Davis, R v [2000] EWCA Crim 77 (20th December, 2000)

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R v. David Anthony DAVIS [2000] EWCA Crim 77 (20th December, 2000)

1. On 11 February 2000 in the Crown Court at Nottingham, before His Honour Judge Pitchers and a jury, the appellant was convicted of producing a controlled drug of Class B (Cannabis) (count 1) and possessing a controlled drug of Class B with intent to supply (count 2). He was sentenced to 7 years imprisonment on each count concurrent.

2. He appeals against conviction by leave of the single judge and renews his application for leave to appeal against sentence after refusal by the same judge.

3. The main ground of the appeal against conviction is that His Honour Judge Pitchers should have stayed the proceedings prior to the trial before him on the ground of abuse of process. That ground is founded on the fact that on four previous occasions the appellant had been put in charge of a jury but the jury had been discharged and, more particularly on the fact that, as argued on behalf of the appellant, the jury should not have been discharged on three of those occasions. Of the other grounds of appeal one has been abandoned and the other relates to the admission into evidence of documents, said by the prosecution to have been written by the appellant, for the purpose of comparing those documents with others found at the premises and thus of an incriminating nature.

4. The prosecution case resulted from a raid by police officers on a house in Warsop on 15 August 1988. At the house the police found two vehicles parked outside. One of the vehicles belonged to Reece Packard who was the co-accused of the appellant and who on 11 January 1999 pleaded guilty to both counts. The other vehicle belonged to the appellant. The officers could hear music from within the house and once they had forced entry they found that the whole house had been given over to the cultivation of cannabis - in excess of 3000 plants. There was no one present although the officers found two cups of coffee still warm. It was estimated that the plants would have yielded 180 kilos of cannabis bush - and one ounce per bush would have been "skunk". The minimum value of the crop was £1 million.

5. At the trial the issue for the jury was whether the appellant had any connection to the operation. The prosecution alleged that the appellant did so on the basis that it was his van parked outside the house and that the van contained personal papers including his passport. In addition, the fingerprints of the appellant were found on papers discovered inside the house and on a light bulb and toy lorry, also found inside the house. One significant document known at the trial as the "grower's notes" had the appellant's fingerprints on it, but in addition the prosecution alleged that the notes were in the handwriting of the appellant. At the trial before His Honour Judge Pitchers the prosecution relied on expert evidence in relation to other documents alleged to have been written by the appellant for comparison purposes. Further the prosecution invited the jury to draw an inference that the "grower's notes" were indeed in the appellant's writing from the appellant's refusal to supply a sample of his handwriting. The prosecution also invited the jury to draw an adverse inference against the appellant because, as they alleged, he lied when he told the police that he did not know his co-accused, or only knew him vaguely.

6. At the outset of the trial before His Honour Judge Pitchers submissions were made on behalf of the appellant, first, that the trial should not proceed on the grounds that to proceed would be an abuse of process, and secondly under s 78 of The Police and Criminal Evidence Act 1984 to exclude the documents to be used by the prosecution for handwriting comparison purposes. In making the application in relation to abuse of process, Mr Monteith, on behalf of the appellant, accepted by virtue of a previous ruling by The Hon Mr Justice Holland that he could not go behind the previous decisions to discharge the jury. His submission on abuse of process was thus confined to the history that there had been the discharges of the jury and in particular that the discharge of the first jury had enabled the prosecution to strengthen their case. That submission was based on the fact that at the first trial handwriting evidence had been ruled inadmissible. The discharge of the jury at the first trial enabled the prosecution to get their handwriting evidence in better form, as a result of which it was admissible at the trials that followed.

7. In addition, so far as abuse of process was concerned, it was submitted that there was a breach of Article 6 of the European Convention on Human Rights on the basis that no fair trial was being held within a reasonable time. It was also submitted that it was unfair that as a result of the history, the prosecution and their witnesses were aware of the defence. Furthermore it was said that the appellant had justifiably lost confidence in the justice system. It was submitted that it was contrary to the integrity of the Criminal Justice system that a trial should now take place.

8. As regards the documents and their admissibility the key document was a letter, which, on its face, appeared to have been written by the appellant to his ex-wife. That document had come to light during one of the previous trials as a result of the judge having access to a file in different proceedings. The trial judge on that occasion thought that a comparison between the handwriting in that letter with the handwriting on the incriminating document would produce a result in the appellant's favour and thus suggested that handwriting evidence should be commissioned. In the result the commissioned evidence concluded that the handwriting on that document was the same as that on the incriminating document and the prosecution sought to put in that letter at the final trial. The letter also contained references to drugs and matters that would have been prejudicial to the appellant.

