Neutral Citation Number: [2011] EWCA Crim 893
Case No: 201000122 B4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
Mr RECORDER SAMPSON
T20087118
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/04/2011
Before :

LORD JUSTICE RIX
MR JUSTICE RODERICK EVANS
and
HIS HONOUR JUDGE GORDON
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Between :

	REGINA	Respondent	
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	DEENEY	Appellant	

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Mr M Hurst (instructed by Tracey Barlow Furniss & Co) for the Appellant
Miss E Harrison (instructed by Lincolnshire CPS) for the Respondent

Hearing dates : Monday 28 March 2011
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Judgment

Lord Justice Rix : 
1.	The difficulties which befell the trial at which John Deeney was convicted before Mr Recorder Sampson and a jury in the Crown Court at Lincoln on 11 December 2009 of two counts of wounding with intent to cause grievous bodily harm, and which have led to this appeal, arose out of the twin circumstances that the complainant on one of those two counts, one John Stephenson, was unwilling to give evidence at trial and the defendant, having dispensed with the services of a series of representatives, was defending himself. The essential question is whether those difficulties should have led to the aborting of the trial and whether the convictions are unsafe. The appellant was sentenced to imprisonment for public protection with a minimum term of eight years.   

The facts

2.	On 21 June 2008, at about 9.40 pm or thereabouts, in the space of a few minutes, two men were knifed at the White Horse public house in Gainsborough. Both had been stabbed in the abdomen with a single thrust of a knife. The seriousness of the deep penetrating wounds was not immediately obvious. The two men were John Stephenson (the complainant on count 1) and his son-in-law William Jarrold (the complainant on count 2). Mr Stephenson refused to give evidence. Mr Jarrold did give evidence. The appellant, who was conducting his own defence, did not give evidence himself. He accepted that he was at the pub that evening, but briefly, and denied that he was responsible for the stabbings.  

3.	Mr Jarrold’s evidence was that he was standing in the doorway of the front entrance to the pub when his assailant came from within the pub, stabbed him without saying anything and walked off. He described the stabber as tall, shaven head, wearing a white shirt with stripes going down it, and jeans. He formally identified the appellant at an identification procedure on 4 July 2008. However, the appellant was not wearing a stripy shirt, as could be seen on CCTV stills. He was wearing a light-weight jacket. Otherwise, however, the description could be said to fit the appellant, a tall man, with a shaven head, in his fifties. Mr Jarrold’s evidence was also questioned on the ground that he had consumed 23 pints of lager in the period up to his stabbing, as well as an ecstasy tablet. 

4.	There were other difficulties with Mr Jarrold’s evidence. He said that one of the men he was speaking to in the pub entrance was Jim Turner: but the CCTV showed that Mr Turner, who had driven the appellant to the pub, had stayed in his car. The appellant cross-examined Mr Jarrold to this effect, and Mr Jarrold accepted that in this respect his recollection was at fault. He also accepted that at the hospital to which he had been taken he had told the staff that he had been stabbed by a stranger. He told the police that he did not know who had done it, because he did not want trouble, but his wife (Mr Stephenson’s daughter) had told him that he had to say who did it. 

5.	After the stabbing, Mr Jarrold said that Mr Stephenson came out of the pub and said “I’ve been stabbed”, to which he responded “I have, too.”

6.	There was no other evidence about this stabbing, other than that of Sharon Store (see below). 

7.	The CCTV footage was presented to the court by DC Mockson, who had also prepared two chronologies by reference to it. The two chronologies covered the appellant’s two visits to the pub that evening. The first visit ran from 8.39 to 9.16 pm. The appellant could be seen outside talking to Mr Stephenson and Robert Scott (a friend of Mr Stephenson) for about ten minutes. He arrived and left in a taxi. The second visit started at 9.36 pm, when he arrived back in a blue Fiat with others, and entered the pub. He came back out two minutes later, then went inside again, then left, departing in the blue Fiat. By 9.42 pm, after the Fiat had gone, Mr Jarrold had come out and could be seen talking to Nigel O’Brien (who had come with the appellant in the blue Fiat but remained behind). Shortly thereafter, they are joined by Mr Stephenson. It is not clear from the judge’s summing up whether the CCTV shows Mr Jarrold together with the appellant at a time when the stabbing might have taken place. We cannot find a CCTV still in our papers which shows them together.

8.	The evidence about the stabbing of Mr Stephenson came, in the absence of Mr Stephenson, in the form of circumstantial evidence from Laura Bee, a teacher who had a part-time job at the pub. She spoke of a man who was agitated and asked for the loan of a mobile telephone to speak to his son. That was the appellant, for in the course of cross-examining Ms Bee, he accepted that he had borrowed a phone to speak to his son. Moreover, his son’s number was stored on Ms Bee’s phone. 

9.	Ms Bee described the two complainants as being in a group of travellers, and said that there had been a slight verbal confrontation between the appellant and some of the travellers. However, she had said in her witness statement that she had not seen the appellant (“male 4” in her statement) doing anything, and she accepted this when it was put to her in cross-examination.

