Case No: 2000/3555/Y5
Neutral Citation Number: [2001] EWCA Crim 2019
IN THE  COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 2 October 2001 

B e f o r e :

LORD JUSTICE WALLER
MR JUSTICE DOUGLAS BROWN
and 
HER HONOUR JUDGE GODDARD
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Peter George McPherson		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr Simon Mallett [Miss K Saudet] appeared on behalf of the Crown 

Mr Ian Wheatly appeared on behalf of the Appellant 

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Waller : 
1.	On 3 April 2000 at Sheffield Crown Court, before His Honour Judge Bentley QC, the appellant was convicted at a retrial of one count of burglary with intent to do unlawful damage.  Sentence was adjourned until 8 May 2000 when he was sentenced to 4 years imprisonment.  The appellant now appeals against conviction by leave of the full court.  We heard argument on this appeal on 28 June 2001.  In circumstances to which we will refer, we requested transcripts of evidence and further written submissions which we directed we should receive so as to be able to give judgment before the end of July.  Unfortunately the obtaining of full transcripts and written submissions took much longer than anticipated and were only made available to us during September.  It is only now accordingly that we have been able to prepare this judgment.  
The Facts 
2.	It was not in dispute that the appellant knew the victims of the burglary, Denise Gayle, her 8 year old daughter Rochelle and her 4 year old son.  The appellant had gone out for several years with Karen, the sister of Denise.  In the course of that relationship Karen had had two ectopic pregnancies, the last of which had left her infertile.  Following their separation in 1997 there was considerable bad blood between the appellant and Karen and Denise.  Denise alleged that the appellant was conducting a campaign of harassment/persecution against them.  The appellant was alleging similar activities against Karen and Denise so far as he was concerned. 
3.	It was the prosecution case that in the early hours of 17 December 1999 the appellant broke into Denise Gayle’s home via a broken upstairs bedroom window whilst she and the children were asleep.  It was alleged that the appellant had gone from room to room first upstairs and then downstairs, smashing with a hammer various television sets and other pieces of furniture.  The prosecution primarily relied on the identification evidence of Denise Gayle who was awoken by the noise and said that she had recognised the appellant by his appearance and by his voice when he came into the lounge where she had been asleep.  
4.	The appellant denied committing the offence.  He contended that Denise Gayle had caused the damage herself as part of her and her sister’s ongoing campaign against him, their intention being to accuse him of the burglary.  The appellant further called alibi evidence in support of his claim that he was elsewhere at the time.  It is in relation to the way in which the judge dealt with the alibi evidence in the course of his summing-up that this appeal is concerned.  
Evidence 
5.	Denise Gayle said that at the time of the burglary she knew the appellant had another girlfriend.  She said that she did not blame him for the fact that her sister could not have children.  Indeed she explained how the appellant had asked her if she would have a child for them to which she had agreed.  She said that the appellant had been terrorising her and her sister since the breakdown of the relationship because he believed that Karen owed him money.  According to Denise the appellant had attacked Karen in the street, as a result of which Karen had gone into hiding, and Denise thought that if he had known where Karen lived he would have killed her.  The evidence of Denise was to the effect that the burglary was all about the appellant getting his revenge because he could not get back the money that he thought was his.  
6.	There had been an occasion when Denise had accused the appellant of arson and, under cross-examination, she categorically denied that she had falsely accused him of that offence.  
The burglary 
7.	Denise was not sure how the appellant had entered her house but the obvious point of entry was via her bedroom window which had a defective lock.  It was because that window flapped backwards and forwards that she and her son had gone to sleep on the downstairs settee.  Denise described how at about 4-30am she heard her daughter scream and how she heard the sound of smashing followed by heavy footsteps coming down the stairs.  The Christmas tree lights were on and when the living-room door was pushed open she saw the appellant standing there with a hammer in his hand.  He had a hood over his head and a bandanna, which he initially had round his neck like a scarf but later pushed up to, cover the bottom of his face.  He said to her “everything your sister’s got is mine.  Everything.”  He then started to frantically smash her television, wall unit, mirror and various other pieces of furniture.  He also sprayed her settee and wall-unit with some type of spray that left a white residue.  All she could do was to grab hold of her son who was petrified.  She tried to get to the kitchen but did not think that she actually made it there.  The appellant then left via the front door taking her front door key with him.  By that time a neighbour had appeared and she asked the neighbour to ring the police.  The whole incident lasted between 3-5 minutes during which time she said that she was absolutely terrified that he was going to kill all of them.  