9. Judge Pitchers ruled the letter as admissible but further ruled that the prejudicial parts of the letter should be blanked out so that the prejudice would be reduced. Mr Monteith's submission was that there was still prejudice on the grounds that it was apparent that the letter had come from the appellant in prison whilst on remand for the offence being tried by the jury.

10. The two important aspects of the evidence related to fingerprints and handwriting. In relation to fingerprints the position was as follows. The police evidence was that SOCO Caldicott had gathered piles of papers from the dining room and from the same room on the following day a "nutrients" price list. Two sheets of paper were also found outside a bedroom upstairs. Two prints were lifted from a light bulb and from a toy truck. The police further took photographs of the premises. The truck was visible on the police photographs but the pile of papers and the light bulb were not. Furthermore the light bulb was apparently never recovered and taken into police possession. The prints on the light bulb and the truck matched the appellant.

11. On 16 August 1998 police officers searched a pantry which contained a heap of empty fertiliser bags. PC Hall said that he found exhibit DLH7, described as the "grower's notes". DC Hair logged the find. SOCO Caldicott found thumbprints belonging to the appellant on a number of the recovered documents, including the grower's notes which were consistent with the appellant having held them as if to read them or turning the page. The documents on which the appellant's fingerprints, thumbprints and palm print were found included an air pack handling system, starter kits, lighting instructions, one document with instructions to or from "Bren", and the grower's notes. The document also revealed the fingerprints of the co-accused and other prints which could not be identified.

12. So far as the handwriting was concerned the police recovered papers from the appellant which included documents relating to a motoring offence in 1992, where in the margin there was handwriting. There were further written directions for a lorry driver. The prosecution also had the letter from the appellant's ex-wife as previously described. The handwriting expert for the prosecution was of the opinion that the notes in the margin, the written directions to the lorry driver, and the letter to the appellant's ex-wife were all written by the same author. The expert was also of the opinion that that author had also written documents found in the house including the "grower's notes". The evidence of the expert was that there were so many similarities and no significant differences so that he was sure that the three comparison documents were by one person who was also the author of seven other pieces of paper including the grower's notes.

13. When he was arrested and interviewed the appellant refused to answer most questions put to him and refused to give a sample of his handwriting. Indeed, the appellant refused to give a sample of his handwriting at any stage of the proceedings.

14. At the final trial the appellant gave evidence that he had decided that he was not going to help the police and did not want to get anyone else into trouble. He was acting, he said, under the advice of his solicitor, that if he started making no comment that he should stick to it.

15. His explanation for fingerprints was that he had loaned his van to the co-accused two or three times for the co-accused to use to take to France to buy cheap beer. When he got the van back there were papers scattered all over it including leaflets and flyers. The second time he loaned the van there were two or three others present and he thought that their names were mentioned. His co-accused promised him a small amount for the loan of the van and the last time he loaned the van was a day or two before it was found outside the house by the police.

16. The appellant's evidence was that the second time he took his van back he gathered up all the papers that was scattered in it, bundled them up, and looked through them. He had a vague recollection of instruction for an air handling system and some pages were blank. His prints were on two notices which bore handwriting but he said that if the writing had been on the paper when he looked through the bundle he would have remembered them. He specifically recalled the grower's notes because they were clipped to a clipboard on the dashboard. He tried to figure out what it all meant and did not write on anything. He gave it all back. He could not explain his fingerprint on a light bulb but the model truck was his and it had been inside his van. It was not in the van when he got the van back. His co-accused had said to leave it because they could "play with it".

17. As for the handwriting on documents, he said that the three items used for comparison were not written by him and he alleged that they were written by three different people. He denied writing the grower's notes or any of the incriminating documents. His only contact with such documents was in the van.

18. He had not wanted to provide a sample of his handwriting because it was not done in a scientific way and he was worried because the handwriting experts were paid by the police. The marking up on the margin of the statement in relation to his motoring conviction had been written by a cell mate when he was in custody waiting for an appeal. His cell mate was better versed in the law than he was and that person marked up various points for him. He did not write the lorry driver directions - it was probably the driver's mate who did. He found writing difficult because he had injured his right arm and a cell mate wrote it for him. So far as the letter to his ex-wife was concerned he had dictated that to a cell mate.

