Gastall, R. v [2017] EWCA Crim 1785 (24 October 2017)

Neutral Citation Number [2017] EWCA Crim 1785

Case No: 201703877/B5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Date: Tuesday, 24 October 2017

B e f o r e:

LORD JUSTICE HOLROYDE

MR JUSTICE SUPPERSTONE

MR JUSTICE JAY

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Between:

R E G I N A

SHAUN GASTALL

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Computer Aided Transcript of the Stenograph Notes of

WordWave International Ltd trading as DTI,

165 Street London EC4A 2DY,

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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Mr O Greenhall appeared on behalf of the Applicant

Mr A Prosser appeared on behalf of the Crown

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J U D G M E N T (Approved)

LORD JUSTICE HOLROYDE:

1. On 4 August 2017 in the Crown Court at Canterbury, this applicant Mr Shaun Gastall was convicted of an offence of violent disorder committed on 30 January 2016. He was subsequently sentenced by the learned trial judge, His Honour Judge James to 14 months' imprisonment. His application for leave to appeal against conviction has been referred to the full court by the Registrar.

2. The charge against the applicant arose out of violent events in Dover on 30 January 2016. On that date there were two rival demonstrations in the town. Right wing demonstrators, including members of a number of far right groups, planned to march through the town from the railway station to the docks, where there were to be speeches. Left wing demonstrators held a rally in the town's market square. Purely for convenience we shall refer to those involved in the demonstrations as "the right wing demonstrators" and "the left wing demonstrators" respectively.

3. The prosecution case, supported by CCTV footage, was that there came a point in the course of the rally in the market square when some of the left wing demonstrators, including a number who had hoods up and scarves on, set off to obstruct the planned route of the marching right wing demonstrators. The left wing demonstrators went towards the railway station where the right wing demonstrators had gathered, and the two groups came together shortly after the right wing demonstrators had set off to march to the docks.

4. At first, the police presence was insufficient to do anything to deflect the breakaway group of left wing demonstrators moving from the market square. Eventually, however, the police were able to halt both the breakaway group of left wing demonstrators and the right wing demonstrators. The police formed cordons, one in front of each group of demonstrators, with a line of vehicles drawn up in front of the left wing demonstrators and a safe area between the two.

5. There were however some present who were plainly intent on confrontation. A splinter group from the right wing demonstrators outflanked the police and by a circuitous route were able to confront the left wing demonstrators in the vicinity of a BP petrol station. Missiles were thrown from both sides. Although the police, as we have said, had positioned a line of their vehicles across the road, there was a gap on the pavement which became a flash point. The applicant, who a short time earlier at a nearby location had been seen throwing something over the police lines towards the right wing demonstrators, was now seen in the flash point area throwing stones or rocks towards the right wing demonstrators. That involved a throw of some significant distance over the line of parked vehicles and police officers.

6. Ultimately the police succeeded in placing a cordon around the left wing demonstrators. The right wing demonstrators continued their march and the left wing demonstrators subsequently returned to the market square. Further incidents of violence occurred in the town later in the day.

7. The applicant was arrested and interviewed. He made no comment. He was further interviewed on a later date when CCTV footage was available and could be shown to him. He again made no comment.

8. At the applicant's trial it was common ground that a violent disorder had taken place. Moreover, the applicant, a man of previous good character then aged 52, accepted that he had thrown stones. His case was that he was acting in the defence of himself and/or others and was throwing back stones that had just been thrown by right wing demonstrators either at or towards the applicant and those who were near him. Thus the sole issue in the case was as to self‑defence.

9. The applicant stood trial together with another man whose case also raised an issue of self‑defence. In advance of the trial both the defendants made an application, effectively a joint application, pursuant to section 8 of the Criminal Procedure and Investigation Act 1996 for disclosure of unused material. That application was considered on the papers by His Honour Judge O'Mahony, who was the judge in overall charge of case management of a number of trials arising out of the events in Dover. He refused the application, saying:

"The defence is self‑defence. The jury can have no better evidence than the CCTV. It is clear from the footage that there was a violent incident on both sides of the political spectrum. The matters sought are wholly irrelevant."

