Case No: 200605944 C4 
Neutral Citation Number: [2007] EWCA Crim 1910
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date Thursday, 12th July 2007

B e f o r e:

LORD JUSTICE LATHAM 
(Vice President of the Court of Appeal Criminal Division)
MR JUSTICE PITCHFORD 
 
MR JUSTICE ROYCE 
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R E G I N A 

v 

DANNY KEVIN MAJOR
 
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MR S M D JACKSON QC appeared on behalf of the Appellant 
MR J B CROSLAND appeared on behalf of the Crown 
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J U D G M E N T 

1.	THE VICE PRESIDENT:  On 1st November 2006, at a re‑trial in the Crown Court at Bradford, this appellant was convicted of two offences: firstly of battery, that was a unanimous verdict of the jury; secondly, of assault occasioning actual bodily harm, that was by a majority.  He was sentenced to three months' imprisonment for the battery and 15 months' imprisonment concurrent on the assault occasioning actual bodily harm.  He appeals to this court against conviction with leave of the single judge in relation to one ground only.  Leave was refused in respect of three further grounds, but counsel on behalf of the appellant has sought to renew the application for leave to appeal on those grounds.
2.	The circumstances which gave rise to the offences with which the appellant was charged occurred in the early hours of the morning of 6th September 2003.  The victim was an 18 year old Sean Rimmington, who was a large, strong lad.  He was found asleep in the street immediately outside Millgarth police station in Leeds ‑‑ when we say "asleep", it might be more accurate to describe him as comatose.  It would appear as though he had been trying, before losing consciousness, to telephone for a taxi; and three police community support officers having found him, decided that something needed to be done with him.  He was in the first instance then taken, having become at least semi‑conscious, to the police station, where the police telephoned for a taxi.  No taxi had arrived by the time they left at the end of their duty, which was about 2.30 in the morning.  At that stage he did not seem to be aggressive and was certainly not being abusive.  
3.	However, while he was there, still in the lobby of the police station, the appellant entered and indicated to him that it was time that he went home.  Rimmington was still mumbling about getting a taxi, and it would appear as though the appellant had by then been informed that in fact a taxi had come but had left having seen Rimmington's condition.
4.	Whatever may have been the situation, it was apparent that Rimmington was not prepared to leave the police station of his own volition at that stage.  The appellant warned him that if he did not leave, he would be arrested.  He continued to refuse to leave; and so the appellant arrested him and tried to handcuff him.  That stimulated Rimmington into violent activity; and the result was a fracas between the appellant and Rimmington in which the appellant's clothing and uniform were damaged and the appellant received an injury to his face resulting in a bleeding lip.  With the assistance of other officers, Rimmington was eventually secured and was taken out to a police van, the intention being to take him to Bridewell.  In the course of getting him into the van, one of the police officers who was assisting, Police Constable Oldroyd, gave evidence that the appellant kicked Rimmington hard in the chest.  There was no medical evidence which supported that allegation, it formed one of the original charges which the appellant faced at the trial, but the jury acquitted him of that charge.
5.	Rimmington was then taken by the appellant and a Police Constable Liston, who was a probationer at that stage, to Bridewell.  The evidence of PC Liston was to the effect that when they got to Bridewell and took Rimmington out of the van, Rimmington fell to the ground, where the appellant hit him.  PC Liston said that by this time the appellant was extremely angry with Rimmington, it appeared to him by reason of the fact that Rimmington had caused so much of a problem at Millgarth.  The punches described by PC Liston at that stage were the basis of the charge of battery of which the appellant was convicted unanimously, as we have indicated.
6.	PC Liston and the appellant then marched Rimmington through the Bridewell, not stopping at the charge desk, and into a cell.  In the cell the appellant, according to PC Liston, spun Rimmington round in such a way that Rimmington and PC Liston fell to the ground.  Whilst Rimmington was on the ground, and as PC Liston was getting up, PC Liston saw the appellant punch Rimmington a series of punches in the face and immediately thereafter saw blood flowing from Rimmington's nose.  That was the basis of the charge of assault occasioning actual bodily harm.  PC Liston and the appellant then left the cell.  
