Roberts (Danny) [2017] EWCA Crim 569
MR JUSTICE GREEN:
1. There is before the court an appeal against a finding of contempt and an order for imprisonment and sentence. The appeal is as of right pursuant to section 13 of the Administration of Justice Act 1960.
2. On 12 August 2016, at the Crown Court at Nottingham, the appellant admitted failing to respond to a witness summons to attend to give evidence on behalf of the Crown in relation to the trial of a Quinn Colley on a count of manslaughter. On 18 August 2016, the appellant was committed for contempt for 21 months and ordered to pay a victim surcharge of £100.
3. Pursuant to section 14 of the Contempt of Court Act 1981, where a person is committed to prison for contempt of court in the Crown Court, the maximum sentence is one of 2 years’ imprisonment.
4. Three grounds of appeal were initially advanced. These can be summarised as follows. First, the judge erred in finding contempt of court in the absence of any evidence that the appellant was aware of the existence of any witness summons or court order or of any trial date when he was required to attend to give evidence. Second, that the judge erred by failing to adhere to the procedure set out for contempt proceedings under Part 48 of the Criminal Procedure Rules. In that, it was argued that the appellant did not understand the conduct alleged or the court’s powers to impose a custodial sentence and that he was not legally represented or advised or even advised that he should take legal advice. In consequence, it was argued, the appellant did not give an explanation to the court for his conduct. Third, that in any event a sentence of 21 months was manifestly excessive in light of the authorities and the appellant’s own personal circumstances.
5. Before us today, Mr Bould, on behalf of the appellant, has very substantially narrowed down the grounds of appeal so that the case now focuses essentially upon the fairfulness of the sentence of 21 months.
6. We turn to the facts. There are two aspects of the facts and the evidence in this case which it is necessary to consider. The first concerns the prosecution of Colley for manslaughter. The second concerns the conduct of the appellant said to amount to contempt of court. The facts as referred to initially in the appellant’s grounds are based upon a number of factual propositions that the Crown refute as inaccurate. It is apparent that the version of events relied upon by the appellant is also inconsistent with the conclusions of the sentencing judge.
7. So far as the manslaughter proceedings are concerned, Colley was alleged to have killed a fellow inmate at HMP Ranby, Nottinghamshire on 15 June 2016. The incident came to the attention of prison guards at about 12.30 during a period of general association. Guards noticed that the deceased, Axton, was holding a bloodied cloth to the left side of his neck as he walked into his cell. Staff spoke to him but he was uncooperative albeit coherent.
8. Approximately 10 minutes later he began showing signs of disorientation and distress, he was unable to stand, he complained of headaches and he began to struggle for breath. He became unresponsive and he was transferred to a specialist head injury unit at Sheffield Hallam Hospital but he was pronounced dead at 14.42 hours. He had suffered an untreatable catastrophic head injury.
9. A subsequent post-mortem concluded that the injuries were consistent with a single blow to the face and the fracture and related bleeding to the brain were consonant with the head hitting the floor during an unbroken fall.
10. The principal direct evidence came from the appellant and another witness to the incident. The appellant saw Colley throw a punch toward the head of Axton, causing him to fall to the floor. The appellant gave a statement on 16 June in which he described the assault in considerable detail. The appellant’s visibility was good as the landing was lit and it was daylight. He saw the defendant draw his right arm back with his hand clenched into a fist. Colley then punched Axton, who fell back and made no attempt to break his fall. It was as if Axton was unconscious prior to hitting the floor. As Axton hit the floor, the appellant heard an almighty crack. Colley stepped over Axton and left the cell. As he walked, he hid his right hand under the bottom of his red t‑shirt, holding it against his stomach, but the appellant nonetheless saw fresh‑looking blood on his second and third knuckles. The appellant was between 2 and 3 feet away when he saw the blood.
11. Colley was arrested and interviewed. He answered no comment to all questions. He was subsequently charged with manslaughter. Colley was remanded into custody and whilst awaiting trial he informed another prisoner that he had punched Axton, causing him to hit his head on the floor and become unconscious. The incident had concerned money owed for tobacco. The Crown relied upon this confession at trial and upon the evidence of the other eyewitness, Winn. That suffices as an account of the underlying facts.
12. We turn to the position of the appellant in relation to the contempt proceedings. The appellant’s position was initially advanced in grounds of appeal dated 18 September 2016, making it clear that the grounds were based upon oral instructions given by the appellant. In paragraph 17, the advice recognised that there may be a need to amend the grounds once the facts had been verified. The advice identified nine categories of documents needed for the advice to be perfected. The respondent subsequently produced, dated 9 November 2016, a detailed chronology of relevant events and appended various documents. The respondent’s chronology is based upon documentary records and information provided by the officer in the case, DC Petrovic. The appellant’s grounds have not, however, ever been updated.
