No: 2016/1478/C3 
Neutral Citation Number: [2016] EWCA Crim 682
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Friday, 6 May 2016

B e f o r e: 
LORD JUSTICE McCOMBE
 
MR JUSTICE STEWART 
 
THE RECORDER OF WESTMINSTER
HIS HONOUR JUDGE McCREATH 
(Sitting as a Judge of the Court of Appeal (Criminal Division)) 

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R E G I N A 

V 

MICHAEL COLLINS
 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr G Fishwick appeared on behalf of the Appellant

Mr A Wheeler appeared on behalf of the Crown
 
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J U D G M E N T
1.	LORD JUSTICE McCOMBE:  On 9th March 2016 in the Crown Court at Birmingham, before His Honour Judge Eyre, the appellant was found to have failed to have attended his trial without reasonable excuse and was sentenced to six months' imprisonment.  He now appeals as of right against the finding and against the penalty that the judge imposed.
2.	The background to the proceedings is that the appellant stood charged, with 11 others, with an offence of conspiracy to commit fraud in certain property dealings.  In circumstances which we will relate, the trial of the charge against him became severed from the trial of his co‑accused and is now adjourned to a date in October 2016.  We need not say much about the substantive issues in the trial, save to say that it is alleged against the appellant that he was involved in submitting dishonest applications for mortgage finance to building societies or other financial institutions.  
3.	The trial began before Judge Eyre at the Crown Court at Birmingham on 18th January 2016 when the appellant duly attended, together with his co‑accused.  The trial estimate was 12 weeks.  The appellant's bail was extended as before.  It is material to note that in fact the appellant resides in the Bolton area of Lancashire.
4.	The jury was empanelled, as we understand it, either on that first day or shortly thereafter, but the Crown opening was delayed until 22nd January, which was a Friday.
5.	On production of a medical certificate the appellant was excused attendance at court on 25th January.  He was further excused from attending for medical reasons between 26th and 29th January and then between 1st and 5th February pending further medical examinations and medical evidence.  
6.	On 8th February, in the absence of the appellant, the jury was discharged from delivering a verdict and, as we have said, he was severed from the indictment.  His proceedings were adjourned until 7th March, while the trial continued in respect of his co‑accused.  We have been informed that that trial has now been concluded by verdicts and, in the appropriate cases, sentence on the co‑accused has been passed.
7.	Following the hearing on 7th March, when the judge made the findings that he did, the appellant's trial on the indictment was adjourned until 17th October.  
8.	On 8th March the learned judge conducted a hearing to determine whether the appellant had failed to attend on 8th February without reasonable excuse, on that occasion not having been excused attendance as on the earlier occasions.  
9.	The Crown had served CCTV material showing the appellant attending retail premises and motor service stations (and in one case a cash dispensing machine) at times when he was excused from court attendance owing to alleged physical ill‑health.  The judge viewed this material and we have also seen that footage.  He saw the documents relating to the appellant's attendances upon doctors during this period.  He also heard the evidence of the appellant and of a friend by the name of Mark Jones, who said he had taken the appellant to medical appointments on one or more occasions and found him to be severely disabled to the extent of being barely able to get out of the car.  A statement from the appellant's wife, Mrs Lyn Collins dated 26th February 2016 was also read by the learned judge.  To summarise, Mrs Collins said this in her statement:  
i.	"I am aware that Michael suffered with some back pain/problems over the weekend of 23/24 January 2016 when he had to attend the local A&E department.  Michael was accompanied by his friend Mark Jones to hospital."  

10.	We quote that with a slight correction to the syntax.  It also said: 
i.	"Michael has been in pain substantially over the last four weeks which has made it increasingly difficult for both our family and any other events we have had to postpone.  We had to come to terms with the stress and logistics of the trial for this to now become a major setback.  Michael is normally fit and well but since this back problem has occurred I have seen him physically break down due to the nature of the pain which is completely out of character for him.  

ii.	I confirm I do not have any criminal convictions."

