Paul Dwyer [2019] EWCA Crim 1266

Regina v Paul Dwyer [2019] EWCA Crim 1266 concerned an appeal against conviction and sentence following trial in the Crown Court at Liverpool before His Honour Judge Cummings QC, at which the applicant renewed his applications for leave to appeal after refusal by the single judge.

On 23 March 2018 Mr Dwyer was convicted of wounding with intent (count 1) and false imprisonment (count 3) following a three-week trial. The jury were discharged from returning a verdict on the alternative count of unlawful wounding (count 2). Four co-accused were acquitted on all three counts. On 26 March 2018 Mr Dwyer was sentenced on both counts to an extended sentence of imprisonment under section 226A of the Criminal Justice Act 2003 of 18 years, comprising 14 years’ imprisonment and an extended licence period of 4 years, together with a victim surcharge of £170. The court further directed that 63 days would count towards sentence as a qualifying curfew under section 240A of the 2003 Act. Newly instructed counsel Mr Alty, who had not appeared below, applied to vary the grounds of appeal against conviction and sentence.

The facts were that on 8 October 2016 at about 11.15 pm the complainant Kenneth Murphy was driving along Felmersham Avenue in Liverpool when his Audi A4 was struck and hemmed in by a Ford Focus and a Volvo. About six men wearing balaclavas alighted from the two cars, broke the driver’s window with a crowbar and struck the complainant in the face with a solid implement, possibly the crowbar or a large hammer. The complainant was dragged from the driver’s seat and bundled into the boot of his Audi which was then driven to the Kirkdale area of Liverpool about 3 miles away. Due to the manner of driving the police were alerted and a short chase ensued. The Audi crashed into a metal fence with the complainant still in the boot. Two men fled the scene and the complainant was rescued by police. Police found the two cars used in the attack nearby and recovered two crowbars, a hammer, bloodstained handcuffs, cable ties and a pair of pliers. Mr Dwyer was arrested with the co-accused Gleeson and another co-accused Clarke. At Gleeson’s home address, near where the Audi was abandoned, a top worn by Mr Dwyer was found in a washing machine.

The prosecution case was that Mr Dwyer had been correctly identified as being part of the gang who carried out the joint attack on the complainant with the crowbar or hammer causing him grievous bodily harm. The use of such a weapon meant that the applicant and the group must have intended that serious bodily harm would be inflicted. Mr Dwyer and the group then falsely imprisoned the complainant in the boot of the car as part of a carefully planned joint enterprise. The prosecution relied on the articles found and the evidence that the complainant had been followed by two vehicles before the attack to show careful planning. Mr Dwyer was said to have arrived on the scene in the Ford Focus and then exited the scene in the Audi. To prove the offences and that the applicant had been a willing participant the prosecution relied on CCTV evidence showing the two cars following the Audi in convoy before and after the attack; telephone traffic between the applicant and co-accused consistent with planning the offence; the applicant’s attempt to dispose of incriminating evidence by putting the top he had been wearing in the washing machine; forensic evidence that the top was saturated in the complainant’s blood; forensic evidence that a crowbar found in the passenger footwell of the Ford Focus where the applicant had been sitting contained both the applicant’s DNA and the complainant’s blood; cell site evidence obtained from the applicant’s mobile phone consistent with the prosecution case that he had been following the complainant before the attack; police evidence that one of the males fleeing the abandoned Audi matched a description of the applicant; the applicant’s arrest in close proximity in time and distance to the abandoned Audi; and forensic evidence that a second crowbar found in the Ford Focus in the rear offside passenger side behind where the applicant was sitting had glass fragments on it that matched those of the Audi’s broken driver’s window.

The defence case was that the applicant was at the scene to assist the complainant. He did not know the complainant but arrived at the scene in the Ford Focus as a passenger with two friends who were going to assist the complainant following some earlier telephone calls. Mr Dwyer’s case was that he understood there might be some violence and once at the scene he attempted to help the complainant but was outnumbered and so fled the scene in the Ford Focus. Mr Dwyer gave evidence in his own defence and was the only defendant who admitted presence at the scene. He maintained that the complainant was involved in drug dealing and had serious enemies. He admitted wearing the top and maintained that blood had transferred to it when he was trying to assist the complainant. He put it in the washing machine, he said, out of panic. He also admitted picking up the crowbar at the scene and planned to use it for protection if needed. The issue for the jury was whether they could be sure that the applicant participated in the group attack and false imprisonment of the complainant.

When sentencing on 26 March 2018 the judge said the offences were clearly planned and very sinister given the articles found by the police; the offences had the hallmarks of drug related violence and Mr Dwyer was a willing participant who told a preposterous lie to the jury about attempting to come to the complainant’s rescue. The applicant was 29 at sentence with 50 convictions for 28 offences spanning a period from 2006 to 2014 although he had received suspended sentences of imprisonment in 2010. This was his first sentence of immediate custody. The judge referred to the guidelines for count 1 as there were no guidelines for false imprisonment. The false imprisonment was the main purpose of the attack but he had to take account of the guidelines for wounding with intent. Following those guidelines he found this was a sustained attack, that greater harm was caused, the offence was committed in a gang and the applicant had attempted to dispose of incriminating evidence. It was a category 1 case, which the applicant accepted, carrying a range of 9 to 16 years’ imprisonment with a starting point of 12 years. The judge took into account the mitigation in the form of character evidence but had no doubt that the applicant was a dangerous offender. The appropriate sentence was an extended sentence of 14 years with an additional licence period of 4 years.

