Taylor & Anor, R v [1998] EWCA Crim 3039 (27 October 1998)

LORD JUSTICE JUDGE: On 23rd May 1997 in the Crown Court at Leeds before His Honour Judge Walford and a jury at the end of a trial which lasted some three weeks, these appellants, Nicholas Taylor and Donald Goodman were convicted on count 1 of conspiracy to rob and on count 2 of having a firearm with intent to commit an indictable offence, the offence being robbery. On 15th September at the same court they were sentenced on count 1 to 11 years' imprisonment and on count 2, for possessing a firearm with the intent alleged, five years' imprisonment. The total sentence therefore was 11 years' imprisonment. There was one co-accused, Vincent Moughton, who having pleaded not guilty at earlier hearings, on 7th May changed his plea to one of guilty to the same offences. In due course he gave evidence at the trial of these two appellants. On 21st July he was sentenced to a total of five years' imprisonment. Both appellants appeal against conviction with leave of the single judge.

The story effectively begins on 20th February 1996 when police in West Yorkshire began to keep covert observations on the appellants and Moughton who were associating together at 63 Broadacre Road, Ossett, Yorkshire. For lack of manpower surveillance was stood down from time to time but there were a number of significant moments in the narrative. On 23rd February Goodman and an unidentified man travelled from the address in Broadacre Road to the Barnsley area in Goodman's Rover car. During the course of that day the two men bought two balaclavas, two jumpers and two pairs of gloves at an army surplus store. They also spent some time on and around the car park of a supermarket Lo Cost at Darton, Mapplewell. There was a break in surveillance for two weeks, although some form of static surveillance was postponed for only five days. Then, on 7th March, the appellants and Moughton were observed travelling together in Goodman's Rover car around West Yorkshire. They eventually arrived at a railway station at Mirfield. There Moughton left the Rover and stole an F-registered Vauxhall Belmont car. The two cars - that is to say the Rover and the Belmont - then drove away together. The Belmont was parked overnight close to number 63 Broadacre Road.

On the following morning, 8th March, all three went into Dewsbury. Moughton went into a shop and paid for a pair of false numberplates which were suitable for fitting onto the Belmont car and were collected later, and indeed fitted. After they had returned to the address at Broadacre Road at 12.44 pm the three men left the house, and at 12.48 they were observed travelling in three cars towards the area of Mapplewell. These were the Rover, that is to say Goodman's Rover, and he was driving it; Taylor's Ford Escort, he was driving it; and the stolen Belmont now with the false numberplates fitted driven by Moughton. Between 1.00 and 4.15 that afternoon these cars were seen on and in the vicinity of the Lo Cost supermarket at Mapplewell. The target was a sum of money expected to be made by a Securicor van at about 1 o'clock in the afternoon. The van was supposed to come to the supermarket, collect the cash and take it away to a safe place. A change of timing in the collection arrangements foiled what the Crown contended was the intended robbery on 8th March.

From about 3.25 that afternoon the Belmont was parked in the car park of the supermarket, and at 4.15 when the three men were waiting in the Rover car in the car park of the supermarket, they were arrested. On their arrests they had a number of interesting items with them. Goodman had a four-inch lock knife and two x 20 bore shotgun cartridges capable of being discharged in a shotgun later found in the Belmont. Taylor had a semi-automatic 8 mm protector pistol and five x 8 mm CS gas cartridges loaded in a magazine and suitable for discharge from the pistol. In the Belmont car there were a number of items; these included a motorcycle helmet, two pairs of gloves, a polo neck jumper, a mask with eye holes, a large hammer, and a double-barrelled sawn-off shotgun, those in two carrier bags one of which had been seen being carried both by Moughton and Taylor earlier that day. In Taylor's Escort the police found a further mask with eye holes and another pair of gloves. Eventually a search of 63 Broadacre Road revealed the box for the pistol and two further masks.

When Moughton was called as a witness the Crown's case against him and the other two was already a very powerful one. Moughton must have expected that he would receive an extremely severe sentence on conviction of his involvement in these crimes. In the end he turned what is described as "Queen's Evidence" and when the Crown called him his evidence linked together much of the evidence already outlined, but even without him there was a formidable case against the appellants. Perhaps it was the formidable nature of the case that made Moughton face reality and plead guilty.

