Neutral Citation Number: [2013] EWCA Crim 2412
Case No. 2012/02311/C2, 2012/02437/C2 & 2012/02438/C2
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date: Friday  29  November  2013
B e f o r e:
LADY  JUSTICE  SHARP  DBE
MR  JUSTICE  GRIFFITH  WILLIAMS

and

THE  RECORDER  OF  NEWCASTLE
(His Honour Judge Goss QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)

__________________

R E G I N A

- v -

ROBIN  MINCHIN
JAMIE  JOE  HEALEY
RONALD  DWYER
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__________________

Mr A Cameron QC and Miss R Morrell
appeared on behalf of the Appellants Minchin and Healey
Mr T Moloney QC appeared on behalf of the Applicant Dwyer

Mr C Ward-Jackson appeared on behalf of the Crown
____________________

J U D G M E N T (Approved)

LADY JUSTICE SHARP:  
1.  On 16 March 2012, at the Crown Court at Snaresbrook, the two appellants, Robin Minchin, and Jamie Healey, and the applicant Ronald Dwyer were convicted after a trial of the following charges: Minchin, conspiracy to pervert the course of justice (count 3); Healey, causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 (count 2), and conspiracy to pervert the course of justice (count 3); and Dwyer, attempted murder (count 1).  Healey was acquitted of attempted murder (count 1).  Minchin appeals against his conviction on count 3, as does Healey on grounds limited to those relating to his conviction on count 3, save to the extent that the safety of his conviction on that count is said to affect the safety of his conviction on count 2.  Healey renews his application for leave to appeal against sentence.  Dwyer renews his application for leave to appeal against his conviction of attempted murder on count 1.

2.  Minchin was sentenced to three years' imprisonment on count 3.  Healey was sentenced to twelve years' imprisonment on count 2 and to a consecutive term of two and a half years' imprisonment on count 3 (so fourteen and a half years in all).  Dwyer was sentenced to 22 years' imprisonment for the attempted murder.  

3.  Two co-accused, Paul Kimpton and Susan Small, were each convicted on count 3 (conspiracy to pervert the course of justice). Kimpton was sentenced to 18 months' imprisonment; Small to 12 months' imprisonment suspended for 24 months, with a requirement to carry out unpaid work for 150 hours.  

4.  The factual background which gave rise to the prosecution in this case is complex.  Because the appeal is limited essentially to the issues which arise on the conspiracy charge, subject to Dwyer's renewed application, it is not necessary to refer, except in summary form, to the facts which formed the basis of the attempted murder charge.  

5.  The prosecution case was this.  On 11 June 2010, between 2.50pm and 3.10pm, two men, Dwyer and Healey, broke into the home of Luke Demetriou.  Luke Demetriou was 17 years old and disabled, having been born without a right hand and foot.  It was mid-afternoon, and he was asleep in bed.  He heard a bang on his front door which he did not answer.  He looked out and saw a man said to be Healey.  He returned to bed.  A short time later he heard footsteps on the stairs and a masked man (alleged to be Dwyer) and a "short man" (alleged to be Healey) came running into the bedroom.  Luke Demetriou was then subjected to a violent and brutal assault with an axe.  Dwyer wielded the axe while Healey held him down.  Blows were delivered to his neck with the axe.  Threats were made that his head would be cut off.  Luke Demetriou sustained serious injuries, including to his only hand.  When the attack concluded the two men ran away laughing. 

6.  The motive for the attack was said to derive from a long history of feuding between the Dwyer and the Demetriou families.  This stemmed from a claim that Mark Demetriou had informed on Terry Dwyer because of jealousy between them in respect of Clare King (Luke Demetriou's mother).  Clare King had had a relationship with Terry Dwyer (Ronald Dwyer's father) between 2004 and 2009.  The bad feeling between Terry Dwyer and Mark Demetriou (Luke's father) led to threats to kill, initially by Terry Dwyer to Mark Demetriou, but later, one direct threat by Ronald Dwyer to Luke.  Healey's involvement was said to be motiveless, apart from assisting Ronald Dwyer, his long-term friend. 

7.  The conspiracy charge related to an allegedly false alibi put forward on behalf of Healey during the attempted murder investigation. 