10. The application was renewed before the commencement of the trial to His Honour Judge James. He too considered it on the papers, taking the view that the interests of justice did not require him to hear oral submissions. He declined to revisit the order made by Judge O'Mahony. He reminded himself that the issue of self‑defence required the jury to consider the honestly-held belief of the defendants, rather than the correctness of their beliefs. He said:

"The jury will see video footage of combative men, with some who have obscured their identities, some who have decided to wave provocative flags or images, and it seems to me they have all of the information that they need in order to properly base their decision in this case. Additionally, each defendant if they choose to do so, can give evidence of what they feared and why, which, in my judgment, coupled with the violence that was able to be captured on the extensive closed‑circuit television footage of this incident, will of itself enable a more than fair trial to take place."

11. The judge also noted the scope for admissions to be made by the prosecution in relation to a number of issues which were of concern to the defence. He described the renewed application for disclosure as "a fishing exercise".

12. The trial then proceeded. A police officer gave evidence as to the overall picture of the events of the relevant day. Much of the prosecution case comprised of the playing of CCTV footage. This included a composite collection of footage giving an overview of the events and footage specific to the case against this applicant.

13. The applicant gave evidence in his own defence. He told the jury of his good character. He said he had attended many demonstrations over the years, but had never been involved in any violence such as occurred on 20 January 2016 and had not anticipated any violence when he travelled to Dover that day. He told the jury that he had the hood of his anorak up and either a scarf or part of the anorak across his lower face because it was cold and not in any attempt to disguise himself. He agreed that when he first threw a stone he had thrown it over a line of police officers. He said he had done so because he felt threatened. There was a lot of racist abuse being shouted and things were being thrown at him. He denied that he had come forward out of the group in order to get into range, saying that was just where he found himself. He had feared for himself and others around him. Missiles, bricks and bottles were being thrown. He had found himself terrified by the situation and had acted instinctively.

14. The applicant went on to say that when he heard that there was a group of right wing demonstrators trying to break through, and saw that further missiles were being thrown, he felt compelled to go over to that location. He accepted that he could be seen on the CCTV footage throwing three stones or rocks. He said that each was about the size of an egg and that he threw them back after he had been struck by them. He said he acted instinctively because stones were thrown at him, he was in great fear and he felt he had no other options. He said he did not feel safe, even though there was a police presence, because he thought that it was only a thin cordon of police officers who were not able to control the situation adequately. He felt it was up to him and others around him to form a barrier against the right wing demonstrators who were attacking their group. He did not feel he could move away because he feared that if he had done so he would have become isolated and thus at risk of violence from splinter groups. He said he was terrified by the extreme anger and aggression shown by the right wing demonstrators and thought that it was only the conduct of himself and others with him which was preventing the right wing demonstrators from using further violence.

15. He acknowledged that his actions could have caused serious injury but said he was not hoping to cause injury and felt he had to throw those stones back because he could not retreat and was not adequately protected by the police.

16. The applicant told the jury that in relation to both interviews he had acted on his solicitor's advice in making no comment.

17. In his summing up the learned judge gave the jury both written and oral directions on the issue of self‑defence. He emphasised that it was for the prosecution to make the jury sure that the applicant was not acting in self‑defence. He told the jury that they must look at the situation as the applicant honestly believed it to be and that the issue was whether his belief was genuinely held, not whether it was reasonable. He directed the jury that they must first consider whether the applicant may honestly have believed that it was necessary to use defensive force and that, if he may have done so, they must go on to consider whether the type and amount of force he used was reasonable, having regard to the nature of the attack to which the applicant was subjected.

18. No complaint is or could be made about the direction given on the issue of self‑defence or about any of the learned judge's other directions, including in relation to good character and inferences from silence in interview. Nor is it contended that the learned judge's summary of the evidence against and for the applicant was anything other than fair and balanced. The jury having returned a guilty verdict, the sole ground of appeal is formulated in the following terms:

"A failure to review and disclose police records and intelligence material pertaining to the events surrounding the alleged offence represented a material irregularity that renders the jury's verdict unsafe."

