Admissibility - consecutive sentences - conspiracy - custodial periods
R v (1) Mark James Owens (2) Patrick Gary Owens: CA (Crim Div) (Lord Justice Rix, Mr Justice Jack, Sir John Alliott): 6 September 2006



The defendants brothers (G and M) appealed against their convictions on two counts of conspiracy connected with the laundering of red diesel fuel into the more valuable fuel known as DERV, and the consequential laundering of the money proceeds of the primary conspiracy, and against the sentences imposed on them.



At interview, G had made 'no comment' replies to all questions, but M had contended that he operated a legitimate haulage business with G and denied any knowledge of or involvement in the conspiracies. At a late stage in the preparations for trial, the prosecution served its 16th notice of additional evidence, which contained a series of witness statements and documentary evidence arising out of separate investigations by Customs & Excise.



At trial, the judge refused M's submission of no case to answer, and permitted the prosecution to adduce and rely on the evidence contained in the 16th notice. G and M were subsequently convicted and sentenced to a total of six years' and four years' imprisonment, respectively, made up of three and a half years and two and a half years consecutive in the case of G, and two and a half years and one and a half years consecutive in the case of M.



G and M contended that the judge had been wrong to permit the prosecution to adduce and rely on the evidence contained in the 16th notice, and in regarding it as admissible as being evidence of or as acts and declarations in furtherance of the conspiracy. M further submitted that the judge had been wrong to reject his submission of no case to answer. Both G and M also contended that the sentences were manifestly excessive, as consecutive sentences for the two conspiracies ought not to have been imposed.



Held, in the circumstances, the judge had been entitled, having satisfied himself that there was ultimately no unfairness and no undue prejudice in the service of the 16th notice material, to conclude that it would be in the interests of justice to permit it to go forward for consideration as to its admissibility and exclusion on its own merits. Furthermore, the judge had not erred in failing to exclude the relevant material as hearsay.



The judge had been correct to reject M's submission of no case to answer where there was certainly evidence to go to the jury, from which they would be entitled to infer M's participation in both conspiracies. The judge was concerned in all his sentences to effect a totality that reflected appropriate and just punishment. In adopting totalities of six and four years for G and M, his sentences were well within tariff limits for the two conspiracies, and would have been within tariff limits on a single count of conspiracy to launder the fuel. It was open to him to make up his total by consecutive sentences.



Appeals dismissed.



Andrew Lees, Andrew Haslam for the Crown; Donal McGuire (instructed by MSB) for the first appellant; Christopher Stables for the second appellant.





Bad character - cross examination - indecency - previous convictions - propensity - rape - indecency with a child

R v David Stevenson: CA (Crim Div) (Lord Justice Hughes, Mr Justice Mackay, Mr Justice Treacy): 25 August 2006



The appellant (S) appealed against convictions for indecency with a child, contrary to section 1(1) of the Indecency With Children Act 1960, and rape, contrary to section 1(1) of the Sexual Offences Act 1956.



The complainant (C) had made allegations of historical sexual abuse against S following therapy for psychological disorders involving the resurfacing of repressed memories. C and S were known to each other and had lived together with a family for a period of three years. C stated that, during that time, S had committed gross acts of indecency with her when she was 13, and that the relationship developed into one involving regular sexual intercourse. S's defence at trial was an outright denial of all the events complained of and that there had been no sexual contact between them.



S submitted that the trial judge had erred in refusing leave to cross-examine C on her sexual history under section 41 of the Youth Justice and Criminal Evidence Act 1999. S argued that C had made similar allegations against every male she had ever had contact with and that he was wrongly prevented by the judge from developing an argument that C had been damaged by her life experiences and developed a pattern of behaviour of making false accusations against men. S further contended that the judge had erred in refusing leave to cross-examine C on her bad character under section 100 of the Criminal Justice Act 2003.



Held, the application by S to cross-examine C under section 41 of the 1999 Act was presented in narrow terms, and related only to C's relationships with two other men. The nature of the application as argued at appeal was not apparent to the judge at trial on the documents available. He had expressly left open the opportunity to return to the issue and allow S to make a further application, but none was made. S's argument that he was wrongly prevented from developing a case that C made accusations against men related to her credibility and ability to tell the truth, not her sexual history. Accordingly the argument fell outside the ambit of section 41 (R v RT (2001) EWCA Crim 1877, (2002) 1 WLR 632 followed).



The judge misdirected himself in applying R v Hanson (Nicky) (2005) EWCA Crim 824, (2005) 1 WLR 3169 directly and refusing S leave to cross-examine C on her previous bad character (Hanson distinguished). Had S argued at trial that C's allegations were part of a wider pattern of behaviour, the judge might have accepted that C's propensity as to truthfulness was of substantial probative value. However, the court was satisfied that, even if S had been allowed to cross-examine C, her previous convictions were for minor matters that occurred in her teens and a long time prior to her giving evidence at S's trial. Even if C's convictions had been before the jury, it would not have affected the result and the conviction was safe.



Appeal dismissed.



R Daniells-Smith for the appellant; J O'Higgins for the Crown.