8.  Healey voluntarily attended for a police interview on 11 October 2010 with his solicitor, Mr Langi, of Gurney Clark and Ryan, Solicitors (“GCR”).  He was arrested in connection with the attack on Luke Demetriou and interviewed.  He denied involvement in the offences. During the interview he said that he could not remember what he was doing on 11 June 2010, but he worked full-time for his father, Robin Minchin, and that he expected there would be records of where he was working on that day, which was a Friday. 

9.  Following the interview, Mr Langi told the police that details of the alibi would be provided by Minchin.  The police contacted Minchin by telephone on 15 October 2010 and asked to look at his work records.  Minchin said that he was not prepared to meet the officers.  He said that he had removed all his work records from the office so that they could not be the subject of a search warrant.  In November 2010 police went to Minchin's office when he was not there.  They spoke to him on the telephone.  He said that he had now established the alibi for Healey.  Healey had been working for his company on 11 June.  He refused to provide written details of alibi but said that he would talk to Mr Langi and provide the details of alibi to him. 

10.  On 9 December 2010 Mr Langi telephoned the police.  He spoke to a Detective Constable Paul and gave him details of the alibi.  This was that at the material time, Healey was working with a mate, Paul Kimpton, providing an estimate for a conservatory for a customer, Susan Small, who lived in Hemel Hempstead.

11.  On 10 January 2011 police spoke to Mrs Small at her home.  She provided a statement which set out the details of the alibi.  She said that she had seen a van advertising double glazing driving in the Woodford area and had made a note of the number on the side of the van because she was thinking of having a conservatory added to her house.  She said that she rang the company a few days before 11 June 2010 and recorded the details of the appointment, together with the names of the men who were to attend (Paul and Jamie) on her 2010 calendar.  She said that on 11 June two men whom she had never met before had turned up at her house.  She gave descriptions of the men which broadly corresponded to the appearance of Paul Kimpton and Jamie Healey.  She said that the men had been at her house for between half and three- quarters of an hour.  She exhibited her 2010 calendar and stated that she had not, after the visit by the two men and before the police contacted her, had any contact with Paul, Jamie, or anyone associated with their company.

12.  Paul Kimpton was seen by police on 25 January 2011.  He said that he had been at Mrs Small's with Jamie Healey, but refused to provide a statement confirming this. 

13.  On 22 March 2011 Mrs Small confirmed the alibi that she had given to the police.  She said that no one had contacted her or asked her to provide a statement to the police before the officer in the case had contacted her on 8 January 2011.

14.  On 23 March 2011 Mrs Small rang the police and said that she wanted to retract her statement.  On the same day it was discovered that Mrs Small's sister was Kimpton's partner.  Kimpton and Small were arrested on 5 April 2011.  In interview, they made no comment. 

15.  A number of documents were seized from Small's home, including a note admitted to have been written by Kimpton which the prosecution was to describe as "instructions for the alibi" and a diary containing records of police visits.  The note said:

		"We visited you on the 11th June for a quote for a conservatory.  We came again today 3/11/10 Wednesday and said do you remember us only we have to make ourselves accountable for the 11th June.  So you may get a visit from the police to confirm that you saw us on 11th June between 1-1.30pm and on 3/11 in the morning."

16.  On 28 April 2011 Minchin was arrested.  In interview he made no comment. 

17.  In June 2011 the Crown Prosecution Service applied for a production order pursuant to section 8 of the Police and Criminal Evidence Act 1984 (PACE 1984) for the file of GCR.  The application was granted.  Police attended their premises.  One of the partners asserted privilege in relation to three documents.  These were kept separate while a further application was made pursuant to section 9 of the Police and Criminal Evidence Act. 

18.  The application was made to HH Judge Bright QC.  On 27 September 2011 the judge handed down his reasons for granting the application.  Having set out the history to which we have referred, he said this: 

		"The prosecution now seek an order that the partners of GCR should produce all documents held by them relating to the purported alibi of Jamie Healey pertaining to the attempted murder allegation which he faces.  There is no dispute that such material exists, including an attendance note relating to the passing of the alibi to the solicitors.  I am satisfied that this is special procedure material within the definition contained in section 14(2)(b)(i) of PACE 1984 and that the prosecution have every reason to believe that the material will reveal who it was that provided the solicitors with the material in support of the alibi which is alleged to be false.  The Crown assert that this material will be important evidence in connection with the conspiracy to pervert the course of justice allegation charged in count 2 of the indictment.

