R v Mohammed Abdullah Yasain

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Thomas of Cwmgiedd, CJ
Judgment Date16 July 2015
Neutral Citation[2015] EWCA Crim 1277
Docket NumberCase No: 2013/04149/C5
Date16 July 2015

[2015] EWCA Crim 1277

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT HARROW

HH Judge Arran

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

Mr Justice Sweeney

and

Mr Justice Warby

Case No: 2013/04149/C5

Between:
Regina
Respondent
and
Mohammed Abdullah Yasain
Appellant

Michael Turner QC and Miss J Vallejo for the Appellant

J McGuinness QC for the Respondent

Hearing date: 14 May 2015

Lord Thomas of Cwmgiedd, CJ
1

The issue in this appeal relates to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown Court. The circumstances were as follows.

The facts

2

Between 1 and 9 July 2013 the appellant was tried in the Crown Court at Harrow before HHJ Arran and a jury on an indictment containing five counts against him: theft (count 1), kidnap (count 2), rape of a male aged 16 years or over (count 3), robbery (count 4) and assault occasioning actual bodily harm (count 6). A co-defendant, Mustafa Hassan, was jointly charged on the same indictment with the same theft, kidnap, robbery and assault, and a separate offence of rape (count 5).

3

The underlying facts of the offences are set out at paragraphs 5 to 9 of the judgment of this court dated 12 June 2014, [2014] EWCA Crim 1416.

4

The appellant and Hassan were both acquitted of theft on the judge's direction, following a submission of no case to answer. On 9 July 2013 the jury returned verdicts of guilty against the appellant and his co-defendant on all the remaining charges.

5

On 12 August 2013 the appellant was sentenced by HH Judge Arran to 6 years detention for rape, 4 years concurrent for the robbery, 18 months concurrent for the assault, and 18 months consecutive for the kidnap – a total of 7 1/2 years. Hassan was sentenced to 8 years imprisonment for rape and, for the other offences, terms of imprisonment of the same duration, similarly structured, to the terms of detention imposed on the appellant – a total sentence of 9 1/2 years.

6

The trial record sheet printed from CREST, the computer programme in which the records of the Crown Court are kept, duly recorded all these convictions and sentences.

7

The appellant sought permission to appeal against conviction and sentence. The single judge, Walker J, concluded that none of the grounds advanced was arguable and refused permission on those grounds. In reviewing the papers, however, he noted that according to the transcript of proceedings no verdict in respect of the appellant had been taken from the jury on count 2, the charge of kidnap, although one had been taken in respect of his co-defendant Hassan.

8

The transcript indicated that the taking of verdicts had been attended by an apparent degree of confusion. It appears that the court clerk had mislaid a document and that the jury foreman did not have with him a note of the jury's decisions. The transcript recorded the judge as asking the foreman to go through the counts one by one. When the clerk asked for the verdict on count 2 (the count of kidnapping), a verdict of guilty was recorded as being given in respect of the co-defendant, but there was no record of any verdict being asked for or given in respect of the appellant on that count. Thus, it appeared conceivable that there might possibly have been an error. Walker J gave permission to appeal on that ground, and only that ground.

9

The appellant did not seek to renew his application for permission to appeal on any of the grounds that had been refused by Walker J. Thus, the hearing that took place on 12 June 2014 in this court was concerned solely with the ground of appeal identified by the single judge. Neither the prosecution nor anyone else had taken steps to see if there had in fact been an error; everyone relied on the transcript as accurate.

10

In the judgment referred to above this court accepted that there had been an error in the taking of verdicts such that there had been no conviction of the appellant on count 2. In the light of the argument before us, it is necessary to quote in full the paragraphs setting out the decision of the court.

"21. In our judgment, therefore, as is accepted by [counsel] for the Crown, the simple position is that [the appellant] has not been convicted of that offence, and technically there is no appeal to be dealt with in respect of it at all. All that requires to be done in that respect is for the Crown Court record to be amended accordingly, to delete the conviction of the appellant on that count, and we will so direct. Obviously the court record should not indicate either that the appellant has been acquitted on that count.

22. We turn to the appeal against sentence. Again, the learned judge refused leave to appeal on the grounds advanced on the appellant's behalf by counsel. The application for permission to appeal on those grounds has not been renewed. The single judge indicated that he gave leave to appeal against sentence simply because of the doubt that arose as to the fact of the conviction on count 2.

23. On that ground it is clear from what we have already said that there has been no conviction of the appellant on count 2 on which he could be sentenced. The sentence on that count must therefore be quashed."

11

The court declined to adopt the course proposed by the prosecution, of revisiting the sentence for rape and increasing it by 18 months, ruling that it was undesirable to take that course on short notice and it would in any event be grossly unfair in what the court had found were the circumstances of the case.

12

The order made by the court was, so far as material, as follows:

"[THE COURT OF APPEAL CRIMINAL DIVISION on 12 June 2014"

CONSIDERED the appeal against conviction and sentence

AND HAS

Directed that the conviction on count 2 be deleted from the court record, but the court record should not show that the appellant was acquitted of count 2;

Directed that the appellant not having been convicted on count 2, the sentence thereon be quashed;

Quashed the Victim Surcharge Order imposed in the court below;

Substituted therefore a Victim Surcharge Order in the sum of £20."

13

As a consequence the record of the Crown Court at Harrow was amended, but not in the manner directed by the order of this court. The record of the conviction held on CREST on count 2 was not amended. The record simply recorded on the last page:

"Appeal against conviction and sentence allowed in part 12/6/14. Total sentence now 6 years in a Youth Offenders Institution. Victim surcharge £20, Comply with Sexual Offences Act 2003 indefinitely"

14

When the transcript of the judgment of the court was sent to the judge, he made inquiries of the transcribers as to their record, as he thought that the verdict had been taken. Those inquiries revealed that Margaret Wort & Co, the transcribers of the proceedings on 9 July 2013, had made a very serious error. They had omitted to record the guilty verdict which had been taken on count 2 against the appellant. We have a corrected transcript which shows that the process was carried out impeccably under the direction of the experienced judge. This is not in dispute.

15

It follows that the grant of permission to appeal and the judgment of this court on 12 June 2014 were both founded on a mistake as to what had happened in the Crown Court. The question arises of what, if anything, this court has jurisdiction or power to do and, if it has jurisdiction or power, whether it should be exercised.

The legal framework: the Criminal Appeal Act 1968 and the authorities of the Court of Appeal Criminal Division

(a) The general powers of the Court of Appeal

16

The jurisdiction and powers of this court, like those of the Civil Division, are entirely statutory. S.1 of the Criminal Appeal Act 1968 provides that, subject to certain immaterial exceptions, and the requirement of leave, "a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction." S.2 provides:

"(1) Subject to the provisions of this Act, the Court of Appeal—

(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.

(2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction."

17

S.9 of the 1968 Act is headed "Appeal against sentence following conviction on indictment" and provides that:

"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings".

18

Section 11(3) of the Act provides:-

"(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—

(a) quash any sentence or order which is the subject of the appeal; and

(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;

but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below."

(b) The power to revise an order until it is recorded

19

It is well established that this court has, like any other court, an...

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