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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Scott, R. v [2004] EWCA Crim 1835 (07 July 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/1835.html Cite as: [2004] EWCA Crim 1835

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 7 July 2004

1. LORD JUSTICE CLARKE: I will ask Mr Justice Henriques to give the judgment of the court.
2. MR JUSTICE HENRIQUES: On 14 February 2002 in the Central Criminal Court the applicant was convicted of murder and on 15 February 2002 he was sentenced to life imprisonment. He renews his application for leave to appeal against conviction.
3. This was allegedly a murder by shooting outside the Duke of Wellington Public House in Battersea at about 9.30 pm on 17 May 2001. Those involved in the circumstances leading up to the shooting were members of the West Indian community. Many of them were known by their street names and other aliases. The deceased, Phillip Parris, was known as Phillip Parmenter.
4. It was the Crown's case that the applicant had been in an argument with the deceased inside the Duke of Wellington Public House earlier that evening. The applicant arrived at the public house and arranged to meet Leon Bisson and Michael Jackson. The deceased was the resident disc jockey at the public house. At some point in the evening the applicant, the deceased and a man by the name of Garfield, were all in the music booth. An argument developed and insults were exchanged. The incident was captured on closed circuit television and it was alleged that the deceased said that the applicant had called him a "pussy". There was also a suggestion that the deceased asked the applicant if he wanted gun play. The argument died down and the applicant sat at a pool table. He spoke to Veronica Whittaker. Her evidence was that the applicant produced a knife which he refused to hand over to her. She then asked him to leave the public house. The applicant left the public house with Bisson, Jackson and two men called Flatta and Darren.
5. It was the Crown's case that, as a result of the argument in the public house, the applicant left in order to arm himself with a weapon and to return to attack the deceased. Roger Whittaker phoned the applicant on his mobile phone and the applicant returned to the public house after about 20 minutes. He was accompanied by Bisson, Jackson and the man known during the trial as Solgy. The applicant was armed with a machete and Solgy had a gun. The prosecution case was that the applicant ran at the deceased and attacked him with the machete. A struggle developed between the two men and it was at this time that Solgy fired two shots. One hit the applicant in the arm, the other hit the deceased to the back of his head. The applicant was alleged to have said after the deceased had been shot, "Who is next?".
6. The prosecution case was that the applicant and his co-accused were involved in a joint enterprise to kill and to cause grievous bodily harm. It was alleged that Solgy was recruited to bring a gun back to the public house specifically for this purpose. The case against Bisson and Jackson was that they were there to assist the applicant if any of the deceased family or friends tried to intervene.
7. In interview the applicant said that he did not know the deceased and that he was on his own in the pub. He said that he had not been involved in an argument, there had been no trouble in the public house and that he had heard a shot. He ran outside and was shot himself. It was readily conceded that the account given to the police in interview was a lie.
8. The applicant's case was that, although he had an argument with the deceased, he was not a party to a joint enterprise to kill, or to cause grievous bodily harm. His case was that, although he had been a friend of Solgy, they had had an argument and by the time of the incident they were no longer friends. He was not armed with a machete at the time of the shooting. He had only returned to the public house because Veronica Whittaker had telephoned him and told him that events at the public house had calmed down. At the time he was in possession of a snooker cue case, a fact relied upon but not set out in the defence statement.
9. The appellant's case was that, because of the argument that he had had with Solgy, he was in fact the intended victim of the shooting and that the deceased had been shot by accident. The applicant accepted that he became involved in a fight with the deceased after he returned to the scene and after the deceased had insulted him by saying, "suck your mother".

Important evidence against the applicant came from the witnesses James Sullivan, David Thornton, John Brown and Harry Stafford. When we say "came", it was thought that it would come from those witnesses. The prosecution successfully argued before the trial judge that the identities of those four witnesses should not be disclosed and that they should give their evidence from behind screens. Only James Sullivan and John Brown availed themselves of the judge's ruling.