19. We are grateful to counsel on both sides for their written and oral submissions. For the applicant, Mr Greenhall reminds the court that section 7A of the Criminal Procedure and Investigations Act 1996 requires a prosecutor to keep under review the question of whether there is prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused and which has not been disclosed to the accused. He refers to a request for disclosure in the defence statement served on behalf of the applicant on 27 October 2016 and submits that in a number of respects the prosecution's response to that request, and to the subsequent application under section 8 of the 1996 Act, was inadequate. He argues that the issue in the case turned on the applicant's honest belief; that although the footage played to the jury did provide support for the applicant's own testimony, it did not capture the entirety of the incident or show the incident from all viewpoints; and that the requested material had the potential to enhance to a significant degree the credibility of the applicant's account. Thus he submits there was a failure to meet the disclosure test and it is reasonable to suppose that that failure might have affected the outcome of the trial.

20. The contentious material of which disclosure was sought by the applicant falls into three categories. First, the applicant sought disclosure of the police operational order, including the tactical plan, briefing and debriefing notes and any police intelligence relating to anticipated violence by far right groups believed to be attending the demonstration. The response of the prosecution to that request had been to state that the material was not disclosable because the applicant asserted in his defence statement that the right wing was engaged in violent activity and the Crown did not contest that assertion. The Crown in their response anticipated that there would likely be an admission at trial or that the officer in charge of the case would accept that there was violence on the right wing side. In giving their response the prosecution noted that the Crown's case was that left wing demonstrators were similarly violent.

21. Mr Greenhall submits that there should have been disclosure of this category of material because it was relevant to an assessment of the level of protection provided by the police to the left wing demonstrators, and therefore relevant to the applicant's case that that level of protection was inadequate to meet the threat posed by the right wing demonstrators. It was therefore relevant, he argues, to an assessment of the reasonableness of the applicant's actions in self‑defence.

22. The second category of material related to details of violence used or threatened by the right wing demonstrators on 30 January 2016, including police intelligence relating to the presence and activities of the now proscribed group National Action. The response of the prosecutor to that request was again to indicate that the Crown were not contesting that right wing demonstrators were engaged in violence on the relevant date. Mr Greenhall submits that the material was nonetheless relevant because, if it was consistent with the applicant's belief that the right wing demonstrators included some extremists who were intent on violence, then it would provide independent evidence in support of the applicant's own evidence as to his genuine belief. Further, Mr Greenhall submits that the material was relevant because it might support the contention that right wing demonstrators engaged in extreme violence beyond that captured on the CCTV footage and were the instigators of the more serious violence on the day. It was further relevant, he argued, to an assessment of the adequacy of the police protection of the left wing demonstrators and thus, again, relevant to the reasonableness of the applicant's actions.

23. The third category of material sought related to details of previous convictions of right wing demonstrators. There had been disclosure of details of convictions arising out of the events of 30 January 2016, but in response to a request for any wider disclosure the prosecutor contended that such material could not be relevant as it was not known which members of the far right groups were present on the relevant day. Mr Greenhall submits that a significant number of right wing demonstrators in fact could be identified and argues that any convictions of those persons, whenever recorded, would support the applicant's contention that right wing demonstrators had shown a level of aggression going beyond what was captured on the footage shown to the jury.

24. In relation to all three categories of material, Mr Greenhall in his oral submissions today emphasised the submission that the material sought might be capable of providing objective support for the applicant's evidence as to what he believed. He argued that if, for example, there was material to show that the right wing demonstrators present near the BP garage included persons with previous convictions for violence, the applicant might have been able to make a bad character application with a view to establishing that his beliefs were reasonable because the persons confronting him included some with a propensity for violence, and would therefore help the jury to conclude that his beliefs were genuine.