		Before I can grant the Crown's application I must be satisfied that the material sought is not subject to legal privilege.  Section 10(2) of PACE provides that 'items held with the intention of furthering a criminal purpose are not items subject to legal privilege'.

		It has long been the law that legal privilege does not extend to communications which are made in furtherance of crime: R v Cox and Railton [1884] 14 QBD 153.  Furthermore, the law is that, in relation to documents held by a solicitor acting for a defendant in pending criminal proceedings, a claim to legal professional privilege can be defeated where there is evidence of a specific agreement to pervert the course of justice.

		I have been referred to paragraphs 22 and 25 of the judgment of Rose LJ in R(Hallinan, Blackburn- Gittings & Nott (a Firm)) v Middlesex Guildhall Crown Court [2005] 1 WLR 766, which read as follows:

			'22.  As to alibi cases, an example canvassed in the course of argument on both sides, Mr Mitchell submitted that it is unlikely until the trial has taken place that there would be material sufficient to justify an application for a Special Procedure Order.  But where, as here, there is freestanding independent material, the police in pursuance of their general duty in relation to the prevention of crime cannot be expected to stand by.

			....

			25.  It is a truism that whether material is legally privileged depends on the circumstances of the particular case.  In order to defeat a claim to legal professional privilege, it will not be appropriate, for example in a case where an alibi has been raised, to seek to analyse the issues which are likely to arise in the criminal investigation or trial which gives rise to the initial privilege.  To do so, as it seems to me, would be to put the cart, in the form of analysis of the issues, before the horse, that is the trial.  Where, however, there is evidence of specific agreement to pervert the course of justice, which is freestanding and independent, in the sense that it does not require any judgment to be reached in relation to the issues to be tried, the court may well be in a position to evaluate whether what has occurred falls within or outwith the protection of legal professional privilege as explained in Cox and Railton.'

		In my judgment there is evidence of a specific agreement to pervert the course of justice which is 'free-standing and independent'.  The existence of a conspiracy of the kind alleged can be determined by looking at the evidence in isolation from the case as a whole, in particular the lies told by Small, the concealed relationship between Kimpton and Small, the existence of the 'alibi script', and the late request by Small to 'withdraw' her alibi statement.

		Furthermore, the alibi information apparently communicated by Mr Minchin to GCR and recorded in the documents which are the subject of this application has, in fact, been communicated to the police already.  This was a deliberate decision which must be taken to have been made on the instructions of Mr Healey.  Even if I had not been persuaded that legal privilege did not apply to the documents in question, it seems to me that any such privilege was thereby waived.

		Mr Ray for GCR draws my attention to paragraph 2(c) of Schedule 1 [to] PACE and argues that it is not in the public interest for me to order the production of the material in question.  I have no hesitation in rejecting that argument.  It is very much in the public interest that those who conspire together to pervert the course of justice should be prosecuted and that documents pertaining to such a conspiracy made available to the police and, in due course, used as evidence in any trial.

		I am satisfied that the access conditions in paragraph 2 of Schedule 1 [to] PACE are fulfilled and accordingly I grant the Crown's application."

19.  Pursuant to the judge's order, GCR produced and handed to the police the three documents for which privilege had been claimed.  We shall call them the "GCR documents".  They were:  

	(1) An attendance note dated 7 December 2010 in manuscript.  It referred to the client as Jamie Healey and said:

		"Client attended office with father, Robin Minchin, who is also his boss at work.

		Client confirmed through father that they believed that on day in question, client was with a colleague estimating a job in the Hemel Hempstead area.  Client confirms that he is happy for these details to be provided to police.

		Contact OIC to confirm that client believes that he was in Hemel Hempstead area [on] day in question and for OIC to contact Robin Minchin in order to confirm name and details of customer."

	(2)  An attendance note dated 9 December 2010 which records that details of the alibi had been provided to Detective Constable Paul.  It said:

		"Gave DC Paul details of client's whereabouts on day in question."

	(3)  A draft section 9 witness statement containing details of Healey's whereabouts on 11 June, in the name of Minchin.  It was unsigned and undated.  It said:

		"On Friday 11 June 2010, Jamie Healey was out with another member of my staff, Paul Kimpton.

