Wiggan, R v [1999] EWCA Crim 274 (4 February 1999)

LORD JUSTICE AULD: On 20th February 1998, in the Crown Court at Derby before His Honour Judge Morrison, the appellant Joy Louise Wiggan was convicted with others of violent disorder. On 20th May the judge sentenced her to 12 months' imprisonment, which he suspended for 18 months and combined with a suspended sentence supervision order for the same period. The appellant appeals against conviction by leave of the single judge.

The facts giving rise to the charge and conviction of violent disorder were as follows. The appellant's brother, Paul Wiggan, having stood trial at the Crown Court at Sheffield on charges of a serious nature, was sentenced to seven years' imprisonment. The appellant and a number of his other relatives, friends and supporters were in or near the court, which was court 3, at the time of the sentence. Immediately the judge pronounced sentence a disturbance broke out in the courtroom and he ordered it to be cleared. The violent disorder is said to have occurred immediately outside court 3 after its closure. There was a disturbance there in which police officers were attacked. The prosecution case was that the appellant was among the press of people there causing a disorder and that she joined in with the others shouting threats at one officer, DC Marsh, and with a fellow co-accused, Yvonne Sampson, kicked him. The appellant's case was that she was not in the immediate vicinity of court 3 at all at the time. She was in the building but outside court 10, some distance away. She maintains that she was wrongly arrested as being one of those involved and that there has been a mistaken identification of her.

A number of witnesses gave evidence about the disorder. They included prosecuting counsel in the case, Mr Toby Wynn. When the disorder broke out he waited behind for a time with two of the officers in the case, DC Marsh and DC Wood. They waited for about five minutes hoping things would quieten down, but when they left the courtroom things had not quietened down. Mr Wynn gave evidence that a woman, whom he did not identify, approached and spat at DC Marsh. He said that there was a lot of shouting and noise. Among the noise and shouting was Stuart Shearer (a co-accused of the appellant). Shearer approached him with a sledgehammer in a bag, shouted something and swung it at the officers. Mr Wynn, by now very frightened, ran to the stairs and shouted to the security officers to come to their assistance. He said that there were about 12 people in the immediate area outside court 3. He did not recall any particular words and did not identify anyone, never mind the appellant, as being involved in the disorder.

Both officers who were with him gave evidence. DC Marsh said that they came out of the court and there was a crowd. Another co-accused of the appellant in this case, Yvonne Sampson, screamed something at him and spat in his face. The appellant, whom he knew, was nearby and said to him "You're fucking dead. Next time you come to my mum's I'm going to chuck boiling water in your face". There was a lot of screaming and threats including, DC Marsh said, from the appellant. Shearer attacked him with a sledgehammer. Sampson and the appellant were kicking at him and connecting with his buttock and thigh.

DC Wood gave similar but less complete evidence. He also knew the appellant. He said that he saw her in animated debate with the defence solicitor outside court 3. He confirmed DC Marsh's evidence of what she had said to him. He did not see her kicking DC Marsh but he did see Yvonne Sampson doing so. He described the whole scene as "bedlam". He said that about eight to 10 people involved and that he himself was kicked.

The appellant was interviewed after her arrest. She gave an account in interview which corresponded broadly to what she was later to say in evidence. This was her account. She was outside court 3 when she heard of the sentence that her brother Paul had received. She went downstairs to cry. The next thing she heard was someone shout for security and she went back upstairs to look for her daughter. She did not talk with the defence solicitor, as DC Wood had described, and she did not say to DC Marsh the words that he had alleged. She denied having assaulted DC Marsh, or having thrown a table at Sergeant Allen, or having pulled the collar of Police Constable Horrocks. Indeed, she denied having been involved in any of the violence or threats outside court 3. On her account, at the material time she was sitting by a window near court 10.

Martin Munroe, who was a co-accused with the appellant, gave evidence. He said that he was present at the scene but he did not see the appellant fighting. However, he seemed to be confused as to whether he was talking about what was going on outside court 3 or outside court 10 for a period in his evidence. He ended up by saying that he did not see the appellant at the finish of the trial and presumably when the disturbance was taking place, but only saw her later outside court 10.

The trial was conducted by Mr Robotham on behalf of the appellant, probing throughout as to the issue of identity. He suggested to witness after witness for the prosecution that the appellant was not present at the scene at the vital time; and he explored in different ways the potential for mistake in the identification of the appellant by some of the prosecution witnesses as a party to the violence. That of course was the crucial issue in the case: whether the appellant was outside court 3 and a party to the use or the threat of unlawful violence with the others so that all their conduct would be likely to cause a person of reasonable firmness at the scene to fear for his or her personal safety. There is no doubt that what was going on outside court 3 did constitute a violent disorder and that a large number of people were involved in it issuing threats and being violent, in particular to police officers.

Mr Robotham has relied on two main grounds of appeal in seeking to challenge the appellant's conviction. The first goes to the conduct of the trial judge, His Honour Judge Morrison. In summary he submitted that the judge, by his interventions during the course of the evidence at various stages, entered into the arena so extensively and in such a manner as to render the conviction of the appellant unsafe. The nature of his interventions, Mr Robotham submitted, contained all the evils against which this court has warned: interventions inviting the jury to disbelieve the appellant, interventions which prevented counsel from effectively representing his lay client, and interventions preventing the appellant from doing herself justice when in the witness box.

