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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lydiate, R v [2004] EWCA Crim 245 (13 February 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/245.html Cite as: [2004] EWCA Crim 245

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
HIS HONOUR JUDGE OPENSHAW QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th February 2004

Sir Edwin Jowitt:

Facts.

1. On the 26 July 2000, after a trial lasting three months, this applicant was convicted at Manchester Crown Court before His Honour Judge Openshaw, QC by the jury's majority verdicts of 10: 2 on three counts in an indictment on which he and others had been tried, namely: conspiracy to murder (count 1) and conspiracy to kidnap and falsely to imprison (counts 2 and 3). He was sentenced to life imprisonment on the first count under section 28 of the Crime (Sentences) Act 1997, with a notional determinate sentence of 15 years imprisonment and concurrent sentences of 22 years imprisonment on counts 2 and 3.
2. He renewed his application for leave to appeal against conviction and sentence after refusal of leave by the single judge. We refused leave to appeal against his conviction on hearing his oral application for leave, saying we would give our reasons later. We proceeded then to hear the application for leave to appeal against sentence after which we adjourned our decision upon that application. Today we refuse leave to appeal against sentence and we now give our reasons for refusing both these applications.
3. A co-accused, Boyle, was convicted on counts 1 to 3. Three other defendants, Danson, Allerton and Dwyer were convicted on count 3. The defendant Gregson, pleaded guilty at a later stage to substantive counts designed to reflect participation in counts 2 and 3. There were three other defendants, including the defendant Farrell, charged with various of these three counts who were acquitted. Each of these three counts alleged that also involved in the conspiracy charged were one Shawcross and others unknown. There were other counts in the indictment relating to the possession of firearms on which Lydiate was not tried.
4. The prosecution's case was that the events giving rise to the indictment had their genesis in an attack on Lydiate which happened on the 25th April 1999 in which he was shot nine times by a masked man in a Salford public house and received serious injuries to his elbow and abdomen. Although Lydiate must have known the police wished to speak to him about this incident he never made any approach to them.
5. It was the prosecution's case that the subsequent events about which the jury heard were instigated by Lydiate in order to be able to discover the whereabouts of those he believed to be responsible for what had been done to him in order that they might be found and one or more of them killed by way of revenge. He believed those responsible were two men called Calderwood and Daffearn and the two Jamma brothers. In a nutshell, the prosecution's case was that the evidence concerning the events about which the jury heard had a cumulative effect which demonstrated unerringly Lydiate's guilt of the offences of which he was convicted.
6. On the 19th May, in his absence, some unknown men called at the house of one Tony Shenton. His girl friend was in the house and, being suspicious, did not answer the door. An attempt was made to force the door and, in response, she screamed for help from a window. The men made off. The girl friend saw the men but was not able to recognise any of them. The relevance of this incident becomes apparent from what happened subsequently.
7. Later that day, on a false pretext, a man called Foster was persuaded by his half brother, the defendant Phelan, to visit him. Foster called at Phelan's house to be confronted by two masked men. The masks did not prevent Foster from recognising them as Shawcross and the defendant Gregson. He was stabbed in his leg and foot by Gregson and then dragged into the yard. Boyle was standing in the yard. A gun was put into Foster's mouth and Shawcross asked, "Shall we murder him?" Foster was repeatedly asked where Kent lived and Phelan, who was watching, advised him to tell them what he knew. Threats were also made against Foster's wife and children if he did not provide information.
8. Then Foster was driven by car to Hickey Farm, a property which is registered jointly in the names of Lydiate and Farrell. Foster said that on the way to the farm Shawcross made a mobile phone call saying, as he spoke into the phone, "We're on the way. Meet us there." In fact, the agreed schedule of phone calls shows that at 11:50a.m. on the 19th May a phone call was made, using a phone which was much used by Shawcross, to a phone belonging to Lydiate, referred to at trial as Lydiate 1, to distinguish it from another phone from which calls were also made, Lydiate 2. The judge pointed out to the jury that on Foster's evidence about time, 11:50a.m. would have been about the time he was being taken to Hickey Farm.
9. At the farm Foster was put inside a mobile toilet. He was kept there for a while and then told to come out. He was put back into the car and driven then to Phelan's house. As Foster was sitting in the car, before it left the farm, he saw another car, a green Audi, reversing away from the farm. Foster said in chief there was only one person in the car and he saw him waving to the others. He said it was Lydiate, though he accepted he had only a fleeting glimpse of him. No identification parade was ever held.
10. Foster's evidence about what he saw changed when he was cross-examined again after a subsequent witness, Kent, to whose evidence we shall return, said that Foster had told him the person he saw was one Rowles, Lydiate's business partner. Initially Foster denied saying this to Kent but then accepted he may have said there was a man in the car he believed to be Rowles and who had a bandage round his head. Foster agreed that, as well as in his evidence, he had only ever spoken to the police of there having been one person in the car. However, when he was re-examined he was asked who was definitely in the car and he replied, "Stephen Lydiate". He said he was in the driver's seat. The person with a bandaged head had been lying back in the passenger seat. He was asked what, then, was the uncertainty in his mind about this person. In answer, Foster said he had not seen his face clearly but a few days later had had a quick glimpse of Rowles sitting in a car with a bandage round his head.
11. In fact, as the judge pointed out to the jury, on Lydiate's evidence the incident which had led to Rowles having his head bandaged had not yet occurred at the time of which Foster was speaking.
12. Foster was told that the next day he would have to identify Kent's home and this is what he did. On the way back from the farm to Phelan's house he was told that he should account for his injuries by pretending he had been robbed by one Pollard and the defendant Dwyer. Foster went to hospital on the 21st May. He did not tell the doctor he had been stabbed and complained only of a black eye and pain in his chest.
13. In the early hours of the 22nd May the witness Kent was sleeping downstairs on the sofa when four men, all wearing balaclavas, burst into his house. Despite the balaclavas he was able to recognise Shawcross and Gregson, whom he knew well. Each of these two had a submachine gun fitted with a silencer and a handgun. He tried to escape but was struck about his head. Then Shawcross shot him in each leg and the threat was made to shoot his girlfriend if he did not quieten down. Kent was handcuffed and put into a white Suzuki van, which had been bought a few days earlier in a false name.