19. The appellant accepted that he had for some years been in business with his co-accused but during Spring and Summer of 1998 he was out of work. The van was off the road because he could not afford to tax or MOT it. He had nothing whatsoever to do with the house or the cannabis.

20. The most significant point argued on the appeal by Mr Monteith on behalf of the appellant relates to abuse of process and the history of discharging of juries.

21. We can start by accepting that if there has been an abuse of process and if thus Judge Pitchers should have stayed the proceedings prior to the final trial taking place, that would render the conviction unsafe. However powerful the case against the appellant, (and the case was a very powerful one indeed), we accept that albeit it is the safety of the conviction with which the court is concerned, if the trial should never have taken place and if the appellant was entitled to be acquitted, then it must follow that the conviction is unsafe. This we understand to be consistent with decisions of this court in R v Mullen [1999] 2 CrAppR 143, and R v Piggott and Litwin [1999] 2 Cr.App.R. 320.

22. The question accordingly is whether there was such an abuse of process that the trial that took place before His Honour Judge Pitchers should never have taken place.

23. What is relied on as amounting to that abuse of process? It is said that the decisions to discharge the jury on three previous occasions were wrong and that in those circumstances for the prosecution to proceed with the final trial was an abuse of process. As previously indicated there was a discharge on a fourth occasion but no complaint is made of that.

24. It is said in addition that the effect of the decision to discharge the jury, at least on the first occasion, was to enable the prosecution to get certain of their evidence in order so that whereas it had been ruled inadmissible on the first occasion it then became admissible on the next occasion a factor of which the judge was aware (as indeed he was). It should be said that an attempt was made at the third trial to keep the evidence out on the basis that it was unfair for the prosecution to rely on it. That submission was rejected and no submission was made to the same effect at the fourth trial other than in the general context of submitting that the trial should be stopped on the basis of abuse of process. Equally it should be said that no application was made to stop the second or third trial on the basis of abuse of process; that application was made for the first time in relation to the final trial.

25. We accept that there can be circumstances in which, following the discharge of a jury in one trial, it can be held to be an abuse of process to allow the prosecution to continue with a further trial. Examples where that is so seem to relate to circumstances in which the discharge of the jury has followed some action or inaction on the part of the prosecution. For example in R v Richard Lewis 2 Cr.App.R. 180 the crown sought an adjournment part way through the first trial owing to the absence of witnesses. This was opposed, but granted, and the jury were discharged. The trial recommenced some days later and the appellant was convicted. This court held that the jury should not have been discharged in order to allow the prosecution to present a stronger case in another trial. To the same effect is R v Piggott and Litwin [1999] 2 Cr. App.R. 320 where, at the close of their case in the first trial, the crown sought leave to amend the indictment to conform with the evidence which at that stage had been given, seeking to allege a case which they had previously abandoned. Leave was given and the jury were then discharged having regard to the fact that evidence had been given during that trial which would be inadmissible on a trial on the indictment which by that stage had been amended. This court held that it was wrong for the jury to have been discharged on the first occasion and wrong for the crown to have been allowed to amend their case in the way that they did and thus the further trial should not have taken place. We know of no authorities that support the proposition that where a discharge is caused either by the action of the defence lawyers or defence side, or where the discharge has happened through a ruling of the judge in relation to which neither side were to blame, a prosecution of a trial thereafter is an abuse of process. Clearly if independently of any point relating to discharge, it were for some other reason unfair for a trial to take place, that would provide its own independent ground for stopping the further trial. Thus, for example, if so much time had gone by so as to make it impossible to have a fair trial, then it would be an abuse for the prosecution to attempt a retrial.

26. In this context it is also right to remember that if there is a discharge and a further trial, just as if an appeal is allowed and a retrial ordered, the effect would be that both sides have the opportunity of improving their evidence, if that is possible, or improving the presentation of their case. That is in the nature of a retrial. There is clearly a distinction between discharging the jury for the benefit of the prosecution and in order to allow the prosecution to present a stronger and different case, and a situation arising in which, through no fault of the prosecution, a jury has to be discharged and a retrial takes place thereafter.

