Regina v Ensor

Factual and Procedural Background

On 8th April 2006, a robbery occurred at a travel agency in The City, involving two robbers, one carrying a holdall containing a sawn-off shotgun. The robbers escaped in a stolen dark colour Hyundai coup car with a changed number plate. Cash and travellers cheques valued at £52,000 were stolen. The Appellant was convicted on 16th October 2008 after an eight-day trial before Judge Eades and a jury at the Crown Court at Stafford. The Appellant was found guilty of robbery, possessing a firearm during the commission of an offence, and possessing criminal property. He was sentenced to 12 years' imprisonment for the robbery and firearm offences and 2 years concurrently for possessing criminal property.

Police searches executed five months after the robbery at the Appellant's home and garages connected to him recovered items including a black holdall, keys to garages, and the stolen Hyundai car. Forensic tests found a fragment of firearm primer residue inside the holdall. Mobile phone cell site analysis placed the Appellant near the robbery scene at the relevant time.

The central dispute at trial was whether the Appellant was the robber with the sawn-off shotgun. The prosecution relied heavily on circumstantial evidence, including the connection between keys found in one garage and padlocks on another garage where the stolen car was found. The defence challenged the continuity of custody of these keys and padlocks and argued the evidence was equivocal.

The Appellant initially gave a "no comment" interview and later provided a short written statement. A psychiatric report was submitted late during the trial, stating the Appellant would have extreme difficulty giving evidence due to mental health concerns. The trial judge refused to admit this report or allow the psychiatrist to give live evidence, ruling the late submission was a grave breach of the Criminal Procedure Rules and a deliberate tactical ploy by the defence.

The Appellant did not give evidence, but the defence called other witnesses to establish the Appellant suffered from panic attacks. The judge directed the jury on the adverse inference that could be drawn from the Appellant's failure to give evidence, referencing section 35 of the Criminal Justice and Public Order Act 1994 ("CJPOA").

The Appellant appeals against conviction on multiple grounds, including the refusal to admit the psychiatric report and the issue of continuity of custody of keys and padlocks. There is also a renewed application for leave to appeal against sentence, which remains undecided pending the outcome of the conviction appeal.

Legal Issues Presented

1. Whether the trial judge erred in refusing to admit the psychiatric report and allow the psychiatrist’s evidence, affecting the application of section 35 of the CJPOA regarding adverse inferences from the Appellant’s failure to give evidence.
2. Whether the trial judge erred in refusing to hold a voir dire on the continuity of custody of keys and padlocks linking the Appellant’s garage to the garage where the stolen car was found.
3. Whether the sentence imposed was excessive or wrong in principle.

Arguments of the Parties

Appellant's Arguments

• The psychiatric report demonstrated that the Appellant’s mental condition made it undesirable for him to give evidence under section 35(1)(b) of the CJPOA, which would prevent the jury from drawing adverse inferences from his failure to testify.
• The trial judge’s refusal to admit the psychiatric evidence and to direct the jury accordingly was incorrect.
• The prosecution failed to prove continuity of custody of the keys and padlocks, and thus the evidence linking the Appellant’s garage to the garage containing the stolen car should have been excluded or subject to a voir dire.
• Regarding sentence, the Appellant submitted that mitigating factors, including the absence of injury or use of the firearm during the robbery and psychiatric evidence, warranted a reduction in sentence.

Prosecution's Arguments

• The trial judge was entitled to refuse admission of the psychiatric report due to the late service and breach of the Criminal Procedure Rules, which constituted a deliberate tactical ploy by the defence.
• The psychiatric report did not demonstrate that it was undesirable for the Appellant to give evidence within the meaning of section 35(1)(b) of the CJPOA.
• The judge correctly ruled that there was credible evidence to link the keys and padlocks, making a voir dire unnecessary.
• The sentence imposed was justified given the nature of the offences and the Appellant’s criminal record, and was neither wrong in principle nor manifestly excessive.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the late disclosure of the psychiatric report and concluded that the defence had breached the Criminal Procedure Rules gravely by not informing the prosecution or the court in a timely manner. The court agreed with the trial judge that the late disclosure was a deliberate tactical ploy aimed at ambushing the prosecution.

Substantively, the court analyzed the psychiatric report’s conclusions and found that the evidence did not meet the threshold under section 35(1)(b) of the CJPOA to establish that it was undesirable for the Appellant to give evidence. The report indicated only that the Appellant would have extreme difficulty and that stress might adversely affect his mental health, but did not provide sufficient certainty or demonstrate a significantly adverse effect to justify withholding evidence from the jury.

The court distinguished the present case from R v Anwar, where expert evidence was accepted as showing it was undesirable for the accused to give evidence. Here, no such acceptance was warranted.

Regarding the continuity of custody of keys and padlocks, the court held that the trial judge had sufficient credible evidence from police statements to allow the evidence to go to the jury without a voir dire. The judge’s refusal to hold a voir dire was correct.

Finally, the court considered the sentence and found it justified in all the circumstances, including the Appellant’s criminal record and the seriousness of the offences. The sentence was not manifestly excessive or wrong in principle.

Holding and Implications

The court DISMISSED the appeal against conviction, upholding the trial judge’s refusal to admit the psychiatric report and the adverse inference directions given to the jury. The court also refused the renewed application for leave to appeal against the continuity of custody evidence.

The renewed application for leave to appeal against sentence was refused, with the court finding the sentence appropriate and justified.

The direct effect of this decision is to affirm the conviction and sentence of the Appellant. No new legal precedent was established beyond the application of existing principles concerning expert evidence disclosure, the interpretation of section 35 CJPOA, and case management under the Criminal Procedure Rules.