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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Humphries & Anor, R. v [2006] EWCA Crim 558 (27 February 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/558.html Cite as: [2006] EWCA Crim 558

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		27 February 2006

Monday, 27 February 2006

LORD JUSTICE WALLER:

1. On 1 July 2005, in the Crown Court at Croydon, both appellants were convicted by a majority of 10:2 of wounding with intent to do grievous bodily harm. They were both sentenced to a term of four years' imprisonment. They were found not guilty on certain other counts. They appeal against conviction by leave of the single judge, who granted a representation order. He granted leave on two grounds. One related to an answer given in evidence by the officer in charge of the case, PC Kensit, and the other related to the question whether evidence from two witnesses should be admitted in the Court of Appeal and, if admitted, whether on that basis the conviction should be found to be unsafe.
2. We can take the facts shortly since we have come to the view that, on the basis of the evidence of PC Kensit and the way that was dealt with, these convictions are unsafe. We shall have to consider, with the assistance of the Crown, whether there should be a retrial.
3. The case concerned incidents or ultimately an incident that occurred between Mr McDevitt and the two appellants. On the evening of 31 January 2004, there occurred an incident in which it seems that Mr McDevitt went into the garden of the appellants' house and there was an altercation. That incident then subsided. The police were called. Thereafter, there was a second incident. Mr McDevitt said that in the second incident he came down to his car which was parked outside the appellants' house. His evidence was that a group of people then attacked him. He recognised the first appellant, Brian Humphries, and also the second appellant, Lee Humphries, coming towards him carrying weapons. Lee Humphries was said to be carrying a metal bar and Brian Humphries was said to be carrying a "red" bat. He described being hit over the head, hit on the wrist, and hit in various parts of the body, and how he then escaped back to his house which was two doors away.
4. Mr McDevitt's partner also gave evidence. She gave evidence in relation to both incidents and indeed she gave evidence of making a 999 call in relation to the second incident in which, if it was to be accepted on its face value, provided some strong evidence of the incident described by Mr McDevitt as having taken place.
5. There was evidence of blood from Mr McDevitt being found on the shoe of Brian Humphries, which supported his case that he had been attacked, although there was evidently an argument at the trial about whether that blood could have landed on Mr McDevitt's shoe during the occurrence of the first incident.
6. In his interview Brian Humphries maintained that he had never held a pink baseball bat at all that evening, and that he had never seen that bat before. However, when he came to give evidence he accepted that he had held that pink bat but that he had not used it in the way that Mr McDevitt had described. He had used it to bang pieces of wood into his fence, and he had then used it to fend off McDevitt but not to attack him.
7. The second appellant, Lee Humphries, also gave evidence. He also denied having had any piece of wood in his hand, other than right at the end of the incident. He suggested that he may have had wood in his hand to help repair the fence.
8. The appeal raises two grounds. We heard, first, de bene esse evidence from two witnesses who purported to describe an incident on that evening. They suggested that they only came on the scene as a result of words around the estate, and that is the reason why they have only come along at this stage. Having regard to the view that we have taken on the other ground of appeal, it is unnecessary to deal with the question of whether that evidence should be admitted on this appeal and whether that evidence would have persuaded us that this verdict was unsafe.
9. The ground of appeal which we feel makes this conviction unsafe relates to the evidence that was given by PC Kensit. Counsel for Brian Humphries cross-examined PC Kensit, who was the officer in charge of the case, as we think he would now accept, to endeavour to obtain an answer from him that the baseball bats had been subjected to fingerprint analysis. He hoped that he would be able to make the point to the jury that no expert evidence had been called to indicate fingerprints on the bats of either of the two appellants. He undoubtedly, we suspect, suggested to the jury that that assisted their case. In his evidence PC Kensit had confirmed that the bats had been subjected to fingerprint testing so far as he was aware. The jury having retired to consider its verdict, it sent out two notes. The first note read:

"Is it possible to remove fingerprints from the baseball bats by just cleaning or rubbing them?"

Before that note had been dealt with, the jury sent out the second note which read:

"Do you think it is possible to find fingerprints on wood and aluminium (plus painted surface, plus webbing tape)?"