27. With the above introduction we turn to examine the reasons for the discharge of the various juries in the instant case. The first trial commenced in June 1999 before His Honour Judge Benson and a jury. On 3 June there was some discussion about an adjournment and the judge heard submissions which led him to exclude the handwriting evidence of the prosecution because of its unsatisfactory nature. It then appears that, putting it shortly, the judge became concerned that a document had gone into the jury's bundle, albeit it had not been referred to in opening, which contained admissions. The admissions were important, if they were admissions, because they related to the finding of documents and items on which were the appellant's fingerprints, in the relevant premises. Mr Monteith, on behalf of the defence, wished to challenge whether certain of the material on which fingerprints had been found, had in fact been found in the house. Mr Monteith for example wished to challenge that the bulb on which the fingerprint had been found was there because it could not be seen on any photographs or videos. It followed from that fact that Mr Monteith wanted the prosecution to produce the bulb and the toy lorry. That resulted in the judge ordering all unused material to be brought to court. On the morning of 7 June when that material was brought to court, Mr Monteith had an opportunity to examine the van that was full of all of the unused items, and could not locate the light bulb or the toy lorry. It was made clear to the judge by Mr Monteith that this was a significant aspect of the defence case and he continued to call on the prosecution to produce the light bulb, and during the interchange between Mr Monteith and the judge Mr Monteith made clear that he wished to challenge the whole exercise engaged in by the prosecution in relation to collecting material from the house. The judge then faced Mr Monteith with the possibility that if that were so, he, the judge, would have to discharge the jury and his reasoning in essence was that for the trial to take place in a sensible time scale it would be necessary for all the unused material to be at court and assembled in an order which would allow cross-examination and re-examination to take place in relation to it. Mr Monteith insisted, so far as the judge was concerned, that it would be unnecessary for all the material to be there because he wished to limit his questions to only very few items, but the attitude of the judge was that the prosecution would wish to re-examine in order to establish the efficiency and reliability of the prosecution collection of items from the house. The judge further took the view that it was because the defence had given no warning as to its attitude, or indeed as to its defence in the defence statement, that the situation had arisen.

28. We have to say that we have been somewhat alarmed and worried on reading the transcript of the exchanges between His Honour Judge Benson and Mr Monteith at the first trial. It would seem to us on reading the transcript that albeit that Mr Monteith was taking an unhelpful line when exchanges first commenced, he was attempting to see that a discharge of the jury should not be necessary, at least by the end of the exchanges. However, the judge ruled that the jury should be discharged and so it was.

29. Mr Monteith relies on the fact that the judge did foresee that the discharge would allow the prosecution to get their handwriting evidence in better order for a further trial as an additional factor. It is apparent from the transcript that the judge did appreciate the position. But, it cannot be said that the prosecution were seeking an adjournment for that reason and nor was that a reason why the judge ruled as he did. It is clear that he ruled as he did because he took the view that the defence was now going to make it necessary (a) to withdraw the document from the jury which had been put before them as containing admissions, but (b) primarily because he took the view that because the defence had been dilatory in stating what they needed at the trial, there would be an enormous wastage of public expenditure if the trial was allowed to proceed without the material all being in order.

30. The trial was then to be re-commenced before His Honour Judge Bennett on 4 October 1999. As already indicated, there was no application before that judge to stay proceedings on the ground of abuse of process. The trial on that occasion never got going at all. Albeit a jury had been empanelled matters had got no further than directions as to evidence and matters of that sort. During the interchange between the judge and counsel, the judge felt embarrassed by virtue of some other proceedings relating to the appellant in which the judge had been involved. He was also unhappy about the fact that counsel could not agree precisely what had occurred before His Honour Judge Benson previously. In those circumstances the judge, on the evening of 4 October after court, clearly made enquiries as to whether Judge Benson was still available. He established that he was having consulted the Resident judge His Honour Judge Pitchers.

31. Some complaint is made of this consultation process. There is no basis for complaint in relation to it. It is common form for judges to consult with the Resident judge or their Presiding judge in relation to the availability of other judges to take trials if it is thought convenient that those other judges should do so.

32. In any event Judge Bennett was recusing himself on the basis of the embarrassment that he felt. He perfectly properly discharged the jury on that occasion.

33. On 5 October the trail commenced again before His Honour Judge Benson. The transcript of the first day of this hearing makes extremely unhappy reading. The judge first conducted an exercise in seeking to find out on what counsel could not agree when they were before Judge Bennett. For that to take up the time of the court in public, and with the appellant having to listen, would seem to us quite unnecessary. During the process of the interchange between counsel and the judge on this occasion which went on for a considerable period of time, the appellant actually withdrew at one stage in exasperation as to what was occurring in relation to his case. Frankly we think that he was justified in feeling exasperated. We are also bound to say that in large measure that exasperation was due to the way in which the judge was conducting the proceedings.

