THE APPEAL HIGH COURT LONDON
Everything printed in red is taken verbatim from the Court of Appeal Neutral Citation number (2009) EWCA Crim 811 No.200802902/C4
After the court hearing, an immediate appeal was lodged and was heard 6 months later in the Royal Courts of Justice in London by 3 judges, Lord Justice Moses, Mr Justice Hedley and The Recorder of Preston. The Carlisle Crown Court in Cumbria was presided over by Judge Paul Batty, QC, who was criticised for his handling of the case by the appeal judges, stating that Dutton was unfairly treated by the judge. (as opposed to the prosecution) The 6 month suspended prison sentence was thrown out . Lord Justice Moses stated :-
“In our judgment, this offence did not cross the custody threshold. It was both wrong in principal and manifestly excessive to order this man to go to prison, suspended or no. In those circumstances, we shall quash the sentence of suspended imprisonment”
The criticism of Judge Paul Batty QC continues throughout the appeal again Lord Justice Moses :-
We turn then to a further matter that does give us more concern. As we have indicated, firemen were used to imitate passengers on the vessel. Two of the firemen gave evidence before the jury but the judge proposed that the other firemen (at least some five others) should also be present in the courtroom. There is some dispute between the prosecution and defence whether they were in the public gallery or not. Two firemen were called to the witness-box to give evidence, Mr Tatlock and Mr Leather, the other remained close by. When Mr Tadlock and Mr Leather had finished their adverse evidence as to the stability of the vehicle, the judge, in the presence of the jury, asked the remaining firemen whether they were all of the same opinion. They spoke with one voice, saying that they were. Thereafter the defence asked one of the officers, an Officer Steadman should be called to. He gave evidence that the vessel did not appear to him to threaten to overturn and he thought he could extricate himself safely in an emergency. He did not feel that the stability of the vessel was ever compromised. The learned judge, at the conclusion of that evidence, then asked the jury whether they had any questions for the firemen and one of the jurors called out that they would like to know how the firemen would have felt on a longer trip. The fireman responded in a manner adverse to the defence, not surprisingly.
This procedure should never have occurred. It hardly needs saying, let alone emphasis, that to obtain evidence other than from a single witness in the witness-box, or according to the rules from some document is not permissible.
The suggestion of the judge, without seeking any agreement from defence counsel, who was in no position to agree, was quite wrong. The defence could not protest, since the jury were there and any protest was merely likely to look as though the defence were improperly trying to protect its own interests. We asked the prosecution why they did not object to this wholly unorthodox and impermissible procedure. It was an ideal opportunity for prosecuting counsel to act in the way in which all prosecuting counsel no doubt feel bound, namely to protect the defence from unfairness from the judge. He could have asked for the jury to leave the court so that any forceful submissions to the judge should not embarrass him in front of the jury and then told the judge that such a procedure was unacceptable. We do not make any personal criticism of Mr Haworth, who no doubt was equally surprised and startled at the procedure which the judge sought to adopt. That would, with hindsight, have been one remedy that would have avoided this very unfortunate consequence. It must have seemed particularly unfair to the defendant, watching this bizarre procedure take place whereby evidence is called by unanimous acclamation.
THE MORAL TO THIS
The Moral to this story is very simple if you are in business and want to help a customer with their project that involves you supplying something that is "out of the ordinary" regardless of whether you charge them extra or like us - do it all for free - just put EVERYTHING in writing so it wont come back to bite you years down the line - it only takes a few minutes and can save you wasting a week of your life in Court
2015 update it appears that Judge Paul Batty QC is still working so we wish "God help you" to anyone who appears in front of him