13. We turn to set out the facts as they appear from the evidence before us and which were seemingly accepted by the sentencing judge. On 16 June 2015, the appellant informed officers that he had witnessed the assault upon Axton but that he was concerned for his own safety were he to give evidence. Officers discussed with the appellant various means by which he could be protected. He was initially placed upon the segregation wing of the prison and he remained there until transferred to a different prison. At the conclusion of his first written statement he stated that he was making the statement as he felt “very strongly about what happened and feel for him and his family”. He stated that he would rather not attend court but should Axton die then he would do so. He gave another statement on 17 June 2015, adding additional detail but he made no further comments about his attitude towards giving evidence. On 18 June 2015, he attended an identification procedure in relation to Colley and made a positive identification. He was shortly thereafter transferred to HMP Altcourse in Liverpool.
14. On 15 July 2015, the appellant was visited by DC Petrovic and he indicated that he was prepared to give evidence and attend a trial. Officers discussed with the appellant his impending release and they were provided with addresses for his father and mother, where he believed he would be staying upon discharge from prison.
15. On 9 September 2015, the appellant, whilst still in custody, was visited by officers. He stated that he had not received direct or indirect threats in relation to speaking to the police about the death of Axton or providing a statement. He signed a medical consent form permitting police access to his records and he completed a statement in relation to the identification procedure. He confirmed that he remained willing to attend court and give evidence.
16. The date fixed for the trial of Colley for manslaughter was 23 November 2015. On 17 November 2015, a production order was applied for by the police for the collection of the appellant from prison to take him to Nottingham Crown Court. However, on 19 November 2015, a staff member at the prison contacted police to inform them that the appellant had been spoken to about the forthcoming trial and he had now indicated that he would refuse to attend. In the event, the trial date of 23 November 2015 was vacated.
17. On 15 December 2015, DC Petrovic visited the appellant in prison. He was described as agitated, worried about giving evidence and not engaging with officers. He stated that he had initially been warned for the November trial by a prison officer shouting information through his prison cell door, which information had then been heard by other inmates and he was now concerned that were he to give evidence he would be labelled an informant.
18. On 17 December, DC Petrovic requested that a prison officer speak to the appellant about his obligation to attend court, then scheduled for 21 January 2016, and to inform him that officers would collect him that morning. The appellant refused to speak to the police officers. DC Petrovic was provided with two addresses by the appellant as release addresses.
19. The appellant was released from custody on 24 December 2015.
20. On 14 January 2016, DC Petrovic visited one of the addresses given, which was found to be an old and no longer used address of his mother. DC Petrovic visited various other homes and business addresses connected to the appellant’s family. Cards were left at the premises requesting the appellant to contact police. DC Petrovic obtained a telephone number for the appellant’s brother. At 1700 hours on 14 January, DC Petrovic rang the appellant’s brother, who was obstructive and refused to provide contact information about the appellant.
21. In the course of subsequent calls, the brother was increasingly hostile and stated that he would ignore further calls. At 17.55, however, that same day, the appellant, using a withheld telephone number, called DC Petrovic. The appellant was hostile and stated that he had no intention of attending court to give evidence. He refused to provide an explanation for his conduct and he refused to provide a telephone number or address and he refused the opportunity to meet with police. He stated that the police would need to obtain a warrant to secure his attendance but this would be futile as officers would be unable to locate him.
22. On 19 January 2016, a witness summons was issued for the attendance of the appellant at court. Officers travelled to various addresses to locate him but this proved unsuccessful. Officers spoke with the appellant by phone and he was informed of the summons but he refused to meet officers.
23. On 20 January 2016, the trial of Colley commenced and a warrant for the arrest of the appellant was issued. Officers, having made detailed inquiries, were unable to contact the appellant or to execute the arrest warrant.
24. On 26 January 2016, Colley was acquitted of manslaughter.
25. During the ensuing weeks and months, a number of attempts were made to arrest the appellant. On 14 March 2016, arrangements were made for the appellant to travel to Nottingham to surrender himself to police, but he did not co‑operate. He remained at large until his arrest following a routine inquiry on 11 August 2016.
26. We turn now to the grounds of appeal. We deal first with a ground which has now, in effect, been abandoned, that there was a material failure on the part of the court and the judge to comply with the procedure set out in Part 48 of the Criminal Procedure Rules. We deal with this relatively briefly.
27. Pursuant to Part 48, various procedural requirements are required to be complied with unless a respondent’s behaviour makes it impracticable to do so. These include such matters as the obligation to explain in terms a respondent can understand the conduct that is in question and said to amount to a contempt of court. There is also required to be given to a respondent an explanation as to the court’s powers. Pursuant to Part 48, a respondent is entitled to a proper opportunity to reflect, in order to obtain advice and consider his position.
28. It was initially argued that the appellant had not been represented and that various of these procedural rights contained within Part 48 were not complied with.
29. It is, however, plain from the transcripts of the various hearings that none of these grounds are justified. The first hearing of this matter occurred on 12 August 2016 when the appellant was not represented. The judge, clearly conscious of the need to ensure representation for the appellant, took steps to ensure that he was properly represented.
