As you know, we did not have a good day at the last hearing at the Magistrates Courts in the summer. Despite the fact that the GCC’s witnesses fumbled and the Prosecution couldn’t prove their case. Please read the outcomes here.
IN THE CAMBRIDGESHIRE MAGISTRATES COURT
SITTING AT PETERBOROUGH COURTHOUSE
B E T W E E N
GENERAL CHIROPRACTIC COUNCI
v
KOLAWOLE AKINDAPO AKINDELE
______________________________________________
Attendance Note
20th June 2019
_______________________________________________
Hearing Date
20th June 2019
Purpose
Trial
Venue
Cambridgeshire Magistrates Court
Outcome
Guilty: Fine £1500; Costs £1500; Victim surcharge £20.
Coram: Resident DJ
Contra: David Collins, Capsticks
Court: 2
1. I was instructed to attend Peterborough Magistrates Court to represent Mr Akindele at his trial today. Mr Akindele attended Court in good time, accompanied by his wife, Mrs Akindele, and the Practice Receptionist, Celine Burn.
2. Mr Akindele faced one charge contrary to section 32(1) and 32(3) of the Chiropractors Act 1994, in that it alleged on 20 September 2018, whilst suspended from the registrar of the General Chiropractic Council, he did unlawfully describe himself as a chiropractor.
Conference
3. I spoke with Mr Akindele in a conference for some time prior to the trial. For the avoidance of doubt, and to crystallise my instructions, I had firm instructions from Dr Akindele that he did not wish to positively assert that any of the GCC’s witnesses were lying; they were simply mistaken.
4. In short, they went to the practice assuming he would be holding himself out as a chiropractor, and unfortunately their assumption was somewhat supported by some careless signage (the window blind and ‘old’ card) and compounded by their lack of understanding about the meaning of ‘spinal practitioner’ and the use of the term ‘chiropractor’, so that they were ultimately mistaken as to the content and context of any conversations that followers therein. Mr Akindele had not described himself as a chiropractor. Obviously, that assisted his case with the issue of any bad character gateways and admissibility.
Hearing
5. The case called on shortly after 11.15hrs. Mr Collins pursued his application to introduce the Witness Statement of Ms Hennigan. I resisted, and I was in part successful; no evidence in relation to her conversation with the Practice Manager would be considered by the Court.
6. Mr Collins called his witnesses in turn: Jamie Button, Susan Hennigan and Nigel Wills. Each gave evidence broadly in accordance with their Witness Statement, however, Mr Wills, in particular, floundered under cross-examination:
i. He stated he too had seen the blind with the words ‘chiropractor’ on in the window on his visit but could give no proper explanation as to why he had failed to include such a crucial piece of evidence in his Witness Statement;
ii. He stated Ms Xxxx had left the reception room when he was speaking to Mr Akindele (so could not have heard their conversation) but could give no proper explanation as to why he had failed to include such a crucial piece of evidence in his Witness Statement;
iii. He stated it was him, Mr Wills, who had written both the letters ‘A’ on the appointment card, but could give no proper explanation as to why he had failed to include such a crucial piece of evidence in his Witness Statement;
iii. He stated he had taken contemporaneous notes but had destroyed them shortly after completing his Witness Statement, but his recall was 100% accurate and contained all of the above in it; and
v. He stated he had not relied upon Ms Hennigan’s Witness Statement when writing his report, notwithstanding the striking similarity in wording, phrasing and sentence structure between the two Witness Statement in parts.
7. Mr Akindele gave evidence broadly in accordance with his instructions and did fare well under cross-examination. Vxxxxxx Axxxxxxx and Cxxxxc Bxxx also gave evidence broadly in accordance with their witness statements, and Mrs Axxxxxxx was an impressive Witness.
8. None of GCC’s vindictiveness towards Mr Akindele ‘s Character was adduced at trial.
9. Both Mr Collins and I gave closing speeches, and the Learned Judge retired briefly to consider his verdict, before returning a finding of Guilt.
10. With Mr Akindele’s consent, we moved immediately to Sentence, assisted by the means form completed at Court by Mr Akindele; in short, they are in extremely hopeless financial circumstances as a result of bad lucks since Arsonist’s collateral damages to his practice in 2010, both borrowing and spending well beyond their current means in order to keep the practice going. The Learned Judge was sympathetic, notwithstanding the availability of an ‘unlimited fine’ to the Court, and passed the following sentence:
i. Fine £1500;
ii. Costs £1500;
iii. Victim surcharge £20.
iii. 12 weeks for payment. If not all paid by then, the Defence to provide the Court with a ‘full and realistic payment plan’ before the elapse of those 12 weeks.