7.	PC Liston described how he felt somewhat bemused as to what to do or say about what he had seen in the cell and made no immediate complaint or statement which implicated the appellant in any assault.  He said that was because he did not want to be thought of as a grass.  He, however, concluded that he needed to say something; and eventually he made contact with the officers in Millgarth.  As a result of what he said to them, he was asked to return to Millgarth, which he did; and there he had a conversation with a Sergeant Smith.  In the course of that conversation he said, amongst other things, that the appellant had struck Rimmington in the cell. 
8.	Meanwhile, Rimmington had been seen in his cell by one of those responsible for the custody suite and had been asked whether he was all right.  When we say "seen" in the cell, the witness described looking into the cell, it being apparent that Rimmington was there, and when asked whether he was all right, said that he was.  In fact, it would appear that she was not able to see Rimmington himself, certainly not fully.  
9.	It subsequently transpired that when he was seen later, it was clear that he had suffered a significant injury to his face.  He was taken to hospital and the description given of his injury was that he had a deviated septum and facial bruising.  As far as the deviated septum was concerned and the injury generally to the nose, the evidence was that that would have resulted in substantial bleeding, as had been described by PC Liston.
10.	That was the case for the prosecution.  
11.	The appellant's case was that there had indeed been the incident at Millgarth.  He accepted that he had been the officer who had been responsible for taking Rimmington from Millgarth to the Bridewell and had been responsible for placing him in the cell.  He denied that anything untoward had happened in the cell, other than the fact that Rimmington was causing problems whilst in the cell.  He denied ever having hit him as described by PC Liston, or at all.  He gave evidence that in the course of seeking to extricate himself from Rimmington, he had struck him, but it was not in the face and was simply to ensure his release from the hold of Rimmington.  When he left, Rimmington had no injury as was subsequently found to his face.  He maintained that account throughout the trials which took place thereafter.
12.	The proceedings had a prolonged history.  The first hearing was a lengthy hearing of an application for the proceedings to be stayed as an abuse of process.  Those proceedings took place before Her Honour Judge Sutcliffe.  They were based upon the assertion on behalf of the appellant that there were such substantial deficiencies in the way in which the case had been prepared for the prosecution that there was irreparable prejudice to him so that he could not have a fair trial.  
13.	The evidence which Her Honour Judge Sutcliffe heard was directed to establishing that the inspector, Inspector Green, who had been charged with investigating both the allegation of assault by Rimmington on the appellant and the allegation of an assault by the appellant on Rimmington, by dint of being given both these tasks, had an impossible task in ensuring that he investigated both complaints fairly.  He compounded his own difficulties by failing to appreciate his obligations so far as recording all relevant information was concerned, particularly conversations between him and either Rimmington or the appellant or witnesses, and in particular the forensic witnesses.  He failed to ensure that all relevant material was before the court, and in particular that there was not a full record from the closed circuit television cameras in the Bridewell.  
14.	That, in very general terms, describes the inquiry that took place before Her Honour Judge Sutcliffe, astonishingly, over a matter of weeks.  The judge, having heard the evidence, accepted that there had been deficiencies in the way in which the matter had been investigated, but made a clear finding that there had been no abuse of process by the police and there was no bad faith.  She concluded that a fair trial was possible and accordingly the matter was then listed for trial.  As we have indicated by the fact that the trial we are concerned with was a re‑trial, there was a first trial, followed then subsequently by the re‑trial.
15.	The first ground upon which the appellant sought leave to appeal was essentially that the argument as to abuse of process, which was renewed expressly at both the original trial and the re‑trial, was wrongly rejected by the trial judge.  That is a ground of appeal which was rejected by the single judge.  He said in his reasons that the onus of establishing an abuse was on the appellant, who had to prove on the balance of probabilities that the defendant would suffer serious prejudice to the extent that a fair trial could not take place, and that in coming to a conclusion about that, the judge was entitled to take into account that the trial process itself could provide a solution to any possible prejudice that there might be.  He concluded that, on the material before him, there was no evidence of the sort of prejudice which could remotely justify a court staying these proceedings for abuse of process.  We are seriously concerned about the waste of court time on what was a wholly misconceived application. 