Before he began to give evidence the defence were supplied by the prosecution with details of Moughton's previous convictions. The relevant convictions included one offence of assault occasioning actual bodily harm which had been recorded many years earlier when, on conviction, he was bound over; and two further convictions, on one occasion, of offences of conspiracy to rob. We have no information about the precise details of these offences. On one view of course any offence of conspiracy to rob is likely to import an offence of violence, but in fact the robberies were not proved and may not ever taken place, and the convictions remain convictions for the conspiracy. The Crown did not open to the jury that Moughton had these convictions, nor did they lead evidence-in-chief from him about his record.

Moughton's evidence in summary was that he moved into 63 Broadacre Road at the end of January 1996 with Goodman. Taylor was there for most of the time together with his cousin, a man called Alex Gothard. According to Moughton, on one occasion he heard the three of them discussing a robbery at some future date. He was only half listening. Gothard was arrested about a week before Moughton's own arrest, and shortly afterwards he was asked by Taylor, or by Goodman, to steal a car and leave it in a supermarket car park with a bag in it. Later he saw Taylor cleaning a sawn-off shotgun at Broadacre Road and then return it beneath the flagstone at the back of the house. He said he saw no ammunition for the gun. He explained that he had been asked by Goodman to collect a gun on his return from a journey down south. He knew the person Goodman had told him to see and he had got a CS gas gun from Epping Forest where it was buried. He brought the gun back to 63 Broadacre and left it on the sideboard. He was cross-examined about his recent statement to the police in which he stated that he, Moughton, had asked Goodman if he wanted the gun bringing up and that he had given the gun to Goodman rather than leaving it on the sideboard as he had told the jury in his evidence-in-chief. He said it was not until 7th March that he was able to steal the car. For this purpose he had cruised around with Goodman and Taylor. At Mirfield Station Taylor had gone onto the platform and given him a positive sign. He then broke into the Belmont at the station car park and drove it away. On 8th March he and Taylor had driven around looking for a genuine Belmont so they could copy the registration number. He found the registration number of such a car, wrote it down and then went with Taylor and Goodman to order a set of numberplates with that registration number, to put the registration number of a genuine Belmont onto the stolen Belmont and that is what he, Moughton, did. In the meantime, back at the house, there was a grey carrier bag containing a crash helmet, a shotgun, a couple of balaclavas, woollen hats and a black jumper. This was the bag he was asked to carry to the car. From earlier discussions he knew they were targeting a security van. He was to drive the Belmont, with the bag inside, between the cars of Goodman and Taylor, take the Belmont onto the car park, leave it there and get into one of the other vehicles. So far as he knew the Belmont was to be the getaway car and Taylor and Goodman would dump it near to where he had dumped its plates and swap cars into the Rover. He was to drive Taylor's Escort. He said he was to receive £600 for his part in the robbery.

At that time both defence counsel, and counsel for the Crown too, appreciated the precise extent of the witness' previous criminal record. It was decided that he should not be asked about the criminal record. The reason for that decision, we have been told, is that there was a concern that if Moughton were asked about his ancient conviction for assault occasioning actual bodily harm, and more recent offences of conspiracy to rob, the appellants were at risk of their own previous convictions going before the jury. As will be appreciated in the case of Goodman, and in the case of Taylor too, those were formidable.

Returning to Moughton's cross-examination, he denied that he was the instigator of the offence, or knowing a man called "Pete the Greek" who was involved in drugs, or that the sawn-off shotgun in the Belmont was part of a separate deal for drugs with this "Pete". He asserted that the enterprise had nothing whatever to do with drugs which was the case that was being put to him. He admitted to the jury that he had helped Alex Gothard with his own business of selling heroin, cannabis and crack cocaine. He said that it was rubbish to suggest that the two shotgun cartridges found in the Rover car had been brought up from Epping Forest by him and had fallen out of his jacket. He denied that he had left the CS gas gun in Taylor's jacket when he borrowed it or when he was wearing that jacket on 7th March.