After the Hearing
11. Both Mr and Mrs Akindele were visibly upset and emotional; however, they calmed and were able to reflect a little as we sat and spoke outside Court. Mr Akindele’s view at that time was that he did not wish to appeal, but that he wished they put the matter behind them and perhaps move abroad to start afresh.
Appeal
12. As Mr Akindele was found guilty and sentenced at the Magistrates Court, he has an automatic right to appeal to the Crown Court against his conviction and/or sentence, which must be within 21 days if it is to be pursued.
13. In my view, Mr Akindele had the best possible chance of acquittal at the Magistrates Trial. Were the matter to go up to the Crown Court, each of the Prosecution Witnesses, particularly Mr Wills, will be primed and ready, and are unlikely to make the same concessions, or fall into the same traps, again. As such, I anticipate their evidence will be the same or better, which will not assist Mr Akindele’s case.
14. There were no procedural irregularities during the course of the trial, and the Defence were given any and all opportunities to cross-examine and interrogate the evidence fully. So too, the Sentence passed was, in my view, well within the appropriate range for a contested offence of this kind.
15. Accordingly, my initial advice is not to pursue an Appeal. I explained, of course, it would be a matter for Mr Akindele to consider, and his decision.
Next Steps
16. I am grateful to those who instruct me. Please let me know if there is anything further I can do to assist.
Exxxxx Exxxxx
21st June 2019
QEB Hollis Whiteman
1-2 Laurence Pountney Hill,
London
EC4R 0EU
Telephone 020 7933 8855
Upon seeking a second legal opinion and hisvdetermination not to abandon his long-time patients and friends, continue to pay up his debts rather than run away from them. Dr Akindele has decided to appeal the decision of the Magistrates Courts and the appeal hearing is scheduled for Friday 22nd November 2019. See the Barrister’s advice below:
IN THE PETERBOROUGH CROWN COURT Case:351900021369
ON APPEAL FROM PETERBOROUGH MAGISTRATES COURT
DR KOLAWOLE AKINDELE
Appellant
- v -
GENERAL CHIROPRACTIC COUNCIL
Respondent
____________________________________
ADVICE ON MERITS
____________________________________
I have been asked to advise on the prospects of success in relation to the Appellant’s Appeal Against Conviction in the above numbered case. This advice is drafted to assist the Appellant to carry out a merits assessment if his legal insurer could assist him.
IN THE PETERBOROUGH CROWN COURT Case:351900021369
ON APPEAL FROM PETERBOROUGH MAGISTRATES COURT
DR KOLAWOLE AKINDELE
Appellant
- v -
GENERAL CHIROPRACTIC COUNCIL
Respondent
____________________________________
ADVICE ON MERITS
____________________________________
I have been asked to advise on the prospects of success in relation to the Appellant’s Appeal Against Conviction in the above-numbered case. This advice is drafted to assist the Appellant’s insurers to carry out a merits assessment for eligibility of funding through the Appellant’s legal expenses cover.
I have been provided with the following documents to aid in my assessment of this case:-
1. Attendance note from Trial drafted by Defence Counsel Exxxxxx Exxxxxx dated 21st June 2019
2. Skeleton Argument drafted by Defence Counsel Exxxxxxxxx Exxxxxxx dated 4th June 2019
3. S.10 admissions presented at trial
4. Summons Letter addressed to the Appellant dated 18th February 2018
5. Initial Details of the Case sent in that letter comprising
a. Case Summary
b. Witness Statement Jamie Button dated 10th January 2019
c. Witness Statement Susan Hennigan dated 10th September 2018
d. Witness Statement Nigel Willis dated 21st September 2018
6. Set of photographs of the premises provided by the Appellant
7. Witness Statement Xxxxxxxxxxx Xxxxxxxx dated 18th June 2019
8. Witness Statement Cxxxxxx Bxxxxxxx dated 14th June 2019
9. Witness Statement Vxxxxxxxxx Axxxxxxx dated 14th June 2019
I have not had sight of the following documents and reserve my position as to whether they could affect my conclusion in this advice:-
1. Appeal Form
2. Prosecutor’s Skeleton Argument for Trial
3. Counsel’s notes of evidence from Trial
4. Any further/formal Advice on Appeal from trial Counsel (further to the brief details contained in the Trial Attendance Note)
5. Any antecedents
6. Summons
7. Proof of Evidence/Version of Events from the Appellant
It is my opinion that any notes from the original trial would be of significant importance to highlight any differences in witness evidence given in the original trial to any changes during the Appeal hearing.