34. In any event objection was taken to the judge trying the case, it being said that he had in fact indicated on the first trial that he would not take the re-trial. The objection indeed was supported by counsel for the prosecution but in the event Judge Benson continued and did conduct the trial. It seems that at the commencement of this trial a further jury had to be discharged but no complaint is made about that. The trial then got properly under way and three things of relevance occurred. First, it was during this trial that the judge produced the letter to the appellant's ex wife and suggested that it should be examined by the handwriting expert for the prosecution. It is common ground that he did this because he thought that the resulting opinion would be in the appellant's favour. Thus no complaint is made about that. The complaint is made about the fact that ultimately when that opinion turned out to be against the appellant it was unfair that the evidence should become admissible in the final trial. Second, during this trial the appellant gave evidence-in-chief but he refused to remain for cross-examination. We were informed by Mr Monteith that the real reason for the disappearance related to an anxiety by the appellant as to the trial process. In any event, although at one stage it was suggested that the appellant was unfit to continue to give evidence, the certificate of a doctor demonstrated that he was perfectly fit so to do. Thirdly, and this is the critical point, at the end of Mr Monteith's speech the judge sent the jury out in order to discuss the position with counsel. The judge was clearly of the view that once again it was going to be necessary to discharge the jury and the reasons why he felt it necessary so to do was because of certain points made by Mr Monteith in his final speech. The relevant points made by the judge were first that Mr Monteith had wrongly expressed an opinion about the handwriting evidence; secondly that he had stated that the appellant might have 101 reasons for not being present for cross-examination and thirdly had stated there was nothing at the house to connect the appellant with those premises.

35. Mr Monteith before the judge accepted that he had been wrong in what he had said. The most significant point related to counsel's comment that there was nothing at the house to connect the appellant with it. The position in fact was that if the appellant had remained to be cross-examined there would have been put to him a filofax found on the appellant's premises containing a reference to "Bren" a name which also appeared on documents at the house.

36. Mr Monteith was prepared to try to correct any misleading impression that he had given. Many judges would, in the circumstances and where there had already been the discharges of the jury that there had already been, have found some way in which the trial could be completed. The evidence against the appellant was very powerful indeed. With a properly balanced summing-up it would seem to us likely that the misdemeanours of Mr Monteith would have been lost in the overwhelming nature of the case against the appellant. But, in fairness to the judge, it must be said that the comment that there was nothing to connect the appellant with the house was a comment that it would have been peculiarly difficult for Mr Monteith to correct without being unfair to his own client. Thus it was that the judge came to discharge the jury on that occasion.

37. Thus it was that once again a jury had been discharged and the appellant had to await a further few months for his re-trial.

38. In January of the next year Mr Monteith, on behalf of the appellant, applied to Mr Justice Holland to have the trial moved from the Nottingham court centre. That application was refused and in that context Holland J, so we are informed, made it clear that the discretion of Judge Benson and Judge Bennett in discharging their juries could not be challenged before another circuit judge. Not surprisingly, in those circumstances, when the matter ultimately came on before His Honour Judge Pitchers, Mr Monteith, in making his application to stay the case on the basis of abuse of process, did not attack the rights and wrongs of the decisions taken to discharge the jury. He simply relied on the history of the discharges and on the fact that the effect of the same had been to enable the prosecution to strengthen their case in particular in relation to the handwriting evidence. That application to stay the case was refused by Judge Pitchers and in those circumstances the trial commenced. On this occasion the evidence was as previously outlined but the defendant in addition gave evidence and was cross-examined.

39. Before us what Mr Monteith has attempted to do is to persuade us that the decisions to discharge the jury on the previous occasions were wrong and decisions to which no reasonable judge could have reached and to persuade us that in those circumstances it was unfair for the appellant to face the trial before Judge Pitchers. He submitted that if he can establish that the discharges should not have been made the appropriate test is something akin to that set out in Sterland v D.P.P. [1944] AC 315 to the following effect:-

"Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error would the only reasonable and proper verdict be guilty?".

Mr Monteith submitted that on the evidence as it was so far as the prosecution were concerned at the first trial, it could not be properly concluded that the only reasonable and proper verdict was one of guilty.

40. Mr Monteith in any event submitted that the appellant had been caused injustice and that the criminal justice system had been seen to be unfair in so far as three juries had been discharged for no good reason; the appellant's confidence in the justice system had been destroyed because of the way the judges had dealt with his case; and because the prosecution and their witnesses were well aware of the appellant's defence and had been able to put their own evidence in proper order.