		As a company, most of our jobs are attained either through word of mouth, or through advertising.  This particular client had contacted us as she required a quote for a conservatory to be built.

		Jamie Healey accompanied Paul Kimpton, my estimator, and the appointment was booked for between 13:00-13.30 on the 11th June 2010.  It is not entirely clear exactly what time they both arrived, or how long they were at the address, but an appointment can take anything from 30 minutes to all day, dependent upon the complexity of the quote requested.

		The name of the customer is Mrs Small, and the address that they both attended was 53 Redwood Drive, Hemel Hempstead, Hertfordshire."

20.  On 10 October 2011, a further application was made to HH Judge Bright QC (pursuant to Regulation 2(2) of Schedule 3 to the Crime and Disorder Act 1998) by Healey, Small and Minchin to dismiss count 3 on the ground broadly of insufficiency of evidence. Before making the application, it was first argued on their behalf that the GCR documents were hearsay and inadmissible.  The Crown submitted that they were admissible under section 117 of the Criminal Justice Act 2003 (CJA 2003), or, alternatively, they should be admitted pursuant to section 114(1)(d) of the CJA 2003. 

21.  Section 117 provides so far as material: 

		"(1)  In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if -

			(a)	oral evidence given in the proceedings would be admissible as evidence of that matter,

			(b)	the requirements of subsection (2) are satisfied, and

			(c)	the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.

		(2)  The requirements of this subsection are satisfied if -

			(a)	the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

			(b)	the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and 

			(c)	each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

		....

		(4)  The additional requirements of subsection (5) must be satisfied if the statement -

			(a)	was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation ....

		(5)  The requirements of this subsection are satisfied if -

			....

			(b)	the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances)."

Section 114 provides so far as material:

		"(1)  .... [a] statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if -

			....

			(d)	the court is satisfied that it is in the interests of justice for it to be admissible.

		(2)  In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant): 

			(a)	how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

			(b)	what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

			(c)	how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

			(d)	the circumstances in which the statement was made;

			(e)	how reliable the maker of the statement appears to be;

			(f)	how reliable the evidence of the making of the statement appears to be;

			(g)	whether oral evidence of the matter stated can be given and, if not, why it cannot;

			(h)	the amount of difficulty involved in challenging the statement;

			(i)	the extent to which that difficulty would be likely to prejudice the party facing it."

22.  The judge was not persuaded that the provisions of section 117(5) CJA 2003 were satisfied, but decided that the documents were admissible under section 114(1)(d).  He said:

		"In my judgment, the documents obtained from GCR provide strong evidence of the involvement of Jamie Healey and Robin Minchin in the conspiracy to pervert the course of justice alleged in count 2.  ....

		....

		Although the attendance sheet is unsigned, the prosecution believe the entries on it to have been made by Mr Langi.  I understand that [at] an earlier stage in the proceedings, Mr Langi was asked to make a statement but declined to do so on the grounds that the documents in question were the subject of legal professional privilege.  The author of the GCR documents is therefore not currently a witness in these proceedings and the documents are hearsay.

		I have considered the prosecution's submission that the documents are admissible under section 117 of the Criminal Justice Act 2003 but I am not persuaded that the requirements of section 117(5) of the Act are satisfied.  The only other basis upon which the documents can be admitted is under section 114(1)(d), namely 'if the court is satisfied that it is in the interests of justice for it to be admissible'.

		In deciding whether the documents should be admitted under subsection (1)(d), I must have regard to the factors set out in section 114(2)(a)-(i).  I have considered each of those factors with care.  I conclude that the documents have substantial probative value, that they relate to an important matter in the context of the case as a whole and that the maker of the entries on the attendance sheet is reliable as are the entries themselves.  Whilst oral evidence of what is stated in the attendance sheet could be given by the maker of it, the likelihood is that the evidence of the maker, believed to be Mr Langi, can only be obtained if he is served with a witness summons to attend trial to enable him to be called as a witness to produce the documents and speak to their contents.  I have considered the difficulty Messrs Healey and Minchin would have in challenging the statement and the prejudice which it might cause to them but, even after taking that into account, I am satisfied that it is in the interests of justice for the documents to be admitted.  Accordingly, I admit them."

