Hester & Anor, R. v

Blackmail may be a continuing offence. It continues while the demand remains and the menaces have not been withdrawn, even if its ingredients were complete before a further participant joined the enterprise.

An appeal based on inconsistent verdicts requires a logical inconsistency between the verdicts. Different conclusions are permissible where the evidence allows the jury rationally to distinguish the knowledge, participation or intent required for separate counts.

Where an important non-defendant witness’s credibility is in issue, convictions for dishonesty may have substantial probative value under the Criminal Justice Act 2003, even if the offences did not themselves involve untruthfulness.

At Birmingham Crown Court, Colin Hester, then a serving police officer, was convicted of blackmail arising from the detention and ransom demand made against Thomas Scragg. He later pleaded guilty to misconduct in public office relating to unauthorised Police National Computer checks. Andrew McKray was convicted of wounding with intent during the same incident.

Hester appealed on grounds concerning bad-character evidence, the credibility evidence about a Crown witness, a submission of no case on blackmail, allegedly inconsistent verdicts, and an improper cross-examination question. McKray appealed his conviction on inconsistent-verdict grounds and appealed his sentence. The central issues were whether the convictions were unsafe and whether McKray’s sentence was excessive.

1. Conviction appeals dismissed. Evidence of Hester’s unauthorised Police National Computer checks was properly admitted under section 101(1)(d) of the Criminal Justice Act 2003. His relationship with James Doe, also known as Tony, was crucial to whether his dealings with that person were innocent or corrupt. The interview account also created a false impression that he would not compromise his police career, which the Crown could correct. The separate-indictment ruling did not prevent the evidence being admissible at trial.

2. The judge had approached the evidence of the Crown witness Goodson by reference to Hanson [2005] EWCA Crim 824, although that authority concerned defendant bad character. For a non-defendant witness, section 100(1)(b) applied. Credibility could be a matter in issue and convictions for dishonesty could have substantial probative value, as recognised in S (Andrew) [2006] EWCA Crim 1303. Even if Goodson’s burglary convictions could properly have been admitted, their exclusion did not affect the safety of Hester’s conviction because the jury knew of his deception convictions and dishonesty.

3. Hester’s no-case submission on blackmail was untenable. A blackmail offence may continue after its ingredients first exist. Here the demand continued until payment and the menaces continued until payment was made. It was therefore open to the jury to find that Hester joined the continuing offence.

4. The verdicts against both appellants were not logically inconsistent. Applying R v Rafferty and Rafferty [2004] EWCA Crim 968, an inconsistency ground cannot succeed without a logical contradiction. The jury could rationally distinguish Hester’s knowledge of blackmail from his participation in false imprisonment, and could find that McKray supplied the machete with the necessary foresight without finding him party to the false imprisonment or blackmail.

5. The Crown should have sought the judge’s permission before questioning Hester about Steven Houston’s pending murder charge. The irregularity did not render the conviction unsafe. The judge would have admitted the material if asked, and gave a clear direction that the allegation, which had ended in acquittal, was irrelevant and must be disregarded.

6. McKray’s sentence appeal allowed. His 54-month sentence was quashed and replaced with a sentence of three years’ imprisonment.

• Court of Appeal (Criminal Division): Hester’s and McKray’s conviction appeals were dismissed. McKray’s appeal against his 54-month sentence was allowed and a three-year sentence was substituted.
• Crown Court at Birmingham: Hester was convicted of blackmail and later pleaded guilty to misconduct in public office. McKray was convicted of wounding with intent and sentenced to 54 months’ imprisonment.