R. v M & T [2009] EWCA Crim 2848

Case No 200906162/D5[2009] EWCA Crim 2848
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 1st December 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE IRWIN
MR JUSTICE EDWARD-STUART
R E G I N A v M & T PROSECUTION APPLICATION FOR LEAVE TO APPEAL AGAINST A TERMINATING RULING UNDER S 58 CRIMINAL JUSTICE ACT 2003
Computer Aided Transcript of the Stenograph Notes of
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Mr T Bayliss QC & Mr E Patel appeared on behalf of the Applicant
Mr G Cole, Mr R Wigglesworth QC & Mr M Rhind & Mr S Csoka appeared on behalf of the Respondents
J U D G M E N T
Between
M & TDefendantRCrown

LORD JUSTICE MOSES:

After

[1]a six week trial in the Crown Court at Bradford, on 19th November 2009, His Honour Judge Moss QC ruled, at the close of the prosecution case, that there was no case to answer in respect of a number of defendants, all of whom were charged that together with a man named Bell, they had murdered the victim on 3rd August 2008 in a nightclub in Bradford, known as the Icon Nightclub, in the early hours of the morning.[2]The prosecution case against all the defendants was that they had arrived in two separate motorcars, one a BMW, driven by the defendant, Bell, with three others in the car, McIntosh, who is the subject matter of the application for permission to appeal, Riley and an unknown man, and a blue Audi motor car, driven by Thompson, another of the defendants the subject matter of this application, with three other defendants, Salmon, Nelson and Robinson, arriving outside the club in very close proximity in time and parking next to each other as they went into the nightclub.[3]Whilst they were in the nightclub the victim arrived and was then shot, it is alleged, by the defendant, Bell, and, as was put to the jury, with the knowledge of those others with him in a cohesive group, that Bell had a gun, and with their active encouragement.[4]The deceased managed to get down the stairs, the exit of the club but collapsed and died shortly after. The others, including Bell left the club immediately. The two cars went in convoy, the second car driven by Thompson, going through red lights but subsequently separated. Bell, it is alleged, disposed of the gun in Huddersfield. There was evidence of contact between the two cars both going to the club and returning after the shooting.[5]The judge gave a ruling in advance that there was a sufficient case against all the defendants charged. But, on 19th November 2009 he determined that against all the defendants, save for the defendant, Bell, the evidence was such that no reasonable jury, properly directed, could convict. In so ruling he accepted that there were a number of features of the evidence on which the jury would be entitled to rely. There has been no dispute about that view, and it is therefore necessary to identify those features. Firstly, that the defendants came together with Bell, from Manchester, to the Icon club in Bradford. Secondly, that before the journey or en route to Huddersfield, Bell had armed himself with a loaded firearm. Thirdly, that the defendants remained largely in each others company in the club and appeared to form a cohesive group of which the man said to be Bell was clearly the leader. That, we add, seems likely since Bell was 34 at the time. Fourthly, that the deceased arrived at the club at around 3.00 am, and there was a confrontation between him and Bell, which would have been witnessed by these defendants. Fifthly, that Thompson at least would have understood enmity between the deceased and Bell since Thompson was himself involved in the event some years previously which gave rise to that enmity. We add that there was also evidence that the defendant, McKintosh, had gone to a club where the deceased was, on 20th July 2008, in the company of Bell. The evidence was that other club, the Conica Club in Bradford, was a club which the deceased had visited. Sixthly, Bell, in the company of some members of the group, who could not be safely identified, moved to the area of the entrance doors.[6]That sixth factual proposition, was evidence, so the judge ruled on which the jury could act, requires some amplification. Immediately after the altercation, the deceased had taken a bottle and smashed it and those within the club had ejected him. To do so they moved him through a pair of swing doors which would have taken him out onto the landing, above a row of stairs leading downwards to the pavement.[7]The two who had approached the deceased, as he was being ejected, or just after he had been ejected, could not be identified. But the close proximity of the defendant, Thompson, immediately after, in circumstances we shall describe immediately, is some evidence that he was one of those two who had moved towards the swing doors, just before the next factual feature which the judge identified as evidence on which the jury could rely. Immediately after the deceased was ejected and as a group of three moved to the swing doors, Bell took out, probably from a pouch or bag slung over his shoulder, a gun and fired through a gap in the entrance doors and one of the bullets left a mark of firing on the rim of the door. It is plain that some, if not all of the group would have seen that shot. It hit the deceased but did not kill him. It hit him in the back. Not content with that one shot, Bell then pursued the deceased, down the stairs towards the street. Bell was closely followed by the defendants, must have witnessed Bell firing a second shot. It was that shot which was fatal. It struck the deceased in the back. The deceased managed to stay on his feet as he left the club on the pavement, having descended the steps. He turned left and then appears to have collapsed and signs of blood on the pavement shows his position just behind the front elevation of the building adjoining the club. He thus might not have been visible collapsed but certainly the direction in which he went could have been seen.