11.	The medical material can be summarised as follows.  The appellant, as we have said, visited his local Accident and Emergency Department over the weekend of 23rd and 24th January 2016, the weekend after the Crown opening of the trial, followed by a visit to his General Practitioner, a Dr Marshall, on 25th January.  On that consultation the doctor reports: 
i.	"I saw him in surgery this morning (25th January 2016) when he complained of a two day history of left sided loin pain.  The pain is described as severe and I understand Mr Collins was seen in Accident & Emergency yesterday owing to the same problem.  He tells me that he is currently attending court in Birmingham and owing to the severe pain he has experienced over the past 24‑48 hours he is unable to travel to Birmingham to attend.  

ii.	Given his symptoms I have commenced him on strong painkillers and we are arranging an urgent ultrasound of his abdomen.  My current working diagnosis is that of renal stones.  Mr Collins tells me that he has struggled with kidney stones before ... At this moment in time I do not think he is well enough to travel to Birmingham for his ongoing court case."

12.	The ultrasound scan on 28th January showed a "possible 5mm renal calculus noted in the lower pole".  The appellant was prescribed further painkillers, including at that stage Zomorph (a form of morphine) and referred to a consultant urologist.  In conversation with a police officer it was said that, although the doctor wished to reduce the strength of the prescription, medication even at the referred level of reduction, would still render him unsafe to drive a car and, even if he took other forms of transport to the court, he would be sufficiently drowsy to cause him [that is the doctor] concern as to his ability to follow proceedings and answer questions effectively.  He [the doctor] believes that his patient is genuinely in pain which could not be faked. 
13.	On 3rd February the appellant was referred to a Consultant Urologist who referred him for a CT scan which was undertaken on 4th February.  It was suggested prior to the scan that if no stone was found then the likelihood was that the pain was of musculoskeletal origin and should settle with some more straightforward analgesia rather than opiates.  That appears from a report of the consultant, Dr Pantelides of 3rd February 2016.
14.	There was a report of the CT scan which stated that whilst a  "tiny" calculus was found on the wall of the ureter, it was doubtful that this was related to his symptoms.  This was in a report by a Dr Lay of 4th February 2016.  
15.	Following that scan it became the opinion of the Consultant Urologist that the pain might have a musculoskeletal origin and he suggested that the appellant were to use painkillers such as Co‑Codamol or Ibuprofen to control his pain.  This would enable him to fulfil his court commitments.  That is in a report of 5th February from Dr Pantelides, where he says this:  
i.	"I have seen Mr Collins' CT scan report which excluded kidney stones.  It comments about a 1mm calcification in the wall of the left ureter which I do not feel is of clinical significance.  I believe Mr Collins' pain to be unrelated to his urinary tracts.  His pain might well be due to musculoskeletal origin.  

ii.	I spoke to him and suggested he should perhaps use Co‑Codamol and Ibuprofen to control his pain, which would at the same time enable him to fulfil his Court commitments.  He told me his degree of pain is not controlled by the opiates and that his GP is considering further radiological scanning in terms of an MRI."

16.	Following that, the appellant returned to his GP it seems on the same day, 5th February.  He was prescribed further opiates and referred to a physiotherapist and for an MRI scan by the GP, who concluded this in his letter of 8th February 2016 to the appellant's solicitors:  
i.	"Mr Collins tells me that his pain persists.  He tells me that he is requiring Zomorph and Tramadol... " 
17.	(We note that is in spite of the recommendation of the consultant.) 
i.	"... He tells me that despite this he has episodes of intense stabbing pain to the left side of his back and under his ribcage.  He also tells me that he is struggling with some side effects from the strong painkillers, including nausea and vomiting.  He tells me at present he feels that he is not fit to travel to Birmingham to attend court and that he is not able to concentrate on the ongoing legal proceedings.  I have referred Mr Collins for an MRI scan of his spine as well as a musculoskeletal clinical referral.  At present I am unsure as to the time frame for scans and reviews.  At present I am unsure as to the cause of his pain and he therefore needs investigation.  I am, as a result, unable to provide you with any timescale with regards to the cessation of his symptoms.  If this is a musculoskeletal problem it may improve with time and painkillers, however at present I am unsure of his current diagnosis.  I am not a musculoskeletal specialist and therefore point any further queries you might have in the direction of a musculoskeletal specialist."  