14. The van was driven off but stopped after a mile or so and Kent was transferred into a car. The van was set alight by throwing a petrol bomb into it. Kent was taken to Hickey Farm, where he was put into a trailer. Guns were put into his mouth and the triggers pulled. He was a also hit on the head with a machete. In the course of this violence Kent was asked where Daffearn and Calderwood were. He was told they were going to kill them. As a further means of applying pressure on Foster, a man was brought in who, it was intended, should commit buggery upon him. However, the man refused because Kent was bleeding so heavily. A stick was prodded into the open wound in one of his legs and salt was poured into his wounds.
15. This ordeal lasted for about eight hours and during the course of it a number of telephone calls had been made. Around 4:30 a.m. Farrell's phone was used to phone the Campanile Hotel, where Lydiate was staying.
16. At the end of all this Kent was provided with clothing, put into a car and driven to another address where he was taken to an upstairs flat and handcuffed to a cot. It was here that someone cleaned and dressed his wounds. He was questioned again about Calderwood and Daffearn and there were threats made to kill him if he did not provide information. Guns were pointed at him and a trigger was pulled.
17. We turn now to Shenton, of whom we have already made brief mention. It was in the early hours of the 24th May when his front door was shattered by a shot from a 12-bore gun. He was shot in the leg and suffered a very serious injury to it. He was dragged out of his home and put into the boot of a car. He was driven then to the flat where Kent was still being held and put into a room. Presently, Kent was brought into the same room. A threat was made to kill Shenton and salt was poured into his wound. As well he had a gun thrust in his mouth and the trigger was pulled.
18. Shenton was questioned about Daffearn, Calderwood and the Jammas. They said they wanted to kill Daffearn. Shenton was told that his captors had his wife and child and one of them pretended to give instructions on the phone for her to be raped.
19. In the morning, now the 24th May, someone was sent out to get a van. Several hours later Shenton was taken from the flat and put into a van. He was driven then to a hospital where the van was abandoned, with him lying inside it. Just after five o'clock that afternoon a phone call was made to the ambulance service telling them where the van was to be found. Very soon after that a call was made to Lydiate 1. Shenton had been told that he was to explain what had happened to him by saying that Daffearn and Calderwood had kidnapped and shot him.
20. There had been another incident involving the use of guns that morning. It was about 11:15 a.m. when one Davidson was being driven in Salford in his BMW car by his partner. Their children were in the back of the car. Presently the car stopped to allow Davidson to get out. Then he dashed back to it and shouted to his partner to drive off as fast as she could. The car was then pursued by a stolen Rover car through Salford and the men inside it opened fire on the BMW. Two tyres were punctured and it came to a stop. Davidson got out and there followed a struggle in the course of which he was shot in the leg. The Rover drove off then at speed and was later abandoned and set on fire. In the debris of the car was found the remains of a mobile phone. Calls made from that phone were connected with some of those who had been active at Hickey Farm.
21. We return now to the flat where Kent was still held captive. He had been given sleeping tablets and he managed, when his guard was not in the room with him, to exchange his glass with the sleeping tablets in it with the guard's glass. Once the guard fell into a drugged sleep he managed to escape. That was not long before 10 a.m. Kent approached some workmen and enlisted their help. An ambulance was called and he reached hospital around 10 o'clock. This was on the 25th May.
22. Another part of the evidence dealt with a number of people who stayed over the weekend beginning Saturday the 22nd May at a hotel in the middle of Salford, the Campanile Hotel. They were Lydiate and his wife, Allerton and the girl friends of Shawcross, Gregson and Boyle. The bill for this stay at the hotel, made out to a false name, was later found at Lydiate's home. During the course of this visit the schedule of telephone calls shows that a good many phone calls were being made to the phone Lydiate 1. Lydiate did not spend the whole weekend at the hotel. He left, then returned for his belongings and after that went with his wife to a caravan they had in Wales. He was there for about two and a half weeks, he said.
23. A great many weapons and items of ammunition were found at two addresses in Salford, neither of them Lydiate's. However some of those to whom we have referred were connected with them. One of them was a flat in Redmires Court. Gregson, Boyle and Danson were at the flat when it was searched. In a bag which Boyle had brought there were found pieces of paper on which were written the names and addresses and telephone numbers of people connected with those who were being sought. A fingerprint of Lydiate was found on one of these pages and fingerprints of Gregson, Boyle and Shawcross were found on other pages. One document had written on it the name of Alan Jamma and the name of the primary school attended by his two children.
24. At Lydiate's home were found pieces of paper bearing phone numbers which were significant in relation to the issues in the trial. Phone calls had been received on Lydiate 1 on a number of occasions from these numbers. There was also a list of names and addresses and the name Norm against the number 5010. Shawcross's first name is Norman and the phone with the number 5010 is one on which he made numerous phone calls to Lydiate 1 and 2.
25. The evidence of the phone calls made to Lydiate 1 called for an explanation. In his evidence at trial Lydiate said that the two Lydiate phones were used in connection with the business which he and Rowles were carrying on. He had Lydiate 1 and Rowles had Lydiate 2. On the 20th May, however, Lydiate received a telephone call from Rowles' girl friend to say he had been abducted and his ear had been cut off. As a result, Lydiate went to see him that same afternoon in hospital. Rowles said he had lost Lydiate 2 in the incident and so Lydiate handed him his own phone, Lydiate 1. After that none of the phone calls to that phone were received by him. Lydiate 1 was not returned to him until well after all the incidents of violence had occurred. In this way Lydiate sought to avoid the incriminating effect of the evidence about the phone calls.
26. Two points have to be made in relation to this. Firstly, this did nothing to take the sting out of the evidence about the use of Lydiate 1 before Rowles was abducted. Secondly, it is instructive to see how Lydiate explained the use of the two Lydiate phones when he was interviewed. He told the police that Lydiate 1 was used by him and Lydiate 2 by Rowles, but that when Lydiate 2 went on the blink he would lend Rowles Lydiate 1. He said not a word about Rowles having lost Lydiate 2 when he was abducted and so lending him Lydiate 1 when he visited him in hospital. Indeed, the effect of what Lydiate did say to the police was inconsistent with this.
27. In his evidence Lydiate denied the allegations made against him. He said he knew or could easily discover the whereabouts of the people for whom others were looking. He had no reason to hunt down Calderwood or the Jamma brothers. He did not know Daffearn or Davidson. His evidence was that his fingerprint must have got onto the document found at Redmires Court as the result of a visit made to him by Gregson, when Gregson showed him a number of papers some of which he must have touched. Then Gregson had gathered them up and taken them away. It could also have been that the papers found at his, Lydiate's, home were Gregson's which had become mixed up with his own papers. In any event, there was no sinister significance so far as he was concerned in his possession of these documents or in the information set out on them.
28. The jury obviously disbelieved Lydiate and there was ample material upon which they could come to this adverse conclusion.

