BETSON AND COCKRAM v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicants, Mr Raymond Betson (“the first applicant”) and William Cockram (“the second applicant”), are British nationals. The first applicant was born in 1961 and is currently detained in HMP Whitemoor. No details were provided as to the date of birth or current location of the second applicant. On 7 November 2000 the applicants and four accomplices attempted to steal the contents of the De Beers Millennium Diamond Exhibition at the Dome in Greenwich by driving a JCB digger into the said exhibition. The value of the gems they were trying to steal was 200 million pounds sterling. The applicants and their accomplices were caught in the act. On 5 November 2001 the applicants stood trial at the Central Criminal Court on charges of conspiracy to steal and conspiracy to rob. They pleaded guilty to conspiracy to steal but not guilty to conspiracy to rob. The only issue at trial was, therefore, whether there was a conspiracy to rob. The trial lasted three months. There were many witnesses, including Police Constable W, who gave evidence about ‘The Play’ (a book that he had written about the attempted theft) and G, a prosecution expert who gave evidence about the configuration of the transceivers used by the applicants. The first applicant, in the course of giving evidence, lied about the presence of another man in his car. The trial judge (“the judge”) warned him about the risk of his being in contempt of court. Later, when summing up, the judge directed the jury that the said lies were irrelevant to the first applicant’s guilt. The judge admitted that he ‘nodded off’ during the closing speeches. A solicitor’s clerk who was present at the trial noted that there were a few occasions towards the end of the trial when the judge slumped in his chair, fell asleep and was awakened by the sound of his own snoring. A journalist who was also present observed the judge fall asleep on about half a dozen occasions. The journalist could not recall when the judge had fallen asleep, other than on one occasion during the early stages of the closing speeches. The applicants’ counsel did not raise any issue at the trial in relation to the judge’s falling asleep. On 18 February 2002 the jury put a complicated question to the judge about the use of force. The applicant did not explain how the judge responded to this question. Later that day, the jury convicted the applicants of conspiracy to rob. The judge sentenced each of them to 18 years’ imprisonment. The applicants appealed. The first applicant, who was represented by junior counsel during his appeal hearing, appealed on the following grounds: in the first place, the judge displayed inadequate vigilance during the trial in falling asleep on a number of occasions; secondly, the judge improperly and inquisitorially interrupted the first applicant’s evidence on a number of occasions; thirdly, bearing in mind that the first applicant had already given evidence of his own record of dishonesty, the judge should not have taken him to task in relation to possible contempt and perjury in declining to name others to whom he had referred in the course of his evidence; fourthly, the judge at times acted like a prosecuting counsel; fifthly, the summing up was unbalanced and prejudicial to the first applicant’s case; sixthly, the judge should not have permitted the prosecution to call evidence from Police Constable W; seventhly, the judge should not have responded in detail to a question put by the jury. The second applicant, who was represented by senior counsel, only relied on the first two of those grounds. The Court of Appeal delivered its judgment on 22 January 2004. It made the following comments in relation to the sixth and seventh grounds of the first applicant’s appeal: “It is to be noted that, until that stage, no defendant had named [W] and if he had not been called, the defence and, in particular, [the first applicant], would have had free rein to implicate him in the conspiracy, without him having the opportunity of denying that that was so. The plot of the book which he had written, whether prejudicial or not, was elicited in cross-examination by leading counsel on behalf of [the first applicant]. In those circumstances, we propose to say no more about [the first applicant’s] sixth and seventh grounds save that, having read the jury’s question and the way in which the judge dealt with it, we are entirely satisfied that both these grounds are devoid of merit.” As to the second, third, and fourth grounds, the Court of Appeal found that, although on occasions the judge’s interventions were excessive, when viewed in the context of the trial as a whole, the said interventions did not render the trial unsafe. In particular it observed that, although in an ideal world the judge might have made fewer references to perjury, it was inescapably obvious that the first applicant was lying and the judge was entitled to warn him about the risk of contempt of court. As to the fifth ground, the Court of Appeal found that, having read with care the criticised passages in the summing up, there was no substance in the complaints. In particular, the direction in relation to perjury was