In due course a number of police officers gave evidence about the surveillance, the results of which have already been summarised at the outset of this judgment. Inspector Wilson was cross-examined about the surveillance operation, when it started, when it was stood down, and the nature of the surveillance that went on at different times. He asserted in answer to questions that it was at no time suspected that drugs were involved in this case. He explained that firearms officers had not become involved until 7th and 8th March, and that was instigated by the theft of the Belmont, and its arrival near the address in Broadacre led the police to believe that something imminent was at hand. He was not able to explain why surveillance on 7th March was stood down after the theft of the Belmont had been observed. He agreed that he was aware from a previous assignment to the drugs squad that Taylor was involved in drug offences. He acknowledged that the drug squad officers had been involved in the operation, but he asserted that that was because of manpower considerations, and, when he was asked, he said he did not know whether drug sniffer dogs had been used in the search of number 63 Broadacre Road after the appellants' arrest. A number of other police officers gave evidence.

Before us, and it is an important part of this appeal, each counsel for the appellant has sought to argue that the extent of the cross-examination of the police officers was no more than a vigorous denial of Moughton's evidence and that no imputation was in fact being made against the police. This is important because the judge made his eventual ruling about whether or not Goodman's character could be put before the jury on the basis that he found that allegations and imputations were being made not only against Moughton, but also against the police. We have listened to counsel describe to us the different ways they put the matter to the police. Looking at it at best from their points of views, it was that Moughton was lying and the police were also lying about any robbery offence, because the offence in which Moughton was involved was a concealed drugs transaction. The police were cavalierly disregarding public safety in connection with drugs, and lying. The more one examined the way in which this matter was investigated with the police and the basis of cross-examination, the more obvious it became to us, as it must have been to the judge below, that the only possible inference from the combination of these lines of cross-examination of Moughton and the police officers was that the police were disguising the truth to the jury about the crime they knew or believed was actually in progress - namely drug dealing - and helping to implicate these appellants in a crime which they knew or believed was not in contemplation and would not be committed, the robbery. That was the substance of it, however dressed up in courteous language, and the seriousness of such improper conduct by the police cannot possibly be underestimated.

In due course, after some forensic evidence had been given, and evidence put before the jury about the results of the arrest and interviews of the appellants, the Crown's case closed and Goodman gave evidence. He explained how he had come to move to 63 Broadacre Road, who lived there from time to time, and about his ownership of the Rover car. On 23rd February, which is the first significant date in relation to police surveillance, he gave an innocent explanation for all relevant sightings which the police said involved him, and he did the same in relation to 7th March and 8th March. He explained his movements on 8th March: he had gone down to the shops to get plates for the Belmont, although he was not involved in the theft of the Belmont; he was wearing a jacket and tie as he was going down to London to see his daughter after they had done their trade with "Pete the Greek" - this was the man they were supposed to meet at the Lo Cost supermarket; they went looking for him because they could not find him and he was a bad time keeper and when they were sitting in their car and arrested they were just killing time waiting for the Greek to show up so that the drugs deal could be completed. They changed cars because it seemed pointless to go around in two cars, the Belmont had already been dumped at Lo Cost and his car was more reliable than Taylor's. Eventually he decided they should not wait any longer.

The prosecution applied to cross-examine Goodman about his previous convictions, a formidable list. There were numerous convictions for conspiracy to rob and misuse of firearms and very heavy sentences of imprisonment had been imposed on him, including sentences of 12 years, 14 years and 12 years. In other words, this was a professional armed robber. The judge considered the application. He concluded that the defence had made imputations against the character of Moughton and against the police officers, and he decided, notwithstanding the appalling record of Goodman, that fairness required that in this particular case his discretion should be exercised in favour of the prosecution. Goodman was thereupon cross-examined. It is that decision and the consequences of it which form the major plank of the appeal conducted on his behalf.

Taylor said all he stood to gain from his involvement in this transaction was a bit of puff for his personal use. As to robbery, as with Goodman, there was an adamant denial of any such offence or any intention to become involved in any such offence. He produced an explanation consistent with innocence in relation to the various items found in his car or associated with him. There was some evidence about the interview with the police and the advice given to him by his solicitor, but in the result that needs no attention in the course of this judgment.