[8]Events from the time of the shooting were recorded on CCTV cameras and the jury, the judge and we have had the opportunity to examine them and the timing. It is clear that one of gunshots could be heard at 3.25.26 in the early hours of the morning because two women immediately outside are seen to react to the sound of gunshots. One of the witnesses leaves shortly after, and moments later, at 3.26.02, the deceased can be seen running from the club. At .07 of a second later, the defendant, Bell, emerges from the club and .1 of a second after that, Thompson emerges. That is 44 seconds after the two women are seen to react to the sound of the gun shots.[9]There can be seen an incident on which the prosecution are entitled to rely. Closely following the defendant, Bell, who is alleged to have fired the shots, was, Thompson, and they are seen together, sauntering away from the club to the edge of the pavement. They could not cross the road, because of an approaching vehicle, whose headlights can first be seen and then the car can be seen passing. They can both be seen together then dodging the cars and from another camera, breaking into a run. They then went to the two cars which had been parked nearby. It is that incident of the two together on which the prosecution relies, in relation to the case against Thompson.[10]After Thompson emerged, the other defendants emerged, firstly, a man called Edwards, then McIntosh, the subject matter of this application, Salmon and then Riley. Both vehicles then left in the manner we have described, the blue Audi following the BMW driven by Bell, closely behind and going through a red light. The cars separated, but it appears that Bell drove to Huddersfield, where he disposed, so it is alleged, of the gun. There was telephone conversation between the two cars.[11]One day after this shooting a young girl in care, Danielle Higginson, met, so she said, the defendant, McIntosh, and went to the cinema with another young man. A conversation then took place to which we shall shortly turn which, so the prosecution says, demonstrates that McIntosh knew that Bell had a gun and was a party to the joint enterprise which was alleged.[12]The prosecution case was that Bell had fired the two shots including the fatal shot. The prosecution case against the others was recorded accurately by the judge as being that each of these defendants had joined in the pursuit or attack upon the deceased in the knowledge that Bell was armed with a gun, which he might use with murderous intent and that the defendant whose case the prosecution was considering, intended, if only by his presence, to encourage Bell in the commission of the offence. Either the prosecution could prove that or could prove that it was the intention of each of those in the cohesive group that the victim should be shot, as a result of the enmity of which Thompson was aware.[13]The judge, as we have indicated, ruled that there was no evidence against any of those defendants upon which a reasonable jury, properly directing itself, could convict, save in the case of Bell. He ruled that the evidence against all the other defendants, save for McKintosh, was the same and they fell to be considered together. He relied upon the close proximity between two shots which the prosecution accepted was a matter of seconds. That probably is a figure of speech, it was certainly a very short time. He said:
"These young men may have been proved to have witnessed what occurred so far as the shooting is concerned, but I cannot now regard it as safe for a jury to concluded that they can be taken by their continued association with Bell, to have been involved with him in a joint enterprise to pursue the deceased, still less on the evidence available, to be fixed with certain knowledge of the presence of a firearm before the shooting took place."
He continued:
"They cannot be safely fixed with the necessary prior knowledge of the presence of a gun, nor can it safely be said that they joined in with any pursuit, in common with the principle of the deceased as opposed to simply making themselves scarce, in the realisation that something extraordinary and unlawful had occurred."
He then turned to the evidence of Danielle Higginson.[14]Let us then, with that introduction, turn to the application on behalf of the prosecution. The prosecution does not pursue this application in respect of any of the other defendants save for Thompson and McIntosh. It pursues the case against Thompson on a specific and significant ground. It contends that his behaviour, immediately after the shooting, is evidence upon which a reasonable jury could infer prior knowledge of possession of the gun and participation in its use.[15]What then is that evidence? Firstly, the first of those to leave the club behind Bell was Thompson. As we have demonstrated from the timing shown on the CCTV, very closely after he emerges. He is not running. He looks to the left, without any apparent reaction, such as one might expect, in the direction in which the deceased went, and then walks at no speed in a way that might properly be described as sauntering to the kerb.[16]Against that, however, must be acknowledged the fact that neither of those two men could run away across the road because of an oncoming vehicle. But, submits Mr Bayliss QC on behalf of the Crown, his behaviour is so lacking in any reaction to what, on the defence case, would have been the surprise shooting of the victim that the jury could infer not only prior knowledge of possession of the gun, but also his participation as one of the two who approached the deceased before the shooting just outside the exit swing doors.