25. In considering this aspect of Mr Greenhall's submissions, it is relevant to have regard to the provisions of section 76 of the Criminal Justice and Immigration Act 2008, which now embodies the common law on the topic. So far as is material for present purposes, section 76, headed "Reasonable force for purposes of self‑defence et cetera", reads as follows:

"(1) This section applies where in proceedings for an offence—

(a) an issue arises as to whether a person charged with the offence ('D') is entitled to rely on a defence within subsection (2), and

(b) the question arises whether the degree of force used by D against a person ('V') was reasonable in the circumstances.

(2) The defences are—

(a) the common law defence of self‑defence; ...

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.

(4) If D claims to have held a particular belief as regards the existence of any circumstances—

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i) it was mistaken, or

(ii) (if it was mistaken) the mistake was a reasonable one to have made...

(6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

(6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.

(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8) Subsection (6A) and (7) are not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

...

(10) In this section—

(a) 'legitimate purpose' means—

(i) the purpose of self‑defence under the common law ...

(b) references to self‑defence include acting in defence of another person; and

26. For the respondent, Mr Prosser invited the court to view short extracts from the CCTV footage played at trial and maintained his submission that the disclosure exercise had been properly conducted and that no further disclosure was necessary either before or during the trial. He points out that the evidence ultimately before the jury included the following: CCTV footage showing the level of hostility and aggression displayed by some of the right wing demonstrators, including skin heads performing Nazi salutes and shouting "Seig Heil"; Nazi flags being waved; weapons being brandished and rocks being thrown at the left wing demonstrators. Footage also showed a left wing demonstrator being beaten unconscious before being rescued by police officers and other left wing protesters being assaulted and racially abused. Formal admissions were made by the Crown about a linked attack on a coach at a services near Maidstone that morning, in which left wing demonstrators heading towards Dover had been attacked and a swastika had been daubed in blood on the side of the coach. The Crown accepted at trial that news of this attack had spread amongst those in the market square and may therefore have been relevant to the applicant's state of mind at the material times.

27. Admissions were also made by the Crown in relation to an attack by right wing demonstrators on an independent press photographer whose arm was broken in the course of a beating. Photographs of that attack were shown to the jury and were relied upon by the defendant in support of his expressed fear as to what might happen if he became isolated from others.

28. The Crown also made an admission that a number of named right wing organisations were present at the demonstration. The police incident log relating to the events of the day had been disclosed and portions of it were made the subject of formal admissions.

29. As to the three categories of material sought, Mr Prosser submits that none could have had any bearing on the applicant's honestly-held beliefs. The applicant had not been privy to any police background reports or briefing notes; he knew nothing of any intelligence material which may have been gathered and which may or may not have proved accurate in the light of the events which happened; and he cannot have been affected by any consideration of whether or not any of the right wing demonstrators present may have had previous convictions.

30. Mr Prosser submitted that care had been taken by those involved in the prosecution to ensure proper compliance with the disclosure test and that the disclosure made had, if anything, been generous to the defence in order to ensure that the applicant had a fair trial. But, he contended, it was going too far to require any further disclosure such as was sought in the section 8 application.

31. We have reflected on these competing submissions. We note that it is not suggested that there was any development in the course of the trial which had any bearing on the proper scope of disclosure in relation to the three categories of material. Our focus must therefore be on the pre‑trial decisions of Judge O'Mahony and Judge James refusing to direct the prosecution to make any further disclosure in response to the section 8 application.

32. It is important to emphasise that the continuing duty of a prosecutor to disclose relates to material not previously disclosed which might reasonably be considered capable of undermining the case for the prosecution against the accused or assisting the case for the accused. It is accordingly necessary to keep well in mind the boundaries of the case against and for an accused person who seeks disclosure.

33. Here it was no part of the prosecution case against the applicant to suggest that the right wing demonstrators were blameless. On the contrary, the evidence adduced before the jury by the prosecution made it perfectly clear that a substantial number of right wing demonstrators had engaged in serious criminal activity and in particular had shown serious violence towards left wing demonstrators, both individually and collectively. Although the applicant's justification for his actions was disputed, there was no dispute but that at the material times missiles had been thrown by the right wing demonstrators. Thus, so far as violence by right wing demonstrators is concerned, any further disclosure could not have served to undermine any aspect of the prosecution case or to assist the applicant's own case. With respect to Mr Greenhall's submissions, it seems to us that the flaw in his argument is that it overlooks the fact that what he refers to as "the entirety of the incident" or "the incident from all viewpoints" was not known to the applicant and therefore had no bearing on his state of mind when he threw stones.