In support of the appeal against conviction Mr Alty abandoned the ground of appeal settled by trial counsel and sought to advance a contention that the judge erred in failing to give an appropriate Turnbull warning under R v Turnbull [1977] QB 24. He submitted that the issue as to whether the applicant was one of the two men who got out of the Audi after the police chase with the victim in the boot was important because if accepted by the jury it would destroy the value of his innocent explanation of the considerable forensic evidence against him, his presence at the scene and his presence in the house. Mr Alty submitted that the Crown’s case relied heavily on the applicant’s presence in the Audi. He pointed to discrepancies between the descriptions of the two men given by PC Helsby who drove the chasing police vehicle and the actual appearance of the applicant who was a taller and heavier man than PC Helsby’s descriptions would suggest. He complained that the judge did not adequately warn the jury in accordance with Turnbull of the need to exercise special caution before convicting the applicant on the basis of identification evidence.

For the Crown Mr Baxter submitted that there was no visual identification of the applicant as such. PC Helsby did not see his face. There was other evidence linking the applicant to the Audi. Furthermore it was not essential for the prosecution case that the applicant was found by the jury to be one of the two men who got out of the Audi. The Court of Appeal agreed with those submissions. The court held that the judge had given a careful and detailed summing-up of the evidence. He pointed out to the jury that they would want to consider what sort of view PC Helsby got of the people abandoning the vehicle and to what extent any description he gave was consistent or not consistent with what the prosecution alleged. He gave a full account of the incident from the perspective of PC Helsby and the descriptions he gave of the two men. He then told the jury to consider his ability to give a description, what his description amounted to, and whether it was or was not consistent with what the prosecution said. The judge then reminded the jury of the applicant’s evidence on his own height and weight and drew attention to the physical distinction between him and Dylan Gleeson, points that were relied on on behalf of both defendants. The Court of Appeal held that those directions were clearly sufficient to alert the jury to the need for care when considering whether to accept that part of the prosecution’s case that one of the men exiting the Audi was the applicant. It was not arguable that the judge was obliged to go further than he did on the facts of this case. Furthermore it was not essential to the jury’s verdicts that the applicant must have been one of the two men who got out of the Audi. The judge himself was not sure of that as he observed when sentencing. The forensic and other circumstantial evidence against him was very strong even if he was not the second man in the Audi. While it was not known whether the jury convicted him on the basis that he was or on the basis that it did not matter whether he was or not, the court could find no arguable fault with the judge’s directions to the jury on the issue of identification.

Turning to the appeal against sentence the sole existing ground of appeal, for which the single judge refused leave, was that the judge had wrongly found dangerousness by reference to the offence and not the offender. To that ground Mr Alty sought to add two further grounds that the starting point of the determinate sentence was too high and that even if it was correct to find dangerousness the 4-year extension period was too long. In support of these points he accepted that the wounding offence was in category 1 of the Sentencing Guideline because of use of weapons, the sustained nature of the attack and premeditation, but pointed out that the injuries were not very serious. He submitted that the judge should have started with the graver offence of unlawful imprisonment for which there were no Sentencing Guidelines, rather than sentencing by adding to the starting point within the guideline range for wounding with intent. He submitted that Mr Dwyer had effectively been punished twice by increasing both sentences by reference to common aggravating features, in particular the evidence of intent to hold the victim prisoner and inflict further and more serious violence on him. The judge had taken insufficient account of the applicant’s criminal record of only relatively minor offending, his age and the fact that this was his first immediate custodial sentence. For those reasons he argued that the custodial term of 14 years was manifestly excessive. He reiterated the contention of trial counsel that the finding of dangerousness focused on the offences not the offender, adding that the judge should have placed more weight on the absence of serious similar offences in the past, that he should have obtained a pre-sentence report and that the 4-year extension period was too long.

The Court of Appeal held that the learned judge sentenced the applicant within the range properly open to him. The court rejected the contention that the determinate part of the sentence was above the top of the range open to the judge. The 14-year custodial period was not excessive. There was no error of approach in taking account of the guideline for the wounding offence and adding to the normal starting point by reference to the graver offence of false imprisonment for which there were no guidelines. The judge consciously and conscientiously considered the question of criminality overall. He rightly sentenced at a point above the normal starting point for a category 1 wounding offence. The court did not find the period of 2 years above the normal 12-year starting point to be arguably manifestly excessive. In doing so he took account of the limited mitigation afforded by the character references, balanced as it was by the limited aggravating feature of the previous relatively minor offending. Next the court agreed with the single judge that the sentencing judge was entitled to infer dangerousness from the facts of the offences which irresistibly pointed to deep involvement in drug related gang violence. The court did not think he could be criticised for not obtaining a pre-sentence report. Nothing in the papers suggested that he was asked to obtain one. The court did not consider that a report was necessary. The court recognised that a report might have been helpful but not that the judge was obliged to commission one. He had heard the evidence including evidence from Mr Dwyer himself. He was a judge with great experience of the criminal law who had presided over the trial and no one could have been in a better position than he to make an assessment of risk having heard the applicant give evidence, when there was before him clear evidence in the form of the articles found by the police that but for the fortunate intervention of police the victim might well have suffered further and much worse violence. The court rejected the submission that the length of the 4-year extension period was arguably excessive. Mr Alty referred to the process of supervision that would need to take place during the licensed period after the halfway point of any custodial term. The court saw nothing to indicate that the judge overlooked this point. The risk assessment that would take place during the custodial term of 14 years could lead to the applicant’s release two-thirds of the way through that period. The applicant would be entitled to be released at the end of the 14-year term irrespective of any risk. The court considered that the judge was clearly justified in setting the extended licence period at 4 years.

In short the Court of Appeal refused the application to vary the grounds of appeal against conviction and to appeal against conviction, and maintained the single judge’s decision to refuse leave to appeal against sentence.

R v Turnbull [1977] QB 24