R v Richard Dean BARNETT
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON |
| Judgment Date | 07 February 2002 |
| Neutral Citation | [2002] EWCA Crim 454 |
| Docket Number | No: 200101067/Y4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 February 2002 |
[2002] EWCA Crim 454
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Vice President
(Lord Justice Rose)
Mr Justice Jackson and
Mr Justice Owen
No: 200101067/Y4
MR KEVIN McCARTNEY appeared on behalf of the APPELLANT
MR GEORGE HEIMLER appeared on behalf of the CROWN
This judgment is in three parts, namely part 1, the facts; part 2, the law; and part 3, does the absence of a Lucas direction make the appellant's conviction unsafe?
Part 1. The Facts
On 25th January 2001, at Luton Crown Court, the appellant was convicted of handling stolen goods. The appellant appeals against that conviction with the leave of the Single Judge.
The facts which gave rise to the appellant's conviction were as follows. On the night of 19th/20th March 2000, a burglary took place at a large country house near Newmarket. One of the items stolen was a painting called 'The Hawking Party', to which we shall refer in this judgment as "the painting". The painting is oil on canvass and approximately 40 inches by 30 inches in size. As its name suggests, the painting depicts a hunting scene with a number of horses, riders and dogs. The painting was valued, for insurance purposes, at £40,000.
On Friday 30th June 2000, police officers executed a search warrant at the appellant's premises in Stevenage. One of the officers found the painting lying face down, beneath the appellant's bed. The appellant was then arrested on suspicion of burglary or handling stolen goods.
When questioned under caution, immediately after arrest, the appellant said that he had found the painting whilst walking his dog on Monday 26th June. The police officers did not find this explanation to be satisfactory. They took the appellant to the police station for interview. On the evening of that day, namely Friday 30th June, the appellant was interviewed for 40 minutes, with his solicitor present.
In the course of that interview the appellant put forward a new explanation of how the painting had come to be under his bed. This explanation was as follows. On Tuesday 27th June the appellant met, in a public house, a friend, for whom, in the past, the appellant had sold televisions and similar items. The name of this man was not revealed by the appellant, either in the interview or subsequently. In this judgment, therefore, we shall simply refer to that man as "the friend". On Tuesday 27th June the friend, according to the appellant in interview, produced the painting and asked the appellant if he could find a purchaser. The appellant took the painting and stored it in a garage near to his home, between Tuesday 27th June and Friday 30th June. At 12 noon or thereabouts on Friday 30th June, the friend telephoned the appellant, and said that he wished to bring a prospective purchaser round to view the painting. The appellant duly retrieved the painting from the garage and brought it into his house. The friend came round and inspected the painting, together with another man. The name of this other man has not been revealed. For convenience we shall refer to him in this judgment as "the purchaser", even though, owing to police intervention, no sale and purchase were possible. In his interview, the appellant said that the friend and the purchaser discussed the painting in his presence. One of them said that it was an authentic 17th century Dutch painting; a value of £15,000 to £20,000 was mentioned. However, the friend said to the appellant that probably the purchaser would only pay £4,000 or £5,000 for the painting. After inspecting the painting, the purchaser said that he would proceed with the transaction the next day. He asked the appellant to place the painting somewhere safe overnight. The purchaser and the appellant agreed that the space under the appellant's bed would be a suitable storage area, where the painting would not be damaged by the appellant's dog. The appellant said, in interview, that he did not believe the painting to be stolen. The friend had told him that the painting belonged to his family and the appellant accepted this.
The explanation which the appellant gave in interview did not satisfy the police officers. In due course, the appellant was prosecuted for handling stolen goods.
At the trial, there was no dispute that the painting was stolen property. The central issue was whether the appellant knew or believed that the painting was stolen.
When the appellant gave evidence, he put forward a version of events which differed (a) from what he had said under caution immediately after arrest and (b) from what he had said in interview. In the course of his evidence, the appellant said that on Tuesday 27th June, the friend had entrusted the painting to him and the appellant had placed it in the garage. The appellant then telephoned a man called Rez. Rez said that he knew someone who might be interested in buying the painting. Again, we shall refer to this person as "the purchaser". On Friday 30th June the purchaser came round to view the painting in the company of Rez. All discussion about the value of the painting took place between the purchaser and Rez. The upshot of this discussion was that the appellant would store the painting under his bed, while the purchaser checked out its authenticity. Shortly afterwards the police arrived and seized the painting.
In summing up the case, at the end of the trial, His Honour Judge Rodwell enumerated the reasons why the prosecution contended that the appellant must have known or believed that the painting was stolen. One of these reasons was that the appellant had told three entirely different stories. The first account was that which the appellant gave immediately upon arrest. The second account was contained in the appellant's interview. The third account was given in the appellant's evidence at trial. Having summarised the three different accounts which the appellant had given, the judge said this:
"The Crown say it is three different totally inconsistent stories which are indicative, they say, that he is not telling the truth and that he knew what was blindingly obvious, which is that it is a stolen picture."
The judge did not subsequently go on to give a Lucas direction. It is this omission which constitutes the appellant's ground of appeal.
Part 2. The Law
In R v Lucas (1981) 73 Cr App R 159 the trial judge directed the jury that lies told by the defendant, in the witness-box could constitute corroboration of an accomplice's evidence. This Court, comprising the Lord Chief Justice, Comyn J and Stuart-Smith J, quashed the conviction. In giving the judgment of the Court, the Lord Chief Justice said this, at pages 162 to 163:
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.
As a matter of good sense it is difficult to see why, subject to the same safeguards, lies proved to have been told in court by a defendant should not equally be capable of providing corroboration. In other common law jurisdictions they are so treated…"
In R v Goodway (1994) 98 Cr App R 11 the defendant was convicted of murder, in part on the basis of identification evidence. The trial judge gave a Turnbull direction in the course of the summing-up. The judge went on to remind the jury of lies told by the defendant in his police interview. The prosecution relied on those lies as support for the identification evidence. The judge did not give a Lucas direction. This Court, comprising Lord Taylor CJ, Alliott J and Buckley J, quashed the conviction. The Lord Chief Justice, giving the judgment of the Court said this at page 15:
"In the present case, the appellant's lies were relied upon by the Crown as support of the identification evidence and the summing-up in the passages quoted encouraged the jury so to regard them. Accordingly, even on the limited basis established by Turnbull and the other authorities cited above, this was a case in which a Lucas direction was required. Mr Marshall-Andrews submits that on that basis (which he calls his narrow proposition), the summing-up was defective in a material respect and the Court should therefore allow the appeal.
In our judgment, he is right. We consider the omission of a Lucas direction was a material misdirection and in view of the conflicting evidence of identification and the strikingly similar appearance of the appellant and Chapman, this is not a case in which it would be appropriate to apply the proviso. This appeal must therefore be allowed."
The Lord Chief Justice then went on to consider and accept a broader submission made by Mr Marshall-Andrews. At page 17, the Lord Chief Justice said this:
"In our view, there is no reason in principle or logic for drawing a distinction between corroboration and identification cases and any other case in which lies may be relied upon in support of prosecution evidence. Accordingly, we consider Mr Marshall-Andrews' broader proposition is sound and that a Lucas direction should be given, save where it is otiose as indicated in Dehar, whenever...
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