Neutral Citation Number: [2001] EWCA Crim 369
Case No: 2000/1043/W4
Neutral Citation Number: [2001] EWCA CRIM 369
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Tuesday 23rd January 2001

B E F O R E :

LORD JUSTICE PILL

MR JUSTICE CURTIS

and

HIS HONOUR JUDGE METTYEAR
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A

‑ v ‑

GARY HARDWICK
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Computer Aided Transcript of the Stenograph Notes of
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MR S SHAPIRO appeared on behalf of the Appellant
MISS L KEIGAN appeared on behalf of the Crown

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JUDGMENT

1.	MR JUSTICE CURTIS: Gary Kevin Harwick is 43 years of age. He appeals with the leave of the full court against a conviction for stealing three greyhounds on 27th February 1999. He stood trial at Kingston on Thames Crown Court before His Honour Judge Mitchell on 3rd February 2000.
2.	The allegation can be shortly stated. It is this. By arrangement the appellant met an Irish man called Roger Sweeney on a car park of a cafe in Chessington in order to buy three greyhounds from him for the price of £13,000. Mr Sweeney was handed 13 bundles in purported payment for the dogs which he believed to be bundles of £1,000 worth of notes. He did not count them. When he got back to Ireland and paid the money into his bank each bundle was found to have only one ten pound note at the front of the bundle and one at the back. The bundles were at all times sealed in clear plastic bags.
3.	The victim Sweeney was at all material times with a man called James Lawless. Sweeney asked Lawless to check the bundles, count the number of them and confirm that they were sealed, which he did. By the time of the trial in January 2000 Lawless had unfortunately died. His statement to the police was read to the jury and at their request re‑read to them after their initial retirement. No objection was taken to the admissibility of Lawless' statement or the judge's exercise of his discretion to admit the document under the Act and Mr Shapiro for the appellant disavowed any criticism of the judge in respect of those two rulings.
4.	The material part of Lawless' evidence was that the greyhounds were in the back of Sweeney's van on the car park in the first place. The appellant was with a woman and, as he put it, “did the business with two men”. Lawless went on to say that “the three dogs were then put into the chap's jeep and I walked to his van”. He described how Mr Sweeney “came along, he threw in a plastic bag, he said to me check them bags, I looked at some grey or white plastic bags which had £10 notes showing through. The bags were not very clear. Roger said 'Are the bags all sealed?' I checked them all and confirmed to Roger that they were. Roger said 'How many are there?' I counted them. There were 13 packets. Roger seemed happy and put the bag with the money away behind the seat. The money was kept secure in the van and not out of sight during the trip back home.”
5.	Before Lawless' statement was read to the jury the judge warned the jury that there was no opportunity for the defence to cross‑examine the witness and that they should bear that in mind. In his summing‑up he reminded the jury that they did not have the benefit of any cross‑examination of the witness. That reminder is at page 14 of the transcript. Later when the statement was re‑read to the jury at their request he used similar words to explain the position to the jury.
6.	The defence at trial was that Mr Sweeney was concocting a totally false story for his own purposes. Defence evidence was called that the money was counted out, one might think in the normal way and paid over and it was all to Mr Sweeney's satisfaction. But Mr Sweeney, for reasons of embarrassment with the Irish fiscal authorities was now saying that he had not been paid the true purchase price for the dogs.
7.	It is now submitted to us that in the circumstances of this case following the admission of Lawless' statement, the three warnings given by the judge about the jury's approach to Lawless' undoubtedly important statement were insufficient.
8.	Before turning to deal with the surprisingly large number of cases that bear on this problem, it is important to look at the circumstances of this particular case and the process of trial.
9.	First of all the defence case, which we have shortly summarised, was transparently short and clear. The judge rubbed that in the course of his summing up when he said to the jury that Mr Sweeney was cross‑examined:
“And, quite rightly, Mr Shapiro [counsel for the defence] was putting his case strongly to him, essentially saying that he was crooked. Members of the jury, that was the gravamen or the thrust of what was put to this witness, that he had problems with the taxman, etcetera, and it was put to him that there had been problems and therefore really he was the one who had substituted these notes and that is what it was all about. Members of the jury, you may think that was the thrust of what was being put and that it was in his interest to pretend he had not been paid in order to keep the taxman off his back in relation to all this cash.” 
10.	Later on, the learned judge reminded the jury of the essence of the defence case in relation to Lawless:
“Well it is put, members of the jury [meaning in counsel's speech, quite clearly], that [Lawless' evidence] is a concoction together with Mr Sweeney. You will not have overlooked that as he does not give evidence in his statement of him witnessing the actual counting of the packets or the money, whatever happened, so he gives no evidence of what happened on the front seat and you might think that if it was going to be concocted that would be a crucial part of Mr Lawless' lying statement, if it is lying, but that is a matter for you to decide.” 