The judge summed the case up to the jury. One significant feature of the argument before us arises from the fact that he summed up the case that the Crown was alleging in relation to count 1 as a "general count of conspiracy", that is to say conspiracy to commit a robbery. He explained to the jury that before either of the appellants could be convicted the jury had to be sure about the agreement between them and Moughton and that each was a party to an agreement that a robbery should be committed, intending that the robbery should be carried out. It is unnecessary to go into details, save to add this, he said in terms:

He then turned to count 2 which he described as the more specific charge confined to events of 8th March, and he described to the jury precisely what was alleged in that count, confining it to 8th March. The robbery intended to be committed was said to be the robbery of the Securicor van after it had called at the Lo Cost supermarket at Mapplewell and the allegation was that the appellants had guns with them in order to achieve that robbery. He then gave the jury a number of directions including a direction, to which we will come in a little more detail, about the way in which they should approach the evidence they had about Goodman's previous convictions.

The major ground of appeal in this case is directed to the admission of evidence of Goodman's previous convictions, and an associated complaint by Taylor that the decision to admit Goodman's convictions in evidence wholly undermined Taylor's defence by linking him with a professional criminal. Taylor's previous convictions were not before the jury at any stage. The second connected ground is that the jury were never informed of Moughton's criminal record because, although the defence knew of it, they had decided not to cross-examine him about it because counsel believed that if that course had been taken the Crown would have been enabled to make the submission which was eventually made, that Goodman's character should be put before the jury.

We very much doubt whether any judge faced with the case of an accomplice who had decided to give evidence for the Crown would regard cross-examination about his convictions, on its own, as providing a sufficient justification for permitting a defendant to be cross-examined about his own previous convictions. We believe that in many parts of the country nowadays, unless counsel for the defence indicates otherwise, information about an accomplice's previous convictions is normally given to the jury at the outset of the case by counsel for the prosecution; not only so that the jury may be informed of the actual facts, but also for the forensically sensible reason that a jury might well react adversely to the sudden emergence of such facts about someone who is in any event disreputable. Where this is not the practice, the practice should be altered so that normally counsel for the prosecution should offer to disclose such convictions to the jury, and unless invited not to do so by counsel for the defence, for whatever reason may seem appropriate at that time, counsel for the prosecution should open the case and tell the jury about them at the outset.

In fact here, as already indicated, counsel for the defence had this information and chose not to use it when the nature of the defence went far beyond drawing attention to Moughton's conviction. It is important to underline that the jury were not being asked to entertain doubts about the creditworthiness of Moughton merely on the basis that he was telling a false story; it was that he and the investigating police officers were denying the truth to implicate these appellants in a fictitious crime, the robbery, when Moughton's real offence was drug related, and as already indicated, the defence, in our judgment, undoubtedly impugned the character not only of Moughton, but of the police officers who gave evidence and were responsible for the conduct of the surveillance operation.

The judge was faced with a difficult decision because of the very nature and extent of Goodman's previous convictions. The problem he faced was this: he was, no doubt persuasively, urged that he really could not allow the convictions to be put before the jury because - and we paraphrase what was no doubt put much more elegantly - it would mean that Goodman would not have any chance, and Taylor would sink with him just because of the previous convictions. But carried to its logical conclusion, if it were correct that a defendant's record should not go before the jury just because it is as bad as Goodman's was, a premium would be put on the acquisition of such a record. As a result of many, many convictions a professional criminal would eventually build himself a sanctuary from which he could with impunity advance allegations of the utmost seriousness against each and any prosecution witness, believing that the judge would never let the jury know the true facts about his character, or that the Court of Appeal would interfere with the judge's decision if he did. In our judgment, in exercising his discretion, a trial judge is not so restricted. It is trite to say, but it nevertheless remains true, that in every case he must make a judgment on the basis of all the relevant facts. Where a defendant has a particularly bad or damaging record then the judge is likely to admit it to the jury only if the imputations made against the prosecution witness or witnesses are correspondingly grave. He has to balance all these considerations. In our judgment that is what the judge did in this case, and after warning himself in clear terms about the potential risks, he permitted the Crown leave to cross-examine Goodman.