10.	She said that the appellant had come into the pub and asked where the old man was. She feared trouble and followed him to the toilets, which he entered. She waited outside. She said that her colleague, Joanna Steadwood, was behind her, as was Nigel O’Brien. Then, the appellant came out and said, “You haven’t seen anything”, and put something in the waist of his trousers. He and Nigel O’Brien walked off. She went to the door of the men’s toilet when Mr Stephenson (“the old gent from the group of travellers”) came out. He was the only person in the toilet. He said “I’ve been stabbed”. She saw blood. She phoned for an ambulance and the police. She said that another man had been stabbed near the pub’s doorway, but she did not speak to Mr Jarrold. Ms Bee also identified the appellant at an identification procedure on 4 July 2008 as the man she said went into the toilet and came out of it just before she found that Mr Stephenson had been stabbed.  

11.	Joanna Steadwood’s evidence differed somewhat from Ms Bee’s. She heard Ms Bee shout for her and she went to the door which leads from the pub to the toilets, the kitchen and the beer garden. We should explain that on the other side of that door is a corridor. From that corridor there are further doors to the toilets, and also to the kitchen and the garden. Ms Steadwood’s evidence was that she always remained on the pub side of the door which led to that corridor. As she went towards that door, the appellant and Mr O’Brien came through it, from the corridor and into the pub. Ms Bee followed them, saying “Ring the ambulance”. She did not see anyone else in the area. She only became aware of one stabbing, but she did not see it. The judge pointed out to the jury the difference between Ms Bee’s and Ms Steadwood’s evidence. On this appeal the point is made, as it probably was at trial, that if Ms Bee was with Ms Steadwood on the pub side of the door which led to the corridor, then Mr Stephenson’s assailant could have come from and gone to the garden. The effect of Ms Bee’s evidence, on the other hand, was that the stabbing had occurred in the men’s toilet, that she was just outside it, and that only the appellant and Mr Stephenson were within it when Mr Stephenson was stabbed. 

12.	The only other evidence which we think it necessary to mention was that of Sharon Store, a customer at the pub that evening. She referred to a tall guy with bald hair, who is perhaps to be identified with the appellant, entering the pub with Mr O’Brien (whom she knew) and a third, smaller, man. The tall bald headed man was aggressive, pointing his finger. She thought there was going to be trouble and wanted to go. She also referred to a “bit of a scuffle at the door” and said that the tall man made an arm movement towards a man with a striped shirt, who can be identified as Mr Jarrold. He showed her a wound. She also said that the tall bald man told Ms Bee “You haven’t seen me”. However, she made no identification, positive or negative, and did not attend an identification procedure. 

13.	Since the appellant did not give evidence, the jury were left with his police interviews. In them he admitted presence, but denied complicity. He said that on his second visit he had been looking for Eugene (it seems that that is a reference to Eugene O’Brien, Nigel’s brother, but whether the jury knew that, we are not sure). He went into the pub, looked into the garden, and left. He said that he had never met the two complainants before. He might have seen them on his first visit, he might even have exchanged words with them, but he did not know them. 

Mr Stephenson’s witness statement

14.	At the root of this appeal are the circumstances relating to Mr Stephenson’s witness statement. The jury never heard from Mr Stephenson because he was unwilling to give evidence, for either the prosecution or the defence. The appellant was therefore unable to cross-examine him, or to call him, which he said he wished to do. However, the prosecution were willing to have his witness statement read, but the appellant was unwilling to permit that to be done. His position, as will become clearer below, was that if he could neither cross-examine nor call Mr Stephenson, then he was unwilling to have his statement read, unwilling to give evidence himself, and unwilling to call any witnesses for the defence. In the circumstances, his defence was drastically curtailed. 

15.	Thus the jury did not know what Mr Stephenson had said to the police in his two statements. The first is dated 24 June 2008. He said that he was visiting his daughter and son-in-law in Gainsborough. He had had some twelve pints of lager in various pubs by the time of the events with which the trial was concerned. He described how he had visited the toilet in the White Horse and after exiting from it found himself in the corridor area which we have mentioned above. There he was approached by an unknown man who jabbed at him, and he felt a stinging sensation at the bottom of his stomach. He did not recognise him, and had never seen him before. The man said nothing and “proceeded to turn around and leave in the direction that he came from”. It was over in a couple of seconds: “I did not get a close look at him and feel unsure as to whether I would recognise him again if I saw him”. He described him as “white, about 5’10” tall, medium or thick set, aged in his late thirties”. He added that it did not occur to him that he had been stabbed until he had seen Mr Jarrold in the pub with blood on him, who told him: “He’s got you as well.” He then realised that he had been stabbed also. He said: “I still do not know the identity of my attacker to this day…I would like to press charges…I will support the police and any subsequent prosecution and will go to court if required.”

16.	On 14 July 2008 Mr Stephenson attended an identification procedure but “failed to pick this defendant out as his attacker”, as the judge told the jury twice in his summing up. It would appear that this much was agreed between the prosecution and the appellant as an admission to go before the jury. 

17.	Mr Stephenson subsequently made a second witness statement, dated 6 September 2008. It was principally a victim personal statement, but it also appears that on that day he was shown the CCTV stills depicting the outside of the White Horse (where Mr Jarrold was stabbed). He knew by then that the appellant had been charged. The stills showed Mr Stephenson, Mr Jarrold, Robert Stott and the appellant talking together “for quite some time”. This must refer to the appellant’s first visit to the pub. Mr Stephenson stated that, despite the CCTV stills, he did not remember talking to the appellant, but went on: “I am absolutely sure that this is the man who stabbed me in the pub toilet”. At this appeal, the prosecution relies on this as an identification, as well as an assertion that the stabbing took place in the toilet as distinct from the corridor. 

