Case Commentary – R v RT & Anor [2020] EWCA Crim 155 and R v Reece (David) [2020] EWCA Crim 44 –Implied warnings to Trial Counsel

Introduction

1. In R v RT & Anor [2020] EWCA Crim 155 and R v Reece [2020] EWCA Crim 44, the Court of Appeal dismissed appeals against conviction. The grounds of appeal were markedly different. However, an important undercurrent to be distilled from these cases is that the Court is unwilling to interfere with situations which can be traced back to the actions of trial counsel. Indeed, the Court suggests that if an undesirable effect can be linked to a decision taken by counsel, this will be a reason against allowing the appeal. RT and Reece therefore serve as very recent reminders of the Court of Appeal’s stance in such cases, which brings an implied warning to trial counsel.

Facts and decision

RT

2. RT and Mr Stuchfield were convicted of conspiracy to commit robbery contrary to section 1(1) of the Criminal Law Act 1977. A prosecution witness, referred to as Ms F, who was 16 years old, alleged that she overheard the appellants discussing a robbery.

3. Ms F was diagnosed with ADHD at the time of the trial and there were ongoing investigations into whether she had autism. There was a short ground rules hearing in relation to the manner in which Ms F would be questioned. Counsel were directed to moderate their questioning and were reminded of the Advocates’ Gateway toolkit for dealing with vulnerable witnesses.

4. Cross-examination on behalf of Mr Stuchfield did not comply with best practice. Some questions were convoluted and difficult to understand. Counsel continued to press Ms F on a point which the judge had already indicated had been covered. The result was that Ms F refused to continue her evidence midway through cross-examination on behalf of Mr Stuchfield and before cross-examination on behalf of RT had even begun.

5. The appeal was argued on the basis that the judge erred in refusing to stop the trial following the refusal of Ms F to continue her evidence. The appeal was dismissed because the trial remained fair in the particular circumstances of the case. The relevant circumstances were that:5.1.      the jury had seen Ms F give evidence and be cross-examined at least in part;5.2.      the unfortunate questioning explained Ms F’s refusal to stay;5.3.      there was other material to assess Ms F’s credibility and reliability;5.4.      Ms F’s evidence could be assessed in the context of all the other evidence; and5.5.      the judge gave proper directions identifying the limitations of Ms F’s evidence.

Reece

6. At Mr Reece’s trial, the Crown relied on bad character evidence. Namely, the fact that Mr Reece had been convicted in Belgium in 2011 of an offence of possession of cocaine and cannabis. The judge allowed in the conviction as evidence of propensity.

7. During evidence-in-chief, Mr Reece was questioned about his Belgian conviction. His answers were somewhat equivocal in relation to whether he accepted his guilt. Essentially, his evidence was that he had no knowledge about the drugs in Belgium but he had to admit the offence because drugs were found.

8. As part of his summing up, the judge gave a standard direction in relation to propensity. However, the judge did not say that Mr Reece disputed his Belgian conviction and did not repeat his evidence-in-chief. Leave to appeal was granted on the basis that the judge erred in summing up the case to the jury by failing sufficiently to remind the jury of the appellant’s evidence in relation to his previous conviction.

1. 9. The appeal was dismissed for the following reasons:9.1.      section 74(3) of the Police and Criminal Evidence Act 1984 creates a presumption that a conviction either in the UK or an EU Member State is proof of the fact that someone did commit the offence of which they were convicted. A section 74(3) direction was not needed in this case because the appellant did not, in fact, challenge his guilt at all. Nothing had been raised about this, whether at the stage when an application was made by the Crown to adduce bad character evidence and when counsel then acting for the appellant made written submissions objecting to that application, or at any other stage;9.2.      Mr Reece was represented throughout by counsel, who did not ask for any direction to be given about section 74(3), or for the standard directions on bad character to be modified. Nor did defence counsel ask the judge to expand on what he had said in summing up the evidence prior to the retirement of the jury. There was no requirement on the judge to repeat every detail of what each defendant had said in his evidence; and9.3.      there was a great deal of other evidence which pointed to the appellant’s guilt. In the circumstances of this case, even if there had been any error, the safety of the convictions was unaffected.

Comment

10. As can be seen from the foregoing, RT and Reece are factually very different. The common thread between the two, however, is that we can link the gravamen of each appeal to actions taken by trial counsel. In RT, Ms F refused to give evidence after inappropriate questioning. In Reece, a section 74(3) direction wasn’t given because it wasn’t anticipated, discussed or requested by counsel.

11. Significantly, the Court of Appeal relies in both cases on the relevant actions of trial counsel militating against a finding of an unsafe conviction. One reason for dismissing the appeals in RT was because the unfortunate questioning explained Ms F’s refusal to stay. One reason for dismissing Mr Reece’s appeal was because counsel didn’t ask for a section 74(3) direction or seek to modify the judge’s summing up.

12. In a civil case, the judge will give a reasoned judgment setting out why and how they have come to their conclusions. In a criminal case, the jury do not give reasons for their decision. This makes the job of an appellate criminal court more difficult. It also places the lay client in an invidious position because it is impossible to tell how much weight the jury attached to the piece of evidence, absence of evidence or other factor which can be married to trial counsel’s actions.

13. This is compounded by the stance taken in cases such as RT and Reece. By presenting deliberate actions or omissions of trial counsel as reasons to dismiss an appeal, there is a risk that an appeal will be rejected even though the effect of those actions might have had a material impact on the jury’s thinking.

14. The Court of Appeal will look at the overall safety and the evidence as a whole but will not “intrude into territory which properly belongs to the jury” (R v Pendleton [2001] UKHL 66). In RT, for example, the Court did not know if the jury accepted, rejected or doubted Ms F’s evidence or what influence a complete cross-examination would have had. The Court simply identified other evidence available to the jury which would allow them to make a safe conviction.

Conclusion

15. RT and Reece are not appeals brought on the basis of criticisms of trial counsel. Yet the grounds of appeal are inextricably linked to the actions of counsel. Whilst the overarching test for the Court of Appeal is whether the conviction is safe, RT and Reece underline the Court’s approach to safety where one of the factors on appeal can be traced back to representation at trial. That approach embodies a warning that the Court will not be generous with hindsight and will not be quick to overturn retrospectively misguided decisions. This risks the client being stuck with such decisions.