41. Clearly the history of this case makes very poor reading. However, the case against the appellant was a very strong one indeed both at the first trial, and in particular once the prosecution had their handwriting evidence in order. So far as the first discharge was concerned, some judges might not have discharged the jury in the circumstances outlined. But it is quite impossible to say that the judge's discretion on that occasion can be attacked. In any event, even if that discretion could be attacked it was in no way the fault of the prosecution that the jury was discharged on that occasion. If one then poses the question whether it was an abuse of process for the prosecution to commence the second trial in October, the answer seems to us to be clearly that it was not. Furthermore, it did not occur to those advising the appellant that it was an abuse of process to bring the matter to trial again in October. Some efforts were made to keep out the handwriting evidence as now improved by the prosecution, but that ruling was correctly in the prosecution's favour. It is quite clear to us that if the trial in October had been allowed to run its course the case against the appellant was overwhelming and he would have been convicted.

42. In relation to the discharge by Judge Bennett. For reasons already indicated we do not see that that ruling can be attacked and no injustice could even be suggested to have been suffered by the appellant since the next trial commenced within a day of that ruling.

43. So far as the discharge at the end of Mr Monteith's final speech, again, as already indicated, we have serious doubts whether many judges would have discharged on that occasion at that moment. However, once again, the matter is in the discretion of the judge and there was one factor at least which it is difficult to suggest did not entitle him to take the view that he did. Even however if the decision could in some way be said to be wrong, once again there was no fault, so far as the prosecution were concerned, and it is relevant that the case against the appellant was overwhelming at the stage when the jury were discharged.

44. When the matter came on before Judge Pitchers in our view the judge was entirely right not to stay the case as an abuse of process. It is true that the history makes most unfortunate reading. One must have sympathy for the appellant who had to endure his case coming on first in June, then in October and then finally only in February 2000. However, as it seems to us, the trial could certainly take place fairly in February 2000 and although the prosecution had stronger evidence than they did at the first trial, there was no distinction between their position at the third trial and that at the final trial. The case was a very powerful, indeed overwhelming, case as against the appellant and in the circumstances the judge was quite right not to stay the proceedings.

45. So far as the evidence relating to handwriting was concerned it was always open to the appellant to supply a copy of his own handwriting for comparison purposes. If he had done that there would have been no need for the prosecution to produce documents which they sought to prove were written by him for comparison purposes. So far as prejudice is concerned Judge Pitchers made sure that the letter addressed to the appellant's ex-wife was as free from prejudice as it could be. The only aspect that could be said to be prejudicial was that it came from prison. In the circumstances of a case as serious as this it would be a matter of no surprise to the jury that the appellant was on remand and the judge in his summing-up gave appropriate warnings so far as the jury's approach to the documents was concerned. In our view there is no substance in this point.

47. The main point taken by Mr Monteith relates to the sentence passed on Reece Packard the co-accused who was sentenced in November 1999 by His Honour Judge Hopkin to 5 years imprisonment on each count concurrent, but that sentence was reduced to 3½ years imprisonment by this court presided over by Lord Justice Swinton Thomas. A transcript of the judgment on appeal demonstrates that the reason for the reduction in sentence flowed from the fact that the court clearly thought that the sentencing judge had not fully appreciated the lack of benefit which Packard had received from the enterprise and had not appreciated the minor role which he played.

48. There is one point which was possibly not so apparent to Judge Pitchers as it has been to us, to which we have given anxious consideration. Just as delay in a trial can lead to a reduction in sentence, should the circumstances in which this appellant was subjected to four retrials be matters which should be taken into account when considering his sentence?

49. We have ultimately concluded that the answer is that it should be. It is true that the case against the appellant was very powerful indeed. He could have pleaded guilty right from the outset and saved himself from all the problems that were encountered and received credit for that plea. But we do think that all that said the ordeal of four re-trials in his circumstances in which they occurred should be reflected in a reduction in sentence.

50. His application for leave to appeal against sentence is accordingly allowed and we reduce the sentence from seven years to five years. To that extent, the appeal against sentence will be allowed.

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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 >> Davis, R v [2000] EWCA Crim 77 (20th December, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/77.html Cite as: [2000] EWCA Crim 77

England and Wales Court of Appeal (Criminal Division) Decisions

R v. David Anthony DAVIS [2000] EWCA Crim 77 (20th December, 2000)