R v Dean Gibson Richards

The applicant, Dean Gibson Richards, renews applications for leave to appeal against conviction and sentence following refusals by the single judge. The conviction and sentence were in the Crown Court at Truro before HHJ Carr on 1 November 2024 and 14 November 2024 respectively. The applicant was previously of good character. He was 43 years old when convicted and sentenced.

He was convicted of carrying on or causing or permitting another to carry on a licensable marine activity otherwise than in accordance with a marine licence, an offence under section 85(1) of the Marine and Coastal Access Act 2009 (“ the 2009 Act ”). That offence carries a maximum sentence of two years’ imprisonment. The sentence here was a conditional discharge for a term of three years and an order to pay a contribution of £15,000 towards prosecution costs, to be paid within six months.

Mr Ramsey Quaife of counsel, instructed by Cox Burley solicitors, represented the applicant in the court below. They have continued to represent him in this court, including by Mr Quaife appearing in person before us today now acting pro bono . We are grateful for that assistance and also for that of Ms Sarah Clover, counsel for the respondent, the Marine Management Organisation (“MMO”), which was the prosecuting authority. Ms Clover was responsible for a written response to the application although in the event we have not found it necessary to call on her in oral argument.

The applicant owned a property in Penpol, Truro, which included some 700 metres of foreshore. He had a certificate from Cornwall Council authorising him to moor boats there. He also owned a 26.5 metre barge which he wanted to moor at the property. To enable him to moor the barge he used spud legs, also known as ‘pin anchors’. Spud legs are vertical metal shafts installed on a floating shallow drafted vessel such as a barge, dredger or pontoon which, when dropped and driven into the seabed, should anchor the vessel securely without the need for mooring lines or any other anchoring. The MMO has a statutory responsibility for the protection of the seabed, including tidal areas of Cornish rivers, to discharge which it operates a licensing regime.

The applicant applied for a licence to install a residential barge mooring on his foreshore for a proposed licence period of five years. Following consultation the MMO refused that application on 1 October 2020. An appeal by the applicant against that refusal was dismissed on 7 June 2021.

In February 2022 it came to the attention of the MMO that the applicant’s barge was anchored upon the foreshore using spud legs to hold it in place as we have said. The applicant had no licence for that activity. That means he had committed or was committing the offence with which he was later charged if a licence was required.

The issues were whether the installation or use of the spud legs was a licensable marine activity at all, within the list set out in section 66(1) of the 2009 Act , and, if so, whether it was an exempt such activity.

The licensable marine activity alleged by the prosecution was the activity identified as numbered item 1 in the section 66(1) list, namely:

“To deposit any substance or object within the UK marine licensing area, either in the sea or on or under the sea bed, from—

any vehicle, vessel, aircraft or marine structure...”

Article 4 and Part 3 of the Marine Licensing (Exempted Activities) Order 2011 (“the 2011 Order”) created exempt activities. The applicant relied on Part 3, paragraph 22, by which Article 4 applied to “a deposit from a vehicle, vessel, aircraft or marine structure in the course of its normal navigation or maintenance” unless such deposit was made for the purpose of disposal or fell within item 10 in the section 66(1) list. Neither of those exceptions to the paragraph 22 exemption was relevant on the facts. So far as material therefore, the applicant’s activity was exempt from any licensing requirement if it was a deposit from a vessel but it was also in the course of its normal navigation or maintenance.

The applicant’s evidence was that the spud legs were welded to the barge. More strictly speaking, as Mr Quaife confirmed in argument before us, that meant the guides or housings, sometimes referred to as spud wells, will have been welded to the barge, enabling it to ride up and down on the spud legs with the tide once they were driven into the foreshore seabed. The applicant said in evidence he believed that to be a more environmentally friendly mooring method than that for which he had sought unsuccessfully to obtain a licence, because it was more secure, stopping the barge from swinging out into the river in bad tides or weather. The barge, he explained, had no engine or other ability to propel itself and his evidence was that he intended to live on it, although it would need a lot of work to become habitable.

