Duffy & Ors, R. v [2008] EWCA Crim 1436

Case No 200705805, 5811, 5812 & 6123 A9[2008] EWCA Crim 1436
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 13th June 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE ANDREW SMITH
HIS HONOUR JUDGE LORAINE-SMITH
Sitting as a Judge in the Court of Appeal Criminal Division
R E G I N A
v
(1) LIAM DUFFY
(2) THOMAS WILLIAM FORSHAW
(3) F
(4) RYAN LLOYD
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Mr J McDermott QC appeared on behalf of the First Applicant
Mr S V Riordan QC appeared on behalf of the Second Applicant
Mr N R Johnson QC appeared on behalf of the Third Applicant
Miss A White appeared on behalf of the Crown
Judgment
Between
Duffy & OrsDefendantRCrown

LORD JUSTICE HUGHES:

[1]These are four applications for leave to appeal against sentence. They arise out of a gangland shooting in Liverpool which displayed, to an alarming degree, the grip which gang culture among the young has or had upon a section of that city, as it has in others, and the ease with which almost casual resort is made to planned murder in the course of gangland disputes. We are able gratefully to adopt by way of summary of what happened what the trial judge had so clearly to say when he came to pass sentence after a trial which had lasted something like ten weeks. He had had unparalleled opportunity to master the intricacies of the case and it is apparent that he had done so.[2]Liam Smith was a member of a gang called the "Strand Gang". It was, perhaps habitually, in dispute with another called the "Croxteth Crew". A previous attempt to kill Smith by shooting him had been made. It had failed. No prosecution had ensued because part of the gangland culture, to which everybody on both sides subscribed, involved minimal cooperation with the police. Smith himself did not even report the attempt to kill him. He no doubt preferred personal revenge.[3]On 23rd August 2006 Smith visited an inmate at Altcourse Prison in Liverpool. In the visitors' area he saw Lloyd. Lloyd was a member of the rival Croxteth Crew. He, Lloyd, was then on remand awaiting trial for gang-related firearms offences and he was in the visitors' area to receive a visit from some of his family. There was some kind of disagreement or confrontation, perhaps at a little range, between the two men. The result was that Lloyd cut short his visit, returned to his cell and, using a mobile telephone to which he clearly had extensive access, set about arranging for Smith to be ambushed outside and killed.[4]Within about half an hour or thereabouts, a convoy of perhaps as many as 20 young people arrived outside the prison to attack Smith. They came in a number of cars. Some stayed in one or other vehicle and others concealed themselves in some bushes nearby which Smith was likely to pass. When Smith left, some of those in the bushes emerged and headed for him. One of them (and his identity has not been established) shot Smith in the head at point blank range with a sawn-off shotgun. The murder was carried out in broad daylight in front of members of the public, and indeed, for that matter, with prison officers about their ordinary business not far away.[5]All those involved made good their escape. Most of them had concealed their identities by way of hoods or similar, and no doubt they were able to escape in part because of the large numbers who were present and the confusion which inevitably followed.[6]When the evidence demonstrated was that this was a planned public execution. After the shooting, any evidence which might link the perpetrators to the crime was destroyed. Cars were burned out, mobile telephones -- which significantly had been chiefly unattributable pay-as-you-go phones -- were disposed of. The gathering of evidence by the police was obstructed by a mixture of lack of cooperation and fear amongst those who were in a position to give some information. The fear came both from the general reputation of the gang for retribution and, in some cases, from specific threats which were made to individuals, though not directly attributed to any of the applicants.[7]The judge described the background evidence which had been given in the case relating to the gang warfare which underlay this killing as follows:
"During the course of the trial the jury heard evidence relating to some of the activities of these gangs during 2004 and 2005. That evidence was truly chilling. There were regular shootings and attacks on property and people. Youths aged only 15 and younger were involved, they were obsessed with firearms but, more frighteningly, they were able to get access to firearms, the real things, and to ammunition and to use them. Teenagers were walking around the streets of Croxteth wearing body armour to protect themselves from being shot at. All this happened despite intensive police activity involving regular stops and searches of young people in the area. Some firearms were recovered but clearly others became available to replace those which were taken by the police."
