R v Montgomery
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE POTTER |
| Judgment Date | 01 July 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0701-10 |
| Docket Number | No. 94/1957/X2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 July 1994 |
[1994] EWCA Crim J0701-10
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Roch Mr Justice Potter and Mrs Justice Smith
No. 94/1957/X2
MR K ADKIN appeared on behalf of the Appellant
MR W BOYCE (as Amicus Curiae) appeared on behalf of the Respondent
Friday 1st July 1994
This is an appeal against a sentence of 12 months' imprisonment for contempt of court imposed on the appellant by her Honour Judge Paling sitting in the Crown Court at Newcastle-upon-Tyne on 21st March 1994. That sentence was itself a reduction from a term of 21 months' imprisonment imposed by the judge on 8th March 1994, the contempt being the refusal of the defendant to take the oath and give evidence at the trial on indictment of Anthony Christie and nine others for conspiracy to damage property contrary to section 1(1) of the Criminal Law Act 1977. The appeal is brought as of right under section 13 of the Administration of Justice Act 1960.
The circumstances were as follows. The offence with which the accused were charged was a serious one. It involved the hurling of various missiles at police vehicles, including a piece of rock which had very seriously injured a police officer in one of the vehicles. It was the prosecution case that Christie was the person who had thrown the rock. The appellant had supplied the police with a statement relating to a confession by Christie that he was one of the persons concerned, and he was bound over to attend the trial. He did not attend. On 7th March 1994 he was arrested and brought to court. Having at first refused to give evidence on that day, he later said he had changed his mind and would do so after all. On his return to court on 8th March, as the final prosecution witness, he reiterated to his counsel that he would not do so because he was in fear. When called to give evidence he said, "I have no evidence to give." He was allowed time for advice, but persisted in his attitude. He was detained in order to be dealt with for contempt of court. However, following his refusal and before closing the prosecution case, prosecuting counsel applied for the appellant's statement to be read pursuant to section 23(3)(b) of the Criminal Justice Act 1988 on the grounds that the appellant had refused to give oral evidence through fear. That application was allowed, the judge being satisfied to the criminal standard of proof that the appellant was indeed in fear (see R. v. Acton Justices (1991) 92 Cr.App.R. 98).
The prosecution case was then closed and legal argument followed concerning the nature of the charges. The judge ruled that count 1 was bad in law in that it charged a conspiracy, an essential element of which was:
"Being reckless as to whether the lives of police officers…..would…..be endangered"
wheres the crime of conspiracy is essentially one of intention. The defendants, or at any rate Christie, then pleaded guilty to the lesser charge contained in count 2 which alleged an intention on the part of those charged restricted to damaging property.
On completion of the trial that day and after a suitable interval for instructions to be given and further advice received by the appellant, he was dealt with for his contempt. At that stage, he refused to give evidence concerning the circumstances of his refusal or to offer any explanation his for his attitude. It appears that, at the time, the public gallery was still crowded with relatives of the accused.
In passing a sentence of 21 months' imprisonment, the judge told the appellant:
"You have shown yourself to be a coward. You quite rightly gave a statement to police officers about what you knew had happened, when a police officer had suffered injuries that almost caused his death. But he did not die and, suddenly, everything began to change. Witnesses who had made statements because of the severity of the injuries of that officer began to be less keen about coming to court to give evidence. You did not turn up at the Magistrates' Court. You did not come to this court. You ignored summonses. You kept out of the way and I think you hoped that everything would just blow over, but it will not.
These courts in 1994 are struggling where witnesses who have made statements are unwilling, in the end, to give evidence against someone. Courts cannot act, juries cannot act, people cannot be convicted without evidence. It is the linchpin of criminal proceedings. You had your chance yesterday and last night, and this morning twice, and you refused in front of a jury to take the oath on those occasions.
It may be (and I accept evidence given by police officers this morning) that, set against a background about which I knew, you are afraid to give evidence. But it is not just that. You do not want to be seen to be letting the side down at this stage. I am satisfied that is one of the reasons. I do accept that you are afraid of what may happen to either you or even other members of your family, from persons who you do not name, but the way to deal with that is to make a statement to the police and to have those persons arrested and locked up, and kept away…..
I consider this contempt a serious one…..There cannot be a more serious contempt in a case of this nature, where the charge is a serious one and the statement the witness has given is of real importance….."
Having received his sentence, the appellant subsequently changed his mind about giving evidence as to the circumstances of his refusal. On 21st March 1994 he returned before the judge on an application, as it was put, "to purge his contempt" and to seek an alteration in the sentence. He and certain relatives gave evidence as to threats received and, importantly, the judge was referred to a number of authorities illustrative of the usual length of sentences imposed in such cases. In reconsidering the sentence, the judge again emphasised that:
"Where victims of serious crime, or witnesses to serious crime, refuse to do their duty and do not have the courage to give evidence, the result would be and is a complete failure of law and order."
She again referred to other witnesses in the case who had been afraid for themselves or their families but, nonetheless, gave evidence, contrasting this with the position of the defendant. She continued:
"Trial is now over and I am now told that he (the appellant) wishes to purge his contempt and wishes the sentence to be altered. I certainly do not accept that this is a proper application to purge contempt. It is impossible to purge contempt, it seems to me, when the time for giving evidence has passed, because the trial has finished and it has been dealt with on another basis without the evidence that the defendant could have given.
I am asked to look at the authorities which I was not referred to at the time sentence was imposed and, on that basis…..
It certainly is not a case where I would cancel the sentence of imprisonment imposed, but I am prepared to reduce it to 12 months."
On this appeal in helpful submissions by Mr Adkin,
as counsel for the appellant, and Mr Boyce, who has
acted as Amicus Curiae, we have been referred to a number of decisions of the Court going to the question of the length of sentence appropriate in cases of this kind. In addition to the general submission that examination of such authorities demonstrates that a sentence of 12 months was excessive, the principal point advanced for the appellant, based on the decision of this Court in Phillips (1983) 5 Cr.App.R.(S) 297, is that the judge failed to give any or adequate consideration to the importance of the evidence in the trial.
In Phillips, the main criticism of the trial judge, who had imposed an immediate sentence of imprisonment for four months upon a witness who refused to be sworn or give evidence, was that he had acted precipitately, rather than postponing sentence to the conclusion of the trial or, at soonest, to the end of the prosecution case. That is not a criticism which can be made here. However, in giving the judgment of the Court in Phillips, Watkins LJ said at page 302:
"The witness who refuses to testify may have at his disposal evidence of...
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