The applicant sought to rely on emails from two MMO officers who had made representations as to whether the applicant required a licence or not. The observations upon which the applicant wished to rely were, in our view, plainly inadmissible opinion evidence on what was or was not a licensable activity or an exempt activity. The emails therefore were rightly ruled inadmissible by the judge.

The second of two grounds of appeal against conviction raised by the applicant contended that the judge was wrong to exclude that evidence. Mr Quaife however, in argument today, with respect realistically, did not pursue that ground. We say no more about it.

In relation to the requirements for the offence as charged, the judge directed the jury that they were dealing with ordinary English words to which they should give ordinary meanings in the following way:

“The first question for you is, has the Prosecution made you sure the Defendant deposited an object or objects, namely the pin anchors, from a vessel onto the seabed? Deposit is an ordinary English word, with an ordinary meaning. Deposit does not have to be permanent. If you are sure of this, you move to the second question, and if you are less than sure, the Defendant is not guilty.

We note in passing that it was and is common ground that the defendant bore the burden of proving that his activity was exempted by the 2011 Order from any licensing requirement, giving rise to the second question defined by the judge, if the prosecution had satisfied the jury on the first question.

The judge gave those directions to the jury in writing and orally, the latter by reading verbatim from the former. His next main legal direction was an accurate full good character direction. Before he read that to the jury, the judge paused, as he put it “to try and put a little bit of flesh on the bones of what’s been a short case and a short direction”, and gave the jury the following further explanation:

“... both of those definitions of the law indicate that you as a jury set the standards for what a word means. That’s not unusual, that happens in almost every area of criminal law, that the jury decide, not lawyers, what a word means. And they decide what that word means because they use it in their everyday language. Now deposit might not be a word you use each and every day of our lives, but it’s all a word that we’re all familiar with and has a number of different meanings. And you’ll ask yourself, you may think, it’s entirely a matter for you if you think this is helpful, but if the sentence:

The written directions were agreed by counsel and with one exception they are not criticised in the application for leave to appeal. The exception is that Mr Quaife, despite having agreed the written directions, in one paragraph of his written advice and grounds submitted that it was a misdirection to tell the jury that “deposit” does not require permanence. We have no doubt over the correctness of that element in the judge’s direction. Mr Quaife was correct to agree it at trial.

firstly, by encouraging the jury to test the first liability question by asking whether “the defendant deposited the pin anchors on the seabed” might be a legitimate way of describing the facts, the judge steered the jury away from the real issue in a manner that effectively withdrew a primary line of defence from the jury, namely that there was on the facts no deposit “from a vessel”, the spud legs being, so the defence contended, part of the barge;

secondly, in posing that possible way of looking at matters the judge failed to mention the burden and standard of proof;

thirdly, the judge was wrong on the second liability question to tell the jury that it might be a matter of fact and degree whether some activity went beyond normal navigation of a vessel;

fourthly, even if it was proper to indicate that there might be a question of fact and degree, that element of the further explanation summarised the prosecution case but not the defence case, creating imbalance.

There is nothing at all in the second criticism. The judge directed the jury separately and correctly on the burden and standard of proof. He accurately reflected that direction in his formulation of the questions he directed that the jury had to decide to reach a verdict. We do not consider it arguable that the burden and standard of proof not being reiterated in the judge’s additional explanation could have had any impact on the jury.

There is also nothing at all in the third criticism. We consider it unarguably correct that an activity that might otherwise be part of navigation could, as a matter of fact and degree, be or become something else.

The first and fourth criticisms then both seek to contend, in substance, that the judge’s additional explanation failed or failed adequately to sum up, for balance, the defence case. Mr Quaife reconfirmed helpfully in submissions before us today that those criticisms were not said to have given rise to any strict misdirection of law.

