Practice and Procedure


PUBLISHED March 4, 2003

Where there was more than one defendant it was in the interests of justice that they all be tried together. The trial had to be fair to all defendants and a defendant should not be prevented from raising relevant and admissible evidence supporting a defence, even where it was prejudicial to a co-accused.Appeal against conviction and sentence with leave of the single judge. On 19 December 2001 at Chelmsford Crown Court before Aikens J the defendant ('S') was convicted of murder and false imprisonment. S was sentenced to life imprisonment with 18 years to run concurrently for the false imprisonment. On 19 November 2000 the police found the victim's ('V') body inside a three foot square cupboard which was sealed with tape. V weighed four and a half stone and the cause of death was starvation and dehydration. V lived at the flat with S, S's girlfriend ('W') and another man ('R'). They were arrested and interviewed. S asserted that what had happened was nothing to do with him and that R and W were responsible. R did not answer questions but provided a written statement which said he was not guilty but could not say more as he was in fear of reprisals from S. W blamed R. R and W were charged with manslaughter, false imprisonment and obstructing the coroner. It was the prosecution's case that V had lived with or under the control of S for a significant period of time and during that time R and W also lived at the same premises. V suffered appalling neglect and ill treatment. He was made to stand outside in the rain and once forced into a hole by the side of a road and made to stay all night. V was made to carry out stealing operations on behalf of S and was controlled by the use and withdrawal of drugs. On 25 October 2001, before the trial had started, the prosecution made an application to adduce a substantial body of evidence said to be relevant to background. The judge ruled that the prosecution were in general allowed to adduce that evidence. However, they could not adduce evidence from witnesses who were ex-girlfriends and relatives of S which showed he was controlling and violent. He ruled that that evidence went to propensity and was not sufficiently akin to the present facts to amount to similar fact evidence. On 9 November, again before the start of the trial, R made an application to permit cross-examination of witnesses called by the prosecution and to call evidence that went beyond what the judge had ruled the prosecution could advance to support his defence of duress of circumstances. R's defence was that S was responsible for the confinement of V and he had done nothing to assist. He had not rescued V because of the control asserted over him by S. W's defence was put on the same basis. The judge ruled that a co-accused was always entitled to adduce evidence to support his defence even where that evidence would be prejudicial to a co-accused. However, that evidence had to be relevant and evidence of a general propensity to make threats was not relevant to the defence of duress of circumstances. At that point the judge left it to counsel for R how he would frame the questions in cross examination, the ruling was made on the assumption that S's case involved no evidence of his good character or any assertion that R and W had committed the offences. On the first day of the trial S made an application for severance of the indictment. The judge refused as the case "cried out" for trial of all three defendants together. Before the prosecution called one of its final witnesses R and S informed the judge they wished to cross examine her on material in her statement which the prosecution could not adduce. The statement made a number of assertions that S was in the habit of co-ercing or blackmailing others, how he had forced the witness' boyfriend to steal cars and had given amphetamines to R and W. S submitted that the evidence was not relevant to duress of circumstances. The judge ruled that in the circumstances the evidence was relevant if it went beyond blackmail to threats of violence resulting in fear of injury or death. He left it to counsel for R and W to determine whether questions would fall within that ruling. S immediately repeated his application for severance which was again refused. The witness gave evidence and during cross-examination put S's character in issue by stating that she had never seen S use violence or hit V and he had always been nice to her. S gave no evidence. When R gave evidence he was cross examined by S. That cross examination went to the character of R to the extent that his character was put in issue. R made an application for the judge to reconsider his ruling on the admissibility of the evidence from the various women witnesses. The judge ruled that S had clearly put his character in issue and R was therefore entitled to lead evidence as to S's character even though that evidence was highly prejudicial. S made a final application for severance which was again refused. At the end of the trial R and W were acquitted of all charges. S appealed conviction on the grounds that the consequences of refusing the applications for severance rendered the trial process unfair either by applying common law principles or under Art.6 of the European Convention on Human Rights. He appealed sentence for false imprisonment on the ground that it was manifestly excessive.HELD: (1) The interests of justice required that all three defendants were tried together. That enabled the jury to have an overall picture of events rather that a distorted picture if the trial was severed. The rulings, on the admissibility of evidence, made on the first two occasions by the judge could not be faulted. They were made on the basis of submissions, put forward by S, that he was simply going to put the prosecution to proof and not make any assertions. Any difficulties were merely potential and dependant on how the case for S was run. (2) The judge's approach to the subsequent rulings was impeccable. By reason of the questions asked of the witness and of R, S had put his character in issue. That clearly rendered admissible material from the witnesses regarding S's behaviour towards them. (3) The picture of violent control, given by the witnesses, was consistent with the defence of duress of circumstances, put by R and W, and went to answer the implied assertion, made when cross examining R, that S was not violent and it was not him who carried out the ill treatment. (4) The trial had to be fair for all the defendants. If the judge had interfered in any way in R and W's ability to put forward evidence admissible and relevant to their defence, it would have been unfair to them. The fact it was unfair to S did not render that evidence unfair. S could have, if he wanted, given evidence and cross examined witnesses. There was no unfairness that could effect the safety of the verdict. (5) A sentence of 18 years was not manifestly excessive for the offence of false imprisonment. Even if V had been released in time to save him no court would conclude that sentence was excessive for what was, in effect, torture by neglect.Appeal against conviction and sentence dismissed.