Anderson & Anor, R. v

A trial judge may admit prosecution rebuttal evidence arising from a late change in the defence case and may refuse an adjournment where the late development is attributable to the defence and the evidence can be tested effectively in cross-examination. A conviction will not be unsafe without material suggesting that the rebuttal evidence was wrong, particularly where the remaining evidence is strong.

A supplemental answer to a jury question need not repeat directions already properly given, including directions on joint enterprise, where the jury has those directions in writing and the real issue is identification of the defendants as participants.

Anderson and Barnes were convicted at Bournemouth Crown Court of aggravated burglary arising from a violent night-time burglary by four masked men, one apparently armed with a handgun. They received sentences of 12 and 14 years’ imprisonment respectively.

They renewed applications, after refusal by the single judge, for permission to appeal against conviction and sentence, together with extensions of time. The principal conviction issue concerned the admission of rebuttal communications evidence after the late service of Anderson’s defence case statement, and the refusal of an adjournment. Barnes also challenged the response to a jury question. Both challenged sentence.

1. The renewed applications for permission to appeal against conviction and sentence were refused. The court agreed with the single judge that none of the proposed grounds was arguable.

2. The trial judge was entitled to permit the prosecution to call the communications evidence in rebuttal. Anderson’s assertion that he had left a dual-SIM telephone in Barnes’s car emerged only through a defence case statement served immediately before the prosecution closed its case, in breach of the Criminal Procedure Rules. The judge was also entitled to refuse an adjournment. The defence could challenge the evidence through cross-examination, and no fresh evidence suggested that it was wrong.

3. In any event, the convictions were not arguably unsafe. The other circumstantial evidence, including cell-site and telephone evidence, adverse inferences, and the evidence particular to each applicant, was strong. It made no material difference whether the communications evidence had been called before the prosecution closed its case or in rebuttal. The judge also correctly explained to the jury that the communications witness was not an expert and identified the limits of her evidence.

4. The judge’s answer to the jury’s question concerning Barnes’s participation was sufficient. The jury already had full written directions on joint enterprise and participation. There was no dispute that an aggravated burglary involving a firearm or imitation firearm had occurred. The decisive factual question was whether the applicants were among the perpetrators, and the summing-up properly focused the jury on that question.

5. The sentences were not manifestly excessive. The offending fell at the top of Category 1 under the aggravated burglary guideline, with features of greater harm and higher culpability. Anderson’s 12-year sentence fell within the stated range of nine to 13 years. Barnes’s 14-year sentence and the difference between the sentences were justified by his previous convictions. The judge had not sentenced by reference to the robbery guideline.

• Court of Appeal (Criminal Division): renewed applications for permission to appeal against conviction and sentence refused.
• Crown Court at Bournemouth: Anderson and Barnes were convicted of aggravated burglary on 3 June 2015 and sentenced on 4 June 2015 to 12 and 14 years’ imprisonment respectively.