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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 >> Chisholm,R. v [2010] EWCA Crim 258 (03 February 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/258.html Cite as: [2010] EWCA Crim 258

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 February 2010

1. LORD JUSTICE TOULSON: John Chisholm appeals, with leave, against convictions for causing grievous bodily harm with intent and violent disorder, and against the sentence imposed for the first of those offences. He was convicted at Newcastle-Upon-Tyne Crown Court on 27 January 2009, before HHJ Lancaster. There was a third Count of witness intimidation on which he was acquitted. He was later sentenced on Count 1 to imprisonment for public protection with a minimum specified term of 5 years, less days spent on remand, and on Count 2, to 2 years' imprisonment concurrent. Two other men, the appellant's son and Karl Waters, were acquitted on Count 1 on the judge's direction, and pleaded guilty to Count 2 at the outset of the trial. They were each sentenced to 18 months' imprisonment on Count 2.
2. The case arose from an incident on Hylton Road, Sunderland, at around 1pm on 24 May 2007, when the appellant inflicted several stab wounds on Robert Anderson as he was sitting in the driver's set of a black BMW which was stationary at traffic lights. The issue for the jury was whether the appellant was acting in self defence.
3. The BMW had three occupants: Anderson, Alan Smart, who was the owner of the vehicle, and Ryan Lloyd. The evidence of all three was that Smart was in the front passenger seat and Lloyd was in the back. Hylton Road is a major arterial road which leads west from Sunderland City Centre. It is a road with retail outlets and a public house called Oddies which features in the story. The road was busy with traffic and pedestrians, including women and children. The BMW had travelled from Smart's house on the west side of Sunderland to Gillbridge Police Station, where Smart had to report, and was on its way back heading westwards.
4. On the day of the incident, the appellant, his son, and Waters, were travelling in a green Volvo. Waters was the driver. Before they set off from the appellant's home, the appellant armed himself with a knife and his son armed himself with an axe. The prosecution's case was that they were on a revenge mission. Back in February 2007, the appellant's son had been the victim of an attack with a gun, which the prosecution and defence were agreed had been carried out by Smart and Anderson. At the time of the incident giving rise to the present appeal, legal proceedings against Smart and Anderson had not yet begun; they were subsequently tried and acquitted. Their trial was in November 2007, ie between the date of the incident giving rise to the present appeal and the appellant's trial.
5. The appellant's evidence was that he feared that Smart and his gang intended to cause serious harm to himself or other members of his family because of a past feud, and more particularly because of various violent or threatening things which Smart and his associates had said and done, including but not limited to the grave attack on the appellant's son three months earlier, so they armed themselves for protective purposes. While they were on the road, they saw Smart's car and decided to follow it. The appellant's evidence was that they decided to follow it to see that it did not go near his family.
6. The Volvo, carrying Waters, the appellant, and his son, was about three vehicles behind the BMW when they both came to a stop in a line of traffic at the lights in Hylton Road. What happened next was the subject of oral evidence by the three occupants of the BMW -- all of whom were of thoroughly bad character -- six other witnesses for the prosecution, and the appellant. The six other witnesses for the prosecution all gave evidence anonymously, out of sight of all but the judge and jury, and with voice modulation, pursuant to rulings made by the judge under the Criminal Evidence Witness Anonymity Act 2008. They were referred to by letters of the alphabet. It would be tedious in this judgment to refer to each anonymous witness as "he or she", and because our language has no gender neutral word for he or she, we will refer to each anonymous witness as "he".
7. A good deal of what happened was common ground. The appellant's son got out of the Volvo and went towards the BMW. He smashed either the rear or passenger window with his axe. The noise of that and shouting drew the attention of the anonymous witnesses. For the reasons which will become apparent, I will summarise the evidence of "X", but not that of all the other anonymous witnesses.
8. "X" at first said that he was on the street, but later revealed that he was inside Oddies on the ground floor in the bar. He said that he had not wanted to reveal his whereabouts in case he could be traced. He said that he first heard an angry male voice. On looking out of the window, he saw the man with the axe rushing to the BMW and striking the back of it. The Volvo then pulled out of its line of traffic and moved forward to the front of the BMW where it stopped. He saw the appellant, whom he recognised, get out of the driver's side of the car. The appellant was carrying a knife. He went a short distance to the door of the driver of the BMW and thrust the knife through the driver's window into the driver's chest three or four times. He then jumped back into the Volvo. "X" was looking towards the front of the BMW, and the driver's door was nearest to him. From his place in the bar, looking through the ground floor window to the BMW, he estimated the distance to be about 10 yards, and a scale drawing would suggest that this was about right. The BMW would have been coming from his left to his right and so was on the opposite side of the road. He saw the passenger door of the BMW open; a man got out, picked up a traffic sign and shook it towards the Volvo. The Volvo then sped towards that man, mounting the pavement, and drove off. As to the other occupants of the BMW, he said that he saw the driver crawl out of the passenger door and move gingerly towards the church yard of a church on the opposite side of the road from Oddies. He also saw Smart, whom he recognised, get out of the back of the BMW after the driver had been stabbed. Smart jumped in the front of the BMW and drove it off.