23.  The judge then went on to consider the application to dismiss. Having regard to the content of the GCR documents, and the other matters to which we have referred, he concluded that the case against each of them was strong and refused the application.  He said: 

		"I turn now to the application to dismiss.  I consider that there is a substantial body of circumstantial evidence to suggest that the alibi advanced on behalf of Jamie Healey was false.  Although it did not coincide precisely with the time of the attack upon Luke Demetriou, it tended to support the contention that Jamie Healey could have been one of the attackers.

		I am satisfied that a reasonable jury properly directed could safely conclude that there was a conspiracy to pervert the course of justice.  The live issue is likely to be whether the jury can be sure that a particular defendant was a knowing party to the conspiracy.

		I now deal with each of the defendants in turn, starting with Jamie Healey.  A jury would be entitled to conclude that it is unlikely in the extreme that others would concoct a false alibi for Healey without his knowledge and agreement. The office attendance sheet exhibit SJB/15 provides evidence that Jamie Healey attended his solicitors' office with his father, Robin Minchin, on 7 December 2010 and confirmed that they believed that on the day in question Jamie Healey was with a colleague estimating a job in the Hemel Hempstead area.  The draft statement prepared for Robin Minchin's signature sets out the specific details of the alibi, including a reference to Ms Small and to her address in Hemel Hempstead which Jamie Healey and Paul Kimpton are alleged to have attended between 1 and 1.30pm on 11 June 2010.

		It seems to me that it is open to a jury to conclude that Jamie Healey was in on the conspiracy with his father to pervert the course of justice and I reject the application to dismiss that charge against him.

		In my judgment, the case against Robin Minchin is a strong one.  When police spoke to him on the telephone in November 2010, he told them that he had established the alibi for Jamie Healey and would provide it to Mr Langi of GCR. The office attendance sheet and draft witness statement exhibit SJB/15 provide evidence that Minchin was the prime mover in supplying Mr Langi with the details of the alibi.  When Mr Langi gave the alibi details to the police, he said they came from Minchin.  I am satisfied that a reasonable jury properly directed could safely convict Robin Minchin of involvement in the conspiracy charged in count 2 and I therefore reject the application to dismiss on his behalf.

		Mr Boyes for Ms Small submits that the evidence against her is weak and is consistent with her having been an innocent dupe.  I reject that submission. ....

		I consider that it is open to the jury to conclude that the document is an instruction sheet given to Small to help her give a false account to the police of a visit by Kimpton and Healey on the day of the attempted murder so as to provide Healey with an alibi.  The instruction sheet directly contradicts Ms Small's claim to the police that no one had contacted her about the alibi before the police approached her in January 2011.  Mr Boyes concedes on their behalf that the statement she made to the police is demonstrably untrue in a number of material respect.  Perhaps the most significant of these is her assertion in the statement that she had never met the two men who came to her home before, whereas the truth was that Paul Kimpton was, in effect, her brother-in-law.

		I am satisfied that it would be open to a jury to conclude that Ms Small was knowingly involved in the conspiracy charged in count 2 and I therefore reject the application to dismiss made by Mr Boyes on her behalf."

24.  On 8 February 2012 the trial of Healey, Minchin, Dwyer, Small and Kimpton began before HH Judge Bing on the charges of attempted murder and conspiracy to pervert the course of justice variously faced by them. 

25.  The judge was invited by the prosecution to rule on the admissibility of the GCR documents. The prosecution wanted to include them in the jury bundle, but this was opposed by the defence.  The defence submitted that production of the GCR documents should not have been ordered and they were inadmissible hearsay in any event. By then it was known that Mr Langi had declined to provide a statement or to produce the GCR documents on the grounds of legal professional privilege.  It was therefore also said on behalf of Minchin that in those circumstances the judge should exercise his section 78 discretion to exclude the evidence on the grounds of fairness.  

26.	The judge declined to revisit the issues of privilege and other matters dealt with by HH Judge Bright on 27 September 2011.  The judge said that if the defence wished to challenge that order, they should do so by way of an application to quash, not by asking another circuit judge to review the decision.