That was the situation on the ground with which the judge had to deal.[8]The judge was also conscious -- and, as it seems to us, rightly conscious -- of the real risks that gangs of this kind, chiefly populated by young people, can achieve among such people a wholly misguided reputation for glamour. The judge was rightly concerned to do what he could to correct that illusion. As he said, there is nothing glamorous in being a member of this sort of a gang on either side. Anyone who becomes a member is likely to end up either dead or serving a very long sentence of imprisonment. It is clear to us that the sentences that the judge passed had regard to that consideration; that is to say, to the urgent need for deterrence for the sake of the public, amongst whom this warfare was going on. As it seems to us, the judge cannot be faulted for adopting that approach.[9]Lloyd was the instigator of this murder. Even though he was in prison at the time, he set it up. He had the resources, and plainly the obedience or cooperation of others so that he could do it within half an hour or so of seeing Smith in the visitors' area of the prison. He was convicted of murder. He had begun the process by making a number of calls, starting with the applicant Duffy (though he did not get through), and shortly afterwards including Forshaw and Farrell.[10]Those latter two applicants, Forshaw and Farrell, were among those who responded to the call. Both of them were convicted of murder by the jury. It had been alleged by one witness that Farrell was the gunman. The jury was permitted to return a special verdict disclosing whether or not it was sure that he was. It was not sure that he was. The position accordingly is that both he and Forshaw were convicted on the basis that they joined the attack, formed part of the numbers which were a critical part of the plan, and did so knowing that the object was to attack Smith, and that it was at least a foreseeable possibility that he would be shot dead; as he was. As we understand it, Forshaw at the material time was one of those who was still in one of the vehicles. Farrell, it has to be assumed on the verdict of the jury, could well have been one of those who was in the bushes.[11]Lloyd also called on the assistance of Duffy, either directly or indirectly, and Duffy, it is clear, made himself responsible for taking an organising and leading role in assembling this ambush. He made a total of 35 telephone calls in the relevant period. Some were before the attack -- plainly in order to organise the participants -- and some of them were afterwards. It would appear to be a proper inference that some, at least, of those were in order to coordinate the elimination of evidence. He accepted that he had a part in the destruction of at least one of the vehicles. He was also at the scene at some stage. It may be that he was at a little distance, and it is at least possible that he left the scene moments before the shooting. Whether that is the reason or whether there is another does not perhaps matter, but he was convicted by the jury not of murder but of manslaughter. As the case had been left for the jury, that involved the finding that he knew that a firearm might well be used, but he fell to be sentenced on the basis that he had not been proved to the jury's satisfaction to have the intention or foresight that Smith would be killed or seriously injured, as distinct from threatened or frightened with the gun.[12]In the case of those three applicants convicted of murder, the judge was of course required by statute to pass sentences of life imprisonment or its young offender equivalent. He was required by the terms of the Criminal Justice Act 2003 to fix minimum terms before release can be considered. In the case of Duffy, the maximum sentence for manslaughter is life. It is not, however, a mandatory sentence as it is for murder.[13]Lloyd was 18 at the time of the offence. He had relatively minor recorded convictions, though there was a history of expulsion from school for breaking somebody's nose, and there had been reprimands for assaults. He was, as we have indicated, at the time of the shooting on remand awaiting trial for firearms offences which were gang-related. In due course, after the killing but before this trial, he was convicted of those offences and a sentence of imprisonment for public protection was passed with a notional determinate term of 6 years; that is to say a minimum term of 3 years to serve. In his case the statutory starting point under the relevant schedule of the Criminal Justice Act was, because he was 18 at the time and the murder was convicted with a firearm, 30 years to serve. The judge moderated that sentence to an extent. He took into account the age of Lloyd. He recognised, as this court and other courts have consistently recognised, that the statutory nomination of different starting points for those who are under 18 on the one hand and over 18 on the other means that there is an enormous leap upwards at the passage of the 18th birthday. As the judge observed, had Lloyd been a year younger the starting point would have been 12 years. Those are well recognised difficulties. The judge in each case must, whilst beginning to consider a sentence with a statutory starting point, arrive at a sentence which properly reflects the aims of sentencing; that is to say retribution and, particularly in this kind of case, deterrence. The judge passed a sentence of custody for life with a minimum term of 28 years.[14]Lloyd's written application contends that in view of his age and suggested immaturity, that term was manifestly excessive. In the circumstances of this case, and given the instigation by Lloyd of this execution, we take the view that there is nothing wrong with the sentence whatever. An additional factor which may or may not have had a mathematical effect upon his sentence, but was certainly properly taken into account by the judge, was that the life sentence now being passed would subsume within it the previous sentence of imprisonment for public protection based on a notional determinate term of 6 years. That was a legitimate and proper consideration for the judge to have in mind.[15]Forshaw was 17 at the time of the trial. He had by way of previous conviction only a single offence for possession of cannabis which the judge understandably ignored for the purposes of sentence. He too had a record of expulsion from school for disruptive behaviour. He was at the time awaiting trial for an offence of racially aggravated criminal damage, and had been since October 2005. It was still outstanding because he had failed to attend court when he was supposed to. There was clear evidence that he was an active gang member with a fascination for firearms. At his home were found a number of drawings and similar material which plainly demonstrated it. There was a history of admission of some involvement in previous shooting.[16]In his case the starting point according to the statute was 12 years because of his age. The judge was at pains to explain that whilst a significant increase in that starting point was inevitable in view of the appalling facts of the case and the use of a firearm, he had not attempted, in arriving at the minimum term, to achieve any kind of parity with Lloyd. The order that he made was for a minimum term of 20 years. Mr Riordan QC for whose submissions, as of all counsel, we are very grateful, submits in effect that Forshaw's age and the limited proven participation in the offence meant that the judge was not justified in making so large an adjustment from the statutory starting point.[17]Farrell was even younger. He was 15, and only by three or four months, at the time of the offence. His record was rather similar. He had very minor previous convictions, though a record of disruptive behaviour at school. There was before the judge a psychological report which demonstrated that he had a very low IQ; at 71 it is within the bottom 3 per cent or so of the population. The judge had careful regard to that. He was well alive to the age of this young man. He observed that whilst his IQ was very low, he certainly demonstrated street wisdom. But it is no doubt correct that a low IQ of that kind in a young man of 15 would be likely to increase susceptibility to peer pressure. In his case the judge set a minimum term of 18 years.[18]These two terms imposed upon Forshaw and Farrell were very long sentences passed on very young men. The judge was fully conscious of it. He said:
"No-one enjoys sending young men to prison for all of their young adult life."