8.	Under cross-examination Denise described herself as a light sleeper but said that she did not hear anyone enter the premises or her daughter’s T.V. being smashed.  She had fallen asleep in front of the living room T.V. which she always left on at night.  She reiterated that the appellant put the bandanna over his face later and said that in her statement in which she described the bandanna as already being on top of his head was wrong.  She assumed rather than saw that the appellant had taken her front door keys as they were not there after he left.  She was able to identify the appellant by his build, his eyes and his voice.  She could not remember the colour of his jeans but thought his jacket was a greenish coloured corduroy.  Apart from the Christmas tree lights, she said that two table lamps were also on but she could not explain why she had not mentioned these in her statement.  
9.	Rochelle, the young daughter, gave evidence via a live video link and said that she normally went to sleep with her bedroom light on.  She described how at about 5-0am on the morning in question she was awoken by a man smashing the television set in her room.  She described him as being very tall and wearing jeans, kickers gloves and a mask which she variously described as a balaclava or a bandanna.  Although the mask covered the lips and nose of the man she could see his eyes and the brown skin beneath them.  She could also see one of his fingernails as one of the fingers of the gloves was torn.  The man then went downstairs to the living room where her mother was and she heard him say “You tell your sister she owes me everything, everything she’s got”.  There followed the sound of continuous smashing, after which she heard the man say “You make sure you tell her” before he left.  
10.	Under cross-examination she reiterated that all she could see of the man was his eyes and one of his fingernails.  She was unable to say what colour his jeans were.  She denied discussing the incident with her mother.  When she was standing on the stairs she heard the man shout “You make sure you tell your sister”.  She then saw the man run out of the front door.  
11.	The appellant voluntarily attended Attercliffe police station on 6 January 2000.  In his interview he told police that as a result of his own home being broken in to on the same evening as Denise Gayle’s burglary, he had spent the night at his foster-father’s home in Dugdale Road.  
12.	The appellant gave evidence at the trial.  He said that his relationship with Karen had ended as a result of her being responsible for, amongst other things, his business being burgled and money and electrical goods being stolen from his flat.  Shortly before they separated in 1997 she told him that she hated him, that she blamed him for the fact that following the two ectopic pregnancies she was now unable to have any children and that she wanted to get back at him.  He alleged that both she and her sister Denise had systematically persecuted him after he formed a relationship with another woman who was now expecting his child.  This included their falsely accusing him of trying to set fire to Denise’s flat in March 1998.  That charge was dismissed as a result of the prosecution offering no evidence.  In cross-examination he denied harassing Karen after their relationship had ended and said that he had had no contact with her since the incident in March 1998.  
13.	So far as the burglary was concerned the appellant gave evidence consistent with his interviews.  He said that at 10-0pm on 16 December he discovered that he himself had been burgled and his premises damaged.  He had reported the break-in to the police and arranged for his front door to be mended and had then gone to his foster-father’s home.  He had arrived at around midnight and after talking to his foster-father for about an hour they had both gone to sleep.  He did not leave the house again until after his foster-father woke him up at 9-0 am in the morning.  
14.	In cross-examination he said that he did not immediately think that Karen was responsible for burgling his home.  He thought that she could have done it but that there were others who might equally have been responsible.  He was upset and annoyed about the burglary but denied being in a state about it.  He knew the road Karen and Denise lived in but not the number of Denise’s house.  He said that he had last seen Denise about a year before her alleged burglary.  He denied ever having a pair of kickers or ever wearing branded clothing. 
15.	It was accepted, it should be said, that the appellant did report a burglary to his premises on 16 December 1999.  It was not in issue that there was such a burglary on that date.  
16.	On behalf of the appellant two witnesses were called to support his evidence that he was at his foster-father’s home on the evening and during the night when the burglary at Denise’s property was said to have taken place. 
17.	It is the way in which the judge dealt with this evidence which is the only point on this appeal.  It is necessary to set out in full the judge’s summary of the evidence and the way in which he dealt with it.  He started in this way:- 
“The accused offers an alibi.  He says, “Not only did I not commit this offence but more than that I was at, not at 27 Spittle Street, when this burglary was committed, I was asleep in bed three miles away, and more, at 78 Dugdale Road, and I can prove it.”  And he called witnesses to back up what he said.  In fact, you will have realised, Ladies and Gentlemen, that none of the witnesses called do establish that he was in 78 Dugdale Road on this night.  His foster father didn’t know which night it was that he first came to stop at 78 Dugdale Road.  He said he did come to stop and was there several nights before Christmas.  But asked, “Well, which day was it?  Which day of the week?”  “I can’t be sure.  I can’t remember now.”  And the young son, again he couldn’t fix a date either. 