The first ground of appeal is that the judge erred in permitting those two prosecution witnesses, Sullivan and Brown, to be called anonymously, to use false names and to give their evidence from behind a screen. Sullivan gave evidence that he saw four people running under Homecroft House. They were the same people who had been in the argument in the public house. He said that the applicant had a machete and that Solgy had a gun in his right hand. Another man, Bisson, also had a gun. His evidence was that the applicant raised his machete against the deceased who caught hold of it and there was a struggle. At this point Solgy shot the deceased twice. John Brown's evidence was that he was in the public house and witnessed the argument between the applicant and the deceased. The applicant and his co-accused left the public house. He said that he was outside the public house when the applicant, Bisson, Jackson and Solgy returned. Brown's evidence was that the applicant had a machete and attacked the deceased with it. They began to struggle. His evidence further was that Bisson also had a gun and that he saw Solgy fire two shots. The deceased fell after the second shot.

It is convenient at this stage to consider the first ground of appeal, namely whether the judge was in error in permitting both Sullivan and Brown to give evidence anonymously and from behind screens. The learned trial judge, the Recorder of London, gave a most careful judgment which we have read with care. He considered the case of R v Garry Taylor [1995] Crim LR 253, of which he had a full transcript. He followed the guidance given by Evans LJ in that case. He analysed fully the facts of the case. He identified the issues before the jury. He assessed the reasons advanced by the prosecution to justify anonymity and considered whether any alternative means short of anonymity was available to the prosecution. He also sought to identify the extent to which the defence would be hampered if anonymity was given to the witnesses and he assessed the overall impact of anonymity in the eyes of the jury. Each of those tasks was performed with characteristic attention to detail.

The judge relied upon the evidence of Detective Constable King, the Witness Liaison Officer who gave evidence in relation to each witness, identifying the risk to life in each case should that witness give evidence without anonymity, without a screen and without a voice modulator. The evidence of Detective Constable King, accepted by the judge, was that the witnesses were terrified of reprisals. Mr Brown had been subject to harassment. He was telephoned and told he should be careful. The judge considered whether any of these witnesses were willing to be re-housed and relocated, but they did not wish to avail themselves of such elaborate protection. Such a complete change of life was not acceptable. Detective Constable King took the view that it was not feasible in this case; two of them were in full employment and it was too large a sacrifice.

The judge considered the European Jurisprudence having been referred to the case of Doorson v Netherlands 22 EHRR 330 in which the court emphasised the need to balance the interest of the accused against any risk to the life and liberty or security of a witness.

The principal criticism of the learned judge's approach is that a voir dire should have taken place. It is said, eloquently on behalf of the applicant by Mr Kendal, that it was not sufficient merely to hear from Detective Constable King, but it is said that the learned judge should have heard from the witnesses themselves, albeit at that stage necessarily from behind screens with voice modulators and with anonymity afforded to them at that preliminary stage. It is to be noted that no such suggestion was made on behalf of any one of the defendants by leading counsel then appearing for them.

This court has considered that omission with care. We cannot conceive that such an omission came about by accident. A serious tactical decision has to be made by defence counsel in circumstances such as this. The calling of the witnesses before the trial judge to give further and better particulars of the way in which they have been put in fear, can seriously rebound upon the defence. We are perfectly satisfied that a tactical decision must have been taken here, either deliberately or subconsciously, on behalf of each of the defendants.

We do, as we are invited by Mr Kendal, go on to consider whether in certain circumstances it is desirable that a voir dire should take place. We take the view that where the defence assert that there have been no threats, and that the witnesses are in fact not genuinely in fear, in certain circumstances it will be appropriate for a voir dire to take place. We have been informed of such an occasion when His Honour Judge Grigson, as he then was, sitting in the Central Criminal Court in a grave case not dissimilar to the present, decided to hold such a voir dire. In relation to some of the witnesses he determined that there was, in fact, having heard their evidence, no justification for anonymity. We are quite satisfied that, had defence counsel considered such a course to have been appropriate in the present case, a positive request would have been made.

