R v. Beard [1997] EWCA Crim 3152 (4 December 1997)
The applicant now claims that, during the course of his evidence, he was distracted from properly concentrating upon the evidence which he was giving by the sleeping posture of his solicitor.
An extract of a short but delightful judgment delivered by Lord Justice Rose of the Court of Appeal. The Applicant was convicted on 29 January 1997 of supplying 9,000 Ecstasy tablets and applied for extension to apply for leave to appeal against his conviction.
“No criticism is made of the way in which this trial was conducted or of the summing up, save in one respect which gives rise to the ground of appeal which it is now sought to argue, namely that the applicant's solicitor's representative, during the course of the trial, was visibly, and at times audibly, asleep. The extent to which he was audibly asleep was such that a police officer went to him and woke him up. He left the court, but subsequently returned and slept further.
The way in which Mr. Bourne, who did not appear for the applicant at trial, attractively puts the matter is that the fact that this person was asleep arguably renders the verdict of the jury unsafe. It is said that counsel then appearing for the applicant was not sufficiently aware of the state of the person purporting to instruct her to do anything about it. It is to be noted, however, that, in paragraph 4 of an advice which that counsel wrote in connection with the appeal, although, as one would expect, this gentleman was sitting behind her, she was aware of the snoring. She heard it on one occasion and she was also aware, on another occasion, when the police officer slid along the seat behind and wakened the gentleman with the consequence we have described.
The applicant now claims that, during the course of his evidence, he was distracted from properly concentrating upon the evidence which he was giving by the sleeping posture of his solicitor. It is to be noted that he made no reference to this at the time of the trial. It is said by Mr. Bourne that this was an unusual case, which depended upon the admissions made to the police by the applicant himself. That is correct. Mr. Bourne submits that the case, in consequence, depended to a significant extent, both upon the evidence given by the applicant himself before the jury, and upon the final speech to the jury by counsel for the defence. That too, no doubt, is correct.
Mr. Bourne makes the further submission, however, that because of those matters, the verdict of the jury is arguably unsafe, because there was a real danger that the applicant did not have a fair trial. At that point we differ from the submission advanced by Mr. Bourne.
The circumstances of this case do not, in our judgment, give rise to arguable lack of safety in the conviction. Accordingly, the extension of time which is sought is refused, as is this renewed application.”
January 2008
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