27.	Having considered the matter with care, the judge decided that the GCR documents were admissible.  In his view, as the prosecution then submitted, no issue of hearsay arose. The GCR documents were real evidence as the prosecution relied on them not to prove the truth of their contents but to prove the precise opposite, that is, that this was a concocted and false alibi and therefore that the statements they contained were untrue.  

27.	He also agreed with HH Judge Bright’s conclusions that there was independent, freestanding evidence of a conspiracy, and that the GCR documents supported the case that there was a conspiracy. In the circumstances he found that thresholds as to provenance and relevance were passed and declined to exercise his discretion to exclude the documents under section 78.  He said that if he was wrong in these conclusions, the documents were admissible under section 117 of the CJA 2003; and in the light of his conclusions overall, it wasn’t necessary to consider section 114(1)(d) CJA 2003 (though he added there was some merit in the submissions by the defence, that that section ought not routinely to be used to admit evidence that was not otherwise admissible by statute).

28.  At the close of the prosecution case, it was submitted on behalf of Minchin and Healey that neither had a case to answer on count 3 as the only evidence against them on that count were the GCR documents, which were either not admissible or ought not to have been admitted. The judge rejected those arguments and refused the application. 

29.  Mr Cameron QC, who did not appear below and now appears on behalf of both Minchin and Healey, makes the following submissions in support of their appeal.   First, the application for production of the GCR documents should not have been granted.  Subject to the fraud exception, the three GCR documents or the relevant parts of them were plainly subject to litigation privilege and the judge did not then apply the relevant test set out in Hallinan sufficiently strictly. The available evidence here was not freestanding and independent (in the sense that it did not require any judgment to be reached in relation to the issues to be tried).  Secondly, HH Judge Bing was wrong to rule that the GCR documents were admissible as real evidence. Further, there were no grounds to admit the GCR documents in the interests of justice, under section 114(1)(d) CJA 2003.  Thirdly, if the GCR documents had been excluded, as they should have been, there would have been no case to answer against Healey on count 3 since those documents formed the heart of the case on conspiracy against him.  Fourthly, if the GCR documents were wrongly admitted and Healey’s conviction on count 3 is therefore unsafe, it would follow that his conviction on count 2 could not be regarded as safe either given the obvious significance of the false alibi issue and count 3 at the trial. 

30.  An order for production of the GCR documents as special procedure material could not be made if they were items subject to legal privilege: see sections 9(1) and 14(1) of PACE 1984.  However, if they fell within the “fraud” exception provided by section 10(2) of PACE 1984 as "items held with the intention of furthering a criminal purpose", then they would not be subject to legal privilege, and could be made the subject of an order under section 9.  That much is common ground.  The issue, as Mr Ward-Jackson for the Crown submits, is an evidential one: viz, how does the judge make the finding he is required to, to determine whether a section 10(2) exception applies?  

31.  In Hallinan guidance was given on the point by Rose LJ in paragraphs 24 and 25 to HH Judge Bright QC referred.  The question which arose, and which the judge rightly identified, was whether there was freestanding and independent evidence that the alibi was false?  In our view the plain answer to that question was yes.  We therefore reject the submission that the section 9 production order was wrongly made, and that this was a basis for the exclusion of the GCR documents at trial.  As HH Judge Bright said there was evidence of the lies told by Small, of the concealed relationship between Small and Kimpton, of the instructions for the alibi, and of Small’s retraction of the alibi. This enabled him to determine that the GCR documents were caught by the section 10(2) exception. The evidence of a conspiracy to concoct a false alibi in short was already there. 

33.  We also take the view that HH Judge Bing was right to permit the prosecution to rely on the GCR documents at trial.  It seems to us that much of what was contained within the documents - indeed what might be thought to be the most important aspect of them - was not hearsay at all.  The first file note said that Healey and Kimpton had been to the office and had provided an alibi that Healey had been with Kimpton quoting for a job.  The prosecution’s purpose in putting it before the jury was to prove (i) that Healey and Minchin had attended GCR's offices; (ii) that they had provided an alibi and (iii) the details of the alibi.  The first two matters were hearsay, as Mr Ward-Jackson now accepts, but the third was not. The prosecution did not rely on the document to prove the details of the alibi were true. On the contrary, it was the prosecution case as Mr Ward-Jackson submits that what was said was false. What mattered was the fact that it was said.  In this respect the content of the file note was real evidence and not subject to the admissibility requirements of the hearsay provisions of the CJA 2003.  