Those criticisms are, in our judgment, misplaced. As to the first criticism, the criticised passage was explicitly an additional explanation only about the word “deposit”. The full question the jury had been directed to address, and which was set out for them in writing, was whether the prosecution had made them sure that the defendant “deposited an object or objects, namely the pin anchors, from a vessel onto the seabed”. We do not think it arguable that seeking to help further as the judge did on the meaning of “deposited” altered or undermined that accurate expression of the full question. In any event, we consider that it was not and is not arguable that the spud legs were not objects from a vessel, just as an anchor is, without room for argument, an object from a vessel. The fact that the spud legs, or more accurately the spud wells within which they were sheathed, were welded to the barge is neither here nor there. In any event, the final part of the judge’s concise summing-up on the facts the following morning, just before the jury went out, was a reminder of the applicant’s evidence on how the spud legs were fitted on the barge and of his case that that gave rise to an environmentally friendly anchoring arrangement and no need for a licence.

As to the fourth criticism, the judge’s additional explanation on the second question was by nature helpful to the defence, ensuring that the jury only convicted if they were sure that the defendant had done something qualitatively different from anything similar to dropping or keeping down an anchor or anchors as part of navigating. The judge did not say in so many words that the defence put forward was that nothing qualitatively different had occurred, but that is the plain tenor of the judge’s explanation, considered sensibly.

For those reasons and though we say again that we are grateful for Mr Quaife’s attendance pro bono to present the argument for the applicant, in our judgment there is no arguable merit in the proposed grounds of appeal against conviction. The renewed application for leave is dismissed.

The single proposed ground of appeal against sentence is that the costs contribution ordered by the judge was disproportionate to the costs incurred by the defence and related to costs not reasonably incurred so that the judge should have ordered a substantially lower figure.

In refusing leave, the single judge said this:

“The court had the power to order the unsuccessful applicant to pay the costs incurred in the prosecution. It is accepted that a proper enquiry into his means was conducted, and he has the means to pay.

We agree entirely. We identify nothing in Mr Quaife’s submissions that might realistically lead to a different conclusion. His written advice and grounds acknowledged that the issue raised was not one of the applicant’s means and submitted instead that it was an issue of whether the amount incurred by the prosecution by way of counsel’s fees was reasonable, namely £19,064.36. That is not quite the question however, as the costs order was effectively for only two-thirds of that amount to be recoverable from the applicant. The arithmetic is as follows. The prosecution claimed costs of £21,443.36, which is just £2,379, plus counsel’s fees. There could be no possible argument against full recovery of the £2,379 and the order was for a contribution of £15,000. The effective recovery against counsel’s fees was therefore £12,621, which is 66.2% of the fees incurred.

We do not consider it arguable that that took the costs order beyond a just and reasonable amount to require the applicant to contribute. Comparison against what might have been standard or guideline rates generally for prosecutions of certain types, as it seems to us, does not answer the question of the reasonableness of the level of costs ordered to be paid by the applicant in respect of the prosecution of him for an offence in a specialist area reasonably requiring the use of specialist counsel.

The applicant is not in custody. It is proper in the circumstances, where therefore both renewed applications are dismissed, to consider whether to order under section 18(6) of the Prosecution of Offences Act 1985 that the applicant pay the reasonable costs of obtaining transcripts in this case for the proceedings in this court. We are told those costs are £101.06. We consider that it is just to require the applicant to pay that cost and we so order.

For all those reasons, both renewed applications are refused and that costs order for transcripts is made.

(The court conferred)

MR JUSTICE ANDREW BAKER: The court acknowledges that it may be assistance was provided on behalf of the respondent at the administrative request of the court by way of a Respondent’s Notice. Having been fully seized of the matter and considered it, it is not obvious to this constitution of the court that any such assistance was really necessary, and beyond that it seems to us not just and reasonable to require the applicant, over and above the other matters already ordered against him, to have to pay those costs. The application is refused.