Neutral Citation Number: [2012] EWCA Crim 2154
Case No:  201204276 D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 27 September 2012
 
B e f o r e:

LORD JUSTICE PITCHFORD

MR JUSTICE KING 

MR JUSTICE BLAIR
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R E G I N A 

v 

PAUL ANDREW MATTHEWS 

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Mr N Hamilton appeared on behalf of the Appellant

Mr A Kershaw appeared on behalf of the Crown 
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J U D G M E N T  

1.	LORD JUSTICE PITCHFORD:  Blair J will give the judgment of the court. 
2.	MR JUSTICE BLAIR:  This is an appeal against conviction and sentence brought by Paul Matthews (aged 42) by leave of the single judge.  On 2 July 2012 at Bradford Crown Court, the appellant was convicted of two counts of acting in breach of a restraining order.  He was sentenced by the trial judge, HHJ Potter, to 12 months' imprisonment concurrent.  
3.	The background is as follows.  The appellant and the complainant were in a relationship which ended acrimoniously.  A restraining order was imposed on the appellant by Calderdale Magistrates' Court on 26 January 2011 lasting for two years.  The appellant acted in breach of that order.  
4.	On 24 May 2011 he pleaded guilty to six counts of harassment in breach of the order and received a sentence of 17 weeks' imprisonment concurrent.  
5.	On 11 October 2011 he pleaded guilty to another offence of harassment in breach of the order and was committed to the Crown Court for sentence, receiving a sentence of 5 months' imprisonment on 11 October 2011.  The charges which are subject to this appeal arose as follows.  The appellant was alleged to have breached the order again by making a series of telephone calls to the complainant on the afternoon of 30 December 2011, which was the subject of count 1, and then again in the early hours of the morning on 1 January 2012, which was count 2.  
6.	The matter came on for trial at Bradford Crown Court on 27 June 2012.  There were no call records produced, and the issue for the jury was going to be whether the complainant or the appellant was telling the truth.  The prosecution opened the case, and the court adjourned at the end of the day.  The following morning defence counsel applied to discharge the jury on the basis that, after court on the day before, there had been contact between the appellant and one of the jurors at Halifax Railway Station.  It was alleged that the appellant and the juror were known to each other, which was something that the appellant had raised when the jury were being sworn, but denied by the person concerned.  The appellant said that the juror had made an offensive gesture towards him.  
7.	The application to discharge the jury was made on the basis that there was a risk that the juror, having been asked the previous day whether he recognised the appellant and saying that he did not, was in breach of the judge's direction, and may have spoken to others and the jury members about knowing the appellant.  Prosecution counsel said that if one juror was to be discharged, then as the trial was at an early stage it might be prudent to start again with a new jury.  If a single juror was to be discharged, it was suggested that the judge might make some enquiry to ensure that there was no animosity between the juror and the appellant that could have spread to the other jurors.  
8.	In fact, the juror had already reported contact to the court.  Having heard submissions, the judge gave his ruling.  He said that, as he understood it from the juror concerned, although there had been contact, it was nothing more than each person recognising the other and then going their separate ways.  As regards the defendant's suggestion that an offensive gesture had been made towards him, the judge said that he did not think it appropriate to make further enquiry with the juror concerned because he feared that doing so would create difficulties within the jury as a whole, which might lead to unfairness towards the defendant.  He considered that a fair trial was still possible in the circumstances by discharging the juror concerned and continuing with 11 jurors.  
9.	The trial, he had been told, would conclude quickly.  He felt that this would allay the Crown's concerns that the complainant was worried about giving evidence.  He said that he was going to ask the 11 jurors to come in to court, and would explain to them that there had been a difficulty with one of their number and say no more than that.  
10.	The judge's refusal to discharge the jury is the first ground of appeal.
11.	The trial then continued.  The complainant gave evidence that the appellant had telephoned her on 30 December 2011.  There were, she said, a number of calls, on the last of which she hung up.  There were no further calls that day, she said.  She then telephoned the police.  
12.	She gave evidence that at 5am on 1 January 2012 the appellant telephoned again.  She said that he sounded angry.  There were a number of calls which she said started at 5.25am and went on until 5.35am.  During examination‑in‑chief the complainant made a number of references to the applicant having previously been in prison.  The defence applied again to discharge the jury on the basis that the appellant was thereby prejudiced.  