He described it, rightly, as the most terrible waste. But what he had to have in mind was that this kind of gangland warfare, replicated in other cities in this country at the moment, is rather different from the kind of gangland activity associated with organised crime which used to be encountered 20 years or so ago. This kind of gangland warfare is very largely the province of young men in this age range, as the judge's brief description of what had been going on in Liverpool in 2004 and 2005 demonstrated. This kind of gang culture does come close to destroying any sense of security in a number of areas in a number of cities. It is not a problem which is in any sense confined to Liverpool. It carries, as the judge said, a wholly illusory aura of glamour.[19]It seems to us that it has to be completely clear, for the sake of others who may be caught up in it and for the sake of the public who are entitled to live their lives unblighted by it, that very long sentences will follow offences of this blatant and chilling kind. Whilst these are very long sentences we are, for that reason, unable to say that the judge was arguably wrong in arriving at them.[20]Duffy was a man of 25, significantly older than the others. He has a number of convictions going back to 1996. They were for a variety of offences, but a common feature of a number of them was the supplying of drugs. He told the Probation Officer that he effectively had been in that trade since he had left school. He did not have convictions for serious violence, but he did plainly have a close acquaintance with the gang which assembled in this case and was able to assemble them. He, as Mr McDermott rightly reminds us, was convicted not of murder but of manslaughter.[21]The judge said that sentences for manslaughter need to bear some relation to those for murder. He did not of course mean that they should be comparable, and they are not. He passed on Duffy a sentence of 20 years determinate, which is of course effectively half the sentence passed on Forshaw and significantly less than that proportion of the sentence passed on Lloyd. What he meant was that there must be some sensible relationship between what are now the statutory prescribed periods for murder and the sentences generally which are imposed for manslaughter. In that, we are satisfied that he is clearly right. That does not mean, and we do not mean, that there is any kind of standard formula or arithmetical relationship between the two offences. There is not. Each case must undoubtedly depend, as always, upon its own facts. It will sometimes happen that a defendant convicted of manslaughter alongside co-defendants convicted for murder can plainly be seen to have played a minor or peripheral role in what went on. But that was not the case which confronted the judge with Duffy. Duffy had played a central and organising part in assembling an ambush with a gun. He had not intended or foreseen killing, but he set the scene with all those youngsters and at least one gun which turned into homicide. In those circumstances, we are unable to see that there is any arguable complaint that can be made about the long sentence of 20 years which has been imposed upon him.[22]We should say that with Mr McDermott's help we have looked at two cases to which he referred. The first is R v Tomney [1986] 8 Cr.App.R(S) 161, and the second is R v Kent [2004] 2 Cr.App.R(S) 367. The first of those was a sentence in 1986 or earlier for manslaughter in the course of armed robbery. It provides a good example of how sentencing has to be adjusted to changes in public behaviour. It proceeded upon the basis that the maximum likely sentence for armed robbery, according to the then governing guideline case of Turner, would be 15 years, which is no longer the case. It proceeded upon the basis that sentences for manslaughter arising out of such armed robbery need not be very much longer than the sentence for the armed robbery would be. The modern approach to the impact of death is different.[23]Kent is a much more recent case. It is a case of a shooting in the street by a man who pursued a rival, though in the end missed the rival and shot somebody else. There is no reason to suppose that there was any element of gang warfare in that case. The sentence was one of 12 years upon a prompt plea of guilty. We agree with Mr McDermott that that indicates a sentence of 18 years after trial. We regard that as quite consistent with the sentence which Saunders J passed upon Duffy in the present case where there was the added element of gang warfare and the organisation to which we have referred.[24]In those circumstances, whilst we are, as we say, extremely grateful to counsel for their careful and moderate submissions, these applications are all refused.