Chalk & Ors v R

A witness may be unfit to give evidence under section 116(2)(b) where the foreseeable consequences of requiring attendance would seriously endanger the witness’s mental health or life. The assessment is not confined to the witness’s condition at the instant they are called.

Under Criminal Justice Act 2003, Schedule 21, a 30-year minimum-term starting point depends on whether the offending is of particularly high seriousness. Sadistic conduct is an illustrative route to that conclusion. It need not have a sexual element and is not a prerequisite. Sentencing courts must avoid double counting suffering already reflected in the starting point, while preserving proportionality between co-offenders.

The appellants were convicted of the murder of a vulnerable homeless man following a retrial at Winchester Crown Court. The first trial ended after one defendant pleaded guilty and the jury was discharged. The remaining defendants were convicted at the retrial.

Chalk and Dwyer-Skeats renewed applications for leave to appeal against conviction. They challenged the admission as hearsay of evidence from a medically vulnerable witness. Chalk also challenged the sufficiency of the evidence and the conduct of the summing-up. All four appellants appealed their life-sentence minimum terms, which ranged from 25 to 34 years.

The central issues were the witness’s statutory fitness, the safety of the convictions, and the proper Schedule 21 starting point and individual minimum terms.

1. Conviction challenges. The renewed applications by Chalk and Dwyer-Skeats were refused. The trial judge was entitled to find the witness unfit under section 116(2)(b) of the Criminal Justice Act 2003. Fitness includes the likely consequences of giving evidence. Requiring this witness to testify created a moderate-to-high risk of suicide and a potentially fatal cessation of dialysis.
2. The judge was also entitled not to exclude the hearsay evidence. Its weaknesses could be tested by schedules of inconsistencies, the available material from the first trial, the defendants’ own evidence, independent supporting evidence, and careful directions. The Crown’s late application caused no unfairness that justified exclusion. There was sufficient evidence, beyond mere presence, for the jury to consider Chalk’s participation and encouragement. The delay before retirement and the detailed directions did not render the verdict unsafe.
3. Starting point. The court upheld a 30-year starting point under Schedule 21, paragraph 5. As explained in Attorney General’s Reference Nos 108 and 109 of 2005 (Swindon and Peart) [2006] 2 Cr App R (S) 80, sadistic conduct need not be sexual. More importantly, the statutory question is whether the offending is of particularly high seriousness. Sadism is an example, not a necessary condition. The sustained violence, suffering, prior restraint and assault, and disposal of the body met that threshold in any event.
4. Individual terms. The judge had double counted the victim’s suffering in Nicholls’s case because it had already informed the 30-year starting point. The disposal of the body remained a separate aggravating feature. To maintain proportionality and reflect individual culpability and mitigation, the minimum terms were varied to 31 years for Nicholls, 29 years for Dwyer-Skeats, 27 years for Woodmansey, and 20 years for Chalk, each less 441 days on remand. Woodmansey’s concurrent sentence for perverting the course of justice was reduced from four to three years.
5. The victim surcharge orders were quashed. Since section 240 ZA did not directly apply to life sentences, the court directed that remand custody count against each minimum term.

• Court of Appeal (Criminal Division): In [2015] EWCA Crim 1053, refused the renewed applications challenging conviction but allowed the sentence appeals and varied the minimum terms.
• Winchester Crown Court: At the retrial, convicted Chalk, Dwyer-Skeats and Woodmansey of murder; each defendant received life imprisonment with a minimum term. Nicholls had pleaded guilty during the earlier trial.
• Winchester Crown Court: The first trial ended when Nicholls pleaded guilty and the jury in respect of the other defendants was discharged.