18.	It will be obvious that Mr Stephenson’s first statement, had it been before the jury, would have assisted the defence considerably. He there made clear that his assailant was a stranger whom he had never seen before and would be unlikely to recognise again. This was despite the fact that CCTV stills could show that he had been in the company of the appellant earlier in the evening for some ten minutes. He described his assailant as “medium or thick set” which was not an accurate description of the tall, relatively slim appellant. He described his assailant as in his “late thirties”, while the appellant was in his fifties. He said, inconsistently with Ms Bee’s evidence, that he had been stabbed in the corridor and not in the toilet. He said nothing about Ms Bee being in that corridor. Had she been there, outside the toilet door, she would have seen the stabbing. If he had been stabbed in the corridor, the assailant could have come from and returned to the garden, without otherwise being seen. If he had been stabbed in the corridor, then Ms Steadwood’s evidence would have been promoted above that of Ms Bee’s. It is true that in his second statement he purported to recognise the appellant, who had by then been pointed out to him by the police as John Deeney, the man who had been charged, and also is recorded as referring to his stabbing taking place in the toilet: but it is not hard to see the problems with such evidence.

The rulings at trial

19.	The trial was originally due to take place in June 2009. On 16 June 2009 the matter was before HH Judge Machin. On that day the appellant was represented by Mr Veitch, (who was possibly standing in for Mr Dee), who explained to the judge that, although the appellant had no complaint or problem with his representation, he simply preferred to conduct his defence himself. In those circumstances, the judge had a discretion to allow or to refuse such an application for self-representation. The judge ruled as follows:    

“…I have come to the conclusion that Mr Deeney, by not being represented, may put himself at a very severe disadvantage. I am here to see justice done for the moment. The interests of justice, in my judgment, require that representation continues, it will continue and the matter may simply have to be reviewed on the day of trial.”

20.	On 23 June 2009 the matter was back before Judge Machin for trial. Mr Dee was representing the appellant. It appeared that Mr Stephenson was refusing to attend trial as a witness. The judge said:

“My present view…and I don’t say this so much by way of ruling as by way of comment – my present view is that there is force in what you say, Mr Dee, and it seems to me to be quite clear this is an absolutely no holds barred defence...And that it seems to me that there’s a serious possibility that the proper ventilation of his defence may be inhibited if Mr Stephenson does not give evidence…And so since it is the case – and I’m entirely persuaded of this proposition – that Stephenson can be got here…he should be got here, because it seems to me…there must be serious anxieties as to whether or not the prosecution in these circumstances to proceed without Mr Stephenson, at least by tendering him, might not amount to an abuse of process. I don’t say would but might…I’m quite clear that the trial will have to be delayed in its commencement and that Mr Stephenson must – and I repeat must – be got here. I have issued a warrant and it’s time it was executed…”

The trial was therefore adjourned. 

21.	On 7 December 2009 the adjourned trial commenced before Mr Recorder Sampson. The appellant was by now representing himself. The appellant applied to the judge to confirm that count 2 (on which Mr Jarrold was the complainant) could not proceed in circumstances where count 1 could not proceed. The appellant submitted that Judge Machin had already ruled that count 1 could not proceed (in the absence of Mr Stephenson). The judge was prepared to assume that Judge Machin had made such a ruling, but he said:

“I am the trial judge, Mr Deeney, and my ruling is that Mr Jarrold is able to give evidence ahead of Mr Stephenson and that will happen.”

22.	Later that same day, the judge considered the position of Mr Stephenson, who had been brought unwillingly to a cell in the court precincts. The judge dealt with the matter as a potential contempt of court, and Mr Stephenson was represented by Mr Underwood. Mr Underwood told the judge that Mr Stephenson “will not give evidence and he does not wish to be brought into your Honour’s court”. By that time he had been sentenced to a five year term of imprisonment for an unspecified offence. His only explanation was a concern that an attack on him with an implement in the prison showers was somehow connected with this case, and that he was “in fear”. We are told that on 23 June 2009 before Judge Machin no very clear explanation of his unwillingness to give evidence was vouchsafed, and that the prosecution was not in a position to say that his unwillingness was truly owing to fear. However, none of that is at all clear to us on this appeal. At any rate, the judge told Mr Underwood that if Mr Stephenson did not give evidence he was likely to receive a sentence for contempt of court consecutive to the sentence he was then serving. Mr Underwood confirmed that Mr Stephenson understood that. 

23.	The judge then needed to prepare for Mr Stephenson to be brought into court to face the consequences of a potential finding of contempt. We are told that the judge was advised by security that Mr Stephenson and the appellant could not be confined in the same dock. The judge observed that “because of the practicalities of the situation”, the appellant would have to go down to the cells whilst he dealt with Mr Stephenson for contempt. The appellant then left the court. That is now a ground of appeal. 

24.	The judge then conducted summary proceedings for Mr Stephenson’s contempt of court, found him to be in contempt, but adjourned sentence. He directed that Mr Stephenson be brought back to court on each day of the trial, in order that he should have a chance to purge his contempt.