9. In cross-examination, it was put to him that it was Smart, not the third occupant of the BMW, who waved the traffic sign. He disputed this, but the majority of the witnesses, including Smart and Lloyd, said that it was indeed Smart who waved the traffic sign. He was questioned about the fact that in his written witness statement he had said that Smart had climbed from the back of the BMW to the front. He said that this must have been a misunderstanding between himself and the police officer who took the statement, which "X" failed to pick up before signing it. It was notable that, in his evidence, he several times spoke of Smart "jumping" into the front, and his implicit suggestion was that the officer may have understood "jump" to mean getting over the front seat, whereas what Smart had done, and what he was intending to convey, was that Smart had got out of the back seat and got smartly into the front seat. He was questioned along the lines that he had been trying to suggest that Smart never got out of the car, which was what Smart first said to the police, because he was trying to minimise Smart's involvement in the incident, the implication being that Smart, or someone on his behalf, had briefed him about what he was to say.
10. Significantly, there was no cross-examination of "X" about his evidence of what the appellant did, except for the question whether the appellant got out of the front or rear passenger door of the Volvo, which was not a matter of any significance. Nor was there any cross-examination as to his evidence about what the appellant's son did. Nor, for that matter, was it put to him that Smart had got out of the car before the appellant went to the driver's window and stabbed Anderson, as the appellant was to say in his evidence, this being contrary to the evidence of "X". We make no criticism of the appellant's counsel for not cross-examining "X" on that point, ie whether Smart got out of the car before or after Anderson was stabbed, because he may well not have regarded it as significant. After all, it was no part of the appellant's case that what caused him to stab Anderson was anything that Smart was doing at that time. Nor was "X" cross-examined on his evidence that the appellant was openly carrying a knife in his hand as he went from the Volvo to the BMW.
11. Other anonymous witnesses gave evidence which was similar to that of "X" in important respects, although there were differences on matters of detail. For example, witness "A" was walking along the road on the Oddies's side of the road. Witness "A"'s evidence was inaccurate in that "A" described the appellant as being hooded; in fact it was the appellant's son who pulled up a hood over his head as he was approaching the BMW. "A" was also inaccurate in stating that the appellant had got out the driver's door; the appellant had in fact got out of the passenger door. However, more importantly, "A" described, first, an attack by a man with an axe -- who, it is common ground, was the appellant's son -- followed by the Volvo moving in front of the BMW; followed by a man getting out of the Volvo -- who, it is common ground was the appellant -- and making stabbing movements three or four times through the driver's window.
12. The appellant's case was that after the Volvo stopped in the line of traffic, his son got out and mentioned something about the car's indicator. His son then walked towards the BMW, pulling his hood up. The appellant heard a couple of loud bangs, presumably caused by the axe hitting the windscreen, but at the time he thought that it sounded like gunshots. The Volvo then edged out and pulled in front of the BMW. He got out because of concern for his son. When he reached the BMW, only Anderson was in it. His knife was in his pocket as he approached the BMW but when he arrived there, Anderson was leaning across the passenger seat looking out of the passenger door. There was a gun on the passenger seat. Anderson went for the gun and turned towards the appellant. At that point, the appellant stabbed Anderson in self defence.
13. By their verdicts, the jury rejected the appellant's evidence that he had acted in self defence.
14. The grounds of appeal fall under two headings. The majority of the grounds relate to the witness anonymity orders made by the judge, and particularly the anonymity order made in relation to "X". A separate complaint is made about the judge allowing certain evidence of the appellant's bad character to go before the jury.
15. The grounds in relation to the anonymity orders have partly to do with matters of procedure and partly to do with the alleged unfairness caused by allowing "X" to give evidence as he did. The judge made the anonymity rulings in closed proceedings, in which special counsel, Miss Malcolm QC, was appointed to represent the appellant. She has also appeared in the same capacity on the hearing of the appeal. In the course of the closed proceedings, "X" was asked certain questions by Miss Malcolm for the purpose of exploring whether the criteria for making the orders sought were made out. She was careful not to cross-examine on matters beyond that remit.