13.	The judge refused this application as well.  He ruled that whilst the applicant's bad character had been referred to in the complainant's evidence, the jury were well aware that he had matters recorded against him.  He said that the proposed cross‑examination of the complainant, as mentioned to him, led to the anticipation that the defence were going to raise matters and were likely to elicit previous proceedings.  He said he would give a direction to the jury that allowed them to place that evidence into the appropriate context.  Any unfairness to the defendant by inadvertent reference to his character could, the judge said, properly be dealt with by way of direction to the jury.  That ruling is the second ground on which the appellant appeals. 
14.	We need not refer to the rest of the complainant's evidence in detail.  In cross‑examination she accepted that she had allowed the appellant to say at her house for a period of time, but maintained that the relationship had broken down again in September 2011.  
15.	The jury were then provided with agreed facts.  These confirmed the earlier pleas of guilty to the offences of breaching the restraining order that we have mentioned, but did not mention the terms of imprisonment that had been imposed.  
16.	In his evidence the defendant denied having made any telephone calls to the complainant at all.  The breakup of the relationship had hurt him, he said, but he had been trying to avoid conflict and move on.  
17.	The judge was unable to sit the following day and summed up on Monday, 2 July 2012.  After deliberating for about an hour, the jury returned with guilty verdicts on both counts.  
18.	On the first ground of appeal the parties' respective submissions have been as follows.  For the appellant, it is submitted that the juror had, on the appellant's account of things, behaved in a way that demonstrated hostility.  He may have imparted his knowledge of hostility towards the appellant to other members of jury, and the risk of contamination cannot safely be excluded.  On that basis, it is submitted, the jury should have been discharged.  
19.	The Crown submits that there was no evidence that the juror knew the applicant.  As to the encounter, even if what the appellant claimed was correct, the discharge of the juror the following day before any evidence was called rectified the position.  In the absence of complaint, it should not be assumed that the jury as a whole was influenced adversely to the appellant, and the conviction, it is submitted, was not unsafe on that ground.
20.	On the second ground, which Mr Hamilton, counsel for the appellant, described in his oral submissions as being the more significant, the appellant submits that the only real issue in the case was credibility, since there was no supporting evidence by way of court records.  The complainant, it is said, made references to the appellant going to prison several times, and the jury could not have failed to have absorbed the evidence as part of the prosecution case.  Counsel felt that he had to deal with the matter in his closing speech, thus placing an unfair burden on the defence.  In the circumstances, it is submitted that any reference to the defendant's incarceration was wholly prejudicial, and could not adequately be cured by a direction.  The obvious conclusion that the jury could have come to was that the appellant had previously committed serious offences against the complainant and was not a man to be believed.  
21.	Reliance is placed on R v Doherty [1999] 1 Cr App R 274.  The conviction was unsafe, it was submitted, and should alternatively be quashed on this ground.  
22.	The Crown submitted that references to the appellant having served a sentence of imprisonment were made by the complainant not more than three times in her examination‑in‑chief.  It had been common ground that some evidence of the appellant's previous behaviour was admissible, both by agreement and as important explanatory evidence.  The complainant's references did not go beyond the circumstances of her relationship with the appellant.  In particular, the jury was not made aware of his extensive criminal record, which included violence against her.  Further, when giving his own evidence, the appellant chose to open up his previous relationship with the complainant, for example telling the court how the letters he sent from prison were from his heart and not intended to cause any harm.  The judge exercised his discretion correctly, it is submitted, and the convictions were safe.
23.	Our conclusions on these submissions are as follows.  We can deal with the first point relatively briefly, because in his oral argument, Mr Hamilton accepted that his only complaint was that in declining to discharge the jury the judge appeared to take into account the fact that it was a short trial, that he was not sitting the following day, and that the complainant might be reluctant to come back to testify.  His argument, he accepted, was that the right result was reached by the wrong route.  
