R v Timothy John Luckhurst-Matthews

THE VICE PRESIDENT, LORD JUSTICE EDIS:

1. This is an appeal against conviction by leave of the single judge on a single ground. The conviction was for an offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003. The appellant had represented himself during the trial.

2. The conviction was for an offence to which the Sexual Offences (Amendment) Act 1992 applies. That means that no material may be published during the lifetime of the complainant in this case which is likely to lead members of the public to identify her as the victim of that offence. That prohibition lasts for life, unless waived or lifted by the court. It has not been waived or lifted and there is no reason to suppose it ever will be.

3. The conviction occurred in the Crown Court at Newcastle upon Tyne on 26 March 2025. The trial was presided over by Her Honour Judge Scott and extended over a few days.

4. The appellant, who was 71 years old at the date of conviction, received a suspended sentence of imprisonment. Other orders were made and consequences followed, as is usual in cases of this kind. It is not necessary to set those out in the context of the issues on this appeal.

5. The single ground for which leave was given was the contention that the trial of the appellant was unfair because for most of it he was required to sit in the dock of the court. He had complained at the start of the trial and before it started that the dock was an inappropriate place for him to be because it did not afford him the facility of a table where he could spread his papers out in front of him and on which he could lean in order to take notes of the proceedings. He also complained that in hearings which took place in a court with a closed dock he had difficulty hearing what was being said, particularly by prosecuting counsel. In the result, the evidence in the case was almost all given when the court was sitting in a smaller courtroom with an open dock where the difficulty in relation to the appellant's hearing did not arise. The position therefore is that the unfairness of which the appellant complains in this appeal is limited to his inability to arrange and access his documents in a convenient and efficient way and to take notes. He complains that this inhibited his ability to represent himself at trial. The judge has provided some information to this court which says that Mr Luckhurst-Matthews did in fact take notes during the trial, she says copiously. It emerged during the hearing of the appeal that he does accept that he did take some notes, and complains that his ability to do so was reduced rather than extinguished.

6. Ms Waddoup, who appears on his behalf in this appeal, complains on behalf of Mr Luckhurst-Matthews that the judge could and should have acceded to a request from him to allow him to sit throughout the trial in a part of the court which might normally be used by lawyers or others following the proceedings. If he had been allowed to do that, he would have been able to access his papers and to take notes in the same way as a professional advocate would do. Ms Waddoup contends that it was unfair to disadvantage Mr Luckhurst-Matthews by denying him those facilities. As a self-representing person, he should have been given every opportunity to present his case in the most advantageous way that he could. The events at trial

7. It is unnecessary for the purposes of an appeal on that ground only to set out very much of the facts of the case as revealed to the jury in the course of evidence. It is enough to say that the allegation was one of sexual touching by the appellant committed against the complainant at his place of work. It was agreed that during the course of the incident there was another woman present, who gave evidence for the prosecution largely, but not entirely, consistently with the evidence given by the complainant herself.

8. The principal witnesses who gave evidence about what transpired during that incident were the complainant, that witness and the appellant.

9. The appellant also called his wife to give evidence about the state of the relationship, such as it was, between the appellant and the complainant, and about the consequences of a motor accident which he had suffered years before which allegedly and actually inhibited the extent to which he can use his left arm and hand, that being significant because the allegation was that it was that hand which had assaulted the complainant who described the exertion of significant force by it. The evidence of the appellant, supported by his wife, was that he was unable to exert that level of force with his injured left hand.

10. There was therefore a straightforward conflict of factual evidence about whether physical contact which did occur between the complainant and the appellant occurred accidentally, while he was trying to extract himself from an unwanted encounter with her, or whether it occurred deliberately, as he assaulted her by grabbing her right breast with his left hand. There were arguments about some details of events which occurred at the relevant time, but that was the central issue.

11. The appellant was able to present some photographs of the place where this is said to have happened and to make some points about the extent to which the witness would have been able to see what happened with any clarity, given the position of a screen on a computer at which she was working which would have been between her and the complainant and the appellant at the time when they had contact with each other.

12. There was some police evidence, and the appellant had been interviewed. Essentially, however, the evidence was as we have described it.

13. The trial began on 19 March 2025, and the verdict was returned on the following Wednesday, 26 March 2025.

14. The first day of the trial (19 March) was taken up with various matters, including the appellant's concern about the facilities which were available to him in the dock. He requested a table. That was refused. The security staff who are responsible for prisoners and defendants at court and for their safety and security refused to allow any mobile objects into the dock which might be used to cause injury. That is a rule which applies commonly in crown courts and magistrates' courts around the country. The judge accepted that refusal, having consulted the relevant leadership judge, the Recorder of Newcastle, before doing so. The appellant therefore asked the judge for permission to conduct the case from counsel's benches. He accepted that it was appropriate that at the start of the case, when the jury were being sworn in, he should be sitting in the dock so that they could clearly identify that he was the defendant, but once that had taken place, he said, he could without any harm to the process of the trial move to a position where he could hear easily and deal with the documents in the way that he wanted to and take notes. The judge said to that simply that that was not possible because the rule was that defendants sit in the dock.

15. The second day of the trial (20 March) was a Thursday. The jury were sworn and the prosecution opened its case and the complainant gave evidence.

16. On the Friday (Day 3) the witness that we have mentioned gave evidence and other agreed material was placed before the jury.

17. On the Monday (the 24th) some further material was read, including the interview of the appellant, and a police officer gave some evidence about it.