18.	The appellant did see a physiotherapist who thought that the appellant presented with a spinal joint dysfunction.  In the final piece of material from the GP of 24th February, the doctor says this:  
i.	"Many thanks for your correspondence with regards to Mr Collins dated 22nd February 2016.  I can confirm that I spoke to Mr Collins on 8th February and that he advised me that he was struggling with an increase in left sided lower back pain.  This meant that he was unfit to travel to attend court on 8th February 2016.  He has since been assessed by a physiotherapist who feels that the most likely diagnosis at present is spinal joint dysfunction.  I am thankful to say that Mr Collins has reduced his painkillers but still remains on Tramadol.  He is awaiting an MRI scan of his spine as well as a specialist review by a musculoskeletal expert."  

19.	We consider that to be an adequate summary of the medical material that was before the learned judge.
20.	The judge stated at the outset of his ruling, applying, as we see it, the correct standard of proof, that he was satisfied so that he was sure that the appellant had been deceiving his doctor and thereby the court and that there was no reasonable cause for his failure to attend.  The judge in his ruling summarised what he derived from the video footage on the various occasions.  He said he exercised caution in drawing conclusions from what he saw.  He put it this way (page 2D to F):  
i.	"Let me make it quite clear that I exercise caution in drawing conclusions from CCTV footage.  The footage is on a stop/start basis.  There is probably some more accurate terms than that but it is not free‑flowing film as one would have in a motion picture.  I also have to be very conscious and am conscious of the expertise of medical practitioners in assessing conditions and assessing whether matters have been put forward genuinely before them.  I am also conscious that pain can be fluctuating.  Those suffering from pain, even from disabling pain, can have good days and bad days, good hours and bad hours."  

21.	In giving his summary of the recorded incidents on the CCTV, the judge interpolated explanations of that footage given by the appellant.  There are five material passages in the judge's ruling where he put the matter first in this way at page 3B to C:  
i.	"The first footage I have been shown is of the Defendant shopping at about 10.30 in the morning on Saturday 23rd January."  

22.	We interpolate to say that is the day after the opening of the Crown case. Continuing the quotation:  
i.	"The Defendant appeared in that footage to be bending, lifting and stretching.  He now says that that was before the onset of any pain.  He says that in the night of 23/24 January he suffered severe disabling pain, which caused him to go to accident and emergency.  He went to see his GP Dr Marshall on the morning of 25 January and I have read Dr Marshall's letter of 25 January relevant to factors in part being this."  

23.	Then page 4A to D: 
i.	"The next relevant date is 2 February when CCTV footage showed Mr Collins shopping at a Tesco store, walking apparently normally and doing some bending and a limited amount of carrying.  Mr Collins says about that and about the other shopping expeditions that they were to stores within a matter of less than 100 metres or so from his home, that he went rather than his wife because it was simpler for him to do that than for his wife to sort the children out and go and he says that he was not able to lift his daughter and so he could not be left alone with the five‑month‑old baby that they have.  

ii.	He also, in connection with the CCTV footage, initially said that the footage at various times showed him leaning on a shopping trolley or walking with difficulty.  My perception is neither of those matters were shown by the footage; something which, indeed, Mr Collins when he was taken through the footage was constrained to accept."

24.	At 4G the judge said this: 
i.	"On 3 February there is, again, footage of him at a store bending and lifting and doing some carrying."  

25.	At 5A to B:  
i.	"but one sees him also on 4 February in two separate incidents, albeit closely connected, on one trip of shopping.  And, again, there is some movement and some bending, albeit limited, and carrying." 