16. We turn to the complaints made by Mr Elvidge, on behalf of the appellant. First, he complains that the appellant did not have the opportunity to compare the evidence in the closed proceedings with the evidence before the jury. Having read the full transcripts of the closed proceedings, and listened to the submissions of Miss Malcolm, we are satisfied that where there was something in the closed proceedings which was material to the issue to be decided by the jury, or had the potential to undermine their assessment of "X"'s credibility, this was disclosed. That applied to the disclosure that in closed proceedings "X" had said that he was inside Oddies's, whereas in his witness statement, and initially in his evidence before the jury, he had said that he was outside on the road.
17. Mr Elvidge submitted, however, that the court had to consider not merely whether there were material discrepancies which ought to have been disclosed to him, but whether there were grounds to believe that "X" was holding back on other things which might have been helpful to the appellant, but refrained from disclosing them because he had been corrupted by Smart. Specifically, he submitted that "X" might have been able to see whether there was a gun on the passenger seat of the BMW and had refrained from disclosing it because of the influence of Smart. In passing, we would observe that if one were to entertain that theory -- and we stress that it is no more than a theory -- it would not have meant that there was falsity in "X"'s evidence, nor would a refusal of the anonymity order have led to such evidence being before the jury, because "X" would not have been a witness. There is no way that the order in some way caused unfairness to the appellant by such conjectural evidence not being introduced.
18. There are other points to be made in relation to this complaint. It was not suggested to the court that it was likely, on balance, that "X" would have been able to see if there was a gun on the passenger seat in the BMW, and doing the best that we can to reconstruct the scene from the plan and photographs, and from reading the statements of the anonymous witnesses and the evidence of "X", we consider it decidedly unlikely. "X"'s evidence was, at all times, that what he saw was through the downstairs window of Oddies -- that is after he had admitted that he was not on the street -- so he would have been looking obliquely across the road towards a car with tinted windows; the driver was nearest to him; Anderson, on the appellant's account, was turning towards the passenger door, ie away from Oddies; and the gun was on the far side of Anderson from "X". Furthermore, by this stage, the Volvo had come in front of the BMW, and at the time when the appellant got to the window, he would have been broadly in line between "X" and Anderson. It is quite impossible to be precise or scientific about any of those matters, but we think counsel were sensible in not suggesting that there was a real likelihood that "X" would have seen a gun if there was one. The highest it could be put was that it was a possibility. On the face of the evidence, "A" would have been in at least as good, and probably better, position than "X", because "A" was out on the pavement and walking past Oddies. "A" was never asked in cross-examination whether he saw a gun in the BMW, presumably because it was not thought likely that "A" would be able to help on the point, and the same must apply to "X".
19. Furthermore, the theory as to "X" being compromised by Smart was just that, and no more, on any material before the judge. Complaint was made by Mr Elvidge that he was not able to explore full details of any common relationships which there might be between "X" and Smart, ie their mutual knowledge of somebody who might have been a intermediary, for fear that such line of questioning could ultimately narrow the range of people who might be "X". But that is no basis for a conclusion that the proceedings were unfair, absent some more solid foundation for the suggestion of the corruption of "X", which was, in truth, tenuous.
20. It was also submitted that there ought to have been made available to the appellant's legal team the material relied on by the prosecution in support of the witness anonymity applications, at least to the extent that the material raised matters to which the appellant might have been able to put forward answers had he known what the material was. Indeed, at one stage Mr Elvidge's argument seemed to be that, not merely should there be disclosure of the material relied upon to persuade the judge that the statutory criteria were met, but also that the appellant should have an opportunity to explore whether the relevant source of that material might have a motive to implicate the appellant which the court and the prosecution and the police could not possibly imagine unless the appellant were given all the material necessary for him to be able to say whether there was such a possible motive.
21. If fairness required disclosure of these matters, it is obvious that the statutory provisions would be unworkable in many, if not most or all, cases. In argument, the example was given of a witness who is a former wife or partner of a defendant. The witness tells the police that she is able to give evidence that the defendant has committed a particular crime, but she is terrified of doing so because they were in an abusive relationship and she fears for the consequences. On Mr Elvidge's argument, the appellant would have to be given the opportunity to rebut the suggestion that he had subjected her to abuse, which would immediately blow her cover. If one extends his argument to the point that the appellant must have the opportunity of investigating whether there might be some motive for falsehood on the part of the witness, beyond the possible suspicion of the police on the material available to them, that would seem to be a submission of general application which would apply to every source of any material relied upon in support of a witness anonymity order. Parliament cannot have had such an intention.
22. It is perfectly correct that in the case of Mayers [2008] EWCA Crim 2989, the Lord Chief Justice, giving the judgment of the court, said at paragraph 12:

"The disclosure process cannot be circumscribed by a minute analysis of the text of the defence statement, and some of the considerations identified in section 5, (to which we shall return) such as, for example, the possibility of collusion between intended anonymous witnesses, where there is more than one, should be specifically investigated and addressed in the context of disclosure, not least because the defence may be ignorant of material which could or would be included in the case statement if it was known to the defendant. In short, the Crown must be proactive, focussing closely on the credibility of the anonymous witnesses and the interests of justice".

23. It is one thing to say that the prosecution need to consider positively whether there is reason to suspect collusion between witnesses. It is quite another thing to submit that when there is no such apparent evidence, the prosecution must nevertheless pre-suppose that there is such collusion and set out in order to be able to prove the negative. This would be to require the prosecution to prove that the haystack does not contain a needle.
24. Complaint was also made that the judge did not give in open court the reasons for the witness anonymity orders which he made, and it was submitted that this amounted to a breach of Article 6. We reject that submission. It is clear from the transcript of the closed proceedings that the judge considered, in relation to each of the witnesses for whom anonymity was sought, whether each of the statutory conditions was made out. In the case of a number of witnesses he ruled that they were not, and so refused to make anonymity orders and those witnesses were not called. In the case of others he ruled that the criteria were made out. He gave his reasons for arriving at that conclusion in relation to each of the criteria and each of the witnesses in a judgment running to some 12 pages, which we have read. It would have been impossible for him to set out the reasons which led him to be satisfied that the criteria were satisfied in relation to each of those witnesses without defeating the purpose of the order itself.
25. The position of the appellant was protected in two ways: first, by the involvement in the proceedings below of special counsel, although we do not mean thereby to suggest that special counsel must always be instructed in such cases; and secondly, by the judge having to give his reasons which are open to careful review by this court. It is, of course, not a perfect system, but no system can be perfect, given the difficult problem with which the court is dealing. But Parliament has set out a comprehensive statutory scheme for dealing with the problem in a way which is intended to, and does, take proper account of the appellant's right to a fair trial. As we reiterate, to require the judgment of the court to be given in open court would render the scheme impossible. Nor do we think that it would be satisfactory or realistic for the court to seek to give in open court some sort of filleted judgment. At best, it could, from the appellant's point of view, be an anodyne statement that the court had considered each of the criteria and was satisfied that they were fulfilled.
26. While dealing with the statutory criteria, which it is unnecessary for us to spell out in this judgment, it is convenient at this point to mention one submission which was made by Miss Malcolm in closed proceedings but which is a point of general application, and therefore we address in this open judgment. The point concerns section 4(3) of the Act. An order can only be made if the court is satisfied that each of conditions A to C is met in relation to the measures specified in the order. Section 4(3) provides, so far as material, as follows:

"Condition A is that the measures to be specified in the order are necessary (a) in order to protect the safety of the witness or another person, or to prevent any serious damage to property".

27. Miss Malcolm's submission was that this requires the court to judge the matter objectively, in the sense that the court must be satisfied that the witness' physical safety would be, in truth, jeopardised without the order, and that it is not enough that the witness may reasonably believe himself or herself to be in peril.
28. In Mayers, the court considered the application of the statutory conditions, and at paragraph 29 said as follows:

"Condition A is linked to subsection 6. The order must be necessary. Some time was spent at the hearing comparing synonyms for "necessary". None is needed, although we agree that this is a requirement which goes well beyond what may be described as "desirable" or "convenient". Condition A is not fulfilled unless the order is necessary for the protection of the safety of the witness or any other person, or to prevent serious damage to property, or, alternatively, to prevent real harm to the public interest. In relation to human beings, the issue is un-embellished by adjectives. The question is safety, and this may encompass the risk of personal injury or death, or a reasonable fear of either".