24.	We do not think that there is any force in these submissions.  The judge's reasoning was plainly based on the premise that fairness would be achieved by discharging the juror, not the whole jury.  The trial had only just started.  The juror had himself reported the incident.  The appellant's allegation as to the hostile gesture was unsubstantiated.  The judge, it is true, could have enquired of the juror whether he had made an offensive gesture when he and the defendant had inadvertently met.  The judge did raise that possibility with counsel for the defendant.  Counsel suggested, however, that that was not done (on the premise that the judge was not prepared to discharge the whole jury).  
25.	In our view, the judge was best placed to reach a conclusion on this issue.  He dealt with the matter by discharging the juror concerned without enquiry and making no other comment to the remaining 11 jurors when they returned to court.  The trial then moved to the evidence without the juror concerned.  We are satisfied that in these circumstances there was no risk of contamination, and the judge was entitled to take the course he did, and that the conviction was not unsafe on this ground.  
26.	As regards the second ground, it is accepted that when the complainant mentioned in her evidence that the appellant had been in prison, she was not talking in general terms.  She was relating it to the convictions which were already in evidence, or would be, namely those of the earlier breaches of the restraining orders. 
27.	It was held in R v Lawson [2007] 1 Cr App R 20 that the test in circumstances in which prejudicial information is inadvertently placed before the jury is whether to continue with the trial would or could result in an unsafe conviction by reason of the admission of the unfairly prejudicial material.  The court made clear that every case depends on its facts, and the judgment of Auld LJ sets out a number of factors that are relevant.  These include: the issues at trial; the impact of the improperly admitted material; the manner and circumstances of its admission; whether and to what extent it is potentially unfairly prejudicial; and the extent to which it is remediable by judicial direction.  This is no different, in our view, from the test as set forth in the earlier case of Doherty.   
28.	As was stated more recently in this court in R v Kennedy [2012] EWCA Crim 1078: 
"Questions of whether a jury should be discharged in such circumstances are a matter of evaluation by the trial judge, on the particular facts and circumstances arising in the particular case."
29.	Mr Hamilton submitted that it was very prejudicial for the jury to have this further information (that is as to the prison terms imposed), given that the appellant had pleaded guilty.  This would suggest, he submitted, very serious breaches on the part of the appellant.  
30.	It is important to note that in his summing‑up the judge gave a very clear direction to the jury.  He made it clear that the central issue was whether they were sure that the appellant had made the calls as alleged.  The evidence that the applicant had previously been sent to prison was, he directed the jury, to be ignored.  He directed the jury that this had to play no part whatsoever in their determination of the verdicts in the case.  
31.	Applying the authorities, we consider that the judge was best placed to assess the significance of the evidence given by the complainant as to the appellant having been in prison and whether it was unfairly prejudicial in the circumstances.  He took the view that it was not, and that any damage could be remedied by the direction he gave.  We do not think that this evaluation was one with which we should interfere.  
32.	We are satisfied for all these reasons that the conviction is not unsafe on this ground either.  
33.	That leaves the question of sentence.  At the outset we should mention that we have received both material from the appellant on his housing situation and also submissions by Mr Hamilton on his behalf.  We have taken these submissions into account.  However, the appellant has had 167 offences recorded against him within 57 different sets of convictions.  This is clearly a very bad record.  He has offences over the years for ignoring court orders.  Of most relevance to the present case is the fact that he has been convicted of breaching the present restraining order on seven occasions, for which he has appeared twice before the magistrates, receiving, as we have explained, custodial sentences in respect of both matters.  
34.	Mr Hamilton submits that the guidelines applicable in the case mean the sentence could only be passed for the breach concerned in the charges alone.  That may be so, but in this case the court was entitled to take into account that there had been convictions for breach of the same order.  
35.	It is submitted that the judge erred in treating the case as being in the top bracket.  There was, it is submitted, no evidence of psychological harm.  The judge, it is submitted, went wrong in stating that the complainant had been caused significant psychological harm by these offences.  
36.	However, he had seen the complainant testify in the trial.  He had, we consider, material sufficient to reach the conclusion he did.  We add that the judge also said that the complainant was petrified of the appellant.  It is clear, in our opinion, that there can be no legitimate complaint as to a sentence of 12 months' imprisonment concurrent on each count.  
37.	It follows for these reasons that the appeal as to sentence must be dismissed also.