Lyndsey Harper [2019] EWCA Crim 343

The appellant pleaded to affray and was convicted of murder and doing an act intended to pervert the course of justice. Leave to appeal against conviction out of time was granted, leave to appeal out of time against sentence was refused and she renewed that application.

There was an altercation involving the appellant and a co-accused during which the appellant hit out at the deceased with a glass and he was then stabbed by the co-accused. Clothing they had been wearing was found in a sink and bleach was detected (act intending to pervert) and a knife with the deceased’s DNA on it was found. In interview she accepted throwing the contents of her glass at someone but denied knowing what her co-accused had been doing.

The prosecution also relied on an admission said to have been made by her to a prison officer.

The issue for the jury was whether they were satisfied that she had encouraged or assisted the co-accused to assault the deceased unlawfully with the intention that he suffer death or really serious injury, and whether they were sure she intended to encourage or assist.

Five days after the killing it is said the appellant approached a prison officer and said:

“It was both of us really but I’m just saying it was him. If you’re going to do something, do it properly, eh Miss Allen? We stabbed him but I am pleading not guilty. Fuck that.”

Later that day the officer wrote it down “word for word” on a piece of paper intending to log it on the prison intelligence system. It was some days before this was done and she then destroyed the piece of paper. The appellant did not accept the whole of the comment attributed to her, but the admissibility of the evidence was not challenged, although leading counsel acting for at trial her expressed concern that he had not done so.

Counsel now acting argued the prison officer fell with s67(9) of PACE as a person “other than a police officer charged with the duty of investigating offences or charging offenders” and thus had to have regard to the Codes of Practice. In particular Code C 11.13, 11.14 and Note 11E which refers to recording any unsolicited comment with an opportunity for the suspect to also sign the note. A submission should have been made to exclude the evidence under s78 of PACE on the basis the spirit of the Code had been breached and admission would have an adverse effect on the fairness of the trial.

Held: whether or not the spirit of the Code is engaged by the fact of the officer’s occupation, the circumstances on which the observations were made do not engage the Code or the need to obtain a signature. Points could be made about the failure to promptly record, delay in entering it on the intelligence system and the destruction of the note but they go to weight and not admissibility. Incompetent representation is not, in itself, a ground of appeal, the conviction must be unsafe as a consequence, and the decision not to challenge admissibility was not incompetent.

A further ground of appeal was that the significance of the appellant’s ignorance of the knife was not properly dealt with. Further, that the use of the knife was an ‘overwhelming supervening act by the perpetrator”. The Court held that this ignored the thrust of Jogee and an intention to assist in a crime of violence is not determined only by whether D2 knows what kind of weapon D1 has in his possession. The directions to the jury were approved by counsel; this ground was also dismissed, as were other grounds in respect of toxicology and the prejudicial effect of a question put to her in cross-examination. The renewed application for an extension of time to appeal against sentence was also refused.