Evidently when those notes were shown to defence counsel, Mr Walker, who represented the first appellant, with the consent of Mr Slack, who represented the prosecution, approached PC Kensit in order to ask him what the position was in relation to fingerprints. At that stage PC Kensit said that the bats had never been tested for fingerprints. So any impression that he had given in his evidence that the bats had been properly tested for fingerprints was inaccurate. Mr Walker on behalf of the first appellant, in the interchange with the judge at page 34 of the transcript, stated that he had a slight concern about the position, having regard to PC Kensit's previous evidence and having regard to what he had now learnt from PC Kensit, to which the judge commented:

"If that was a disingenuous question and a wrong answer because they were not tested, then this is another unsatisfactory aspect to the evidence in this case."

10. Finally, the judge, having intimated the way he would direct the jury in relation to the notes, asked counsel, Mr Walker and at that stage Mr Maloney (who represented the second appellant, whereas Mr Sullivan has represented him on the appeal), whether they wanted him to answer the questions any differently. They both said they did not. In the result the judge directed the jury in this way:

"Your note is in two parts: 'Is it possible to remove fingerprints from the baseball bats by just cleaning or rubbing them?' There is no evidence on this topic. You must not speculate, but you are entitled to use your experience of the world and your common sense when you approach your job as jurors. That is the only answer I can give you on that first part."

On the second part the judge quoted the note:

"Do you think it is possible to find fingerprints on wood and aluminium (plus painted surface, plus webbing tape)?"

His direction was as follows:

"I am afraid the answer I must give you is there is no evidence on that point."

The jury again retired and ultimately returned a majority verdict.

11. The first point taken by both Mr Walker and Mr Sullivan was to the effect that, because of that misleading evidence of PC Kensit, the verdict of the jury was unsafe. The basis for that argument is that certainly since the trial both counsel have appreciated that the first appellant, Brian Humphries, had accepted in evidence that he had handled the pink baseball bat. Their anxiety was that the jury, having raised the question whether it was possible to remove fingerprints from baseball bats by just cleaning or rubbing them, would be likely to have drawn an adverse inference against one or both of the appellants. The argument is that, since Brian Humphries had handled the bat and since no fingerprints had been found on it, the jury would conclude that that baseball bat must at the very least have been cleaned. The argument continues that on that basis the jury might have drawn an adverse inference against the appellants on the basis that to have cleaned the bats would demonstrate a criminal responsibility for the use of those bats.
12. At first, as the argument was developed before us, we felt that there was force in the point that neither counsel asked the prosecution to admit that there should be a correction to the evidence given by PC Kensit and both approved the way these questions were answered by the judge. But both counsel submitted that it would not in any event have been as easy as that, this having been evidence before the jury and the jury having retired. To re-open the evidence at that stage would have been very difficult; the only possibility would have been a discharge of the jury. We do not consider that that was the position. We think that at this stage if the prosecution had been prepared to make an admission, the matter could have been corrected. But the problem is that the way the matter was left, as we see it, left it open to the jury to draw some form of adverse inference. We think -- and again this point was developed during argument -- that what went wrong here comes down to this. Counsel for the appellants may well have been entitled to allow the evidence to be left as it was, and that was the choice that they made; but the appellants were entitled to a direction which precluded the jury from drawing any adverse inference by reference to the cleaning or rubbing of the bats. As we see it, the right direction to have given at that stage in relation to the first question, whether it was possible to clean or to rub the bats, was that fingerprints are the subject of expert evidence; that there was no evidence in relation to fingerprints; and that if there was to be any suggestion of cleaning or rubbing, that matter should have been put to the appellants and thus no adverse inference should be drawn against them based on any idea that the bats had been cleaned or rubbed.
13. In one sense that may seem a little harsh if this appears to be a criticism of the judge because we strongly suspect that the point that has now been developed had not occurred to counsel either for the appellants or to counsel for the prosecution. The judge cannot thus be criticised for not having foreseen it. However, it is impossible to get away from the fact that it may well be that the jury, by virtue of their questions, were wondering whether some of sort of adverse inference might be drawn, and it is also impossible to get away from the fact they were not warned not to draw any such inference.
14. On that basis we find it impossible to hold that this verdict was safe. The conviction must be quashed and the appeal must be allowed. The question arises, Mr Slack, as to a retrial. Do you suggest that there should be a retrial?

MR SLACK: My Lord, I do, yes.

LORD JUSTICE WALLER: Have you any argument why there should not be retrial?

MR WALKER: My Lord, no.