30. The matter then came before the court on 18 August 2016. Mr Smith of counsel appeared on behalf of the appellant. It is apparent from the transcript that he had had an ample opportunity to consult with and take instructions from the appellant. He made submissions about all relevant matters, including the appellant’s previous convictions, relevant authorities and relevant mitigation. On page 5 of the transcript, Mr Smith made it plain that he had spent time with the appellant, discussing his conduct and the attitude of the court towards behaviour of this sort. Mr Smith explained to the judge that the appellant was concerned about the threat of reprisals whilst he was in prison. He accepted that the appellant had given a false address upon release. Mr Smith said that the appellant had acted through fear but Mr Smith also said as follows:
i. “He concedes that there were no direct threats made to him, but he then settled back into what he hoped would be a respectable life. He was able to find himself work as a mechanic, he has met a partner, and had hoped to distance himself from a limited criminal history, but albeit a significant one, if I can make that concession.”
31. Mr Smith mitigated on his behalf, emphasising the relevance of the admission. He accepted, however, this was not a case where the witness was being at that point in time systematically threatened.
32. It is clear that the first ground as initially formulated was wholly unsustainable. When it became clear that the ground was no longer sustainable it should have been perfected and amended. In the present case, because the grounds were not amended, this court has had to take time to deal with the grounds as initially advanced. It is, however, to Mr Bould’s credit that he realistically conceded and accepted this and abandoned the grounds in his submissions before us. We note that Mr Bould was not counsel instructed in this case hitherto.
33. As to the second ground, namely the finding of contempt, we can also deal with this briefly. Initially, the appellant challenged the conclusion of the judge that he was in contempt of court. But this ground also falls away since it was admitted by the appellant that he was in contempt. He has had a proper opportunity to consult with counsel and mitigation was properly advanced on his behalf. Again this is a ground which should not have been maintained before this court. Again Mr Bould accepted that this was the case.
34. We turn finally to the issue of sentence, which is the crux of the matter. It is common ground that the maximum sentence that may be imposed is 2 years’ imprisonment. Guidance as to the criteria to be applied in a case such as this has been provided by the Court of Appeal in R v Montgomery [1995] 2 Cr App R 23. This was the authority provided to the judge below and in respect of which counsel made submissions. In that case, a sentence of 12 months’ imprisonment for failure to attend court and persistent refusal to testify or explain the refusal was reduced to 3 months. The principal matters affecting sentence are the gravity of the offence being tried, the extent to which the failure to give evidence affected the course of the trial, whether the refusal was aggravated by defiance or impertinence to the court and the antecedence and personal circumstances of the contemnor.
35. In the present case, in his sentencing remarks the judge took into account the following facts and matters. First, that the prosecution depended for its success in very large measure upon the appellant’s evidence. It is clear to us, as Mr Bould has submitted, that the judge was of the view that the failure on the part of the appellant to give evidence could well have been causative of the acquittal.
36. Second, the fact that the appellant gave a false address at which he could be contacted following his release from prison and his evasive conduct thereafter, all of which amounted to deliberate steps to avoid giving evidence.
37. Third, the fact that his failure caused real damage to the system of justice in the jurisdiction. In this regard, the judge observed, based upon authorities such as R v Yusef [2003] EWCA Crim 1488, that there was an important public interest in ensuring the co‑operation of witnesses in the due administration of justice and that a person ignoring a witness summons was in contempt of court and could be expected to be punished because the failure to attend was likely to disrupt a trial process in many cases and entirely undermine it in other cases. This applied even where a witness was fearful of the consequences of attending court since it remained that person’s duty to attend. The judge in the present case observed in similar vein that the failure of a material witness to attend in order to give evidence “tears at the fabric of the legal system”.
38. In relation to mitigation, the judge took account of the fact that the appellant was a young man and the judge stated that he was entitled to marginal credit for his very late admission. In the circumstances, the judge concluded that a sentence very close to the statutory maximum of 21 months’ imprisonment was appropriate.
39. Mr Bould, before us today, has submitted that the sentence was manifestly excessive. He has in particular identified two factors. First, he submits that the judge exaggerated the causal connection between the failure to give evidence and the acquittal of Colley on the charge of manslaughter. He points out that there was significant other evidence before the court. He also points out that the defendant Colley did not deny punching Axton; the defence was based upon self‑defence. He therefore says that the judge placed undue weight upon the causal connection between the failure to attend and the alleged harm to justice.
40. Second, he says that the judge gave insufficient credit for the admission which was given by the appellant at an early stage.
41. We consider that there is some merit in these submissions. It does appear from a reading of the sentencing remarks that the judge was of the view that but for the failure to give evidence Colley would have been convicted. We note that the judge sentencing the appellant was not the trial judge and it is not clear to us that this is necessarily correct. We therefore think there is force in the argument that undue weight might have been attached to this fact by the judge. We are also unclear why only very marginal credit was given for the admission that the appellant’s conduct was in fact in contempt of court.
42. We therefore consider that it is appropriate to stand back and consider, bearing in mind totality, what the appropriate sentence should be taking account of our conclusions. We conclude that the appropriate sentence in a case of this sort is one of 16 months’ custody. We therefore will allow the appeal against sentence to this extent. We therefore set aside the sentence of 21 months and we substitute in its place a sentence of 16 months’ custody.