Conviction grounds.

29. The first ground of appeal concerns the admission by the judge of the evidence given by Foster identifying Lydiate as the man whom he saw in the Audi car at Hickey Farm.
30. An important issue, going to the weight of any identification evidence Foster might be able to give, was whether he knew Lydiate by sight and, if so, how well and also whether the person he claimed to know by sight was in fact Lydiate. It is appropriate to deal firstly with the judge's decision to hold a voire dire upon this issue and the complaint that he should not have done. The judge took the view, rightly in our view, that the relevant passage in Foster's witness statement was not clear and that he should hold a voire dire before he gave any identification evidence to discover what it was he could say. Mr Bate QC objected. He submits to us that a voire dire in relation to a witness's identification evidence should only be held in the rarest circumstances.
31. Ordinarily, faced with a statement which, on an important point, is not clear but which ought, as a matter of caution and fairness, to be clarified before the witness deals with the point in evidence, a further statement can be taken from him to see whether the point can be clarified. This was not done. Mr Bate had asked that no approach be made to Foster by any police officer. It does not appear that he suggested the task might be carried out instead by a member of the Crown Prosecution Service. In the circumstances the judge, took what was in our view the sensible and obvious course of holding a voire dire. We asked Mr Bate what was the mischief in this. We listened carefully to his answer but are quite unable to see what mischief there was. The fact that clarity was achieved and that it was apparent that Foster was saying he was able to recognise the man who was Lydiate does not constitute a mischief, though it seems clear that Mr Bate's purpose in objecting to the voire dire was to avoid the outcome which it produced.
32. The principal limb of this ground is that although the decision in this court of Popat [1998] 2 CAR 208 was then good law and led to the judge admitting the identification evidence of Foster notwithstanding that, despite the fact Lydiate had disputed his identification when interviewed, no identification parade had been held. The position now is different since Popat was overruled by the House of Lords in Forbes [2001] 1 CAR 430.
33. Mr Bate submitted to the judge that notwithstanding Popat he should nonetheless exclude the identification evidence under section 78 of the Police and Criminal Evidence Act 1984 in view of the fact that there had been no identification parade. The case of Popat was an undoubted obstacle in his path but, he submits, the effect of Forbes is that an identification parade was required and so we should now exercise our discretion under section 78 in the light of that and conclude that the evidence of identification should in fact have been excluded, since the law to be applied to this issue is as stated in Forbes.
34. Two things have to be said about that.
35. Firstly, it was accepted in Forbes that if a case is one of pure recognition of someone well known to the eyewitness it may be futile to hold an identification parade. See paragraph 27 at page 443 of the speech of Lord Bingham of Cornhill, giving the considered opinion of the Appellate Committee. We venture to make these comments. Suppose a witness has seen someone whom he believes to be Mr A and he knows him and is able to recognise him when he sees him and thereafter he attends an identification parade believing it was Mr A whom he had seen, the likelihood is that if he is standing on the parade, the witness will pick him out because he believes the man he saw at the scene of the crime was Mr A. An identification parade in the circumstances may be thought not to add any strength to his assertion that it was Mr A whom he saw at the scene of the crime. To those who say that the position is not different in case of the witness who informally identifies the stranger shortly after the event and then picks out that stranger at an identification parade we would say that is not necessarily so. However, in any event it is the requirement of Code D of the Code of Practice issued under section 66 of the Act that in such a case there must be a parade. As Lord Bingham pointed out in Forbes in paragraph 26 at page 442 the Code is intended to be an intensely practical document which gives police officers clear instructions on the approach they should follow in specified circumstances.
36. Secondly, it does not follow that a failure to hold an identification parade when one is required by Code D will automatically result in the exclusion of identification evidence under section 78. This point was made in Forbes in which, despite the failure to hold a parade, as required by the Code, the conviction was upheld.
37. Mr Bate submitted this was not a case of pure recognition but, as we understand him, even if it was demonstrated that it was, the change in Foster's evidence when he was cross-examined about his conversation with Kent, to which we have referred already, shows that the value of his evidence was so questionable that fairness to Lydiate required the holding of a parade to put his identification to the test. As this development did not occur until after the judge made his decision to admit the identification evidence it cannot be used as a basis upon which to challenge that decision. It is, though, something to be considered in the context of a case in which an identification parade was not held in deciding whether Foster's identification of Lydiate was unreliable so as to make the conviction unsafe. We shall look at this later.
38. Was this a case of pure recognition of someone well known to Foster? He said that, although he had never spoken to Lydiate, he had seen him on a lot of occasions over the period of about a year in public houses and various places and driving in his car and his Jeep. He was well known in the area. He knew this man to be Lydiate because he had seen and heard him addressed as Lidder and he responded to that name. Lydiate accepted that people did call him Lidder.
39. In our judgment that was sufficient evidence to establish a case of pure recognition of someone well known to Foster and we take the view that this was not a case, therefore, in which it was necessary to hold an identification parade. This would be sufficient to dispose of the challenge to the admission of Foster's evidence of identification. However, we recognise that in Forbes Lord Bingham does not say that in a case of pure recognition an identification parade need never be held. We therefore consider the challenge also on the basis that Foster's evidence about his knowledge of Lydiate did not go sufficiently far to make it appropriate for there to have been no parade.
40. As we have said already, the fact that an identification parade was not held when there should have been one does not lead automatically to the exclusion of the evidence of identification. The fact that there was evidence of recognition based on a significant number of sightings over a substantial period is an important factor to be taken into account in deciding whether it is established, on the balance of probabilities, that the admission of the evidence had such an adverse effect on the fairness of the proceedings that it ought not to have been admitted. Other factors to be taken into account, and which the judge did take into account, were the facts Foster was taken to a property of which Lydiate was the joint owner and that it was there that Foster said he saw him in a green Audi car and also the facts of the phone call of which Foster gave evidence and the call to Lydiate 1 logged at 11:50 a.m., to which we have referred already.
41. In our judgment, looking at these various factors in the context of this case, we conclude that the case is not made out for exclusion under section 78.
42. A further complaint made is that Foster made an unsolicited dock identification of Lydiate at the conclusion of Mr Bate's cross-examination. It is said that the judge did not deal adequately with this in his summing up. We have considered the passage referred to. The judge said, "A purported identification of someone in the dock is worthless, you must put that piece of evidence entirely out of your mind." To say this direction was not adequate gives a fresh meaning to that word which we do not recognise. It was wholly adequate. Foster had said the man in the Audi car was a man he knew. Having given his evidence about the extent to which he knew Lydiate, we do not see that when he was asked if he could be mistaken and replied, "No, that man with the blue and white T-shirt on," his words would have been regarded by the jury as adding anything to his evidence, particularly after the clear and emphatic direction which the judge gave.
43. Then it is complained that the jury received no sufficient direction as to the failure, in breach of the Code, to hold an identification parade. In Forbes in paragraph 33 at page 444 Lord Bingham said:

"...the trial Judge should in the course of summing up to the jury (a) explain that there has been a breach of the Code and how it has arisen, and (b) invite the jury to consider the possible effect of that breach."

A few lines later he said:

"But if the breach is a failure to hold an identification parade when required by D2.3, the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye - witness's identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair."

44. The judge had correctly held, on the law as it was then understood to be, that there was no breach of Code D. However he directed the jury in these words about the fact there was no identification parade:

"I make the point members of the jury that no identification parade was arranged so Lydiate is now disadvantaged by having been deprived of the opportunity of putting to the test Foster's assertion that he knew and could recognise Lydiate."

45. This direction seems to us to encapsulate the requisite warning in the second part of our citation from Forbes.
46. Next, it is complained that the judge did not warn the jury that mistakes in the recognition of close relatives and friends are sometimes made. What he said was this:

"I must warn you of the special need for caution before convicting any defendant upon evidence of identification. That is because it is possible for an honest witnesses to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken. So indeed can a number of apparently convincing witnesses. You should therefore carefully examine the circumstances in which the identification by each witness was made, you will need to examine for how long the witness had the person he says was the defendant under observation, at what distance, and in what light and in what conditions and circumstances, did anything interfere with the observation.

Here each of the identifying witnesses claims to know the person he identified. So you need to ask did he really know him and if so how well did he know him, how often and how recently had he seen him?"

47. We do not think this direction can have left the jury in any doubt about the need for care and the fact that honest mistakes can be made. The jury would not have been left with the impression that because Foster claimed to know Lydiate this warning did not apply to his identification evidence.
48. Finally, complaint is made that the judge did not remind the jury of Foster's failure to give a fuller description of the Audi car and his ability to say whether it was an A6 or an A4 model. Having read and reread the passages in which the judge directed the jury on the subject of identification, and we have cited only a limited part of the whole, we are fully satisfied that the issues relating to identification, the need for care and the pitfalls were very fairly and adequately dealt with by the judge and that there is no sensible ground for complaint about them.
49. But before we leave this ground of appeal we wish to say that we have stepped back to consider the circumstances of the identification, the fact that there was no parade, what Foster said about his ability to recognise Lydiate and about his feelings and fears at the time he saw the Audi car, the change in his evidence when he was cross-examined about his conversation with Kent and the fact that there was a dock identification. We have looked at these matters for their cumulative effect in the context of the evidence in the case and asked ourselves whether the fact that Foster was permitted to give evidence of identification leaves us with any doubt as to the safety of Lydiate's conviction. We have no doubts. We reject this ground of appeal.
50. We now turn to the second of the grounds of appeal.
51. In evidence Lydiate said that on 22^nd May 1999 he received a telephone call from a friend named Brian Robinson. He was told by Robinson that he, Lydiate, had been shot by the man Shawcross; Robinson had seen the shooting in The Ship public house. Lydiate said in evidence that of all the rumours that he had heard, this seemed to him to be the most likely.
52. When Lydiate was questioned by the police he made no mention of this information given in the telephone call from Robinson.
53. This omission was one of the three omissions which the learned Judge directed the jury was capable of giving rise to an adverse inference under section 34 Criminal Justice and Public Order Act 1994.
54. The learned judge gave to the jury a general direction as to the applicability of Section 34; no complaint is made about that. Of the telephone call and information given by Robinson in it, the learned Judge said this: (vol.5 p 7b)

"In the circumstances existing at the time, was that something which he could reasonably have been expected to mention. If it was, as I've told you, you may draw such inferences as appear proper from his failure to do so. When being asked about the shooting (of him), do you think he could sensibly have omitted the fact that he had been told that he had been shot by Shawcross?"

55. Mr Bate submits that the information given by Robinson was not a 'fact' within the meaning of section 34, it was a theory, a possibility of a piece of speculation provided by him in evidence at trial. Further, to the extent that Lydiate's evidence led in examination in chief about the telephone call was 'a fact', it was not relevant to any issue in the case. Thus section 34 was of no application.
56. There can be no doubt that the telephone call itself was a 'fact'; as to Lydiate's belief in the information alleged to have been given to him by Robinson, the law is now settled: In R v Webber The Times 23^rd January 2004. Lord Bingham delivering the opinion of the appellate committee said:

"Since the object of section 34 had been to bring the law into line with common sense, 'fact' should be given a broad and not a narrow or pedantic meaning. It covered any alleged fact that was in issue and was put forward as part of the defence case. If the defendant advanced at trial any pure fact or exculpatory explanation or account that, if it were true, he could reasonably have been expected to advance earlier, section 34 was potentially applicable."

