Turton, R v

An alternative count of attempt may lawfully be added to an indictment where it reflects a statutory alternative to the completed offence and causes no injustice to the defendant. A trial remains fair where the judge excludes allegations that are irrelevant to the real issue and gives a clear direction to disregard an irrelevant label on exhibited material.

A finding of dangerousness may properly rest on the circumstances and planning of the offending, relevant previous conduct, a pre-sentence assessment, and the offender’s continuing attitude. On appeal, the court reviews whether the sentencing judge properly exercised that evaluative judgment.

The appellant was convicted in the Crown Court at Burnley of attempting to administer a noxious substance so as to endanger life and of cruelty to a child under 16. The prosecution alleged that he had exposed, or attempted to expose, his four-year-old son to exhaust fumes in a car after the breakdown of his relationship with the child’s mother.

He maintained at trial that the episode was an elaborate ruse and that the child had not been in the car while the engine was running. He sought leave to appeal against conviction after a single judge had refused it, and had leave to appeal against sentence on the issue of dangerousness. The central questions were whether any asserted trial irregularity rendered the convictions unsafe and whether the extended determinate sentence was founded on a proper finding of significant risk of serious harm.

1. The renewed application for leave to appeal against conviction was refused, and the appeal against sentence was dismissed. The court granted a modest extension of time for the renewed conviction application, but held that the convictions were safe.
2. The addition at the outset of trial of a count of attempting to administer a noxious substance was lawful. It was an alternative to the count alleging the completed offence and, although strictly unnecessary because attempt was a statutory alternative, it caused no injustice.
3. The trial judge correctly excluded allegations that the child’s mother had perverted the course of justice in other proceedings and that the police had acted in bad faith. Those allegations were wholly irrelevant to the actual issue: whether the appellant had exposed his son to exhaust fumes, attempted to do so, or had staged a ruse. No prosecution witness’s credibility was in issue.
4. The judge’s direction to disregard the word “abduction” appearing on photographs cured any possible concern. There was no reason to think that the jury had failed to follow the clear direction. The mother’s agreed evidence was uncontentious, and the proposed cross-examination would have been irrelevant and inadmissible. The summing-up fairly and comprehensively presented both sides’ cases.
5. The sentencing judge was entitled to find a significant risk of serious harm from further specified offences. The finding was supported by the planned nature of the offending, earlier relationship-related offending, the pre-sentence assessment, and the appellant’s continuing blame of his former partner and lack of remorse or empathy. The Court of Appeal’s role was to review that evaluative judgment. There was ample material supporting it, and no error in the extended determinate sentence.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 2091, the court refused the renewed application for leave to appeal against conviction and dismissed the sentence appeal.
• Crown Court at Burnley: The appellant was convicted on 22 March 2017 and, on 9 June 2017, received an extended determinate sentence of four years and six months’ custody with a two-year and six-month extended licence.