Mr Robotham has taken us to a number of passages in the transcripts which have been prepared for the purpose, indicating the number, frequency and nature of the judge's interventions. Many of them do not justify the concern which Mr Robotham has expressed; they consist of interventions to clarify the witness's evidence and to clarify the point of counsel's question. Mr Robotham has suggested that they put him off his stroke to such an extent that he lost the track of what he was doing from time to time, to the detriment of the appellant. We do not consider that those interruptions - and we need not detail them - were of such a frequency or nature as to cause a counsel of Mr Robotham's experience and calibre not to have done his duty on behalf of his client.

More seriously, the judge entered upon a line of questioning, both of the appellant and of one of her co-accused Mr Monroe, which did smack of a prosecution cross-examination, sometimes pointed in nature and sometimes suggesting a scepticism as to the evidence that the witness had given or was giving. This questioning of the appellant took place at the close of Mr Robotham's re-examination of her. Mr Robotham conventionally and courteously invited the judge whether he had any questions himself of the appellant before she left the witness box. The judge then proceeded to ask some 64 or so questions of the appellant. They were, as we have mentioned, in the nature of cross-examination, going in the main to the critical point in the case, her account that she was not outside court 3 at the time when the violent disorder took place.

The judge, in our view, overdid it. His questions were not to clear up uncertainties, to answer questions which might be lurking in the jury's mind and needed to be dealt with - they were of a testing nature. They were improper. The same can be said about the judge's questioning of Mr Monroe. He did that by joining in with prosecuting counsel in the course of his cross-examination, suggesting in the way he put some of the questions that he or the jury might disbelieve some of what Mr Monroe was saying.

We have had to consider very carefully whether this conduct of the judge has rendered the conviction of the appellant unsafe. The issue was only partly one of identification. In the case of some witnesses it was one of recognition. At least two of the witnesses, DC Marsh and DC Wood, knew the appellant. It was also common ground, as we have said, that she was distinctively dressed - the only one dressed in a floral dress and a long cardigan or coat on top of it - and she was of a short and distinctive appearance and stature. The scope for mistake, either by way of recognition or identification in the case of the other witnesses was barely possible.

Looking at the prosecution evidence as a whole, it is our view that it was overwhelming in the identification and recognition of the appellant as being a party to the disorder immediately outside court 3 at the critical time. We would add that the judge in his summing-up, both in the early stages of it and at the end having been prompted by Mr Burgess for the Crown, adequately directed the jury on the possible dangers of mis-identification and mis-recognition. Mr Robotham no longer pursues as a ground of appeal any complaint about the judge's direction in that respect.

Mr Robotham has advanced a second ground of appeal, which he seeks to pursue by inviting the court to receive evidence under section 23 of the Criminal Appeal Act. It goes to a very narrow issue in the case, the issue whether DC Marsh can be right when he said that both Yvonne Sampson and the appellant kicked him outside court 3 in the region of the thigh or the buttocks. Sadly, the appellant has suffered since birth from a defect which we shall call "club feet". It affects her mobility and it affects her agility. However, at no stage during the trial did she seek to suggest that her condition would have made her unable to kick DC Marsh that high up on his body.

She says that she appreciated the point at a very late stage of the trial, by which time it could not be put before the jury. Since conviction, on the instructions of her advisers, doctors have been asked to examine her with a view to seeing whether she was physically capable of kicking DC Marsh as he alleged. The broad view of the doctors, if the evidence were to be received, is that she probably would have been able to kick the officer but not sufficiently high up in the body to reach his thighs or his buttocks, because in doing so she would have lost her balance. Therefore, Mr Robotham asks the court to receive this evidence with a view, as we understand it, to unseating all the other evidence in the case, including that of DC Marsh, identifying her as involved in the violent disorder.

We say nothing about the other requirements of section 23(2). Mr Burgess for the Crown is prepared to accept for the purpose of this appeal that the medical evidence, if called, could establish that the appellant could not kick as high as DC Marsh claims she did. As to whether this evidence reasonably should have been put before the jury, we express some surprise that a matter so obvious as an issue, if it was an issue, should not have been realised by the appellant at the time, notwithstanding her relatively low intelligence. But of more concern is whether, in the words of section 23(2)(b), it appears to the court that such evidence, if received, might afford any ground for allowing the appeal. We do not consider that it would. The offence was not, as my Lord, Forbes J, has pointed out in the course of counsel's submission, an offence of a discrete assault. It is a charge of a broader nature, one of violent disorder, in which the use or the threat of unlawful violence and being a party to it were at the heart of the prosecution case. It is noteworthy that DC Wood did not see kicking of the sort of which DC Marsh gave evidence. In the course of the disturbance it may be that he was muddled as to who kicked him where. But the fact remains that he and DC Wood and others firmly put the appellant on the scene and in the thick of the violence and threatened violence taking place. In short there is no basis in our view for supposing that if this evidence had been before the jury their verdict would have been any different. For those reasons we decline to receive the evidence proferred by Mr Robotham on behalf of the appellant, as we can see no basis for finding the conviction to be unsafe on that evidential ground. Accordingly, the appeal is dismissed.

England and Wales Court of Appeal (Criminal Division) Decisions

JOY LOUISE WIGGAN, R v. [1999] EWCA Crim 274 (4th February, 1999)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wiggan, R v [1999] EWCA Crim 274 (4 February 1999) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/274.html Cite as: [1999] EWCA Crim 274