26.	Finally at page 5F to H: 
i.	"CCTV footage on 5 February shows Mr Collins shopping at a service station.  Footage on 6 February shows him shopping at a Tesco store.  And there are two separate incidents on 7 February shown by CCTV footage with a four hour interval between them.  The first was an occasion of shopping and the second is an occasion of going to a cashpoint.  Mr Collins' wife was alongside him in the car on that occasion at something a little after 7 o'clock in the evening.  Mr Collins says that that attendance at that cashpoint, which is some three miles from his home, was by way of obtaining funds to pay for accommodation prior to coming to Court in Birmingham on 8 February and also by way of something of a trial run to see if he could cope with driving and that is why his wife was with him."

27.	We would add that having looked at the CCTV footage and Mr Fishwick has made no complaint about it, the learned judge's assessment of the footage seems to be accurate.  
28.	In reaching his conclusions the judge began in effect discounting the evidence of Mrs Collins. As we have said she expressly claimed to be free of criminal convictions, but the judge said he had been shown an antecedent print out for someone in her name and at her address with a number of convictions, the last of which was in 2006.  The appellant said to the judge apparently that the wife had recently had a CRB check which had come back clear.  The judge said he found Mrs Collins' statement disingenuous.  
29.	The judge then reached his conclusions on the main issue in the following terms, starting at page 7E: 
i.	"Against that background and for the following reasons I have come to the conclusion that Mr Collins was lying to the doctors about the pain he suffers and was lying to this Court.  That conclusion is because of the impression I have gained from the CCTV footage viewed with all the caution, as I have said; from the coincidence of timing between that footage and the visits to various medical practitioners; from the inconsistency between what is shown on that footage and the symptoms described by Mr Collins and the effects from which he would have been suffering if taking the medication which he is said to have been taking.  I am also influenced by the fact that Mr Collins failed, it appears, to urge his GP to act on the recommendation of Mr Pantelides to move from opiates to anti‑inflammatories as a better [way] of dealing with the situation and Mr Pantelides being a consultant surgeon [That is an error he was a consultant urologist].   I am also influenced by the fact that Mr Collins has a past history some few years ago of suffering from kidney stones.  It follows he would be conscious of the nature of that condition, which is well‑known as being disabling and painful, and, therefore, he had to hand the information as to the kind of condition which might be able to be used to say that he was unfit to attend Court.  And, as will be apparent from the recital I have set out earlier, the timing of the onset of these alleged symptoms is also significant as being a time when perhaps it was brought home to Mr Collins the gravity of what he was facing and the evidence against him."  