25.	On 10 December 2009, with the appellant back in court, there was a further discussion about what Judge Machin had said on 23 June about proceeding with count 1 in the absence of Mr Stephenson. It will be recalled that on 7 December the appellant had submitted that Judge Machin had ruled that count 1 could not go ahead without the presence of Mr Stephenson to give evidence. Ms Harrison, who was appearing for the Crown, said that she had been checking the court log, from which it appeared that there had been a discussion on 23 June on that subject. As of 10 December, however, there was no transcript available, as there is now, of what was said on 23 June. It appears that Ms Harrison was concerned that she might have conceded on that date that it would be an abuse of process for the Crown to have proceeded with count 1 in the absence of Mr Stephenson, or even that the Crwon was willing to go ahead on count 2 to the exclusion of count 1. She therefore wished to make it clear to the judge that, if she had made such a concession then, it would be inconsistent for her to seek to pursue count 1 without Mr Stephenson available to give evidence. In such a case, she said, “it would have to be conceded that the jury would have to be directed on count 1 to enter a not guilty verdict”. The judge said that he would revisit the matter after hearing the next section of evidence.

26.	That did not really advance matters beyond the discussion of 7 December, for it still remained uncertain whether any such concession had been made on 23 June. 

27.	The next thing that happened was that, also on 10 December, at the conclusion of the prosecution case, the appellant made a submission that there was no case to answer; and/or that the prosecution had promised not to proceed with count 1 if Mr Stephenson did not attend court to give evidence. Although in his ruling the judge dealt with that latter application second, it logically comes first. The judge continued to leave that issue open. He said:

“I have looked at the court log and I have seen nothing to suggest that the Crown made that promise. Miss Harrison is uncertain of the exact phrase that may or may not have been used on 23 June which may or may not have given rise to Mr Deeney gaining that impression. Whether or not Mr Deeney has an abuse argument I cannot determine at this point without more. Whether or not he Crown are in a position to concede his point or dispute it at this point, I am not certain…”

Therefore, the argument of abuse of process continued to hang fire at that time. 

28.	As for the submission of no case to answer, the judge said that he had not found it easy, but on balance he rejected it. He referred to the fact that the appellant was representing himself and said that he was acutely conscious of that fact. He referred to the fact that Mr Stephenson had been brought to court on 7 December and again on 8 December, as a prosecution witness, but had refused to give evidence. 

29.	The judge then reviewed the witness statements of Mr Stephenson and said this:

“The prosecution had anticipated calling him, and the evidence relating to the count concerning him was opened to the jury but only to a limited extent. None of the following matters were in fact opened: that Mr John Stephenson had stated in his first statement that he did not recognise his attacker (despite the fact that he had, on any view, spent some ten minutes in the company of Mr Deeney shortly before the incident). It was not opened that he described his attacker as “medium or thick set”. The defendant is a tall and relatively slim man. However, in a later statement, John Stephenson picked the defendant out from still photographs of CCTV footage which had been shown to him by the police. He picked him out as his attacker. That, again, was not opened to the jury, nor was the evidence that, later, John Stephenson failed to pick the defendant out at a formal identification procedure.”

Pausing there, we comment that (a) the judge did not observe that in his first statement Mr Stephenson had said that the stabbing had taken place in the corridor, not in the toilet; (b) the judge was wrong to say that Mr Stephenson had failed to pick out the appellant after he had identified him from the CCTV stills, since that failure had happened before Mr Stephenson made his second statement; and (c) the judge appeared to consider that Mr Stephenson had “picked out” the appellant from the CCTV stills, which is not how we would have read the second statement.

30.	The judge then considered the evidence of Ms Bee. He then reverted to the subject of Mr Stephenson and said:

“The prosecution have expressly sought not to read Mr John Stephenson’s statement under the hearsay provisions or because he may be a witness in fear. Mr Deeney argues that he has been deprived of the opportunity of cross-examining Mr Stephenson. I have invited Mr Deeney, in effect, to agree the evidence of Mr Stephenson and allow it to be read because, in my judgment, those parts which the jury have not heard in fact help him and his case more than hinder it. However, he does not wish the evidence to be read as part of his own case or, indeed, the prosecution case. As I understand it, Miss Harrison, who prosecutes, would, if Mr Deeney so requested, have agreed to the evidence being read. As I say, the irony is that John Stephenson’s evidence, in fact, on one view, is more supportive of Mr Deeney’s case than not but he has chosen not to elicit that evidence.”

The judge then stated, briefly, that so far as count 1 was concerned, he was satisfied that there was evidence on which a jury, properly directed, could convict “and accordingly, in my judgment, that count should be left to the jury despite the absence of Mr Stephenson.”

31.	The judge then considered the evidence of Mr Jarrold on count 2 and concluded that, similarly, although there were jury points to be made on the reliability of Mr Jarrold’s evidence, there was evidence fit to go the jury on that count. 

32.	There is no doubt in our judgment that there was evidence fit to go to the jury for their determination and that on that basis, whether in terms of Ms Bee’s evidence on count 1, or Mr Jarrold’s evidence on count 2, the application of no case to answer was properly refused. However, inherent in the matters debated by the judge was the separate question of whether the prosecution case on count 1 could properly be advanced in the absence of Mr Stephenson. That was an issue of abuse of process rather than of no case to answer. The argument on abuse was advanced on the basis that the Crown had undertaken, and/or Judge Machin had ruled, on an earlier occasion that count 1 could not fairly be proceeded with in the absence of Mr Stephenson. The judge had still not determined that submission. However, there was, at any rate inchoately, an inherent argument before the judge that, whatever the position before Judge Machin, it would have been unfair for the Crown to proceed without Mr Stephenson available to give evidence and to be cross-examined. As to that argument, the judge did not know of the limited, but still strong, terms in which Judge Machin had expressed himself on 23 June, but in any event it appears to have been the judge’s view, as far as we can tell, that there was ultimately no unfairness in circumstances where Mr Stephenson’s evidence could be read into the trial by agreement. If the appellant did not agree to that, that was a matter entirely for him.   