10. The fact that such a request is made will not necessarily be conclusive. It will in our judgment always be a matter for the discretion of the trial judge. There will doubtless be cases where the surrounding circumstances of the allegations themselves are so stark and obvious that the witnesses will, without giving evidence, obviously be in fear and the communication from the Witness Liaison Officer will suffice. Trial judges are well equipped to reach proper conclusions in circumstances such as this.
11. It will always be necessary to consider the extent to which the defence may, in their preparation of the case, be put at a disadvantage by reason of anonymity being granted. In the present case Mr Kendal submits that anonymity has restricted the preparation of this case on behalf of the applicant. He first submits that it was not possible to investigate links with the witness, Veronica Whittaker. It must be stated that there was not here total anonymity. The defence were informed of the street names of all defendants and, accordingly, in terms of making inquiries there would be no difficulty doing so by the use of street names. Further, in relation to Veronica Whittaker, the jury were told in terms to disregard her evidence. Accordingly, whatever link or information had been obtained concerning her by reason of disclosure of the applicant's name, it is inconceivable that any cross-examination could have been more effective than that in fact launched.
12. The second handicap that Mr Kendal alludes to relates to the fact that the witnesses who were granted anonymity may have had mobile telephones. It is to be noted that no counsel asked any one of the witnesses whether in fact they did have mobile telephones. That may well have been an oversight. If, however, it was felt necessary to obtain telephone records the Crown were under a duty to disclose any information which might undermine the prosecution case. There would have been no difficulty requiring telephone records which were sanitised or anonymised with a view to determining whether any relevant links could be ascertained as between the anonymised witnesses and other relevant persons in the case.
13. On the facts of this particular case, bearing in mind as it did, eye witness evidence as to a shooting outside the public house, we have concluded that any handicap, if any, accruing to the defence in this case was minimal in the extreme. We question whether there was any handicap whatsoever. It is said by Mr Kendal that it must necessarily be purely speculative and that nobody can ever know. The basis, however, for anticipating any handicap on the facts of this particular case is, in our judgment, non-esistent.
14. The judge was satisfied that the Crown had done all that was necessary to investigate and to disclose to the defence anything which went to the credit worthiness of each of the witnesses. He was satisfied that the prejudice to the defence in not knowing the actual names, as opposed to the street names of the witnesses, was very limited because of the information which the prosecution either had or would provide to the defence. As to the appearance of unfairness he was properly satisfied that an emphatic direction in the summing-up would be sufficient to allay any undue prejudice to the defence. That passage in the summing-up is to be found at page 53 of volume III. The learned judge said:

"What is important for you to have in mind is that the fact that these witnesses were given that facility has no bearing whatsoever, in any shape or form, on the guilt or innocence of these defendants.

So far as you are consideration [sic] of their guilt or innocence is concerned, the fact that the identities of those witnesses were protected by anonymity and by screens should play no part in your deliberations whatsoever and I know that, as a matter of fairness, you will put that aspect of this case out of your minds in your deliberations."

15. On the topic of fairness, Mr Kendal concedes that fairness is there dealt with. The learned judge did not go as far as the European jurisprudence suggests he should have gone. In the judgment in Doorson at paragraph 76, these words appear:

"Finally, it should be recalled that, even when 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements. That, however is not the case here: it is sufficiently clear that the national court did not base its finding of guilt solely or to a decisive extent on the evidence of Y15 and Y16.

Furthermore, evidence obtained from witnesses under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care."

16. Mr Kendal submits that at this juncture when dealing with fairness, the learned judge should have told the jury first, that they should approach the evidence of the anonymous witnesses with care and circumspection; and, secondly, that they should look for independent evidence. We agree that such a direction at this juncture would have been desirable. However, we are far from satisfied that such omission in any way affects the safety of this conviction. There was, in this case, evidence independent of those two witnesses who gave anonymous evidence, not least the lies of the defendant upon arrest. So far as the first ground of appeal is concerned, we are perfectly satisfied that this was a proper case for anonymity on the evidence available to the judge. We are satisfied that he applied the proper principles. We have no hesitation in concluding that the judge's ruling represents a model exercise of his discretion which cannot be faulted. This ground of appeal is in our judgment unarguable.
17. The second ground of appeal is that the learned judge advised the jury in summing-up that the witness, Veronica Whittaker, was so unreliable that they should disregard her evidence completely. Inter alia, Miss Whittaker gave evidence about a telephone conversation she had with the applicant shortly before he and his co-defendants returned to the public house when Mr Parmenter was shot. It was argued that in advising the jury to disregard her evidence the learned judge failed to direct them that, in the circumstances, the applicant being the only other person party to be called, they should accept his version of the conversation. The applicant had maintained that Miss Whittaker had reassured him that all was well and that he should return to the pub.
18. In our judgment such a submission is ill-founded. It is always a matter for the jury as to whether they accept the evidence of any witness, including the defendant or not. There is no duty upon a judge to give any special direction to a jury to the effect that evidence which is not contradicted is necessarily more likely to be true than contradicted evidence. At page 87 of the summing-up, Mr Massih upon the retirement of the jury at the end of the day did say this to the judge.