Well, what about this alibi?  It is not for the accused, although he raises an alibi, to prove it.  The Crown must disprove it.  Even if you concluded that the alibi is false, a put up job, that of itself would not entitle you to convict the accused.  You would still have to be sure that not only has he put forward a false alibi, but also that he was the burglar, if you are satisfied there was a burglar who went into 27 Spittle Street, and smashed up the furniture inside.” 
18.	The criticism of this introduction to the alibi is first that the judge cast serious doubt on the alibi and then immediately followed it with a direction intended to deal with false alibi.  The submission is that the jury must have been of the view that at least the judge thought that the alibi was false.  Furthermore, the direction on false alibi does not contain the full JSB standard direction in that it fails to add a sentence to the effect that “people sometimes invent alibis in an attempt to bolster up a genuine defence”.  
19.	When the judge came to deal with the detail of the evidence given by the foster-father and his son he did so in the following terms:- 
“Frank Chadwick.  “I was the accused’s foster parent from the ages of 4 to 18.  He looks up to me as his dad.  He lived at 367 Martin Street, in 1998.  I would see him most weeks for at least once a week.  Before Christmas he had his flat broken into and he stayed with me 3 to 4 days about a week before Christmas.  On the day I found out about it I saw him.  He arrived about midnight.  We talked for about half an hour.  I slept downstairs on the settee in the livingroom and he slept in my bed.  We went off to bed about 12.30 to 1 o’clock.”  And he said, “My front door is bolted with three bolts and a Yale lock.  The back door has got two bolts.  When I went to bed I watched television for a short time then fell asleep.  The next morning I woke up at about nine.  He was still asleep in his bed.  I woke him up because he had to be at work for nine o’clock and he was late, and he left not long after, 9.15 to 9.30.  He stayed for three, four, or five nights. 
Now, Ladies and Gentlemen, there may be no doubt that the accused did stay with his step-father - his foster father  -  at Dugdale Road, for some days before Christmas.  And, indeed, that really hasn’t been seriously challenged.  But, the crucial question is was he staying there on the night of the burglary that we are concerned with?  And as to that Frank Chadwick can’t help.  All he can say is that he was there for three, four or five nights the week before - about a week before Christmas – I can’t remember the night which he came.  So the one thing that Frank Chadwick can’t do is say, “He was in my house on the 17th”, because he is not sure when he came. 
You were addressed by Mr Wheatley as though there was absolutely no doubt that the first night that the accused spent at his father’s was the night of the burglary.  That is not what his father has said.  His father said, in terms, “I can’t recall what night it was that he came round.”  Well, he was cross-examined.  He said, “Well, I was asleep between half past one and nine o’clock.”  This is all proceeding on the assumption that the accused was there on the night of the burglary.  If he had gone out of the front door I would have heard him, because of the noise of the bolts being drawn.  I am a light sleeper.  The defendant seemed frightened when he talked about the burglary at his home.  He didn’t know why it had happened, and that is why he had stopped with me.  I don’t think he mentioned his ex-girlfriend as the friend who had done it.” 
So that is the step-father.  Certainly stopping with him for three, four or five days before Christmas, but he can’t help on the crucial question of which was the night when the accused first stopped.  And so Daniel Frank Chadwick, the accused’s – well, if there is a relationship there is no blood relationship.  The accused has this relationship with him:  Daniel is the son of Mr Chadwick, the accused’s foster father.  Well what did he say?  He said this: “In December, 1998, I saw the accused.  He had recently had his flat burgled and wanted to stay at our house for a couple of nights.  I think it was a week before Christmas.  In January, 1999, the Police attended and asked to speak to my father.  He wasn’t there.  They asked who I was, and I explained.  The Officers asked if the accused had stayed about two weeks ago, and I told them he had stayed at our house the week before Christmas, and had slept upstairs.  