29. In our judgment, the last words of that sentence are important, and they fit with the statutory purpose of the scheme. We consider that Miss Malcolm seeks to introduce an over-subtle distinction when she submits that a reasonable fear is insufficient. Not only do we think that this would lead to overly complex arguments, but there is also an important practical consideration. Take again the example of the person who has been in an abusive relationship. There is a good deal of evidence about the effect that such a relationship may have on a victim; it can distort, over a process of time, their resilience and perception of the risk which they may be under from the abusive partner, because of the dominance which the abusive partner has assumed over her. It can therefore happen that somebody in that situation may quite realistically entertain a fear which another person who has not been subjected to the same experience might not have. In our judgment, it is enough to justify the making of the order that the court is satisfied that the witness does have a real and reasonable fear for their own safety.
30. It was also submitted by Mr Elvidge that the orders, particularly in relation to "X", ought not to have been made, and that the convictions were unsafe, because the evidence given by "X" was the decisive evidence implicating him. If that were the case, it would not, of itself, mean that the order could not lawfully be made (see the decision of the Supreme Court in Horncastle [2009] UKSC 14), but one of the relevant statutory considerations identified in section 5(2)(c) is:

"Whether evidence given by the witness might be the sole or decisive evidence implicating the defendant".

31. We reject the submission that the evidence of "X" was the sole or decisive evidence which led to the jury's verdicts. In the first place, "X" was not the only bystander to describe an attack with an axe by the appellant's son, followed by the Volvo pulling across in front of the BMW, and the appellant stabbing the driver with a knife. We have already referred to the evidence of "A". There was no reason whatever to suppose any collusion between "X" and "A".
32. We mention also that, after the jury had retired to consider their verdict, they asked to be reminded of the evidence of the anonymous witnesses. We note that they did not ask for the evidence merely of "X"; they asked to be reminded of the evidence of all the anonymous witnesses.
33. It is also right to stand back. The jury knew that a car containing the appellant and his son had been tailing the Volvo; the appellant and his son had armed themselves; when the vehicles stopped, father and son got out in turn, one with an axe and one with a knife which they proceeded to use. Add to that the background of the severe assault on the appellant's son and the evidence that the appellant and his son had not only failed to help the police but were positively uncooperative. Add to that the fact that the son, at least, was unseasonably dressed for that time of year, and that at least one of them had what are known as "slasher's gloves". There was an obvious case that this was a revenge attack. It was not only an obvious case, but a strong case.
34. We conclude that the judge properly applied the statute in the decisions that he made, and that there is no ground to believe that the verdicts were unsafe by reason of the anonymity orders.
35. That leaves the bad character issue. The judge allowed the prosecution to introduce evidence that the appellant had a conviction for drug dealing, for which he had received a sentence of imprisonment for 10 years. He also allowed the introduction of evidence that, after he had been arrested, the appellant tried to bribe a police officer to provide him with a mobile phone which he could use in prison. In his ruling on the application, the judge noted that it was undisputed that the case fell within the gateway of section 101(1)(g) of the Criminal Justice Act 2003. This was because, as Mr Elvidge properly acknowledged below and in his submissions before this court, the defence had gone beyond the matters opened by the prosecution in the appellant's defence statement and in his cross-examination of Anderson, Smart and Lloyd. Furthermore, the appellant's counsel had attacked the integrity of "X" by accusing him of deliberately giving false evidence favourable to Smart. The question, therefore, for the judge was whether this evidence should be excluded under section 101(3).
36. Mr Elvidge's submission was that, in a case where the prosecution itself was putting forward the bad character of the Smart gang as the alleged motive for the crime with which the appellant was charged, it was unfair that his own character should be put in issue merely because he attacked vigorously the character of the prosecution witnesses.
37. The judge, in his ruling on the point, said:

"In this case, the defendant has made very serious allegations of misbehaviour against the three principal witnesses for the prosecution, which include allegations of violence of the most extreme kind. It is only fair, in my judgment, that the jury should have material before them on which they can form their own opinion on whether the defendant is any more worthy of belief than the Crown's witnesses. This, therefore, may include the two matters which Mr Woodcock seeks to put to the defendant".