16.	We entirely agree.  This case came nowhere near meeting the sort of criteria which one would expect the court to even start thinking about staying the proceedings as amounting to an abuse of process.  
17.	It is pointed out in support of the arguments on behalf of the appellant that the position in fact became even more acute during the course of the re‑trial because of certain further material which emerged which had not been made available either to Her Honour Judge Sutcliffe or at the beginning of either trial.  One was that it became apparent that there was in fact more CCTV coverage recorded than had been originally considered as available.  The inspector, Inspector Green, had been informed when he commenced the enquiries that there were only two video tapes available recording the CCTV cameras in the Bridewell.  In fact, there were four.  Why that information was not given to Inspector Green remains a puzzle; but the fact is that the information was made available at the trial, although clearly by then it was too late for there to be extant any of the relevant recordings.
18.	The clear embarrassment that that caused to the Crown is reflected in the way the matter was put to the jury in the summing‑up; and we have no doubt that Mr Jackson made the most of the prosecution's discomfiture.  But there is nothing to suggest that the lack of those recordings caused the appellant such prejudice as to justify the conclusion that a fair trial was no longer possible.  Indeed, the situation was that the information was simply not available for either side.  
19.	But there was yet further embarrassment to emerge during the course of the re‑trial.  That is, that whilst Inspector Green, and indeed others, had looked at the recordings which were available up until the time that Rimmington had left the Bridewell, nobody had appreciated that in fact there was a further hour on those tapes which had not been seen by either the prosecution or the defence, even though that material had been available.  The extra hour exposed yet a further problem for the prosecution.  That is, that there was clear evidence that the custody record relating to Rimmington's detention in his cell had been concocted by two of the officers in the custody suite.  That again was material which Mr Jackson properly exploited and is clearly dealt with in the summing‑up.  
20.	We do not understand how the exposure of that material can justify any argument that the trial should have been stopped as an abuse of process.  It was a very substantial benefit to the appellant that that material emerged when and in the way that it did.  So we see nothing in the argument that this was a trial which should not have proceeded before the jury.
21.	Consequent upon the arguments that the appellant put before the judges as to abuse of process, was, it is submitted, the obligation on the judge in his summing‑up to direct the jury fully and clearly of the potential prejudice which the deficiencies in the investigation might have caused to the appellant.  That is the ground upon which the single judge granted leave to appeal.  
22.	It is true to say that the judge did not specifically, in any discrete part of the summing‑up, direct the jury in relation to such prejudice.  What he did do was to set out fully and fairly all the criticisms that were made by Mr Jackson of the investigations and the failure of Inspector Green to record meetings, to record material evidence and, as we have already indicated, to note that the jury were not able to have the benefit of the two further CCTV videos which were extant and could have been available if Inspector Green had been informed of their existence at the relevant time.  
23.	To that extent, but to that extent only, the appellant's criticism is valid, that is that the judge did not expressly give any direction to the jury as to the potential prejudice that might have been suffered by the appellant.  That is perhaps not surprising, because there is nothing before us to suggest that the judge was alerted to the existence of any specific prejudice in relation to any individual item of complaint.  The jury were fully capable of drawing any sensible and necessary inferences from the deficiencies which the judge clearly identified, and it is to be noted that Mr Jackson did not at the end of the summing‑up seek to suggest to the judge that there was any specific prejudice which should have been identified in the summing‑up and put to the jury.  