We have had our attention drawn to a number of decisions of this court in this particular field. They included Burke (1985) 82 Cr App R 156; Lasseur [1991] Crim LR 53; Wignall [1993] Crim LR 62; Stanton [1994] Crim LR 834; Showers [1996] Crim LR 739; Davis and Jenkins [1997] Crim LR 816 and McLeod (1995) 1 Cr App R 591. We do not intend any discourtesy to counsel by not setting out the various different reasons why the court in each of those individual cases came to the conclusion that it did, sometimes upholding the exercise of the trial judge's discretion, sometimes not. All we can say in this case is that the trial judge did not in our judgment exercise his discretion on the basis of any improper consideration. Moreover, his subsequent directions to the jury in his summing-up unequivocally and fully underlined and emphasised to the jury the forbidden reasoning which they had to avoid and the only possible significance which they were entitled to attach to this evidence.

We turn to the second connected ground of appeal. That arises in this way; in the end the jury did not know about Moughton's convictions, nor was his evidence recorded earlier in this judgment tested on the basis of those convictions. We have tried to discover the facts. Counsel cannot agree; we do not criticise either of them for that; the fact of the matter is that if they cannot agree each would be wrong in acting or saying something contrary to his recollection. Mr Apfel for Taylor says that he asked counsel for the Crown Mr Clayson what he, Mr Clayson, proposed to do about the answer given by Moughton, and that Mr Clayson said he would need or look for more details, with the plain implication that he would investigate the matter. That seems to have been the end, so far as Mr Apfel's discussion with Mr Clayson was concerned. After that nothing happened, and neither he nor Mr Jones raised any question with Mr Clayson again, nor directly with the judge, an indication perhaps that at the time neither counsel regarded this as a matter of very real substance. Mr Clayson's recollection is that he was not asked to do anything about it because, had he been asked, he would undoubtedly have done so. He explained to us different courses which might have been available but underlined that he would have done something. If he had not been asked, as he recollects he was not, then of course he would not have felt any need to do anything. The defence knew of the convictions and had done nothing either in court, or in any approach to him, or the judge, and there were perfectly sensible grounds for counsel in Mr Clayson's position to believe that if the defence were choosing not to reveal these convictions to the jury, there was a tactical forensic reason for not doing so, which was that the thrust of the defence case was that this was a drugs case and not a robbery case, and Moughton's convictions for conspiracy to rob were more consistent with the robbery case which the defence were trying to suggest was a fiction.

Be that as it may, what we have to examine now is the consequence of the absence of the evidence. The jury were perfectly well aware of Moughton's part in these serious crimes: a planned robbery which involved the use of guns and a theft of the vehicle, the Belmont, with all the indications of serious professional crime. They also knew about his involvement in drugs arrangements indicated earlier in this judgment. We acknowledge, and indeed emphasize, that it was most unfortunate, for whatever reason, that the jury was not given the full picture of Moughton's previous record. We think the jury should have had that information. We have considered its omission in the context of this case and applied our minds to its effect on the safety of this conviction. One way in which we have tested its possible effect has been to ask ourselves whether, if the jury had known what we know, the outcome of the case against these two appellants might have been different. That is a legitimate way of testing what, in the end, has to be our own judgment. We have concluded that in what was an overwhelming case against these two appellants, the safety of their convictions is not in doubt as a result of the omission from the jury's knowledge of this particular piece of evidence about Moughton's convictions.

We do not need to decide whether or not that in truth was hearsay evidence, this is not the time or place to consider it. We are quite satisfied that even if it was properly to be described as hearsay evidence it was not a matter which could possibly undermine the safety of this conviction; we do not criticise the judge for not mentioning it in his summing-up. In many ways, if he had revived it when it was inadmissible, it would have assumed an importance in the context of his summing-up which it simply did not enjoy during the case.