33.	Having rejected the appellant’s submission of no case to answer, the judge next called on the appellant to advance his defence. He therefore asked the appellant whether he wished to give evidence himself or to call any witnesses. The appellant stated that he did not wish to give evidence himself, but wished to call Mr Stephenson, and that, although he had other witnesses to call, he was unwilling to call any other witnesses before he had had a chance to cross-examine Mr Stephenson. It turned out that Mr Stephenson was not then in the precincts of the court, for the judge had by now cancelled his ruling that Mr Stephenson be brought each day to court. The judge said:

“Arrangements will be made for John Stephenson to come to court, Mr Deeney…He is coming tomorrow, that is for certain, because I have requested his attendance here tomorrow. If he refuses to give evidence or, for some other reason, he does not give evidence, then you will have to call the rest of your case.” 

The appellant replied:

“If he doesn’t give evidence, then justice hasn’t been seen to be done.”

34.	The judge then caused enquiries to be made at Mr Stephenson’s prison, and received the answer that he was unwilling to give evidence for either the prosecution or the defence. On reassembling the court, the following took place:

“Judge: Mr Deeney, you have asked in front of the jury that John Stephenson be called as a defence witness and you are entitled to do that. There is, in the lawyers’ vernacular, no property in a witness. You know that he is in prison and you have told the jury this and, therefore, that he is not here and you knew that when you called him. You have refused or declined to call any defence witnesses until Mr Stephenson has given evidence. You know that he is a man who refused to give evidence on Monday and Tuesday of this week and whom I intend to sentence tomorrow for contempt of court. However, I treat your request seriously and I have had contact made with the prison where Mr Stephenson is and he has been asked if he is willing to give evidence for the defence in this case and his answer is no, he is unwilling to give evidence for the defence. He is unwilling to give evidence either for defence or prosecution. 

There is nothing more I can do to assist you except ask you, if you wish, that his statements be read and I ask you that now.

Mr Deeney: No. I am entitled to cross-examine any witness whatsoever that has given evidence against me in this trial… 

	Judge: You don’t wish to have the statements read?

	Mr Deeney: No, I don’t. I wish the witness present.

Judge: Mr Deeney, if you have any other evidence that you wish to call, you must call it now.

Mr Deeney: No.

Judge: You don’t wish to call any –

Mr Deeney: I want to hear from [Mr Stephenson] before I call the rest of my evidence…I need to hear from John Stephenson before I can call any further witnesses.

Judge: Mr Deeney, I will ask you again: if you have any other evidence you wish to call, you must call it now. Now is your opportunity. There will be no further opportunity for you to call evidence in this case.

Mr Deeney: I cannot call evidence in this case just now because I need to hear from the horse’s mouth, as you put it yourself. I need to hear from John Stephenson before I can call any of my witnesses.

Judge: Very well. Thank you. Sit down.”

35.	That discussion took place in the absence of the jury. There is a suggestion in the judge’s comments that the appellant had taken advantage of the situation in telling the jury that Mr Stephenson was in prison and in calling him when he knew that he was not available. Be that as it may, the judge had made clear to the appellant, as he had done during the no case to answer submission and ruling, that he could have Mr Stephenson’s statements read; and that now was the time for him to call any other witnesses whom he wished to call.

36.	The jury were then brought into court, and the judge addressed them and the appellant in the following terms:

“Ladies and gentlemen, Mr Deeney called John Stephenson as his first witness. Mr Deeney is aware of the fact that John Stephenson is currently in prison, and he mentioned that, and to avoid speculation, ladies and genetlemen, I confirm that is the case. He is not in this building and Mr Deeney is aware of that.

You should know, ladies and gentlemen, that he refused to give evidence for the prosecution on Monday and Tuesday of this week and I have found that he is in contempt of court for not giving that evidence and, accordingly, I will punish him in due course. 

There is no property in a witness and Mr Deeney is entitled to call him if he wishes to. I have had enquiries made of the prison where Mr Stephenson is and he has refused to give evidence on behalf of the defendant as well. He remains in contempt of court. I cannot make him talk, ladies and gentlemen, and so there it is: he refuses to give evidence, and you have heard that, Mr Deeney has heard that, and so, Mr Deeney, if there are any additional witnesses that you wish to call, now is your opportunity to call them and you will not get another opportunity. Do you have any further witnesses to call?...”

37.	The appellant then began arguing with the judge, who, nevertheless, persisted with his question, and finally elicited this response from the appellant:

“I’ve got plenty of witnesses to call. I’m not calling them before I hear John Stephenson’s evidence.”

38.	And there it rested. In the circumstances, the appellant chose: not to give evidence himself; not to have Mr Stephenson’s witness statements read; and not to call any other witness in his defence. He could not say that the judge had not made the position entirely clear to him. 