[17]The judge did not agree. We take the view that the judge was entitled to disagree with the significance of that behaviour. Particularly the judge was required to take into account that there was no evidence of any prior planning or pursuit of the man against whom Bell had a grievance to the knowledge of Thompson. On the contrary, the appearance of the deceased at the nightclub, some 20 minutes or so before the shooting, must have come as a surprise to the members of that group. It cannot have been known in the advance. The evidence, indeed arguably, went further. Had there been any advance intention to attack, or possibly to kill the victim, because of the previous enmity, the group led by Bell had gone to the wrong club. The evidence seems to have demonstrated that, if they were searching for him, he was more likely to have been in the Conica, where McIntosh and Bell had gone on 20th July than to the Icon. Further, there was powerful evidence and no evidence to the contrary, that the shooting was spontaneous. No one else in the club saw any gun before it was produced by Bell. It appears to have been produced on the shooting and not before, according to the eye witness, a witness called by a pseudonym "Benjamin". The gun was produced as a matter of spontaneous act and not as a matter of fulfilment of an advance plan.[18]In those circumstances, the suggestion that the judge should have left to the jury the inference that the apparently unconcerned behaviour of Thompson after, was evidence of prior knowledge and participation in the act of shooting was a proposition that the judge was entitled to reject.[19]Let us turn then to the case of McKintosh. As we have indicated, he met the young girl, Danielle Higginson, the day after and had a conversation about the shooting. It is important in considering his evidence the advantage that the judge had, which is not available to this court. Not only did he hear 6 weeks of evidence, but he was peculiarly well placed to assess that young witness, 14 or 15 at the time. She appears to have been an unfortunate girl, against whom no criticism is meant, but she clearly had a troubled life. There was plenty of evidence of that.[20]So fearful was she of giving live evidence that the judge listened to evidence from her by way of a video link and ruled, pursuant to section 116 of the 2003 Act that she need not give live evidence and that her evidence was to be read. It was in the form of a lengthy interview with two police officers. Moreover, so concerned was he, that he adopted a wholly laudable process, whereby, immediately after her evidence was read, the defence on behalf of McIntosh was allowed to identify a number of points, not only in relation to the subject matter of what she said but in relation to her background, so that the jury could set those against the evidence that appeared to emerge from her interview.[21]During the course of that interview she was describing, as we have said, events one day after the shooting, describing those events on 31st October that is over 3 months after the events that she was describing. She had left the care home on 4th August, to go to the cinema and was going to be picked up by those working there after the film. During the course of the film she observed the defendant, Dylan McIntosh, talking with another friend and appearing nervous. It appeared to her he was talking about what had happened the night before. That conversation appears to have taken place during the film although she did have a conversation with McIntosh whilst the film was going on but when she went outside to smoke a cigarette. She said:
"... I could hear Dylan saying to Michael oh he's been locked up, he's been locked up [by that we interpose it appears she meant McIntosh] ... was dead fidgety and looking behind him all the time so we were half way thorough the Batman film and I said I'm going out for a cig and Dylan said I'll come with you and then, so, I was like what's wrong with you when I was outside, he's like oh something bad's happened, and I was like why what's happened he goes erm I was, I went Bradford and then I seen a boy that had done something to my Dad or other relations I'm not very sure about that, but it was something relations with and then he had a gun, then erm he told me that he's seen him, seen the guy - cos this guy, the one that got shot has, had done something to Dylan's dad or relation and err obviously he wanted to go and do something back to him and then - so him and his friend, I don't know his friend's name, and then him and his friend have gone after him and then they've been outside somewhere and because Dylan didn't have the guts to shoot him, his friend took the gun off him and shot him and then - well obviously they probably got off then and then erm he said, this is what I remembered from last night when the police officers had finished he told me that he needed, he'd burnt some clothes and that they were talking about loads of CCTV that was in the area. And then he said that erm Dylan's friend that shot this guy, his brother got locked up for mistaken identity or something and then I didn't believe him and then that's when we went back in the cinema and that's all I know."
She was then during a lengthy conversation asked further questions about that long passage. She was asked that McIntosh had said to her:
"Well that one of his friends has shot something, and well I don't you've got it written down. She said again, he went down to Bradford some guy, they see some, with his friend, some guy that done something to his dad, or his relation was there, so they he gone after, and then he had a gun and then didn't have the guts to shoot him so his friend took the gun off him and then he was going on then he got off and going on he had to burn some cloths and there was CCTV I heard something about footprints."