57. Here the point was made that if Lydiate did indeed believe that Shawcross was the man who shot him, it was improbable that he would seek revenge against Calderwood, Daffearn and the two Jamma brothers which revenge the Crown submitted was the motive for the offences with which Lydiate was charged. Further, it was highly improbable that Lydiate would have conspired or associated with Shawcross as alleged by the Crown. Thus, contrary to Mr Bate's submission it was highly relevant.
58. In our judgment, in this respect Lydiate was advancing an exculpatory account based on the fact of the telephone call and thus section 34 potentially applied.
59. However, Mr Bate further submits that even if section 34 did potentially apply, the learned Judge should not have invited the jury to consider drawing an adverse inference in these circumstances:
60. First, Lydiate had made it clear in interview that it had been suggested to him that a number of different people were responsible for shooting him. He was reluctant to name them to the police thus causing possible innocent persons to be arrested on the basis of mere speculation and rumour since he himself had been unable to identify his assailant. Secondly, that Lydiate's then solicitor had advised him during the course of the interview not to indulge in speculation as to who had shot him. In our judgment the information given to Lydiate in the telephone call was not speculation or rumour; it was given by a friend who claimed to have been present at the shooting. Moreover it was relied on by Lydiate at trial as likely to be true. Further, it appears from the transcript of the interviews that at no time did the solicitor advise Lydiate not to answer questions of the police; he advised Lydiate not to speculate. The police officer asked:

"I'm asking (you) to tell me what it is that (you've) been told, we're not speculating about anything."

To that, Lydiate gave a long reply in which no mention was made of the information given by Robinson.

61. It was for the jury to decide whether they considered it fair to hold that omission against Lydiate in accordance with the learned judge's general direction.
62. Accordingly we find no merit in this ground of appeal.
63. The third ground of appeal was not pursued.
64. The fourth ground concerns evidence which was given by a Mrs Sylvia Roberts. A part of her evidence was to be about what she had heard Gregson say into a mobile phone in her presence. Mr Bate was anxious that she should not say anything about what Gregson told her, as opposed to what she heard him say over the mobile phone. Anything he said to her would not be admissible because it would not be something said in furtherance of the conspiracy. The judge said that this was so and it was common ground between prosecution and defence. Obviously Mr Bate was anxious lest Mrs Roberts should mention something Gregson had said to her about Lydiate.
65. He asked the judge to warn Mrs Roberts in the absence of the jury that she must confine her evidence to what she heard Gregson say into the phone. Complaint is made that the warning which the judge gave was inadequate. Having considered the terms of his warning we are satisfied that there is no substance in this complaint.
66. Mrs Roberts gave her evidence about two phone calls in which she heard Gregson talking to the person at the other end. She heard him ask, "You're backing us up, aren't you?" Mr Wright QC, for the prosecution asked her whether she heard anyone addressed by name. She answered, "Stephen Lydiate." Then it became apparent this name was spoken by Gregson to her after the phone calls and Mr Wright I asked her not to tell the court what was said afterwards. She went on to say that she had heard Gregson address someone as Steve.
67. Mr Bate took us to this part of the transcript and then took up the questions and answers several pages further on. We were given the clear impression that this was a continuation of the series of questions which he had already read out. These further questions and answers were to the effect that Gregson had said that Steve got shot and that they were looking for Jamma and his gang because he had shot Steve. Mrs Roberts was asked if she ever heard anything concerning the topic of Stephen being shot and replied that she thought not. No objection was taken to these questions and they came to an end when Mr Wright said there was a point of law he wanted to raise.
68. In Mr Bate's skeleton argument and in his submissions to us this further series of questions, eight in all, were presented as a deliberate breach by Mr Wright of the judge's ruling about what could not be asked. In his application to the judge that the jury should be discharged he spoke of defending counsel sitting on the edge of their seats as they were listening to these questions and of the gasps from the jury at what they were hearing. It seemed to us somewhat surprising, as we listened to Mr Bate, that Mr Wright had been able to continue his questions as he did with not a word of protest from any defending counsel.
69. Mr Bate's submission to the judge was that what the jury had heard was so damaging to Lydiate's defence that the situation could not be remedied except by discharging the jury. This was two weeks into the trial. He stressed to us the deliberateness of this flouting of the judge's ruling. The judge refused to discharge the jury, saying he proposed to give a warning to the jury then and there that they should pay no attention to these questions and answers. He said he would make it clear to the jury that, while they could if they chose to, there was no need for defending counsel to feel that they had to cross-examine Mrs Roberts about this part of her evidence. Mr Bate was not happy about this. He wished to cross-examine Mrs Roberts to try to limit the damage which had been caused by the answers she had given. The judge said he would defer the question of any direction to the jury until the conclusion of Mrs Roberts' evidence.
70. In fact, Mr Bate made some headway in his cross-examination of Mrs Roberts, eliciting from her that Gregson was a very dangerous and violent man and a man was not be trusted at all. It is hardly surprising in the circumstances that, at the conclusion of her evidence, the judge said he was not minded to say anything to the jury but he invited Mr Bate to make any submission he wished and Mr Bate made none.
71. It is complained that the judge's summing up was wholly inadequate insofar as it attempted to deal with the prejudicial evidence given by Mrs Roberts.
72. In his summary of her evidence he said nothing about the questions and answers of which complaint is made. He gave the usual direction that what one defendant says about another defendant in his absence is not evidence against him, explaining that the rule was based on common fairness because the other was not present, and so had no opportunity to deny, challenge or explain what had been said about him. He finished his warning by saying:

"You must therefore entirely disregard what one defendant said about another when you consider the case against the other defendant."