39.	Finally, we need to refer to a further discussion which took place on 11 December 2009, shortly before the judge began his summing up, but in the absence of the jury. What had happened, since the judge’s incomplete ruling on the previous day with respect to the appellant’s abuse of process application based on Judge Machin’s alleged ruling of 23 June, was that Ms Harrison and the appellant had been able to listen to the tape from the hearing of 23 June. Ms Harrison explained that the Crown had applied to go ahead with count 2 when it became clear that Mr Stephenson could not be got to court that week, effectively if not expressly applying to sever the indictment, so as not to lose the trial date for all purposes: but no representation was made not to proceed with count 1. In any event, Judge Machin had not been willing to proceed in that way, but preferred to adjourn the trial. Ms Harrison continued:

“Secondly, His Honour Judge Machin expressly does not make a ruling. He says: “This is less by way of ruling, more by way of comment – my view is that this case needs to be adjourned in line with the Defence application for Mr Stephenson to attend. If he can be got here, he should be got here.” He then goes on to say that…there would be potentially a risk of an abuse of process if Mr Stephenson was not at least tendered by the prosecution. Well, in my submission, your Honour, the Crown have fulfilled that role by offering to allow Mr Deeney to read his statement as part of the case, which would have allowed him to make the points which were made on that occasion that would have helped his case from Mr Stephenson’s evidence.

So, your Honour, that is my view of what was said on that occasion and the Crown do not consider themselves bound by a representation that the Crown would not go ahead on Count 1.”   

40.	The judge then asked Mr Deeney for his submissions, which remained to the effect that the Crown had been willing to go ahead without count 1, but that had been successfully opposed. The judge was then, finally, in a position to reach his ruling on this matter contentious matter which had dragged on for several days. He said:

“I simply say this: I am satisfied that the prosecution did not, on 23rd June 2009, promise to Mr Deeney not to proceed on count 1 at any future trial in the absence of John Stephenson.”

We now have available a transcript (or at any rate a partial transcript) of the tape recording to which Ms Harrison and the appellant had listened at trial. That transcript confirms that no concession was made and no definitive ruling was made by Judge Machin on that day. As Judge Machin observed, he was speaking by way of comment rather than by way of ruling. The furthest he went, was that it did seem to him that if Mr Stephenson could not be available for trial, then it “might” be an abuse of process for the prosecution to continue. Therefore, Mr Stephenson “must” be got to court.

The grounds of appeal

41.	Leave to appeal has been granted limited to ground one of the appellant’s notice of appeal. This ground is that the convictions are unsafe because (a) the judge permitted the prosecution to lead the evidence of Ms Bee, which is said to have been materially misleading in the absence of Mr Stephenson’s evidence; (b) the judge questioned Mr Stephenson as to his refusal to give evidence in the absence of the appellant; and (c) the judge relied on a hearsay message from the prison to the effect that he was unwilling to give evidence for either the prosecution or the defence. 

42.	In addition, application for leave to appeal is renewed in respect of an application to call fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. That evidence concerns witness statements provided to the appellant’s solicitor in June 2010 from three witnesses who had provided statements for trial and had been available to the appellant to call at trial, but whom the appellant had chosen not to call. We do not have their original statements. The three witnesses are (1) Shaun Deeney, the appellant’s son; (2) James Turner and (3) Liam Folan. All three statements are essentially concerned with count 2, rather than count 1. 

43.	Shaun Deeney said that the appellant’s (second) visit to the White Horse, to which he was driven by James Turner in his car, was to find Mr O’Brien’s brother, Eugene. It is not said why Eugene O’Brien was needed. Shaun Deeney went in the car with the appellant, Mr Turner, Mr Nigel O’Brien and a fourth man. When the appellant (and Nigel O’Brien went inside) Shaun Deeney stayed outside. He said he spoke with Mr Jarrold, who could be identified as such in the CCTV stills (he was wearing a distinctive blue, white and black striped top). He said that his father came out of the pub followed by Nigel O’Brien and that nothing occurred between him and Mr Jarrold. He identified a CCTV still of 9.39.19 pm showing the appellant walking back to the car. He identified another CCTV still of 9.42.06 pm showing Mr Jarrold walking towards Nigel O’Brien (in a white top). By that time the blue Fiat has gone. He also said that some weeks later Nigel O’Brien was at his house when he received a call on his mobile. It was Mr Jarrold, and Mr O’Brien put his phone onto speaker. Mr Jarrold said: “Why did you stab me?” Nigel said: “If you think it was me that stabbed you, why are you blaming John Deeney?” Mr Jarrold said: “Because he smirked at me when he left the pub.” 

44.	James Turner in his statement said that he gave a lift to the appellant that night, together with his son and Nigel O’Brien, in his Fiat 500. They were looking for Eugene O’Brien, he assumed for a night out. When they arrived at the White Horse, he stayed by or in his car. He referred to a CCTV still of 9.37.09 pm showing his passengers in the process of getting out. He referred to another still of 21.39.19 pm showing the appellant walking back to the car. The appellant asked to be taken home, having failed to find Eugene. He said that the appellant’s demeanour was normal. Nigel and Shaun Deeney remained behind, and could be seen on a still of 21.39.33 pm (by which time the Fiat has gone). 

45.	Liam Folan is a friend of Shaun Deeney. On the evening of 21 June he was visiting Shaun. He left at about 9 pm to cycle to town. When he got to the White Horse he saw Mr Turner’s blue Fiat there. Mr Turner was in the driver’s seat and Shaun was standing outside with Nigel O’Brien, talking to Mr Jarrold. He saw the appellant walk into the pub and emerge again a couple of minutes later, saying he was going home. Nothing unusual happened. He too referred to the CCTV stills, such as that of 9.39.19 showing the appellant walking back to the car. The still at 9.39.33 shows Mr Folan on his bike, apart from Nigel O’Brien and Shaun Deeney who are still there (the Fiat has gone). He then heard words spoken in anger and saw Mr Jarrold holding his hand across his middle. But he did not see anything happen. We observe that on the still of 9.42.06 pm which shows Mr Jarrold and Mr O’Brien walking towards one another, Mr Folan’s bike is no longer visible.