38. Mr Elvidge's submission was that this was unfair, and that the extent to which he had put matters to the chief prosecution witnesses was merely, in his words, the "development of a theme". The difficulty of this court is that we are not in the position which the judge was in. We have not read, or been asked to read, the transcripts of the cross-examinations of Smart, Anderson and Lloyd. We are not, therefore, in a position to evaluate the full nature of the attacks made on them in cross-examination and how far they went beyond the matters opened by the prosecution, or the way in which these attacks were made. This court will be slow to interfere with the exercise of a judge's discretion under section 101(3) precisely for the reason that this court is unlikely to have anything like the feel for the case which the judge had. It will, therefore, only find that the judge's discretion was wrongly exercised if it is plain that the decision was unfair. In our judgment, it cannot be said that the judge's decision on this point was irrational or wrong.
39. A subsidiary complaint was made about the way in which this evidence, once submitted, was used by the prosecution. We do not develop the point because Mr Elvidge, realistically, conceded in his argument that if it were the sole point, his appeal would not have a realistic prospect of success. It was really a point supplementary to his other ones.
40. We conclude that none of the grounds of appeal have been made out. The trial judge conducted this case properly; the convictions are safe; and accordingly, the appeal against conviction must be dismissed.
41. There remains the appeal against sentence. The complaint about it is that the judge ought not to have made an indeterminate sentence. Grave though the offence was, the appellant had no previous record of violence. To impose an indeterminate sentence on somebody of his age, that is 49, was wrong. The judge in his sentencing remarks said as follows:

"You acted out of revenge and planned to ambush the BMW that day. You sought reprisals for the earlier attempt upon your son's life, which you believed was carried out by Alan Smart and Robert Anderson. You were supported in that belief by the police.

Apart from the act of stabbing and its premeditation, there were other aggravating features to your offending, namely that you committed this offence in a public street in daylight, in complete disregard for the feelings of the citizens of Sunderland, including some children who saw it. You decided to take the law into your own hands and mete out your own punishment. In sentencing you I believe I should reflect what I see is the abhorrence with which good people with decent standards would view your offence.

I have to consider in your case the issue of dangerousness and whether I should pass upon you an indeterminate sentence. The offence of which you were convicted is a serious offence and I must consider whether there exists a significant risk that you may cause serious harm to the public by committing further specified offences. I ask myself inevitably what then is the nature and extent of the risk that you pose? You do not have previous convictions for serious violence, so any assessment of risk must be based upon the circumstances of the offence of which you were convicted. I have already outlined the grave nature of your offending and its dangerous character. During the trial, it was obvious to me that you had bided your time to seek your revenge for the attack on your son. You withheld from the police, until you chose to release to them, the material which may have helped them in their investigation of that earlier offence. I have in mind the CCTV footage, and this shows to me that you wanted to keep complete control of the situation, to deal with Smart and Anderson in your own way and in your own time. In my view, this shows this you are cunning and dangerous.

The Probation Officer assesses you as representing a high risk of serious harm, an assessment with which I agree. I have formed the view that, given the matters to which I have referred, and notwithstanding the absence of a pattern of serious violent offending by you, the circumstances of this offence support the conclusion there exists here a significant risk that you will cause serious harm by further specified offending.

An indeterminate sentence, therefore, is necessary to protect the public and is proportionate".