30.	In support of the appeal against the finding made by the judge, Mr Fishwick in his written grounds made five submissions, amplified helpfully by him in oral submissions this morning.  First, he says the judge failed to give proper weight to the findings of all the doctors that the appellant appeared to be in significant pain; second, that the pain described, although self reported, was unlikely to be faked ‑‑ we interpolate that that is to do with the report to the police officer on 29th January; third, as a result of pain the appellant had been prescribed opiate‑based medication; fourth, because of the medication the appellant was unfit to travel to court and unfit to follow proceedings; fifth, the video footage was start/stop motion and of limited duration.  
31.	In response for the Crown, and in the respondent's notice which we have read, it is submitted that the judge considered the evidence as a whole and had correctly directed himself as to burden and standard of proof and was entitled to reach the conclusion that he did.  The Crown relies upon the contents of the video footage showing the appellant's attendance at retail premises and petrol stations on nine occasions, without apparent physical disability.  It is submitted the appellant's evidence of being forced to lean upon shopping trolleys for support was contradicted by the films.  On 3rd and 4th February the footage was on dates when he attended an appointment with Dr Pantelides, driven there by Mr Jones.  The film on those dates contradicted Mr Jones' evidence that the appellant had been barely able to get out of the car on the relevant occasions.  At 7.15 pm on the day before the applicant was due to attend the Crown Court on 8th February, he was caught on CCTV at a cashpoint some three miles from his home with his wife and children in the vehicle, him being the driver.  He was seen to move freely from the driver's door to withdraw money, before getting back into the car and driving away with apparent ease.  The medical evidence, it is argued, did not support his initial complaint of kidney stones and when recommended by the consultant to take anti‑inflammatory medication he had failed to ask his GP to act upon that advice.
32.	We have considered those submissions made on each side.  Mr Fishwick particularly emphasises to us in oral argument this morning that none of the doctors express an opinion that Mr Collins was feigning the symptoms he reported and doctors, he argues, are well used to making diagnosis of faking when that is appropriate.
33.	Taking account of these submissions, it seems to us clear that the judge reached his conclusion based upon the entirety of the material before him, including the CCTV evidence and the medical material and most importantly to our minds upon his evaluation of the appellant's own evidence upon the matter and his explanations of what the documents and the film material showed.  In essence, Mr Fishwick is inviting us to overturn the findings of a jury on evidence that was properly considered.  In our judgment, on the material that was available, the judge was clearly entitled to reach the conclusion that he did that the appellant had been deceiving his doctors with his self‑reported symptoms.  The comment of his GP to the police officer that he believed the appellant to be genuinely in pain which could not be faked was on 29th January, at an early stage of the medical history before the supposed kidney stones diagnosis has been discounted.  The prescription of medication impairing the appellant's ability to travel and/or to follow proceedings was on the judge's finding entirely due to the appellant's own deceptive presentation to his doctors, leading to those drugs being prescribed in the first place.  
34.	In our judgment, there is no basis at all upon which this court could properly set aside the judge's careful analysis of the facts.  In our judgment the finding of failing to attend without reasonable excuse is an entirely safe one and, from what we have seen, an entirely correct one.  
35.	We turn to the question of penalty.  It is submitted that the order made was excessive in the light of the appellant's limited previous convictions, his family circumstances and the fact that he had never previously been in custody.  In stating his conclusions on that issue, the judge said at page 2A to F of the sentencing transcript:  
i.	"There was a deliberate attempt to disrupt the trial that you faced.  You failed to attend during the course of the trial at a crucial point.  You fabricated symptoms.  You misled medical practitioners.  You engaged in a deliberate attempt to get out of standing trial and to disrupt the Court process.  It was in the context of you facing trial with a number of co‑accused.  The effect of your failure to attend on 8 February was not just to delay your trial, which will now have to take place beginning on 17 October, not just to delay that but had the effect of ensuring that when you do stand trial you will be standing trial by yourself rather than alongside a number of other Defendants.  I am driven to the conclusion that there was an attempt by you on your part to engineer matters so that you would be tried alone rather than with other Defendants.  

ii.	Your conduct has had a significant impact.  It means you will be standing trial by yourself and an additional seven days of Court time will be taken up dealing with that, which would not necessarily have been needed or not to anything like that extent if you had been continuing from [inaudible] in the current trial."

36.	The judge had regard to the Sentencing Guidelines Council guidelines which Mr Fishwick said had not been raised in argument but which, he accepts, must have been well in his own mind, counsel for the Crown's mind and clearly the judge's when he passed sentence.  Those guidelines state that a deliberate failure to attend, causing delay and/or interference with the administration of justice, attracts a very broad range of sentence, from a community order of medium severity to 40 weeks' custody.  The judge said he regarded the matter as one of high culpability.  He considered the offence to be at or near the top of the guideline range.  He said he drew back from a sentence at the top of the range, taking account of the appellant's family circumstances, leading to the sentence of six months which we have already mentioned.  
37.	In our judgment, the judge was well placed to assess the impact on the administration of justice caused by the misconduct of this appellant and accordingly was fully entitled to take the view he did of the harm caused and the culpability of the offending in the present case.  We can find no fault with the judge's reasoning, nor in his conclusions in respect of the matter of penalty either and, in spite of Mr Fishwick's helpful submissions, the appeal against findings and penalty is dismissed.