correct. Finally, and as to the first ground, the Court of Appeal opined as follows: “There remains the ground in relation to the judge’s falling asleep. Because the appearance as well as the actuality of justice being done is important, no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial. It is highly regrettable that this judge did so. But because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial. This must, in each case, depend on all the circumstances, including the period of inattention, both absolute and as a proportion of the length of the whole trial; the stage of the trial at which the inattention occurs; and, of primary importance, the impact of that inattention, if any, on the course and conduct of the trial. We give two examples by way of illustration. First, if a judge is inattentive, however briefly, during a defendant’s evidence in chief and, in consequence, fails to register and, in due course, sum up to the jury, a piece of evidence crucial to the defence, the conviction may be regarded as unsafe. The unsafety arises not because the judge slept or was otherwise inattentive but because, in consequence, the summing-up was defective in that the defence was not properly put before the jury. Conversely, a conviction is unlikely to be regarded as unsafe if, during a lengthy trial, a judge is inattentive, even for substantial periods, if, in consequence, he missed no significant point meriting inclusion in his summing-up and did not fail properly to control the admissibility of evidence, the conduct of counsel or some other aspect of the proceedings. In the present case, the judge, as he frankly and properly admits, was, for a time, asleep during the speeches of counsel for [the first applicant] and [C]. We are prepared to accept that he was also asleep on a few other occasions, sometimes to the extent that he woke himself by the sound of his snoring. It is however of some significance that, at the trial, no defendant, no counsel in the case, (of whom there were a total of 13), and no juror, was sufficiently concerned to raise the matter with the judge, other counsel, or the court usher. It is of greater significance that, before this Court, it has not been shown that, because he slept, the judge missed and failed to sum up to the jury any significant feature of the evidence or speeches. On the contrary, this summing-up, extending to approximately 250 pages of transcript and delivered, as we have said, over four days, shows every sign of having been carefully prepared. It was comprehensive and balanced, accurate as to the law and detailed as to the evidence. The defence of each defendant was fully put. Had the judge been awake when he was asleep, the appearance of justice would, of course, have been obviously enhanced. But the trial would have followed no different course. Furthermore, regrettable though it is that the judge occasionally slept, no objection having been made at the time, we are unpersuaded that the jury was, even arguably, unfairly prejudiced against any defendant, bearing in mind also the length of trial, the full, fair and accurate summing-up, the lengthy period of retirement, the pertinent question asked by the jury, and the compelling, powerful evidence against the defendants. It was for these reasons that yesterday we refused [the first applicant] and [the second applicant] leave to appeal against conviction.” The Court of Appeal then found the original sentence of 18 years to be excessive and substituted a sentence of 15 years. Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal: “(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss an appeal in any other case.” The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said: “This new provision ... is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.” In R v. Chalkley and Jeffries ([1998] 2 All ER 155, the Court of Appeal observed, however, that it: “...has no power under the substituted section 2(1) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial...” (per Lord Justice Auld at page 172j). Subsequently, the Court of Appeal modified its approach. The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson ([2000] 1 Criminal Appeal Reports 141 [Court of Appeal]), where he stated: “The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’ This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson ([2001] 1 Criminal Appeal Reports 8), where Lord Justice Mantell, delivering the judgment of the court, stated that: “The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read: ‘Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’ That being so there is no tension between s. 2(1)(a) of the Criminal Appeal Act as amended and section 3(1) of the Human Rights Act [requiring legislation to be read and given effect in a way which is compatible with Convention rights].” Later in his judgment, Lord Justice Mantell stated that: “We are satisfied that the two questions [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The [European Court of Human Rights] is charged with inquiring into whether there has been a breach of a Convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the [European Court of Human Rights] leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree. ...”