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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 >> Jones, R. v [2007] EWCA Crim 350 (14 February 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/350.html Cite as: [2007] EWCA Crim 350

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		14 February 2007

1. LORD JUSTICE HOOPER: This is an application for leave to appeal conviction. The principal ground of appeal relates to fresh evidence which it is said can be given by the applicant's co-defendant, who is his brother and who pleaded guilty to murder. The brother, Stewart Jones, has now made a statement giving an account as to why he did not give evidence and giving an account of the events of that night which we are prepared to assume, just for the purposes of this hearing today, might have assisted the applicant had Stewart given evidence. However, there is a great deal missing. The solicitors for the applicant have been unable to get hold of the file from the trial solicitors. There is no information at all from leading counsel or junior counsel about why Stewart did not give evidence. In order to assess and apply section 23 of the Act we need far more material than there is now. We need to have every proof of evidence that Stewart Jones has given, we need to have any psychiatric reports -- anything at all in which Stewart Jones has given an account of what happened that fateful night. We have already indicated to Mr Elias QC who appears for the applicant that we are concerned of the fact that Stewart was not simply required to attend as a witness under the applicable provisions -- Mr Elias accepts that he was a compellable witness. Nonetheless, at least at this stage we do not think that that is necessarily conclusive of the appeal, although it may be after further consideration that it becomes dispositive of the appeal.
2. For these reasons we adjourn the case, we will have the case listed for a whole day at the least and if counsel think it is more they must inform the Registrar. We will leave it now to Mr Thomas and to Mr Elias to work out a timetable so that we have an appeal in something like two months. The date of the appeal will be chosen so as to suit the professional commitments of course of busy counsel.
3. Do you think two months is enough to bring it up to the stage where we can do that which we want to do?
4. MR THOMAS: My Lord, we endeavour to work towards that, my Lord.
5. LORD JUSTICE HOOPER: Later on today we will start looking at an appeal date on which the three of us can be together, but we are going to look at a date in about two months plus, so just after Easter, something like that. Why do you not now do together a timetable, an agreed timetable, that leads us up to where the appeal would be ready for hearing, we would have had ample opportunity to look at the material by, shall we say, the end of that Easter vacation, or is that too quick?
6. MR THOMAS: Something like 15th April, I am sure we can work to that.
7. LORD JUSTICE HOOPER: That is your timetable. An appeal starting some time after 15th April, but by 15th April everything is ready. Could you do that together? You might have other ideas of what you want to see.
8. MR THOMAS: My Lord, if all these documents are to be disclosed I presume it includes for example in the chronology under 21st September the applicant's solicitor visits Stewart Jones and the only note that we have is he confirms his willingness to provide a proof and to attend court. Commonsense indicates there must have been some discussion and presumably Stewart Jones was saying helpful things, presumably in that context a note was made. We would be very grateful if all these matters could be pursued.
9. LORD JUSTICE HOOPER: We must have all contemporaneous notes. The burden is on you, Mr Elias, but we are going to be looking for everything - every last document that concerns this aspect of the case. Is that clear enough?
10. MR ELIAS: It is, my Lord.
11. MR JUSTICE STANLEY BURNTON: Do you want a summons?
12. MR ELIAS: I think we shall require one for the solicitor, for Mr Malekin to produce the documentation. Could I be clear with your Lordship, I was not going to apply today, I was going to give Mr Malekin, as it were, the last chance to say without a summons he would produce them, but if we will not there will be a summons applied for imminently.
13. MR JUSTICE STANLEY BURNTON: With a copy of the material to the prosecution?
14. MR ELIAS: Of course.
15. LORD JUSTICE HOOPER: There may not have been a psychiatric report. Was there one?
16. MR ELIAS: We understand there was one.
17. MR THOMAS: We have been provided.
18. LORD JUSTICE HOOPER: It may be that has already been done. You have not seen that yet. You can provide that and to us.
19. MR THOMAS: So be it.
20. LORD JUSTICE HOOPER: What does it say, essentially?
21. MR ELIAS: Essentially that his memory is coming back in dribs and drabs.
22. LORD JUSTICE HOOPER: There we are. This case is reserved to the same constitution.
23. MR THOMAS: It does not contain detail about the pre-sentence report.
24. MR JUSTICE STANLEY BURNTON: Was there a pre-sentence report?
25. MR THOMAS: Yes. There is a pre-sentence report and we have it. ]
26. LORD JUSTICE HOOPER: That should be disclosed and we need it.
27. MR THOMAS: We wrote to the court and asked for it and they provided it to us.
28. LORD JUSTICE HOOPER: You will make sure Mr Elias has that too. We do not want you pulling rabbits out of a hat, either. All right. Thank you very much.