34.  The second file note said that the alibi had been passed to the police.  This was hearsay, albeit of a limited nature. The section 9 statement set out the alibi in detail.  None of this was hearsay.  It was the false alibi. It was relied on to prove what was said, not the truth of what was said, and, in our view, fell to be dealt with in the same way as the first file note.  It was real evidence and admissible as such. 

35.   It is now conceded however as we have said that at least part of the first and second of the GCR documents were hearsay and it is therefore necessary to consider whether they were nonetheless admissible.  Mr Cameron submits in any event, that each document had a discrete hearsay element because it was relied on to prove that the person in question had made the statement within the document.

36.	The prosecution’s original submission was that the GCR documents were admissible under section 117 of the CJA 2003. However Mr Ward-Jackson now accepts on reflection that the requirements of section 117(5)(b) of the CJA 2003, to which we have referred above, could not be satisfied since the solicitor concerned (Mr Langi) would or may have had some recollection of the matter stated. That concession is rightly made in our judgment. He submits however that to the extent the GCR documents contained elements of hearsay, they were admissible in the interests of justice pursuant to section 114(1)(d) of CJA 2003 and they were therefore rightly admitted at trial. 

38.  There is no doubt that the provisions of section 114(1)(d) have to be applied with caution - in particular, if there is a suspicion that the section is being used to circumvent the  statutory exclusions on the admission of hearsay evidence which might otherwise apply. Nevertheless, in our view, the answer to the question whether it was in the interests of justice to admit the documents at trial is also yes. We have regard to the factors identified as being pertinent to that question in section 114(2) of the CJA 2003: in particular to the provenance of the documents (from a firm of solicitors), to the nature of the documents and to the support there was for them from other evidence in the prosecution case (for example, there was evidence from the officers to whom Mr Langi spoke that GCR had passed the alibi on to them).  The probative value of the documents was high.  In the circumstances in which they were created they were unlikely to be inaccurate or false.  They were important documents for the prosecution case.  They were recorded in writing.  Two of the documents were attendance notes, and one was in the form of a section 9 statement.  It was also clear that it would be very difficult indeed for the prosecution to call Mr Langi given his refusal to give a statement, and his assertion of legal professional privilege.  

39.	We would add however that in our view there is an element of unreality that threads through the defence submissions on this issue.  It is true that Mr Langi had refused to produce a witness statement or the documents at trial on the grounds of legal professional privilege, but that was a privilege which his clients could have waived if they wanted to; either Healey, who was asserted to be Mr Langi's client and/or Minchin, if he was Mr Langi's client as well. The complaints made at trial and before us as to his absence and their inability to cross-examine him on the documents, fall to be considered in that light. Further, the defence did not actually challenge the truth of the GCR documents. Healey's defence as set out in his defence case statement, was that he had an alibi. Minchin's defence was that he did not provide a false alibi. This was the case each of them put forward at the trial. The defence of each in other words was that the alibi put forward in the GCR documents was true. To that extent we accept the submission of Mr Ward-Jackson that the objections to the admissibility of the GCR documents were in one sense technical ones.

39.  It is right as Mr Cameron has pointed out, that the analysis by HH Judge Bing and HH Judge Bright QC of the admissibility issue differed.  The issue for this court, however, is whether the convictions of the appellants are safe.  In our view they are, both because it was proper to order production of the GCR documents and because those documents were admissible in support of the prosecution case on count 3.  It follows that we cannot accept the submissions made in the remaining grounds that the judge should have acceded to the application that there was no case to answer on count 3 or that Healey's conviction on count 2 was therefore unsafe.  This was a case where the evidence against each of the appellants was in any event strong. It follows that the appeals against conviction must be dismissed.

40.  We turn next to Dwyer, and to his renewed application for leave to appeal against conviction.  It is submitted by Mr Moloney QC that the judge should have acceded to an application to sever the indictment and for him to be tried separately from those tried on the conspiracy charge.  It was said to the judge, and is repeated to us, that there was a real danger that the jury would not be able to separate their decision-making on the various counts but would reach verdicts on the conspiracy before considering the attempted murder and wounding with intent.  It was axiomatic, as Mr Moloney has said, that Dwyer put forward his own alibi.  But he submits that if the jury took the view that Healey's alibi was fabricated in order to avoid culpability for the attack on Luke Demetriou, the case against Healey and Dwyer was so interconnected that it would inevitably have adversely affected the defence of Dwyer. 

