R v Roberts (Michael)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PHILLIPS |
| Judgment Date | 20 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J1120-6 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 9702548 Z3 9702556 Z3 9702605 Z3 9703590 Z3 |
| Date | 20 November 1997 |
[1997] EWCA Crim J1120-6
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Phillips
Mr Justice Jowitt
and
Sir Patrick Russell
No. 9702548 Z3 9702556 Z3 9702605 Z3 9703590 Z3
MR J ASPINALL QC & MR DEHAVAS appeared on behalf of the Appellant ROBERTS
MR J GOLD appeared on behalf of the Appellants TAYLOR and DALY
MR M HURST (Mr Bowen) appeared on behalf of the Appellant CHAPMAN
MR R CHERRILL & MR A CHAPLIN appeared on behalf of the Crown
Thursday 20th November 1997
On the 21st March 1997, after the longest trial that has ever taken place at Lewes Crown Court, the appellants Roberts, Taylor and Chapman were convicted on an indictment drawn in the following terms:
, contrary to Section 1(1) of the Criminal Law Act 1977Section 1(1) of the Criminal Law Act 1977.
…between the 1st day of November 1994 and the 1st day of July 1995 conspired together with other persons to commit offences of criminal damage at various locations in East and West Sussex.
Roberts was sentenced to 6 years, Taylor to 4 years and Chapman to 2 years imprisonment.
Charged on the same indictment was the appellant Daly. He pleaded guilty and, after a Newton hearing, was sentenced to 3 years imprisonment.
All four appellants appeal against conviction, the first three with the leave of the single Judge and Daly with the leave of this Court.
Each appellant has attacked the form of the indictment and we decided to deal with that attack as a preliminary point as, if well founded, it might render it unnecessary to consider other grounds of appeal advanced by individual appellants.
The Crown's case at the trial
Before the trial began, Mr Cherill for the Crown circulated to Defence Counsel an 'Opening Note' which set out the manner in which the Crown's case was to be opened to the jury. This summary is based largely upon that note.
In late 1994 Shoreham was chosen as a port for the export of live veal calves. This trade was abhorrent to many who were concerned for animal welfare. Some of these protested by lawful demonstrations against the trade. Others resorted to unlawful behaviour, including various forms of criminal damage.
Roberts founded an organisation called "Campaign against live freight", which was known as CALF. The other appellants were committee members of this organisation. Many protestors joined CALF and CALF performed the legitimate function of giving these protestors factual information in relation to matters such as arrival times of road convoys and sailing times of the export vessel, which was called "NORTHERN CRUISER". Within CALF, however, there were some, who included the appellants, who conspired to carry out a campaign of criminal damage against those involved in the export of live freight. Instances of criminal damage that had occurred were relied upon by the Crown as being the product of this conspiracy. The Crown's case is encapsulated in the following passage from the Opening Note:
The Crown does not seek to prove that each Defendant was responsible for all the offences of damage which took place or even that each knew that a particular act of damage was going to be done. It is alleged, however, that each was personally involved in one or more acts of damage some serious, some less so, and that they were acting with the common purpose of seeking to disrupt the trade not only by damage to property, sometimes, as in the case of The White Hart, causing a risk to life, but also by a policy of disruption. On one occasion, for example, the padlock on an electricity junction box was forced and the lighting at the Port extinguished. The Defendants, it is alleged, had possession of a small device consisting of a number of long nails mounted on a small wooden platform designed to be placed under the wheel of a lorry thereby causing damage to the tyres. Oil was deliberately deposited on a busy road known to be one used by the transporter lorries and other forms of obstruction to traffic used such as setting fire to a car in the road and the placing of barriers across the road. Away from the Port area, attacks were made on a "Lairage" at Chailey near Lewes, being a farm at which animals for export were kept overnight en route to the Port. The most potentially serious example was a petrol bomb attack at a time when the drivers of two transporter lorries were asleep in their cabs. Fortunately the attack was ineffectual and no damage was done. At least two of the Defendants were present at the time of this attack. This incident was on the same night, 23 February 1995, that the attack on the White Hart was carried out.
Much of the evidence called by the Crown was devoted to the serious offences that occurred on the night of the 23rd/24th February 1995, but evidence was also given of comparatively minor acts of criminal damage, which included incidents on the 6th/7th March when the tyres of a mobile crane were slashed, an electricity junction box damaged and fencing broken down; an incident on the 15th March, when oil was spilt on the roadway; an attempt to set a small car on fire on the 10th April; the placing of a device with protruding nails under the tyre of a lorry on the 12th April and damage to a lorry on the 18th April.
The issue as to the form of the indictment
At the heart of the issue as to the form of the indictment are the following statutory provisions:
1. (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another orbeing reckless as to whether the life of another would be thereby endangered;shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
4. (1) A person guilty of arson under section 1 above or of an offence under section 1(2) above (whether arson or not) shall on conviction on indictment be liable to imprisonment for life.
(2) A person guilty of any other offence under this Act shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.
1. (1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.
Penalties for conspiracy
3. (1) A person guilty by virtue of section 1 above of conspiracy to commit any offence or offences shall be liable on conviction on indictment—
(a) in a case falling within subsection ( 2) or (3) below, to imprisonment for a term related in accordance with that subjection to the gravity of the offence or offences in question (referred to below in this section as the relevant offence or offences); and
(b) in any other case, to a fine.
(3) Where in a case other than one to which subjection (2) above applies the relevant offence or any of the relevant offences is punishable with imprisonment, the person convicted shall be liable to imprisonment for a term not exceeding the maximum term provided for that offence or (where more than one such offence is in question) for any one of those offences (taking the longer or the longest term as the limit for the purposes of this section where the terms provided differ).
Counsel for one or more of the appellants attacked the form of the indictment, both before at the outset of the trial and at the close of the Prosecution case. The attack was mounted on three different bases, which have been pursued before us.
1. The single count embraced three separate conspiracies and was void for duplicity. This was the primary basis for the attack mounted by Mr Aspinall, Q.C., on behalf of Roberts.
2. The single count embraced four separate offences. A guilty verdict would not indicate which, or how many, of the offences had been made out. It would be left to the Judge to sentence on the basis of his view of that matter. This was wrong in principle. This was the principle basis of the attack made by Mr Hurst, on behalf of Chapman.
3. For Taylor, Mr Gold—both before the beginning of the trial and at the close of the Prosecution case—advanced a different argument, which Counsel for the other Defendants adopted in the alternative. The indictment alleged an offence of conspiracy to cause criminal damage simpliciter, not damage in one of the aggravated forms. Most of the Prosecution case had been devoted to establishing a case of arson in circumstances involving at least recklessness as to endangering human life. Such evidence was irrelevant to the offence charged and highly prejudicial.
The position of Mr Daly is that he wished to plead guilty to conspiring...
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