"My Lord, in so far as the evidence of Miss Whittaker is concerned, in the light of your Lordship's if I may [say] so proper directions on the way to approach the evidence of Miss Whittaker that she is a total unreliable witness, it seems to us, my Lord, that it must flow from that that the jury must be directed now in the light of the whole (inaudible). That they must accept Mr Scott's version of events as to what was the conversation about?

THE RECORDER OF LONDON: I cannot direct them to accept it. I have given them a very strong hint but it is a matter for them.

MR MASSIH: I accept that but it seems to us, my Lord, that -- perhaps my Lord, having as I said, begun by telling my Lord that I accept it to treat it that way, it flows from that that seems the only possible interpretation that the jury could rely on. Your Lordship having heard the submissions this evening.

THE RECORDER OF LONDON: I do not think I can.

MR MASSIH: So be it."

19. The judge had said in relation Veronica Whittaker's evidence at page 78E:

"Veronica Whittaker says, for what it is worth, that she rang to tell him not to come back and that he said he was not coming back as he was over Chelsea Bridge. She gave no explanation for persistently lying before admitting that she had made that call.

All three defendants put great stress on that telephone call. Mr Massih goes so far as to say that it is the key to the whole case. You can see why because what they say is this; they have given an account of their telephone call right from the outset before it was disclosed to the defence that Veronica Whittaker had, in fact, made a telephone call to Mr Scott's mobile. So that not only was that call received just before they set off but their account is that they were told in that telephone call that all was quiet and they should come back for a drink.

So the defence say that they were acting on that information and believed that everything was quiet and, what is argued on behalf of the defendants, all of them, is that, if that is true and they were on their way had it not been for the phone call to some other pub, then it makes it exceedingly unlikely Mr Scott had a machete and it also bolsters up their account that they were returning not with Solgy, but Garfield and Flatter.

That phone call, if their account is true or might be true, is entirely inconsistent with the prosecution case that they armed themselves before setting out for the Duke of Wellington having made a plan to attack Philip Parmenter."

20. It is clear from that passage that the learned judge did indeed give a very strong hint and went as properly as he could whilst dealing with the evidence. It is never for a judge to tell a jury to accept evidence unless evidence is agreed between the parties. The assessment of the evidence is for the jury and not the judge. So far as the present issue is concerned, we are wholly satisfied that there is no substance in this ground of appeal.
21. We have dealt with the third ground of appeal. The fourth ground of appeal is that the judge erred in failing to sum up adequately or at all the defence case. We are puzzled by this ground of appeal. At Page 27C of volume IV these words appear:

"Members of the jury, I come finally to what the defendants themselves said. Of course I have covered a lot of what they say already.

I start with Mr Scott."

Thereafter for the next two and pages or so the case of the applicant is dealt with immaculately. It should be pointed out at this stage that Mr Kendal had not advanced this ground of appeal, nor indeed any grounds other than grounds 1, 3, and 7. It is a fact, however, that he is not instructed to abandon these grounds. Accordingly, albeit briefly, we shall deal with the remaining grounds.

22. In relation to ground 4, the judge had said that he had covered much of what had been said already by inter-weaving the defence contentions in relation to each prosecution witness. As was said in the case of R v Nelson [1997] Cr LR 234 by Simon Brown LJ, every defendant has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury, but that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing-up. In our judgment, this was a model summing-up in which the judge took the greatest of care to deal with the evidence, point by point, ensuring that whenever a point was made for the prosecution, the defence argument in support of it was alluded to immediately. This was most certainly not a notebook summing-up wherein the judge simply began at the beginning of the evidence and rehearsed the evidence throughout. It was all the better for it. It set out the defence case in summary form from page 27 of volume IV clearly, concisely and in a form which defies criticism.
23. Ground 5 reads, "The judge erred in misdirecting the jury on joint enterprise." In particular it is said he characterised the defendant, Scott, as a principal and refused to the leave the case to the jury that he could have been a secondary party, ie a by-standard ready, willing and able to lend a hand in the killing if needs be. The case against the applicant was set out at page 23C volume III:

"The prosecution say that Scott was going to attack him with the machete. It was he, after all, who had the quarrel with him and Solgy was going to back him up and use the gun, if it was necessary, particularly if it was likely that the relatives of Parmenter might step in and aid him."