Background
1. The Appellant was convicted after trial of one charge contrary to s.32(1) and 32(3) of The Chiropractors Act 1994, in that it was alleged that on 20th September 2018, whilst suspended from the registrar of the General Chiropractic Council, he did unlawfully describe himself as a chiropractor.
2. The Appellant was sentenced after trial to £1500 financial penalty, £1500 contribution towards costs and a £20 victim surcharge.
3. It is understood that the Appellant wishes to Appeal against his Conviction. It is not known whether he is further wishing, if unsuccessful in his Appeal against Conviction, wishing to Appeal the Sentence imposed. It should be noted at this stage, that I am unconvinced that the Victim Surcharge has been imposed in the correct amount and it would normally be 10% of the fine value up to a maximum of £170 so this should have been £150 and not £20.
The Issues for Trial and on Appeal
4. In order to be guilty of the offence, the Prosecuting Authority must prove so that the Tribunal is sure that
a. The Appellant(whether expressly or by implication) has described himself as a chiropractor (emphasis added)
b. At a time when he was not registered to do so.
5. The reality is that the date of the allegation falls squarely during a period when the Appellant was not registered as a Chiropractor and as such (b) would not be a trial issue.
6. It is understood from the papers that the issue, in fact, remains very narrow in that the witnesses have made assumptions based on what they have seen and heard which have led them to the mistaken belief that he was holding himself out to be a Chiropractor at the relevant time.
7. It is clear from the Trial Attendance Note that the Appellant was not alleging the witnesses were lying but rather that they were mistaken in their conclusions. It goes on to suggest that as they were sent in looking for evidence that he as holding himself out as a Chiropractor that when they found evidence that could be seen in a number of different ways, they assumed that it supported the premises which they were investigating.
8. I find this a difficult concept given that the evidence from Nigel Wills is explicit in that he states categorically that the Appellant has told him directly that he was a Chiropractor, was the only Chiropractor and that he could treat his wife (by way of chiropractic treatments) at the appointment booked for the following week. This either did or did not happen, there is little room for the suggestion of mistake here. If the Appellant is saying he did not say these things then Nigel Wills must be lying. If the Appellant did say these things, then on the face of it, the Appellant is guilty.
The Evidence – Prosecution
9. The Prosecuting Authority alleges that on 6th September 2018 (2 weeks prior to the date of the alleged criminal offence) the following evidence was gathered that supported the view that the Appellant was holding himself out to be a Chiropractor
a. A Sign saying North Brink Chiropractor displayed in the first-floor window directly above the front door
b. Conversation with Practice Manager who said that the Appellant would treat the witness’ husband for a Chiropractic Appointment
c. Business Card entitled Chiropractic and Complementary Health Centre
d. Active website http://chirocomplementaryhealthcentre.vpweb.co.uk/
10. Furthermore, the Prosecuting Authority alleges that on 20th September 2018 (the date on the instant criminal offence) the following evidence was gathered that supported the view that the Appellant was holding himself out to be a Chiropractor
a. Conversation with Practice Manager who said that the Appellant was fairly busy with Chiropractic work and that he was the only one who provided chiropractic treatment
b. Conversation with the Appellant whereby he has told him directly that he was a Chiropractor, was the only Chiropractor and that he could treat his wife (by way of chiropractic treatments) at the appointment booked for the following week
Issues for Appeal
Witness Statements
11. At this stage, I am somewhat concerned that the witness statements upon which this case has been brought are not compliant with s.9 CJA 1967 with the relevant statutory declaration. This means that on the face of it this evidence would be inadmissible, although of course, it is likely that the Respondent would rectify this issue immediately and make the necessary application although this could be opposed on a number of grounds.
Skeleton Argument – Bad Character
12. It will be noted that there was a legal argument as to the admissibility of the evidence of Susan Hennigan dated 10th September 2018. The details are set out (partly) in the skeleton argument of Trial Counsel.