LORD JUSTICE WALLER: There clearly should be a retrial in this case. Thus the order should be that the appeal should be allowed and the conviction quashed. On the count where the jury returned a verdict of guilty, a fresh indictment should be preferred containing that count, and the appellants should be re-arraigned on a fresh indictment within two months. The appellants should be held in custody in the meanwhile. Representation orders should be made and as far as the venue is concerned, the venue for the retrial should be determined by one of the Presiding Judges of the South Eastern Circuit.

MR WALKER: My Lord, may I make representations concerning the defendants' bail? The position is that the defendants both had bail up to the trial and in fact throughout the trial until their conviction. An important event has occurred since they have been convicted. That is that the family with which the disturbance occurred have now been evicted from that street and are no longer living in the area. In those circumstances I would apply on Mr Brian Humphries' behalf that they should have bail while they wait for their retrial, simply on the basis that they were only in custody on this matter following their conviction. Up until that point they had their bail, and on that occasion both Humphries lived still a matter of doors away from the family with whom they had fallen out. The situation is now different. The family have been evicted and have moved away. In my respectful submission, it would be safe for Mr Humphries -- and I am sure Mr Lee Humphries -- to be granted bail to await their retrial.

LORD JUSTICE WALLER: You make the same application, do you?

MR SULLIVAN: My Lord, yes, I do.

LORD JUSTICE WALLER: Mr Slack, what do you say about bail?

MR SLACK: My Lord, it is a serious allegation. There is substantial evidence against the defendants. There is strong evidence against both men in relation to this matter.

(The court conferred)

LORD JUSTICE WALLER: We think they should have bail. Are there sureties or anything of that sort? What were their conditions of bail?

MR SLACK: Not to contact directly or indirectly any prosecution witness, but other than that I understand there were no sureties or securities in place.

LORD JUSTICE WALLER: We seem to have caused a disturbance in the building.

MR WALKER: My Lord, I should say that it is a matter very close to a lot of people's hearts.

MR JUSTICE MITTING: One them was of good character and the other had old convictions, and that is all, is it not?

MR WALKER: My Lord, yes. Well, when you say that, again it turned out at the trial that both had convictions. Both are of a significant age.

MR SLACK: My Lord, I am afraid I was not present in court when the order for bail was made.

LORD JUSTICE WALLER: There clearly should be a condition of not contacting prosecution witnesses.

MR SLACK: Clearly so.

LORD JUSTICE WALLER: Do you need an opportunity to check the position in relation to the estate because all we have is information from Mr Walker? I am not criticising him, but is it right that these families now do not live next door to each other?

MR SLACK: I have to say that I do not know. I have no reason to doubt what my learned friend says.

MR WALKER: My Lord, there is a man at the back of the court who seems to be attracting my attention. May I have a moment to ask him what information he may have?

LORD JUSTICE WALLER: Yes.

MR WALKER: My Lord, the information is that the house that Mr McDevitt lived in is boarded up and they have gone. That comes from a witness sitting at the back of the court, but I can understand that my learned friend would wish to check that to make sure that it is correct.

MR SLACK: I have no reason to doubt the information that I see here that he is resident at 71 Purley Way.

LORD JUSTICE WALLER: So that he was there at 71 Purley Way before the trial. I know that is his home, but that means that either the McDevitts had already moved away or whoever granted bail on the previous occasion did not think it right to make sure that they did not live next door to each other.

MR WALKER: My Lord, that is right.

LORD JUSTICE WALLER: In that case the conditions of bail should be the same as they were prior to the trial.

MR SLACK: Could I draw attention to the fact that, as I understand it, Mr Humphries senior lived at 71 and the son lived there from time to time.

LORD JUSTICE WALLER: What were his conditions of bail?

MR SLACK: My Lord, it seems that I do not have the conditions of bail. I imagine they were the same, except with a different address.

LORD JUSTICE WALLER: You must have an opportunity to go to some court (but it will not be this one) if there are problems with the bail conditions, but, prima facie, the bail conditions should be the same as they were prior to trial, unless you on the Crown's side know of good reason why they should be different. We will direct that there should be liberty to apply to the Crown Court to vary the terms of bail if the Crown have good grounds for doing so.

MR SLACK: My Lord, I think Lee Humphries does not live at 71.

LORD JUSTICE WALLER: No, that is right. He does not.

MR SULLIVAN: Perhaps, my Lord, if I could ask for his address and give that to the court?

LORD JUSTICE WALLER: You can do that when we have risen. Thank you very much.

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