41.  It seems to us that the matter is succinctly dealt with by the single judge who said this when refusing Dwyer leave to appeal against conviction:

		"Whether or not to sever the trial of the applicant from that of the allegation of conspiracy to pervert the course of justice was very much a matter for the discretion of the trial judge.  In making his ruling he identified the key issue and addressed it.  His decision was that the trial of the applicant would not be unfairly prejudiced if severance was refused.  He was in the best position to assess the issue of prejudice.  Further, he gave cogent reasons for reaching that conclusion.  There was an obvious distinction to be drawn between the applicant's case and that of the others.  He was not alleged to be part of the conspiracy to provide Healey with a false alibi, and indeed had his own alibi.  The jury, assisted by appropriate directions, would be well able to recognise this distinction.  This was reinforced by the directions given in relation to considering the case against each defendant separately.  In those written directions the judge stressed that that the applicant was not concerned at all in count 3 and that they must [not] allow their consideration of count 3 to affect their consideration of the evidence surrounding counts 1 and 2 in relation to the applicant.  He clearly contrasted the applicant's position in this regard with that of Healey and emphasised that the applicant's alibi defence was separate and independent of that of Healey."

We respectfully agree with those observations.

42.  Finally, Healey renews his application for leave to appeal against sentence.  It is said, principally, that the sentence was manifestly excessive because the judge failed to have regard to the principle of totality. Further, though it is accepted that the judge was entitled to place the section 18 offence within category 1 of the relevant sentencing guidelines, nonetheless the sentence on count 2 was too severe because it failed to reflect the mitigation available to him; and the sentence of 18 months' imprisonment on count 3 failed to reflect the difference between the position of Healey and Kimpton who was older and far more culpable on the facts.

43.  In considering whether any of the grounds advanced are arguable, we refer to the remarks of the single judge with which again we respectfully agree.  In refusing leave to appeal against sentence he said this: 

		"The offence involved a planned and vicious attack with an axe by two men on a disabled person in his home when alone at night.  The judge found it to be a 'merciless and brutal attack', leaving the victim for dead which involved the assailants taking care to conceal their criminal plans.  The victim endured a terrifying ordeal and suffered long term physical injury as well as psychological injury. The applicant was Dwyer's willing accomplice.  He assisted with the driving, assisted in trying to gain entry into the house, and assisted in holding the victim while Dwyer wielded the axe. The judge recognised that the jury's acquittal of the applicant on the attempted murder charge meant that he did not know or contemplate that Dwyer intended to kill the victim.  However, he found that 'you willingly assisted in a planned attack which you thought would inflict really serious bodily injury by using a sharp instrument against his body'.  Specific aggravating features were noted to be planning and the location of the attack in the victim's home.  In the light of the judge's findings, he was justified in regarding it as a category 1 case according to the guidelines.  That has a recommended starting point of 12 years and a recommended sentencing range of 9 to 16 years.  The sentence of 12 years fell well within the guideline range, was no more than the starting point and is not manifestly excessive.

		The judge was also justified in imposing a consecutive sentence on the count of conspiracy to pervert the course of justice.  He regarded it as a serious case of conspiracy given in particular the seriousness of the substantive offence to which it related, the degree of persistence of the conduct, and the effect of the attempts made.  In the light of the judge's findings a three year term would have been justified.  However, having regard to totality the judge reduced that [sentence].  I do not consider that to be manifestly excessive.

		Whether considered individually or collectively I do not consider the sentences to be manifestly excessive.  The judge had regard to totality and made adjustment to the sentence he would otherwise have imposed.  The extent of any such adjustment was very much a matter for his discretion given his knowledge of the detail of the offending."

44.  We are extremely grateful to Mr Cameron for the succinct and helpful way in which he has presented the case before us today.  However, for the reasons given the appeals of Minchin and Healey against their conviction are dismissed and the renewed application for leave to appeal against conviction by Dwyer is refused, as is Healey's renewed application for leave to appeal against sentence.

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