42. The argument advanced by Mr Elvidge is not that the judge there took into account any improper matters or failed to take into account proper matters, but that he reached the wrong conclusion. We are unable to accept that the judge who had conducted this trial was wrong in his conclusion that the appellant was indeed cunning and dangerous and that an indeterminate sentence was necessary for the protection of the public.
43. Accordingly, the appeals against conviction and sentence are dismissed.
(Submissions re the use of special counsel at the appeal stage)
44. LORD JUSTICE TOULSON: We would like to make some tentative observations about the use of special counsel in an appeal against conviction where the grounds of appeal relate to a witness anonymity order and special counsel was instructed at the trial. In this case, the full court, in giving leave to appeal, asked for the appointment of special counsel who had appeared at trial, and the Attorney General acceded to the court's request. Without disclosing anything which ought not to be disclosed in an open judgment, we can say that, in this particular case, that has proved valuable. Miss Malcolm played an important role at the trial and, if we may say so, discharged her obligations impeccably. She also played a valuable role on the appeal in ensuring that the court saw all the closed material that it ought to see, which would probably not otherwise have happened, although that observation is not in anyway intended to be an oblique criticism of the prosecution. She has also made submissions on the appeal in the closed section of proceedings. Although we have not accepted those submissions, they were properly advanced. We are grateful to her for the role which she has played.
45. Because the Act is a new Act, although the process of appointing special counsel pre-dates it, we are prompted to offer these thoughts for the future. We do so bearing in mind that, according to what we have been told by Miss Malcolm, this is the first time that this court has had to consider an appeal based on complaints about anonymity orders under the new Act. We say nothing more about the way in which the proceedings were conducted below because, as we have indicated, we consider that the Act was carried out both to the letter and in accordance with its spirit.
46. At the appellate stage, it is obviously not the case that whenever the single judge or the full court is considering an application for leave to appeal against conviction on grounds relating to an anonymity order, it will request the appointment of special counsel. In many cases, the court, on reading the closed material, will be able to reach a view about the propriety of what happened and the safety of the conviction without any need for special counsel. However, there may be cases where, before deciding whether to grant leave, or on granting leave, the court may consider it necessary in the interests of justice to request that special counsel be appointed. This might be for a number of possible reasons: the court may consider that help is needed from special counsel to ensure that it has all the material which it ought to have; the court might want to know whether special counsel, having read the grounds of appeal and supporting advice, would wish to present argument in support of any of the grounds of appeal on the basis of material not known to the applicant or appellant's ordinary counsel. The court might also wish to know whether special counsel would want to raise some other point unknown to the appellant's ordinary counsel relating to what happened in the closed proceedings. Or there might be questions on which the court feels that it needs the assistance of special counsel to do justice. These matters would call for individual consideration in the individual case.
47. Where special counsel is instructed, their role is essentially the same as would be that of the appellant's ordinary counsel if that counsel had been privy to the same information, although all counsel have a duty to assist the court, and there may be cases in which the court has its own questions of special counsel. Miss Malcolm made the point earlier in proceedings today, quite rightly, that her role was not that of an amicus, but rather of counsel appointed to advance any submissions which might properly be made on behalf of the appellant and which could not be made by his ordinary counsel for want of knowledge of what occurred during closed proceedings.
48. Where the appointment of special counsel is requested by the court, for any of the reasons mentioned, it might be thought preferable in the first instance for special counsel to be invited to put their observations in writing, confidential to the court and the prosecution. In that way, the issues would be flushed out early and unnecessary expenditure might be saved. Thereafter, the court would be in a position to indicate whether it would wish to hear special counsel on the hearing of the appeal.
49. Miss Malcolm indicated that special counsel may find himself or herself in a particular difficulty on the hearing of an appeal if some question is raised in the grounds of appeal as to whether special counsel did their job properly at the trial. It has been suggested that it might be appropriate for other special counsel, therefore, to be instructed on the hearing of appeal. While that might be desirable on the facts of a particular case for some particular reason, we cannot believe that this would normally or routinely be the case. It is, of course, right that the role of special counsel is as we have indicated, that is to say to advance the interests of the appellant so far as they properly can. We do understand Miss Malcolm's concern if the notice of appeal seems to call into question the way in which special counsel went about the task in the court below. But it is to be remembered that the appellant, in the nature of things, will not know how that task was performed, and is therefore unlikely to be making allegations of incompetence by counsel in the way that has become not uncommon in appeals generally. The most that the appellant's counsel will be able to do in the grounds of appeal will be to raise questions as to what happened in closed proceedings, and, in effect, to submit that there is a matter which this court ought to consider as meriting further investigation. If the point is not self-evident to the court itself on reading the closed material, and the court requests the appointment of special counsel, normally the person best able to assist on such matters would be special the counsel previously appointed.
50. All that is further reason why there is much to be said for these points being brought out at an early stage part of the process in writing, when the court can take stock of the situation after reading any confidential written comments of special counsel.
51. Although the 2008 Act, with which we have been directly concerned in this appeal, has now been superseded by the Coroners and Justice Act 2009, the relevant provisions are materially in similar terms.
52. As we have already indicated, these are the tentative observations of this particular panel, based on this single case. We make them because there will continue to be questions about the use of special counsel at the appeal stage, and the court and parties affected can only learn by experience.