46.	Finally, there is also a renewed application for leave to appeal on grounds of the appellant’s own composition. They are essentially a rerun of the applications made by the appellant at his trial. To some limited extent they are embraced in the grounds above which counsel put forward. However, they also extend more widely, for instance in submitting that the judge erred in permitting the trial to continue in the absence of Mr Stephenson, contrary to the alleged earlier ruling of Judge Machin, and also in refusing the submission of no case to answer. In making these submissions the appellant relies on the inconsistencies between the (first) witness statement of Mr Stephenson and Ms Bee’s evidence. He also appears to assert that the judge erred in permitting the statement of Mr Stephenson to be read to the jury, and also in preventing the appellant from any opportunity to cross-examine them. Of course, the appellant did cross-examine Ms Bee. Mr Stephenson’s statement was not read (and it nonsense to say that it was), but that was because the appellant declined the opportunity of having it read. All that is clear from our recitation of the circumstances of the trial above. In sum, however, the appellant’s complaint is that he did not receive a fair trial. He could not defend himself because he could not cross-examine a statement.

Discussion

47.	The appeal for which leave has been given is on an extremely narrow basis. It does not raise an argument of abuse of process. Nevertheless, what seems to be submitted on behalf of the appellant by his new counsel, Mr Martin Hurst, is an argument which amounts to a complaint of abuse of process. He submits that the refusal of Mr Stephenson to give evidence, compounded by what is said to be the appellant’s apparent misunderstanding of the trial process, and his near obsessive demand to be given the opportunity of cross-examining Mr Stephenson, without which he seems to have been unable to bring himself to conduct his own defence, has rendered the trial unfair and/or the convictions unsafe. Mr Hurst also relies on the concession made by Ms Harrison on behalf of the Crown, that there came a point during the trial when the prosecution realised that in any event it could not have called Mr Stephenson as a witness of truth and so at best could have tendered him for cross-examination, had he been willing to attend the trial. Mr Hurst also relied in his appeal on the instinctive reaction of Judge Machin, which was that a fair trial might not be capable of taking place without the presence of Mr Stephenson and that the prosecution might therefore have to be stayed for abuse.

48.	We have considered this submission carefully, but we do not find it to be made out. Judge Machin was rightly concerned, at the stage at which he was dealing with matters, that the absence of Mr Stephenson might prejudice the fairness of the trial. Therefore, he was prepared to stress, as he said, that Mr Stephenson must be arrested and brought to court. He was not then, however, dealing with the alternative possibility that, in the absence of Mr Stephenson, his witness statements could be read. Although it is possible that the presence of Mr Stephenson, and his availability for cross-examination by the appellant, might have assisted the defence to an extent even greater than having his statements read, that must be doubtful. If the appellant had agreed to have Mr Stephenson’s statements read, then he would have had all the advantages of the inconsistencies within them, as well as the fact that the jury would have known that the complainant on count 1 was of bad character, and in prison, and unwilling to come to court, without any explanation for his unwillingness: and there could have been no explanations for the apparent inconsistencies, as might have emerged from cross-examination. Moreoever, the appellant would also have had the advantage of being able to cross-examine Ms Bee in the light of what Mr Stephenson had to say in his first witness statement about the stabbing taking place in the corridor and not in the toilet. To cross-examine Ms Bee on that basis would have required the statement to have been read to the jury before she was called, which on the chronology of the trial as it emerged might not have been achieved. However, Ms Bee could, we assume, have been recalled for further cross-examination if necessary. 

49.	If then we ask ourselves why Mr Stephenson’s statements were not read to the jury, it is plain from the material set out above that the fault was entirely that of the appellant. The judge made it plain to the appellant, as the appellant was of course aware, hence his attitude at trial, that at any rate the first witness statement was of assistance to the defence, and that the appellant could have the statement read to the jury. However, the appellant was adamant that he did not wish it read. He wanted something that he knew that he could not achieve, which was Mr Stephenson present in court for cross-examination. It is not clear why, as a fall-back alternative, he was not willing to have the statements read, but it may be that he considered that if he stuck to his guns he could make the trial impossible and in that way escape the peril of a jury’s verdict. 

50.	Mr Hurst submitted in this connection that the appellant had become obsessive and irrational, and was disadvantaged by being unrepresented. That he was unrepresented was of course true, but a matter entirely of his own doing. He had dismissed three firms of solicitors prior to trial. Nevertheless, the appellant was clearly competent and aware of the structure of the arguments relevant to his defence, able to cross-examine the prosecution witnesses effectively, and possessed of the intelligence and sufficient consciousness of the processes of trial to make a series of applications to the judge which presented every argument for his defence which could have been made. If in such a situation the argument is to be made to this court on appeal that the appellant was nevertheless the victim of his own obsessive irrationality or ignorance, so as simply to be unable rationally to consider his own best interests, then in our judgment such a case cannot simply be made as a matter of submission and inference, it would have to be supported by evidence of the appellant himself: who would have to explain to this court what he misunderstood and why, and be ready to face cross-examination as to his explanations.

