Roberts (Danny) [2017] EWCA Crim 569

R v Roberts (Danny) [2017] EWCA Crim 569 is a decision of the Court of Appeal, Criminal Division (judgment given by Green J) on an appeal as of right under section 13 of the Administration of Justice Act 1960 against a committal for contempt of court. The appellant had failed to attend as a prosecution witness in a manslaughter trial. The court reduced the term of 21 months’ imprisonment to 16 months.

On 12 August 2016 in the Crown Court at Nottingham the appellant admitted failing to respond to a witness summons to give evidence for the Crown at the trial of a man charged with manslaughter. On 18 August 2016 he was committed for 21 months and ordered to pay a victim surcharge of £100. Under section 14 of the Contempt of Court Act 1981 the maximum term the Crown Court may impose is 2 years.

The manslaughter charge arose from the death of a fellow inmate at HMP Ranby, who suffered a catastrophic head injury consistent with a single blow to the face followed by an unbroken fall. The appellant, a prisoner at the time, was one of two eyewitnesses and gave a detailed statement describing the punch, hearing “an almighty crack” and seeing fresh blood on the defendant’s knuckles. The Crown also relied on a confession made by the defendant to another prisoner.

The appellant told officers at once that he feared for his safety if he gave evidence, though he would do so if the injured man died. He made a positive identification, was moved to another prison and in July and September 2015 confirmed his willingness to give evidence, saying he had received no threats. Shortly before the trial date in November 2015 he told prison staff he would refuse to attend, and that trial date was vacated. In December 2015 he complained that a prison officer had shouted information about the trial through his cell door within earshot of other inmates, so that he feared being labelled an informant. He refused to speak to police, gave a release address that proved to be an old and unused one, and after his release on 24 December 2015 telephoned an officer to say that he had no intention of attending, refused to give an address or meet the police, and said that officers would be unable to find him. A witness summons was issued on 19 January 2016, of which he was told by telephone, and an arrest warrant on 20 January 2016, when the trial began. The defendant was acquitted on 26 January 2016. The appellant remained at large until his arrest on 11 August 2016.

The original grounds challenged the finding of contempt, compliance with Part 48 of the Criminal Procedure Rules and the length of the term. The court found the procedural complaint wholly unsustainable: the judge had ensured that the appellant was represented, and the transcript showed that counsel had taken full instructions and mitigated on all relevant matters, conceding that no direct threats had been made. The challenge to the finding also fell away because the appellant had admitted the contempt. The court observed that grounds which are no longer sustainable should be amended, and noted that counsel on the appeal, who had not acted below, had realistically abandoned them.

On sentence, the court applied R v Montgomery [1995] 2 Cr App R 23, where 12 months for failing to attend and persistently refusing to testify was reduced to 3 months. The relevant matters include the gravity of the offence being tried, the effect of the failure on the trial, any defiance of the court, and the contemnor’s antecedents and circumstances. The judge had taken into account that the prosecution depended in large measure on the appellant’s evidence, his deliberate evasion, including the false address, and, by reference to authorities such as R v Yusef [2003] EWCA Crim 1488, the damage to the administration of justice when a witness ignores a summons, even through fear. The judge gave only marginal credit for the admission.

The court found some merit in the submissions that the judge had overstated the causal link between the failure to attend and the acquittal, there having been other significant evidence and the defence at trial having been self-defence, and that too little credit was given for the admission. The sentencing judge had not been the trial judge, and it was not clear that the acquittal would otherwise have been a conviction. Standing back and bearing totality in mind, the court set aside the term of 21 months and substituted 16 months.

Yusef [2003] EWCA Crim 1488