73. It is true that this warning was given in the context of the police interviews but it must have been obvious to the jury that the warning was not solely directed to what one defendant may have said to the police about another defendant.
74. In our view the judge was right not to mention the inadmissible evidence which had been given perhaps two months earlier than the time of his summing up.
75. But the accuracy of the suggestion that the questions complained of were asked in deliberate contravention of the judge's ruling, and despite the warning which Mrs Roberts had been given, must in fairness be considered. Mr Wright has demonstrated by reference to the transcript that the attack has, by moving several pages through the transcript from one passage to the other, elided the evidence about two distinct topics to make it appear that they both related to the same topic, what Mrs Roberts had to say about Gregson's phone calls. It is clear when one looks at the pages in between and at the witness statement of Mrs Roberts that Mr Wright had indeed moved on to a different topic. In her statement Mrs Roberts had spoken of the presence of Boyle when the things were said which gave rise to the application to discharge the jury. Things said in his presence about a conspiracy, even though not in furtherance of it, were evidence against him. Mrs Roberts had indeed said that Boyle was present when there was the conversation about which she gave evidence but then, after she had spoken about what had been said, she was asked again who had been present and then she placed Boyle in another room. There had been no deliberate flouting of the judge's ruling and that is not something which can be prayed in aid in support of this ground of appeal. It also explains why no objection was taken to Mr Wright's questions. It is plain from what Mr Wright said to the judge that Mr Bate' s protests about the reaction of the jury were not shared by all and the judge said this:

"I am entirely unpersuaded by the suggestion made by Mr Bate that this evidence had a great impact on the jury. I have no reason at all to think that they will not loyally and dutifully follow the direction that I shall give in clear terms that they must ignore these matters."

76. It seems to us that the judge was in a very good position to make this assessment. In the event, because Mr Bate did not wish it, and no one else pressed the point, nothing was said to the jury.
77. It happens from time to time that things are said which the jury ought not to have heard. It seems to us that the exercise by the judge of his discretion not to discharge the jury was sound and sensible. The attempt to make more of the point by the suggestion that the evidence about Lydiate was adduced as a result of a deliberate flouting of the judge's ruling has failed and we are bound to say we think it unfortunate that it should ever have been made. In our judgment the judge's refusal to discharge the jury has not undermined the fairness of the jury's decision and this ground also must be rejected.
78. Finally we have an application to call fresh evidence, the evidence of Rowles, pursuant to section 23 of the Criminal Appeal Act 1968. The hoped for purpose of this was to confirm Lydiate's account of how the phone, L1, was handed to him in hospital when he was being treated there for his injury.
79. In considering whether to receive any evidence, among the factors to which this court is required to pay particular regard is whether there is any reasonable explanation for the failure to adduce the evidence at trial: section 23 (2) (d). There is not a shred of evidence before us that any attempt was made by Lydiate or his legal advisers to communicate with Rowles when they were preparing for trial, or during the trial, with a view to trying to take a statement from him and calling him as a witness. Mr Bate said it was hoped to call him. However, if that was the case and there was a serious desire to call Rowles if this were possible there must have been some attempt to communicate with him and we cannot think that counsel experienced in this field of the law, who must have been well aware of the requirement of section 23 (2) (d), would have failed to see to it that evidence was placed before us by way of affidavit of any such attempt, if attempt there had been.
80. It is interesting to note that Lydiate was convicted on the 26 July 2000 and that it was not until the 23rd February 2001 that Rowles made a statement to Lydiate's then solicitors. That was a brief one. Well over two years elapsed after that before he saw Lydiate's present solicitors and, a few weeks later, made a fuller statement. Rowles does not suggest in either statement that any approach was made to him before or at the time of the trial to see whether he was prepared to come forward as a witness. Whether or not he would have been afraid is beside the point. The fact is that no approach was made to discover what was the position.
81. We conclude from the deafening silence on the point that no approach was ever made and, on reflection, that Mr Bate's memory, over three years later, has played him false. We think the reason why no approach was ever made to Rowles was a tactical one which left Lydiate free to try to exculpate himself by throwing suspicion on him without fear of being contradicted by him and that he decided, following conviction, upon a change of tactics in relation to Rowles.
82. We declined to receive evidence from him, it being clear that there is not a shred of explanation for the fact that he was not called at trial.
83. In our judgment the grounds of appeal which we have considered lack any substance and are unarguable.

Sentence Application

84. Although this was an application for leave to appeal against sentence, we had a full skeleton argument from Mr Bate and his application was fully argued.
85. At the heart of the application for leave to appeal against sentence is the question: what was it that Lydiate had to be punished for? The inhuman cruelty meted out to the three victims was appalling. All of that was a consequence of the conspiracies in that, but for them, these things would not have happened. The brutality was in part to further the conspiracy to kidnap by reducing the victims into captivity, in part to further the conspiracy falsely to imprison by continuing that captivity and in a very substantial measure in furtherance of the conspiracy to murder by torturing the victims with the object of extracting from them information which would enable this particular conspiracy to be followed through to its intended conclusion: the death or deaths of one or more of those believed by Lydiate to be responsible for the attack upon him.
86. But Mr Bate submits that if Lydiate was to be held responsible for the brutality he should have been tried also and convicted on counts which reflected the violence and the manner of its infliction, including counts for firearms offences. Absent convictions on such counts it was wrong, he submits, to punish him for the violence and the manner of its imposition and the possession and use of firearms. When asked, what then should Lydiate have been punished for, his response was to repeat the same submission. It may be that failure to grasp this nettle helps to show where the answer to the question lies. The judge could not simply decline to impose any sentence because there had been no convictions upon substantive counts. So, we pose the question again: what he did Lydiate have to be sentenced for?
87. Mr Bate referred us to a number of authorities, one of which was Eubank [2002] 1 CAR 11, by which he sought to make good his point that it was wrong in law to punish Lydiate for the consequences which could and should have been made the subject of substantive counts on which he could have been tried. We point out, though, that one does not find in that case the answer to the question we have posed. The simple explanation is that the question we have to answer did not arise in Eubank.
88. The authorities in Eubank and its predecessors concerned offences in which, additionally, a firearm had been used.
89. A consideration of them begins with Faulkner (1972) 56 CAR 594. In that case the appellant had been convicted, among other offences, of having with him a firearm with intent to commit an indictable offence and of using it with intent to resist arrest. He was given consecutive sentences for these two offences and complained that as they formed part of one transaction they should have been made concurrent. His appeal was dismissed and it was said that where an offender carries a firearm with intent and pursues his criminal intention he can expect to receive a consecutive sentence for using it. The court stressed that, even so, the sentencer had to consider the totality of his sentence.
90. In French (1982) 4CAR (S) 57 the court had to consider consecutive sentences imposed for robbery and carrying a firearm. It considered two earlier decisions in which it had been said that the practice of adding a count for possession of a firearm to a count for robbery should not be followed. The judgment held that these two cases had been decided in ignorance of the decision of the court in Faulkner, which was binding on the court.
91. At page 62 the judgment reads:

"...it is necessary for the indictment to be kept as brief as possible and as uncomplicated as possible. Unless there is a very good reason for including in an indictment two counts, then one should suffice. But we think that there are often good reasons for adding a count under the Firearms Act. First of all it is arguable, and indeed it is often argued, that a defendant ought not to be sentenced in respect of an offence with which he has not been charged or convicted. Secondly, the fact that an offence has not been charged might in some circumstances be taken as a concession by the prosecution that the offence was not committed. Thirdly, there may be occasions where the possession of the offending weapon is disputed, or may be disputed, by the accused, and the sentencing judge would, if there were no firearm count in the indictment, be deprived of the jury's view on the matter.

Quite apart from the fact that we are bound by Faulkner, we think, with respect, that it was correctly decided and should in future be followed. The prosecution are entitled to use their discretion as to whether to include a count under the Firearms Act, and we do not regard it in general as bad practice to do so."

92. In Eubank [2002] 1CAR (S) 11, a robbery case in which a firearm had been used but in which there was no count in the indictment for the possession of one, following a plea of guilty the judge had held a Newton hearing and concluded the appellant had been armed with a gun. At page 14 the court said:

"If the Crown are going to invite the judge to come to the conclusion that the offence was committed with a firearm, then the appropriate course is to include a count on the indictment to make the position clear. The crown may decide in a particular case that in all the circumstances it is not in the public interest to proceed to trial on a particular count which is disputed by defendant. So be it; but at least the defendant's position should be protected by a count in the indictment."

And then this:

"We would refer to the previous decision of the court in French, which accurately sets out its position in the head note, reflecting the judgment of the then Lord Chief Justice."

93. The head note is to the same effect as the passage I have cited from the judgment. The head note reads:

"The prosecution were entitled to use their discretion whether to include a count under the Firearms Act, and it was not in general bad practice to do so. It was accordingly correct in principle to include two counts in the indictment, and correct in principle for the judge, if he thought it a proper course, to make the sentence for the firearms offence consecutive to the sentence for the robbery."

94. French did not say that the inclusion of an additional count for the firearm offence was required practice. In Flamson [2002] 2 CAR (S) 208 a mandatory sentence of life imprisonment had been imposed upon the appellant, who had pleaded guilty to section 18. The question was whether a previous conviction for robbery, not accompanied by a conviction for a firearms offence, amounted to a serious offence within section 2(5)(h) of the Crime (Sentences) Act 1997, namely, the robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of the Firearms Act. On the occasion of the plea of guilty to robbery there had been a further count charging the possession of a firearm and this had been allowed to lie on the file. The court investigated what had happened when the appellant had pleaded guilty and concluded that he had in fact admitted the firearms offence through his counsel. The judgment cites the passage quoted above from the judgment in French and considers what was said in Eubank about the need for a firearm count to be included in the indictment. It said:

"All that was said and only said in the context of the situation where there was an issue as to whether the appellant had a firearm with him. Here there was no such issue. The defence acknowledged the appellant's involvement in robbery in which a gun was to his knowledge being carried and likely to be used. That is quite a different matter."

The court therefore concluded that the appellant was guilty of the qualifying offence required by section 2(5)(h).

95. It seems to us that the effect of French and Flamson is that on a plea of guilty a firearms count is not required when the possession of the firearm is admitted. There is no suggestion that it has to be admitted formally as an offence taken into consideration. But Mr Bate submits that the Eubank principle applies when the defendant has been convicted by the jury and the indictment does not include counts to cover all the offences committed as the means of committing the offence of which the jury have convicted him? We have already said that we do not think this was the point in issue in Eubank. Nor is the point covered by the decision in Canavan [1998] 1 CAR 79. There is a clear distinction between committing the same offence a number of times on different occasions, which are not all included in the indictment and the commission of an offence which, on the facts of the particular case, could only have been committed by means of the commission of other offences. This is just such a case. It would make nonsense of the sentencing process if the court had to imagine what might have been the minimum violence required to kidnap, or to imprison, or to obtain the information required in the pursuance of the conspiracy to commit murder. The task would be artificial and impossible.
96. If it is to be said that other offences could be, and are therefore required to be, added to the indictment before, on conviction after a trial, the court can take them into account, where does one draw the line? Why should not there be counts for common assault or causing actual bodily harm? One may have the rape of a 15 year old girl in which a series of indecent assaults are committed all on the same occasion so that the offender can secure the initial acquiescence of his victim in order then to rape her. It is quite unnecessary to have several counts of indecent assault in the indictment in order to allow the sentencer, after a trial, to decide how the offender went about the commission of the offence of which he has been convicted, so as to be able to decide on the appropriate sentence. Again, it could not be suggested that if a convicted rapist exercised his will over his victim by putting a stupefying drug into her drink that fact must be ignored unless he has been convicted also of the offence of administering a noxious substance to her.
97. We conclude that as long as the other offences constitute the means chosen to work out the conspiracy or conspiracies the court is entitled, after a conviction, to take them into account in deciding what is the appropriate sentence, without there being any need to complicate the indictment by including counts for those other offences. In this case the trial judge was able to decide that Lydiate knew what kind of men he was recruiting to assist him in his legal purposes and what the consequences of his recruiting them were likely to be.
98. Our conclusions are a reflection of the fact that it has been the established and accepted practice for a very long time that on conviction following a trial the judge is always entitled to make his own assessment of culpability based on the evidence placed before the jury, provided always that his assessment is not at odds with that revealed by the jury's verdict. We are fortified in our conclusion by the words of Stuart-Smith, LJ in R v Nottingham Crown Court, ex parte DPP [1996] 1 CAR 283:

"In my judgment, it is a cardinal principle of sentencing that the court should take into account when considering the gravity of the offence and the appropriate sentence, the consequences to the victim. This is because one of the purposes of the criminal law is to assuage the feelings of the victims and their friends and relations. The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution.

