with false plates and one of the vehicles was a Ford motor car, was said to have similarities to the present case.
In relation to the April 1979 conviction for robbery, it was submitted that it was highly prejudicial to suggest that the Appellant had locked the occupant of the house in a cupboard under the stairs it was, Mr. Kershaw said, an allegation of wicked and ruthless conduct.
Mr. Kershen submitted to the Judge and to this Court that the authorities show that these questions ought not to have been asked. Since no objection was taken at the time they were asked, and Mr. Kershen quite rightly in our view did not invite the Judge to discharge the jury, he submits that she should forthwith have told the jury that they should not allow the detail of the convictions to impinge upon their consideration of guilt or innocence and that they did not show a propensity to commit armed robbery. He also submits that the direction which the Judge gave in the course of her summing up, where she did deal with it, was inadequate.
We have not found it easy to distil from Mr. Kershen's submissions the principle which he contends should guide the Court in allowing or disallowing questions designed to elicit the underlying...
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