The other matters raised by Mr Apfel were that the judge was unfair, certainly less than fair, in a number of respects in the way in which he treated Mr Apfel and that, of course, if he was unfair to Mr Apfel that might have had an adverse knock-on effect on his client, Taylor. He illustrated this with three examples: when a video was being played the judge apparently found that it added nothing to the information the jury was receiving. Mr Apfel said to us that it was relevant. When the video was concluded he said to Mr Apfel: "Perhaps you will explain why we are watching the video" - when Mr Apfel had not asked for it to be played. We have not heard the judge's view, nor indeed have we looked at the transcript, but let us assume for the moment that we are prepared to accept that the judge's intervention directed to Mr Apfel was wrong, it really cannot be regarded as an error of any significance whatever. Another error pointed out by Mr Apfel is that the judge rebuked him for talking to another counsel during the course of the trial. Mr Apfel stood up, explained what he was doing and the judge withdrew his rebuke, accepting that Mr Apfel was entitled to do what he was doing and indeed that by doing it he was helping the case along. The judge should not have rebuked him and he withdrew the rebuke. We really cannot see anything in that.

Then there is a complaint that in his closing address to the jury the judge interrupted Mr Apfel to remind the jury that the charge was conspiracy. Again we have no transcript. The idea that any conviction should be regarded as unsafe because a judge interrupts counsel's closing address is, if we may say so, quite absurd. Counsel's addresses sometimes have be interrupted; sometimes the interruption is entirely justified; there may be occasions - and it is possible this was one such - when the interruption was not justified, but it really takes the case no further forward on appeal. There has to be a degree of give and take in the conduct of any form of litigation. Counsel have to put up with being told off when they make mistakes, and the judge has to acknowledge that from time to time he, in his anxiety to keep the case in sensible limits and running at a proper pace, he may indeed make a mistake when he intervenes.

Then there is a complaint that the judge failed to direct the jury that Moughton had not implicated Taylor in any of his earlier statements - a point touched on earlier in the course of this judgment. We really cannot think that the omission of that information to the jury is a matter of significant complaint. Finally, both counsel take a point about the jury question on their return after the conclusion of the summing-up. Putting it fairly graphically what each says is that the goalposts were moved, and that when the judge gave his direction to the jury after their return with their question, he summed the case up in a way which was different to the way in which the jury had been directed to consider counts 1 and 2 in the first part of the summing-up. Thus the goalposts were being moved. We have examined the judge's directions to the jury after they sent back their question, and he said he would, and he did, repeat in almost identical fashion precisely what he had said to them in his earlier directions, distinguishing between count 1 which was general, and count 2 which was the specific occasion on 8th March. To the extent that we have been prepared to assume without seeing transcripts, that some criticisms of the trial judge may have been justified, we should simply say emphatically in relation to this criticism that the judge did precisely what it was appropriate for him to do. His direction to the jury, far from moving the goalposts, cemented the goalposts into precisely the position they had been in at the start of his summing-up.

LORD JUSTICE JUDGE: We have sufficiently narrated the facts which resulted in the conviction of these two appellants. This is now an application to the full court, referred by the single judge, for leave to appeal against the sentences imposed on each of these two appellants. It is quite unnecessary for us to go through the details of their previous convictions. It is fair to Taylor to accept that his record is not as bad as Goodman's, but the judge in this case was sentencing two professional criminals - and we do not mean by that two professional petty criminals but two professional robbers - who were engaged in a conspiracy to commit a robbery in a public place in which arms would be carried. The case proceeded as a trial. We have of course reflected on the cases to which Mr Apfel has drawn our attention, but we should say that we have also reflected generally on other sentences imposed in cases of this kind. The judge was well able to assess for himself whether it was right and fair to sentence these two co-conspirators in the same way, and he decided in that that in fairness to Goodman he should not sentence him to a greater sentence that Taylor because his record was longer, having concluded, as he was entitled to having heard the evidence, that Taylor's involvement in this conspiracy was as serious and as close as that of Goodman. We can see no possible reason to interfere with the judge's decision in sentence in this case. In our judgment the sentence was appropriate to the offences of which these two men were convicted. In those circumstances we can see no basis for granting leave to appeal. The applications are refused.

England and Wales Court of Appeal (Criminal Division) Decisions

NICHOLAS JAMES TAYLOR and DONALD GOODMAN, R v. [1998] EWCA Crim 3039 (27 October 1998)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Taylor & Anor, R v [1998] EWCA Crim 3039 (27 October 1998) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/3039.html Cite as: [1998] EWCA Crim 3039