11.	So nothing could be clearer than the restricted nature of the dispute and the head‑on collision between the two parties to this case. Further, it is clear to us that the judge correctly gave a general direction to the jury at the beginning of his summing‑up as to their approach to the evidence and what they had to do. Further, the jury saw and heard another statement read to them as agreed evidence from the assistant manager of a bank in Ireland and also heard other witnesses cross‑examined. It is our view that it is quite clear to them (a) what their functions were, and (b) what is the difference between agreed evidence which is read on the one hand and on the other evidence of the kind admitted by the judge where the witness has unfortunately died. We say that in the light of Mr Shapiro's submissions that the jury in some way did not understand the nature of agreed evidence, its distinction from Lawless' statement and the effect and purpose of cross‑examination. It is clear to us that from what the judge said about Mr Shapiro's cross‑examination of Mr Sweeney and what he repeated to the jury Mr Shapiro said in his speech about Mr Lawless, that the jury cannot have failed to understand the purposes of cross‑examination and the effect of it.
12.	We now turn to consider the law. The first case to which reference must be made is R v Cole 90 Cr App R 478. It is convenient and sufficient to quote from Archbold, the edition for the year 2001, from page 1192 under paragraph 9‑134. After recital of the case to which we have just referred:
“There can be no set formula [meaning for the judge's directions to the jury]; the strength of the warning is to be decided upon the basis of the facts of the individual case, the issues and the significance of the statement in the context of the case as a whole. A similar warning will be called for in cases not falling within section 26, where the statement is disputed; in a section 26 case, the judge will no doubt think it appropriate to point out the special need for caution arising from the circumstances that the statement was prepared for the purposes of contemplated or pending criminal proceedings or a criminal investigation (the rationale for the more stringent test, and the presumption against admission, in section 26).” 
13.	We have looked at a further case, R v James Greer [1998] Crim.L.R 572. Again one can quote the essence of the matter from Archbold:
“It is not the law that the judge is bound to direct the jury, in accordance with the judge's direction in R v Cole, that [the jury] could not possibly pay as much attention to a witness statement as to other evidence; it did not follow from the fact that the Court of Appeal had not criticised that direction in Cole that it was necessary or appropriate; it had been sufficient for the jury to have been warned that the evidence not having been tested in cross‑examination, it had its limitations.” 
14.	The next case to which reference should be made is R v Thompson [1999] Crim.L.R 747. The report of that case discloses that the court held that the judge sufficiently directed the jury in giving them a general warning about how the statement was to be approached, pointing out that there had been no opportunity for cross‑examination, saying that it should be weighed up in the context of all the other evidence and that it did not have to be accepted.
15.	We next turn to the case of McCoy 1990/1674/W4, a decision of another division of this court dated 10th December 1999. This was a wounding case. The defence was one of alibi. The trial judge admitted a statement of a witness, the court was to hold, without any sufficient evidence as to the nature of the intimidation that was alleged to have kept him from presenting himself to give evidence at Warwick Crown Court, and allowed the supposed threatened witness' statement to be read to the jury. The court held that that was not a proper admission of evidence nor a proper exercise of the judge's discretion. What the judge in that case said to the jury was as follows:
“As I told you at the time you must not speculate as to why they had not given live evidence.” 
16.	He was referring to both the witnesses in that case. He continued:
“You have heard that the contents of the statements are disputed by the defence, and defence counsel has not had the opportunity of cross‑examining or challenging the evidence of the witnesses, as he did with...” 
	and then the judge referred to other witnesses in the case. My Lord, Laws LJ at paragraph 25 of the judgment of the Court said as follows:
“This is not a case where the other evidence was such as to compel us to conclude that the conviction is safe even though the witness statement was read to the jury. We have to have in mind the judge's directions to which we have just referred. They were, we fear, not adequate. If a statement of a critical witness is to be read to a jury, perhaps especially in an alibi case where identification is the true issue, it must be incumbent on the trial judge to ensure that the jury realise the drawbacks which are imposed on the defence if the prosecution statement is read to them. It is not enough simply to say that counsel has not had the opportunity of cross‑examining. The lay jury may not appreciate the significance of that fact. The judge must at least explain that it means that they may feel quite unable to attach anything like as much weight to the evidence in the statement, as they might if it were tested in cross‑examination; and where appropriate it would be necessary, certainly desirable, for the judge also to indicate to the jury by way of illustration the sort of matters that might well be put in cross‑examination in the particular case. None of that was done in this case.” 
17.	The distinctions between the facts of that case and the present one are obvious. First, of course this is not an alibi case nor is identification in issue. This was a perfectly straightforward swearing match between the two teams and we would point out that the defence witnesses were called to give their account of the dealings on the car park and clearly their evidence was not accepted, along with the defendant's. The process at trial had clearly in this case revealed the precise nature of the defence case and the jury had seen for themselves by way of illustration what was going to be put in cross‑examination. The defence case, as we have pointed out, embraced dishonest evidence and concoction by Lawless and Sweeney acting together. There could be no other view of the case. So this jury had in addition to the three warnings which we have referred to, seen exactly how the defence case was being put and what sort of questions would be put and thereby illustrating the nature, purposes and of cross‑examination and well able to form for themselves their own judgment as to what difference it would have made in the case of Mr Lawless.