51.	However, we lack any such explanations. In such circumstances, we are certainly unwilling to make any such inference as Mr Hurst invites us to make. We do not consider that the appellant was unaware that he could have Mr Stephenson’s statement read. We do not accept that he genuinely thought that it had been read, although it is true that the grounds of appeal of his own composition suggest that he believed it had (as well as suggesting that Ms Bee’s evidence had been read so that she could not be cross-examined). It is entirely plain to us that the appellant knew that he was being offered the reading of Mr Stephenson’s statements, but he declined to have them read. As it is, he did agree with the prosecution that the jury should know that Mr Stephenson had failed to pick him out at an identification procedure, and the judge reminded the jury of that on two occasions in his summing-up. In our judgment, the inevitable inference which we draw, both from all that was said and done at trial and from the appellant’s self-composed grounds, and from the absence of any evidence from the appellant himself at this appeal, is that the appellant well understood the trial process but considered that he could manipulate it to his advantage when he understood that Mr Stephenson would be unwilling to attend trial.  

52.	In our judgment, therefore, the appellant had a fair trial. There was no abuse of process in continuing with the trial in the absence of Mr Stephenson. Judge Machin had never ruled that there would be, albeit the appellant kept on submitting, wrongly, to the trial judge that he had. The transcript of 23 June 2009 shows that there was never any such ruling, and there was never any undertaking from the Crown not to proceed with count 1 in the absence of Mr Stephenson. There is not in truth any ground of appeal for which leave has been granted which has abuse of process as its foundation. There is at most a narrow ground that it was unfair to permit the Crown to lead Ms Bee’s evidence in the absence of Mr Stephenson’s inconsistent statement. However, that statement could, if the appellant had permitted it, have been before the court. There could have been nothing unfair in Ms Bee giving her honest recollection, and if the appellant eschewed the ammunition for a more effective cross-examination, he has no one to blame but himself. 

53.	As for the second and third elements of the ground of appeal for which leave has been given, we consider that there is nothing in them. The judge was entitled to conduct contempt of court proceedings against Mr Stephenson in the absence of the appellant; although he would not have done so if the security of the court could have been organised in any other way. In any event, we see no basis on which it could be said that the trial was unfair, or that the convictions were unsafe, on this account. Nor do we think that the judge was not entitled to proceed on the basis of the information provided to him by Mr Stephenson’s prison as to his unwillingness to attend trial, whether as a witness for the Crown or for the defence. The judge had already seen and heard from Mr Stephenson  a few days earlier, when Mr Stephenson had made perfectly clear to the judge that nothing would lead him to give evidence, and certainly not a fear of an extra prison sentence for contempt of court (“If you’re gonna give us summat else, give us it”). There is nothing whatsoever before us to suggest that the judge was misinformed or misunderstood the situation. In such circumstances, this element of the ground of appeal leads nowhere.

54.	Even so, we have nevertheless carefully considered whether there is anything in the material before us, whether it comes from the permitted ground of appeal, or from the new evidence before us, or from the grounds of appeal of the appellant’s own composition, which causes us to consider the appellant’s convictions to be unsafe.

55.	In our judgment, there is nothing. The jury knew that Mr Stephenson had not identified the appellant at the identification procedure. The jury did not know of Mr Stephenson’s description of his assailant, or that he had been stabbed in the corridor. That was to the appellant’s disadvantage. However, the jury knew that Mr Stephenson was unwilling to assist the court. They knew that it was Ms Steadwood’s view that what had happened had happened on the other side of the door from the corridor into the pub. She as well as Ms Bee saw the appellant come through that door. The evidence of Ms Bee, that the appellant had said “You haven’t seen anything” and had put something into the waist of his trousers, is significant evidence. The fact that two men, a father and a son-in-law, had been stabbed in similar circumstances in the course of a few minutes links the two counts. Mr Jarrold identified the appellant as his assailant. It is true that the jury did not hear all the evidence that they might have heard, but that may often be true of many trials, and it is not the fault of the Crown or the judge that the jury was deprived of Mr Stephenson’s statements. It is the fault of the appellant, and that fault was not due to any misunderstanding. 

56.	In this connection, we bear in mind the three new witness statements. However, that evidence (or something like it, we have not been given the witnesses’ original trial statements) was available at trial, but the appellant chose not to call it. It related essentially to count 2, the attack on Mr Jarrold, although it extended to providing a reason for the appellant’s second visit to the pub. It cannot be necessary or expedient in the interests of justice to permit an appellant to call evidence on appeal which he had available to him at trial, but deliberately chose not to call (see section 23 of the Criminal Appeal Act 1968). In any event, the three witnesses can say nothing about what went on within the pub (count 1). All that they can say about what went on outside the pub (count 2) is to give a commentary on the CCTV stills which were available at trial. Those stills show that from the time of the appellant’s arrival (on his second visit) in Mr Turner’s car until the time of his departure measured about two minutes, from approximately 9.37 to 9.39 pm. The appellant arrived with others, but departed by himself (driven away by Mr Turner), leaving others, such as his son, Shaun, and Mr O’Brien behind. The stills do not assist with the moment of the attack on Mr Jarrold: and although the still at 9.42.06 pm shows Mr Jarrold and Mr O’Brien approaching one another, the prosecution case at trial was that Mr Jarrold (and Mr Stephenson) had been stabbed by then. Of course, if he had not been, the appellant could not have been his assailant, for he departed by then in the Fiat. However, all that was already before the jury, and the witness statements do not assist.

Conclusion

57.	For all these reasons, we would dismiss this appeal, and refuse the renewed applications before us.