13. Given that the charge relates to a specific date, namely 20th September 2018 and not a broader offence that covers a range of dates, her evidence relating to a visit on 6th September 2018 is wholly irrelevant and it is my view that it should be excluded in its entirety as evidence against the Appellant that could support the charge.
14. It is however understood that the Prosecuting Authority may well have applied to use Susan Hennigan’s statement as a bad character against the Defendant. I have not seen the grounds for the application and am basing my comments upon half of the legal argument as summarised in Trial Counsel’s skeleton argument. In any event, considering all the points raised in that Skeleton Argument by Trial Counsel, I would respectfully agree that the evidence should not fall to be admitted under any of the provisions outlined therein.
15. I understand that this application, when made before the Magistrates Court, was successful in part, but in fact, I am of the view that it should succeed in its entirety. If this is correct, much of the damning evidence is removed from the case against the Appellant and this narrows down the trial issues.
Witnesses
16. Given the above, it is my view that the only required witness for trial would be Nigel Wills. Jamie Button’s evidence is summarised (and agreed) in accordance with the s.10 admissions.
17. Taking into consideration the statute that requires the Appellant to hold himself out (whether expressly or by implication) to be a Chiropractor, it could be argued that paragraphs 10-13 setting out his conversation with the Appellant’s Practice Manager could be inadmissible.
Other Evidence
18. It cannot be ignored by the Court that
a. the public signage on the outside of the building has been removed (albeit clumsily)
b. The appointment card given to the witness by the Appellant has no description of chiropractor
Trial Counsel’s View of Chances of Success
19. Whilst I must accept that Trial Counsel have a better view of how both the Appellant and the witnesses fared at trial, and whilst I accept that Mr Wills may well be a better witness if he is tested on his evidence again during the Appeal, I am still of the view that the points that can be made about the “new” evidence he sought to adduce at the Magistrates remain good – in that he is an ex-police officer, experienced investigator and fails to include evidence which he says is crucial and relevant to the matters in hand; furthermore he has destroyed handwritten evidence at the time and the matter is of some age and his memory appears better today than it did then.
20. It must also be considered that if the Appellant did not fare too well under cross-examination, as stated by Trial Counsel in her note, then he too may come across better second time around and understand the points that the Prosecuting Authority will be making.
Chances of Success
21. I am of the view that there remain still arguable grounds that would mean the Appellant has a higher than 51% chance of success. This must be borne in mind given the incredibly high standard to which the Prosecuting Authority must prove their case, namely that the Tribunal must be sure (beyond a reasonable doubt). I have also considered the possibility of legal argument excluding the witness evidence in its entirety or the very least removing the evidence of Susan Hennigan which would be of great assistance to the Appellant.
22. If the only remaining witness is that of Nigel Wills, given the suggestion that he has already once adapted his evidence and floundered under cross-examination this, of course, will impact on the veracity of his account. Furthermore, I know not whether he was challenged on methods of covert recording etc as the only evidence which he gives is that of direct conversation with the Appellant. No independent evidence as given by Susan Hennigan (business cards, displays in the window etc) and as such the importance of the exact words used would be extremely important and as an investigator of his experience, he would have known this.
23. Additionally, I know not whether he was questioned on the issue of entrapment given the lack of other available evidence to him at the time – after all, I doubt he would want to come away from the meeting with no evidence to show for himself. He would need to be questioned on how many times he has provided negative reports back to the GCC or any other Client to put this in context.
Conclusion
24. Given all of the above, I am of the opinion that this case passes the 51% threshold and has a reasonable chance of success. I would rate the Appellant’s chances at least 70% but I must caveat this on the basis that this advice is given upon paper only and a criminal trial has many further considerations that can only play out on the day whilst witnesses are giving evidence and I do not know how the Appellant, his witnesses or any of the other witnesses will present during the trial itself.
Xxxxxxxx Wxxxxxxxx
Barrister
Optimus Chambers
This late in the preparation for the appeal hearing, Dr Kola’s legal insurer is unwilling to help which shall jeopardise his chance of effectively defend himself. We, therefore, need your help, nothing is too small at this stage. There is crowdfunding already established for this cause, thank you for your continued support.
https://www.justgiving.com/crowdfunding/kola-akindele/feedback?utm_term=zYApmbaEG