18.	We turn to deal next with the submissions by Mr Shapiro. He submits to this court that first of all the law now requires a warning from the judge to the jury. By that he says that the word 'warning' implies at least an instruction inside the words of the warning. He complains that no such warning, nor the reason for it, was given in this particular case. He developed his argument by saying that the law required the judge to ensure that the jury realised the drawbacks imposed upon the defence and to say more than counsel has not had the opportunity of cross‑examination; to furnish adequate directions on the questions of weight to be attached; and lastly to illustrate the sort of matters that might have been put in cross‑examination.
19.	When pressed for a model direction by my Lord, Pill LJ, that counsel was suggesting should be given, we hope it is not unfair to Mr Shapiro to say that he found himself in considerable difficulty in formulating a precise formula that would have any general application and was obliged to change, quite rightly, what he had previously submitted on this particular topic. We would point out that it would be contrary to good appellate practice to require what the judge says to the jury to be a precise warning of the kind Mr Shapiro submits should be given. We take the view that what is said by the judge should not be drafted in words written in stone but should be words appropriate to the case which in the opinion of the judge meet the fairness of the course that has been taken with the evidence of the witness who does not appear and generally appropriate to the circumstances of the case.
20.	As to the other points of ensuring the jury realise the drawbacks, that may be appropriate in certain cases and not in others. As to further directions on the questions of weight and any illustration of the sort of matters that might have been put in cross‑examination, those again are all matters for the judge to think about before he gives whatever warning he thinks is appropriate. To lay down hard and fast rules would not be appropriate, in our judgment. As to the facts of this case points 2, 3 and 4 were all vividly illustrated by what happened in front of the jury as we have indicated. We do not read the authorities, nor that of McCoy, as laying down any inflexible rule of the kind contended for. As we say, it is incumbent on the judge to think about the warning that he would give the jury, doubtless importantly to discuss the question with counsel in advance to ask for their assistance on the nature of the warning and what the jury should be told, if only because each case has to be judged on its own facts, and then give a warning that he thinks is in appropriate terms and of sufficient gravity with such illustrations to make it clear to the jury what the judge is saying to the jury. We are not encouraging trial judges in any way to take a short course about this matter and clearly after the thought and discussion that we have indicated might well be appropriate, clearly the judge has to give a warning to the jury that fits the precise facts of the case and which is a sufficient and proper warning to see that justice is done where this procedure has of necessity, like the death of this unfortunate man in this case, been forced upon the courts who are trying the case.
21.	In those circumstances we look at the question of whether on the facts of this case and bearing in mind the judge's warnings and the other matters relating to the way this particular case fell out in the course of trial, whether this court thinks on a review of all the circumstances that this conviction is unsafe. We do not so conclude. It follows that this appeal against conviction is dismissed.
(There then followed an application for leave to appeal against sentence)
22.	MR JUSTICE CURTIS: Following the conviction for theft, the appeal against which we have just given judgment dismissing the same, the appellant was sentenced to 28 months' imprisonment and a consecutive sentence for contempt of court in respect of the appellant's conduct towards a witness from the Halifax Building Society concerning an account he had at that bank was imposed upon him. This conviction and sentence has been upheld by another division of this court.
23.	It is not necessary in the light of our detailed judgment dismissing the appeal against conviction to recite the facts again. What the case shows is that this was a bare‑faced offence and clearly planned since the bundles of £13,000 were dressed up in plastic bundles with £10 notes at either end so as to persuade any trusting person, such as Mr Sweeney, to believe that each bundle contained £1,000, adding up to the £13,000 agreed between the parties as the purchase price of the dogs. 
24.	The appellant has no mitigation by way of plea and remorse, nor does his record afford him any mitigation whatever. His comparatively recent record includes conspiracy to defraud in 1981 for which he received a nine month sentence, and theft, a sentence of six months being imposed there, and in April 1983 delivering counterfeit currency for which he received a 12 month sentence of imprisonment which was suspected in the first case but the appellant was required to serve nine months of that sentence by reason of a further offence of dishonesty in 1985 and in 1996 he was fined for theft in a shop.
25.	The learned judge who imposed the sentence of 28 months in this case was well placed, having heard all the evidence, to decide upon the criminality and the extent of it by this appellant.
26.	We cannot fault the sentence of 28 months on the facts of this unattractive offence and this application is refused.