Moreover, it is not necessary in all cases to add a count to the indictment to reflect such conduct provided that the court's sentencing powers are adequate to reflect the actual gravity of the offending. Thus in Roberts and Roberts (1982) 4 CAR (S) 18 , which was a rape case, it was said that aggravating features which justify a longer sentence are: use of a weapon to threaten or injure the victim; if serious injury is sustained by the victim; violence used over and above that which is necessary to commit the offence; intrusion into the victim's home or deprivation of liberty for a period of time."

99. The judge being entitled to take into account the way in which the conspiracies were acted out, the question for us is whether 22 years imprisonment was wrong in principle or manifestly excessive for the totality of Lydiate's offending. We say the totality because the sentences being concurrent, the 22 year sentence had to reflect that totality. This sentence was passed as a longer than commensurate sentence, pursuant to section 2 (2)(b) of the Criminal Justice Act 1991, though the judge took the view that 22 years might in fact be a commensurate sentence. In our view, judged as a commensurate sentence, 22 years was neither wrong in principle nor manifestly excessive. It is unnecessary, therefore, to consider whether a longer than commensurate sentence was appropriate. If we had concluded it was not, this could not have led to a reduction of sentence.
100. This would be sufficient to dispose of the sentence application, save for a disparity point and a Convention point which have been urged upon us. However, in deference to other submissions which Mr Bate made we will consider two of them before finally coming to these two points.
101. He argued that the conspiracy to murder was more serious than the other conspiracies and therefore it was wrong in principle to impose longer sentences for the two other conspiracies than the notional determinate sentence for the conspiracy to murder. In fact, the sentence for the conspiracy to murder could justifiably had been longer. In Ashton, Lyons and Webber, unreported, 6 Dec 2002, a sentence of 18 years imprisonment for a conspiracy to murder was upheld. Though that was a serious case, the present case is even more serious. However, this submission overlooks the fact that what we have to consider is whether a sentence of 22 years for the totality of Lydiate's offending was wrong in principle or manifestly excessive. We have concluded it was not.
102. Mr Bate also complained that the longer sentence for the conspiracies to kidnap and falsely imprison than the notional determinate sentence for the conspiracy to murder was wrong in principle because it deprives Lydiate of his entitlement to be considered for parole once he has served half that notional sentence. We are unable to see any error of principle here. One may often have concurrent sentences of differing lengths but each in excess of four years in which the effect of a longer sentence is to defer what would otherwise have been the date of eligibility for parole in respect of a shorter sentence.
103. The first of the two final points concerns disparity. Gregson initially stood in the dock with Lydiate but, for reasons which do not concern this application, the trial against him had to be abandoned and he was dealt with at a later date, when he pleaded guilty. The judge fixed the starting point at 20 years but gave a discount of four years, making a sentence of 16 years. Bearing in mind his very late plea and his very active role in the conspiracies it is argued that there is an unfair disparity between Gregson's sentence and that imposed on Lydiate. This is particularly so, Mr Bate argues, because the judge considered Gregson had gone further than was envisaged by the conspiracies in relation to some of the violence. Against this, it has to be remembered that Lydiate was convicted of a conspiracy whose object was to murder one or more people. Gregson did not have to be punished for this because he neither pleaded guilty to nor was convicted of this conspiracy. Nor was he the organiser of the conspiracies, though in the conspiracies to which he pleaded guilty he was plainly Lydiate's right hand man. Also, it has to be borne in mind that Lydiate knew the man whom he recruited and what sort of man he was.
104. Boyle received a sentence of 15 years imprisonment. It is said by Mr Bate that he was very actively involved in the violence and that there was therefore an unjust disparity between his and Lydiate's sentences. However, the judge who was well placed to determine the respective responsibilities of those he had to sentence, having presided over this long trial, concluded that Boyle was not the second in command.
105. In our judgment there is no substance in the complaint that there was an unfair disparity between the sentence imposed on Lydiate and those imposed on Gregson and Boyle.
106. The final point with which we have to deal concerns the delay there has been in bringing these applications to a hearing. It is argued that this amounts to a breach of Lydiate's rights under Article 6 (1) of the Convention on Human Rights to a hearing within a reasonable time. In AG's Reference No. 2 of 2001, unreported 2 July 2001 it was recognised that where there has been delay in bringing a case to trial a breach of this right may in some cases be compensated by an adjustment in sentence. In Mills v HM Advocate General for Scotland it was recognised that the right to compensation applied where the delay which breached Article 6 (1) was between conviction and appeal. The appeal in that case had failed and it was held that a modest reduction in sentence was sufficient compensation for the breach. (See the opinion of the Privy Council given on 22 July 2002.)
107. This was followed by this court in Ashton Lyons and Webber. In that case the appeal against conviction was without merit and the original sentence had been neither wrong in principle nor manifestly excessive. The court pointed out in paragraph 83 of its judgment that the case was regarded as exceptional and that it should not be thought that delay which was outside the control of the court will necessarily lead to a similar result. We should point out that the duty owed under Article 6 (1) to the subject is the duty of the state and there is no breach unless there has been delay for which the state bears culpable responsibility.
108. We have been provided with a chronology of these proceedings which we have studied. Throughout the period covered by the chronology Lydiate and his legal advisers were very busy but we cannot see there has been any delay, still less culpable delay, caused by the Court Service. Indeed, as far back as August 2002 a hearing was vacated following a request made on Lydiate's behalf. In these circumstances we see no basis for any argument that there has been a breach of his rights under the Article 6 (1).
109. The grounds of appeal against sentence put forward were not, in our view, arguable and so we have refused leave.