34. Given that the applicant admitted that he had thrown stones, but said that he had done so out of fear for the safety of himself and others with him, it was necessary for the jury to consider whether the applicant may honestly have held the beliefs about which he told them in his evidence. The jury were correctly directed by the learned judge that their focus should be on whether a relevant belief was honestly held, rather than whether it was objectively reasonable. That being so, we find it impossible to see how disclosure of any intelligence reports or briefing material could either have undermined the prosecution case or assisted the defence case. Even if there had been intelligence or briefing material which had predicted the day's events with complete accuracy, it would have been of no relevance to the applicant's behaviour or belief since he was of course wholly unaware of any such material. Nor could disclosure of such material assist the applicant in relation to any question as to his asserted belief that he had to resort to throwing stones because the police presence was inadequate to protect him and others with him. In considering the applicant's evidence, the jury were not concerned with any police assessment in advance of the demonstration as to what resources might be needed: they were concerned with assessing the situation which, on the evidence before them, confronted the applicant at the time when he admittedly threw stones. They were concerned not with a senior police officer's assessment of the sufficiency of the resources to be deployed but with the applicant's own honestly-held belief as to whether the police presence in his vicinity would be sufficient to protect him and those near him against injury at the hands of right wing demonstrators.

35. This point was starkly illustrated in the course of submissions when it emerged that the officer giving overview evidence, when asked in cross‑examination, confirmed that at what we have referred to as the flash point area, there had for a short time been only a very small number of police officers available to try to prevent the right wing demonstrators from breaking through and getting to the left wing demonstrators. We were quite unable to see how the applicant's case could have been any further strengthened by reference to what might have been discussed at the planning stage of the police operation at some earlier date.

37. We are unable to accept Mr Greenhall's reiterated submissions that the material sought might have been capable of showing the applicant's beliefs to have been reasonable and thus to have assisted his case that they were genuine. Of course, as the common law held and the statutory provision which we have cited confirms, the reasonableness of a belief is relevant to the question of whether an accused person genuinely held it. But here the claim of objective support is, in our view, without foundation. First, it is speculative. Secondly, in the circumstances of this case we think it wholly artificial to suggest that the details of police planning or information about the previous convictions of some of those who were or might have been present in Dover that day could add any relevant information to that which was in any event before the jury. We repeat and emphasise that violent conduct by some right wing demonstrators was accepted by the prosecution and that video footage was available to show the events surrounding the applicant at the time when he threw stones.

38. In those circumstances, the pre‑trial decisions refusing the application for further disclosure were in our judgment clearly correct. None of the material sought was in any way relevant to any of the issues in the case. Judge James was correct to regard the renewed application made to him as a fishing exercise. The further disclosure sought would have required a pointless examination of material and could not have resulted in any disclosure which could have undermined the case actually presented by the prosecution against the applicant or assisted the applicant's case in his defence.

39. In fairness to the applicant, we have stepped back from a focused consideration of his grounds of appeal in order to consider whether any other aspect of the trial casts any doubt on the safety of his conviction. In our judgment, no such doubt arises. The issues were fairly and fully placed before the jury, who were properly directed as to all relevant matters of law. The jury were well aware of the violence and aggression shown by some of the right wing demonstrators. They were aware of the applicant's good character and they had the opportunity to assess him when he gave his evidence. On the other side of the coin, they were also aware that when he threw his stones, he did so from behind police lines with his head hooded; and they were aware that on both occasions when he was interviewed, he chose not to say anything about the entirely straightforward defence which he advanced at trial. They were correctly directed in law and were entitled to reach the verdict they did.

40. For those reasons, there is in our judgment no arguable ground of appeal against conviction. This application for leave to appeal accordingly fails and is refused.

WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

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