Mr Jackson candidly admits to us that he perhaps should have done.  We are not so clear that there was any fault on his part in not commenting at that stage because, having read the summing‑up as we have fully, we can see that unless he was able to identify specific prejudice, which he has not been able to, for him to have sought to suggest to the judge that there was a deficiency in the summing‑up could well have taken him nowhere.  The truth of the matter is that nobody felt at that stage that there was any need for the judge to have said any more than he did in order to ensure fairness to the appellant.  We do not consider that the fact that he did not give a specific direction in relation to prejudice or potential prejudice to the appellant in any way undermines the safety of the convictions in this case.
24.	There remain simply therefore two further grounds of appeal upon which the single judge refused leave to appeal but which are renewed before us.  The first is that the judge wrongly refused the submission of no case to answer in respect of count 3.  It is submitted that there was no, or no sufficient, evidence upon which the jury, properly directed, at the end of the prosecution case could have convicted this appellant.  
25.	We have found this submission somewhat surprising.  The evidence of the doctors was clear.  Rimmington had suffered a blow to the nose, as a result of which the septum was deviated which would have produced immediate bleeding ‑ that is the actual bodily harm the subject matter of the count.  PC Liston's evidence was to the effect that he saw the appellant strike Rimmington a number of times in the face, whereupon he bled.  It is difficult to see how a jury, properly directed, having accepted PC Liston's evidence, could have come to any other conclusion but that what PC Liston saw happen was what caused the damage to Rimmington.  The judge was quite right to conclude that there was a case to go before the jury.
26.	The final ground relates to the conversation which PC Liston had with Sergeant Smith.  It will be remembered that Sergeant Smith was the person to whom PC Liston first gave an account of what had happened had in the cell.  What PC Liston said to Sergeant Smith, according to Sergeant Smith, was certainly to some extent inconsistent with the evidence that he gave to the jury.  Sergeant Smith's recollection was that he described Rimmington as "kicking off" in the van, whereas his account to the jury was that there had been no such violence by Rimmington in the van.  What was absolutely clear, however, was that he was saying that the appellant had struck Rimmington a number of blows in the cells.  
27.	The complaint is that the judge refused to direct the jury as to the significance of this previous inconsistent statement of PC Liston.  The fact is the judge gave the jury a full direction, in the sense of all that was necessary in the circumstances, as to that statement by PC Liston, and drew the jury's attention to the inconsistency, which Mr Jackson had undoubtedly made plain in his speech.  At one point the judge said "but you will have to look at what he told Sergeant Smith and whether it agrees with Mr Major's version of events or indeed his own for that matter".  He summed‑up the evidence of Sergeant Smith in detail.  The jury can have been in no doubt but that the account given by PC Liston to Sergeant Smith was different in that significant respect from the account that he gave to the jury.  To suggest that in some way or another the judge was under an obligation to go further than he did seems to us to be fanciful.  If he had, it would simply have drawn attention to the part of the statement which was contrary to the appellant's case and would, it seems to us, have underlined the fact that right from the beginning, in effect, PC Liston's account was that the appellant had unhappily lost his temper on this occasion and assaulted Rimmington as the jury found.  We do not consider that that ground has any merit whatsoever.
28.	For the reasons that we have given, these convictions are in our view safe and the appeal is dismissed, as are the wholly unjustified renewed applications in relation to the grounds to which we have referred.   
(Submissions on application to appeal against sentence followed) 
29.	THE VICE PRESIDENT:  We now turn to the application for leave to appeal against sentence, which has been referred to the court by the Registrar.  We have considered with care the written material which has been put before us on the appellant's behalf.  We can readily understand why, despite the fact that he is now physically anyway released from prison, he should wish to pursue the application, but we do not consider that this sentence, namely 15 months, was manifestly excessive for what was quite substantial violence to a drunken man in his custody.  The application is therefore dismissed.