He was cross-examined.  It is now sought to say by virtue of the evidence that the father has given this morning, after being recalled, that what Daniel was talking about was the second night that the accused stayed at the premises.  Well, you will have to make your mind up about that.  What did Daniel actually say?  In cross-examination he said this: “I was in the house when the accused came round saying his house had been burgled.  I went to bed about half past nine to ten o’clock.  He had come round by then, and my dad was there.”  And then he said , “I didn’t hear him explain why he had come round.  I had been out at a mate’s house; came back at half past nine, and he didn’t explain why he was there.”  That sounds as though, you may think, that Daniel had no idea what the accused was doing there that night.  If he had been there the night before apparently nobody had let Daniel into the secret.  “He seemed annoyed, quite mad.  He looked very angry.  After I arrived I went to bed and I didn’t hear any conversation.  I slept in my bedroom.  The accused was in my dad’s room, next to mine.  My father was downstairs on the settee where he usually sleeps.  He usually sleeps with the door closed,” and then he said, “The front door has got a Yale and three bolts.  The bolts are quite long.  They make a bit of noise when you slide them back.  I slept through until the next morning.  I have to be at school by 25 to 9, and I was late that morning, because I left the house at 20 to 9.  I didn’t see the accused the next morning, because I was already late getting ready for school.” 
And then this morning his father was recalled.  “On the first night the accused came to stay there was no-one else present when he came.  My son was upstairs in bed when he arrived.”  He said, “On the second evening he came Daniel came in about 9.30 and was listening to conversation between us.”  Well, not according to Daniel; he went upstairs without hearing any conversation.  “I don’t know about the accused being angry on that night.  He was puzzled.”  
20.	The criticism made by Mr Wheatly of the above passage is that the judge was in effect telling the jury that there was no support from the two witnesses for the appellant’s alibi.  Mr Wheatly submitted that was not a fair reflection of the evidence.  It was in those circumstances that we called for transcripts of the evidence of the two witnesses and adjourned the oral hearing for further written submissions to be made once those transcripts had been obtained.  As previously indicated the intention was that the matter could then be dealt with before the end of July, but unfortunately it is only now that we have the transcripts and submissions before us so that we have been able to prepare this judgment.  
21.	It seems to us that on the basis of those transcripts the judge’s approach to the evidence of, in particular the foster-father, was simply not fair.  The evidence of the foster-father was that the appellant came to his house at about midnight on a night prior to Christmas and after the appellant had been burgled.  It is true that the foster-father could not say precisely which day of the week or which date that was but that evidence did support the appellant’s own evidence that after he discovered the burglary at his own house at 10pm on 16 December he went round to his foster-father’s house at about midnight.  
22.	It is true, and right to emphasise, that there was ultimately an inconsistency between the evidence of the foster-father and that of the second witness, the foster-brother.  The foster-brother suggested that the appellant came to the foster-father’s house at 9-30 one evening before Christmas.  This caused the foster-father to be recalled and to seek to explain that what the foster-brother must have been referring to was the second night of the appellant’s stay with the foster-father.  The inconsistency must have seriously weakened the evidence of the foster-father and the foster-brother in the eyes of the jury.  But it was still unfair to suggest that simply because the foster-father could not say which day of the week the appellant came to the house, that that evidence could not help the jury when they came to consider the appellant’s own evidence that he came to the foster-father’s house at midnight on the day of the burglary.  
23.	Indeed it is right to say that the main thrust of the cross-examination of the foster-father was not to suggest that the appellant had not come to the foster-father’s house on the night of the burglary, but was to suggest that the appellant had probably crept out during the night without being heard.  
24.	To the above must be added the fact that having left the jury with the impression that the alibi might be false, the judge did not warn the jury in the full terms of the standard direction as previously indicated.  
25.	There were thus misdirections in the summing-up.  The question then is whether the verdict of the jury was safe, and that depends on how serious the misdirections were, and whether a jury properly directed would have been bound to reach the same conclusion.  
26.	We think that these misdirections were serious and we do not think it possible to conclude that the verdict was bound to be the same.  In those circumstances we must quash the conviction.  We have considered whether it is appropriate to order a retrial in this case and have formed the conclusion that having regard to the length of time that the appellant has already been in custody, and, albeit the evidence against him was powerful, if accepted, it would not be appropriate to order a retrial.  On this aspect we have not heard submissions from the prosecution and we would be prepared to reconsider that direction if the prosecution wished to make submissions to the contrary.  

MISS SAUDET: Your Lordship, it is not proposed to proceed to retrial, given that the defendant was convicted initially on a retrial in any event and he has now spent over a year in custody.
LORD JUSTICE WALLER: That is very helpful.  That is the view we had formed too.  There will be no order for a retrial.