24. The prosecution case throughout was that the applicant was a principal. The judge was doing no more than telling the jury what the prosecution case was, namely that the applicant was alleged to be a principal and an aider and abetter. There is no substance in this ground of appeal and it is unarguable.
25. The sixth ground of appeal is that the learned judge erred in failing to give a full good character direction in respect of the applicant. We fail to see any substance whatsoever in this ground of appeal. The applicant has three previous convictions; two for drink drive offences, one for driving whilst disqualified which resulted in a prison sentence in May 2001. We are at a loss to comprehend how it can be argued that the applicant was entitled to the benefit of a good character direction, either in relation to propensity or in relation to credibility. The judge told the jury that the applicant had no convictions for violence. That was as far as he needed to go. This ground of appeal is unarguable.
26. The seventh ground of appeal is that the judge erred in refusing to discharge the jury when in the course of his evidence in chief, on the third day of his trial, a witness named Moran Booth referred to the applicant as being "a trouble maker in the pub". It is said that the prosecution had agreed not to introduce any evidence of past bad behaviour by Mr Scott. Accordingly, an application was made for a discharge of the jury on the basis that they had heard inadmissible, prejudicial evidence against the applicant. That applications was refused. We have the advantage of a full transcript of the judge's ruling the passage complained of reads thus. The witness said:

"Sometime when you are sitting down and relaxing, sometimes you see some people in trouble and while I was there, Killer was, and he was drinking rum, and I am thinking, 'Why is this drinking so much rum?' but I know he is a troublemaker anyway'.

'All right', says prosecuting counsel, 'Never mind. Did you leave alone?'"

It is said that the remark about being a troublemaker was so highly prejudicial to the defendant that the trial should not have continued. As the learned judge said in the ruling at page 4B:

"It is important when considering an application of this sort to remember what the case is about. The prime issue in this case is whether the defendant together with other defendants, were participants in a joint enterprise to kill or cause really serious bodily harm to the deceased.

....

The defendant, Mr Scott, admits that he had words with the deceased inside the public house some time before the incident outside the public house in which the deceased was shot in the presence of the defendant, Mr Scott. It ought not to be forgotten either that Mr Scott was himself shot by the unknown gunman.

The defendant, Mr Scott, as I say, admits that he had words with the deceased inside the public house, and there is other evidence from eye witnesses that there was what one witness described as 'a commotion' in which the defendant, Mr Scott, was involved."

27. We entirely agree with the learned judge's assessment that the impact on Mr Joseph's evidence as complained of is nothing compared with cases where inadvertent reference is made to a defendant's previous convictions. It seemed to the learned judge that the remark about being a trouble maker could have very little impact, if any, on the integrity of the trial.
28. The judge concluded that his contribution to the case overall was small and that the impact of the passages was very slight indeed. We agree with that conclusion. No member of this court would have discharged the jury in these circumstances. The judge considered the matter diligently and at length and reached a conclusion which was, in our judgment, wholly unassailable. Accordingly this ground of appeal is unarguable.
29. The eighth and ninth grounds of appeal relate to disclosure. The submission is that the learned judge erred in failing to disclose the following pieces of information or documentary evidence. First, the video of the identification parades held involving the applicant; secondly, immigration files relating to John Brown. We have heard nothing to indicate, and read nothing to indicate, that the production of either of those pieces of information would in any way have undermined the prosecution case or in any way have assisted the defence. In the circumstances of this case, it is quite clear that the real issues in the case were fully canvassed before the jury and that no issue of non disclosure could possibly have affected the fairness of this trial. No ground of appeal has been made out.
30. It should be pointed out, in fairness to Mr Kendal, that he did not draft the grounds of appeal, many of which could be categorised as having wasted the time of this court. Such grounds as he chose to argue were, not withstanding the fact that we found no substance in them, perfectly respectable grounds. They were no doubt chosen by him for that reason. We are grateful to him for his assistance.