She was asked later: "Who had the gun?" She said: "It was him who had it", referring to Danielle. She said: "That's all I know -- "[The other person] had done something to one of his family relations... He's, this guy that the one that's been shot and died, that erm I think he, I, err, I think it is his dad or step dad and he's, he'd battered him and left him in hospital." Later, she recorded being told: "And his friend said well, 'go get him now' ... and erm they went chasing him and then Dylan didn't have the guts, sorry I'll just put it down ... Yeah, so his friend done it." Immediately after that passage, she said. "Right cross the bit that Dylan had the gun cos one of them had the gun, his friend said to Dylan go on pull the trigger, so Dylan said no I don't like basically cos he's too scared to, so his friend done it, so it was either one of em cos I don't really want to like say that it was him when I'm really not... That one of e, one of em had the gun and then his, his friend said pull the trigger, pull the trigger. He didn't have the guts, I don't know what he said to his friend but he probably didn't have the guts so his friend's done it." Then she repeated the evidence that he had said he was going to burn his clothes including some trainers and she thought he was obviously scared. He thought that he was going to be locked up. Later she said so far as she knew the shooting happened outside and his friend had pulled the trigger.[22]That evidence obviously is in stark contrast to what eyewitnesses said happened in the club. There was no shooting outside. There was no advance preparation to attack and kill the victim. There was, however, some evidence of those within the cohesive group shuffling around inside the club, and so, it might have been possible to take the view, that the conversation between Dylan, that is McIntosh and Bell, took place immediately before the shooting, as they were milling around within a cohesive group. But nobody outside the group heard it or saw the gun being produced save at the moment before the shooting. Whatever view might have been interpreted or drawn from that interview taken as a whole, it is important that this court bears in mind that the judge was peculiarly well placed to assess the cogency of the evidence in the context of the six weeks' evidence taken as a whole. True it is that the prosecution could rely upon certain features of what she said, that might make it curious if she had made them up or was merely reciting what she had heard others say. He had accepted in interview that he had gone to the cinema with her and spoken to others about the shooting, possibly in her presence. But the features upon which the defence relied also had to be taken into account, particularly her reluctance that what she said should be recorded as accurate, namely, "cross that bit" and indeed further comments by her on Facebook in which she seemed to resile from what she had told the police.[23]We reiterate she was a troubled witness that the judge had to assess. That he did. He described her evidence in the ruling as being evidence which was equivocal to the extent that it is tenuous. He took the view that her evidence was not such as to fix McIntosh with responsibility for what had occurred, as he put it, either as a principal or as a secondary party. The evidence, at its highest, would have entitled the jury to conclude that McIntosh was told to fire a gun at the deceased and was unable and unwilling to do so, whereupon it was taken from him and fired by another. That is the evidence at its highest, but the judge was clearly reluctant, and he was in the best position to feel that reluctance to allow a case to go before the jury, based solely upon the evidence of that witness, evidence which we emphasise was only read to the jury.[24]In those circumstances we do not think that it would be right for this court to interfere with that judgment of the judge, placed, as he was, in the best position to assess the significance of that evidence and its source.[25]This brings us, in a sense, to the nub of the appeal. As we have said, this is an application by the prosecution in which it seeks leave to appeal against a terminating ruling of the trial judge. The position of a trial judge, particularly one as experienced as His Honour Judge Moss QC, in cases of this sort, a shooting in which a gang is said to have participated, must be acknowledged and respected. That acknowledgement finds it expression in the principle that this court will not interfere with such a terminating ruling unless the conclusion of the judge, refusing to let the case go before the jury, is outwith the range of reasonable conclusion. That high hurdle, which a prosecution must overcome is because this court is so much worse placed to make the sort of assessments and judgments this judge had to make when he was asked to stop the case against the defendants including these two, Thompson and McIntosh. If authority is needed for such a proposition, it can be found in the decision of the President of the Queen's Bench Division, Sir Igor Judge (as he then was) in R v B [2008] EWCA Crim 1144 at paragraph 19. He suggested that unless the decision was outwith the range of reasonable response, no leave to appeal pursuant to section 67 of the 2003 Act should be given.[26]We take the view that in this case leave should be given, because there clearly was evidence which distinguished these two from the other defendants against whom the prosecution have not pursued the application. So we shall grant leave in respect of both their cases but, for the reasons we have given, it is not right that this court should interfere with the judgment of the judge, even if one or more of us might have reached a different conclusion. In those circumstances the appeal in respect of both those defendants is dismissed.[27]MR COLE: The Act does provide for what should happen next. In section 61, the determination of appeal by the Court of Appeal. Subsection (7) simply says this court should order the acquittal of the two defendants.