18. The appellant gave his evidence and called his witness (his wife) and made his closing speech on the Tuesday (25 March 2025), which was a day when the trial was taking place in the court with the closed dock, but on that day he was permitted to make his closing speech from counsel's benches in order to alleviate any difficulty that he might have had. The arguments

19. The complaint, attractively advanced on behalf of Mr Luckhurst-Matthews by Ms Waddoup, is that the failure to afford a proper opportunity to the appellant to participate effectively in the proceedings rendered the trial unfair so that the conviction should be quashed. She submits in written and oral submissions that the judge ought to have exercised her discretion so that the appellant was put in the same position as any professional advocate would be in so far as accessing papers and making notes was concerned.

20. In response, Mr Sinha, who appears before us on behalf of the prosecution, points to the essentially simple nature of the case and to the complete transcript of the trial which has been prepared for the purposes of this appeal. He submits that that shows that whatever disadvantage the appellant may have been suffering from, he was nevertheless able to make all the points that he wanted to make and his case was clearly placed before the jury for their decision. Discussion and decision

21. This was, as we have said, a short and simple case. It lasted over a few days; but that was not an indication of any complexity. There were frequent breaks in the trial, which were allowed on occasions to assist the appellant in dealing with the matters that were arising during it. There were also regular legal arguments about the admissibility of evidence and the propriety of the appellant's intention to place certain documents and facts before the jury. Those were largely resolved against him; but nothing turns on that in the context of the single ground of appeal which we are to consider.

22. The evidence was short, and we have been able to read all of it. It is important to observe in the context of this appeal that the complainant was cross-examined by counsel who had been appointed to conduct that exercise on behalf of Mr Luckhurst-Matthews because of the rule which prevents litigants in person from cross-examining people who say that they were their victims of sexual offending. Therefore the most difficult forensic exercise which was required of the defence in this trial was actually conducted by a professional advocate. We have read the transcript of that process. Counsel made the points that could properly be made during the course of the cross-examination. Counsel drew attention to any inconsistencies that there were between her evidence and things that she had said on previous occasions, and that cross-examination was an entirely satisfactory process. No criticism is made of it in the context of this appeal.

23. Therefore the tasks which were required of the appellant himself, leaving aside any legal submissions which we have said are of no significance in the context of this appeal, were as follows.

24. First, he was required to cross-examine the witness. He did that and did elicit such differences as there were between her evidence and the evidence of the complainant about the incident. He did conduct some cross-examination of the police officer, but that was of lesser significance.

25. Next, he was required to give his own evidence, which he did. Naturally enough, the inability to take notes was of less significance at that stage in the trial when he was a witness giving evidence in the witness box.

26. He did from time to time need to access documents which he had left in the dock and that sort of thing, but that process was facilitated by the judge allowing time for him to get whatever documents he wanted.

27. Having finished his evidence and been cross-examined, he then called his wife and made his closing submissions. We have read both of those passages of the transcript. His wife's evidence was clearly elicited, and the jury was in no doubt about what she could usefully say about the case.

28. So far as the closing submissions are concerned, of course again the appellant would not have been needing to take notes of what he was saying. There was nothing to prevent him at that stage using any notes that he had written either during the trial or during breaks in it. He had known for some time that he would be able to make a closing speech if he wanted to and had had the opportunity to consider what he should say. He was a very experienced solicitor, well able to draft documents and to consult them as necessary when making an oral presentation of the kind which a closing speech represents. Whether he had notes for his speech or not we do not know, but the closing speech itself is a coherent piece of advocacy. It may be that he did not during its course pick up all the points which had been foreshadowed in the course of evidence. They had however been foreshadowed in the course of evidence and to that extent were in the mind of the jury.

29. It is right also to say that when the judge came to sum the case up to the jury, she reminded them of all the relevant evidence which they had heard. This included evidence relevant to points which might have been available to the appellant, whether he had mentioned them in his closing speech or not.

30. Finally, in a simple case of this kind, the jury would of course have had themselves no difficulty in remembering what they had been told by the witnesses and giving such effect to it as they felt it deserved.

31. Both counsel have reminded us that the principles to be applied in a case of this kind are to be found in the decision of the Privy Council in Randall [2002] UKPC 19; [2002] 1 WLR 2237. As so often, the proper approach is clearly and authoritatively stated by Lord Bingham in the course of giving the opinion of the Board. Paragraphs [28] and [29] are as follows: "28. While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

29. The crucial issue in the present appeal is whether there were such departures from good practice in the course of the appellant's trial as to deny him the substance of a fair trial …"

32. Applying that test to this complaint we are entirely clear that this was a fair trial. We accept that it would have been a perfectly appropriate exercise of discretion to permit Mr Luckhurst-Matthews to conduct the whole of his case from counsel's bench. The judge could have done that, but she chose not to, relying on what is undoubtedly the usual rule, which is that defendants sit in the dock during the course of their trial. That rule can be departed from in appropriate circumstances, although the design of our courts is such that departures are infrequent.

33. Although the judge could properly have acceded to that request from Mr Luckhurst-Matthews, the consequences of her not having done so fall far short of the kind of unfairness which Lord Bingham had in mind when explaining the degree to which a trial must be adversely affected before a conviction would have to be quashed.

34. Mr Luckhurst-Matthews was unable to take notes, at least to a significant extent, but he had no difficulty remembering what had been said and no difficulty presenting his case. Whether there were shortcomings in his closing submissions or not, his evidence, which he gave on oath to the jury, was clear and they were able to assess it.

35. In all of those circumstances we cannot say that the complaints which have been advanced come close to rendering this trial unfair and in those circumstances we dismiss this appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]