R v Robertson

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date11 June 1987
Neutral Citation[1987] EWCA Crim J0611-3,[1987] EWCA Crim J0611-14
Judgment citation (vLex)[1987] EWCA Crim J0611-2
Docket NumberNo. 1585/A/86 No. 6514/E/86,No. 1585/A/86 and No. 6514/E/86
CourtCourt of Appeal (Criminal Division)
Date11 June 1987

[1987] EWCA Crim J0611-14

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

The Lord Chief Justice of England (Lord Lane)

Mr. Justice Boreham

and

Mr. Justice McCowan

No. 1585/A/86

and

No. 6514/E/86

Regina
and
Malcolm Robertson
and
Regina
Martin Golder

MR. R. B. TANSEY appeared on behalf of the Appellant Robertson.

MR. STEWART PATTERSON appeared on behalf of the Crown.

MR. P. TURL appeared on behalf of the Appellant Golder.

MR. STEWART PATTERSON appeared on behalf of the Crown.

THE LORD CHIEF JUSTICE
1

These two cases raise similar points upon the construction of certain sections of the Police and Criminal Evidence Act 1984, and we propose therefore as a matter of convenience to deal with them together.

2

R. V. ROBERTSON :

3

On 17th February 1986 in the Crown Court at Snaresbrook before His Honour Judge Owen Stable, Q.C. and a jury, the appellant, Malcolm Robertson, was convicted of conspiracy to commit burglary. He was sentenced to three years' imprisonment.

4

Now by leave of the single Judge he appeals against that conviction. The original indictment had contained five counts. Counts 1 and 2 charged the appellant together with Barry James Poole and Albert William Long with conspiring together and with others unknown to commit burglary at premises belonging to Comet plc. The remaining counts concerned Poole and Long only.

5

Before arraignment, and by consent, the indictment was amended by adding counts 6 to 20, each count charging burglary at premises belonging to Comet plc in various parts of London and South East England. Eight of these counts charged Poole alone, two charged Long alone and five charged Poole and Long Jointly. Poole pleaded not guilty to conspiracy but guilty to all fourteen counts of burglary. Long pleaded not guilty to conspiracy but guilty to all nine counts of burglary – six of the counts being Joint charges with Poole: a total therefore of seventeen burglaries, sixteen of them at Comet premises. These pleas were accepted and on 8th January Poole was sentenced to two and a half years' imprisonment, Long to two years' imprisonment.

6

The trial of the appellant on the two conspiracy counts commenced on 6th January, but, for reasons which do not concern us, the Jury were discharged.

7

Prior to his retrial on 11th February, three further counts were added to the indictment charging the appellant with burglary (count 21) and handling a stolen video (counts 22 and 23). During the course of the retrial, and by consent, the indictment was further amended by consolidating the two conspiracy counts to allege one conspiracy with Poole, Long and others between 1st January 1984 and 20th June 1985.

8

The Crown's case was that between January 1984 and June 20th 1985 82 burglaries were committed at premises belonging to Comet in London and South East England. Goods to the value of £245,000 were stolen. This was not in dispute. The pleas of Poole and Long related to 16 of these burglaries and to goods to the value of £44,000. Their last offence was committed at Stevenage on 20th June 1985, when six video recorders to the value of £2,700 were stolen. They were observed by nearby residents, their car number was taken, and they were arrested with the stolen goods within a very short time.

9

The appellant was arrested at his home on 25th June. The Crown's case against the appellant was: (1) that there was a conspiracy between Poole and Long in the terms of the indictment, namely, "on days between 1st January 1984 and 20th June 1985 to enter showrooms and warehouses belonging to Comet plc as trespassers and to steal therein video cassette recorders and television sets". The admissibility of the evidence adduced by the Crown on this aspect of their case is disputed; (2) that the appellant was, for at least part of the time, a member of that conspiracy.

10

The Crown relied upon (a) admissions alleged to have been made on three occasions by the appellant: first at his home when arrested, secondly at the police station and thirdly at a formal interview when contemporaneous notes were made of the questions and answers. The appellant was given the opportunity to check and sign the notes. He said he would think about it. He never signed them. In evidence the appellant denied making any admissions. His versions of the first two conversations contained nothing in the nature of an admission. As to the formal interview, he agreed that a note had been made, but not from anything he had said. It was an entire fabrication. Police Constable Bricklow not only asked the questions, he also supplied all the answers. Police Constable Simpson recorded them at his colleague's dictation; (b) evidence of the appellant's association with stolen property and with Poole and Long. On 2nd May 1984 Police Constable Smith found a damaged video recorder on the ground beneath a broken widnow of the appellant's first floor flat. It had been stolen on 30th April 1984 from a Comet warehouse at Chingford. Three officers visited the flat, where they found the appellant and Poole and where they said they saw a video lead hanging from a socket in the television set. The appellant denied that there was such a lead and asserted that the video recorder had no connection with him or his flat. The recorder was the subject of counts 22 and 23.

11

The Crown also relied upon an incident on 13th May 1985 when a car driven by Poole stopped when approached by the appellant and Long. According to Police Constable Bricklow, Poole passed to the appellant a paper on which the word "Comet" was printed. The appellant and Long then entered the car which was driven away by the appellant. The appellant did not deny the incident, but disputed any reference to Comet. His case was that his association with Poole and Long was entirely innocent.

12

After a five-day trial the appellant was convicted of the conspiracy. The Jury were discharged from returning verdicts on counts 21 to 23. The appellant was sentenced to three years' imprisonment. His application for leave to appeal against that sentence was refused by the single Judge, and has not been renewed.

13

Mr. Tansey on behalf of the appellant submits that the verdict was unsafe and unsatisfactory by reason of, what he submits was, a serious irregularity in the course of the trial, and two more in the course of the summing up.

14

The irregularity in the trial relates to theadmissibility of evidence. The Crown sought to prove the existence of the conspiracy between Poole and Long by proving inter alia that within the relevant period Poole and Long had committed a number of burglaries at different Comet premises and had stolen television sets and video recorders. The inference was that they must have conspired together. To do this they sought the leave of the learned Judge to adduce evidence of the convictions of Poole and Long of 16 relevant counts of burglary. Their case was that they were entitled to adduce that evidence by virtue of the provisions of section 74(1) of the Police and Criminal Evidence Act 1984. The Judge heard argument and ruled in favour of the Crown.

15

Mr. Tansey challenges that ruling on a number of grounds. To put his submissions into perspective, it is necessary to refer to section 74 and the related sections of the Police and Criminal Evidence Act 1984.

16

Section 74 provides: "(1) In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom ….. shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given.

"(2) In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom ….. he shall be taken to have committed that offence unless the contrary is proved."

17

It is unnecessary to refer to subsections (3) and (4).

18

Section 75 provides: "(1) Where evidence that a person has been convicted of an offence is admissible by virtue of section 74 above, then without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based –(a) the contents of any document which is admissible as evidence of the conviction; and (b) the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.

"(2) Where in any proceedings the contents of any document are admissible in evidence by virtue of subsection (1) above, a copy of that document, or of the material part of it, purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of that document shall be admissible in evidence and shall be taken to be a true copy of that document or part unless the contrary is shown."

19

Subsections (3) and (4) are irrelevant for present purposes.

20

Finally section 78 provides: "(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in Which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

"(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence."

21

Mr. Tansey's criticisms of the Judge's ruling may be summarised as...

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