LORD JUSTICE MOSES: Yes, we shall do so. Thank you all very much. What is happening about the jury?

[29]MR BAYLISS: I have already sent an email whilst in court to the judge, I hope that was not--

LORD JUSTICE MOSES: I make an order that nothing in this case is to be reported in a way which might indicate what is happening in this trial until the trial is concluded.

[31]MR BAYLISS: Yes, please.

LORD JUSTICE MOSES: Then the judge can make a further order on acquittal or retrial, if necessary. So we leave it to the judge to vary the order that we make. That is the best way of dealing with it.

[33]MR COLE: They are still in charge, the Bradford jury. I think judge has to deal with it.

LORD JUSTICE MOSES: He has to deal with it. We make an order that nothing is to be reported of this case by which I mean this appeal. I think it was obvious.

[35]MR BAYLISS: We need guidance as whether or not these accused appear before Bradford now they have been acquitted.

LORD JUSTICE MOSES: They probably should.

[37]MR COLE: They should appear before the Bradford Crown Court.

LORD JUSTICE MOSES: They are still in the charge of the jury. But they are acquitted. We have the power to acquit them and we had that.

[39]MR BAYLISS: Further, not strictly speaking, in charge of the jury.

LORD JUSTICE MOSES: I do not know what happens but probably better they do, just in case. Got out of prison.

[41]MR BAYLISS: On bail.

LORD JUSTICE MOSES: Why should they have to go back?

[43]MR BAYLISS: I do not think they should. Why should they?[44]MR COLE: The jury have not been made aware.

LORD JUSTICE MOSES: The judge can tell them what happened, they have been acquitted and that is not going to have to, going to have to say, you must not think more in the case against Bell.

[46]MR COLE: In that case could I ask for a defence costs order for Thompson's travel to the Bradford Crown Court, during the trial. The trial in Bradford. Simply travel.

LORD JUSTICE MOSES: He has already incurred or for the future?

[48]MR COLE: No.

LORD JUSTICE MOSES: Just for tomorrow?

[50]MR COLE: He has already incurred.

LORD JUSTICE MOSES: Not sure, you are going to have to develop that. As we have said, there was and we have given permission to appeal in this case, and his behaviour after might be said to have been brought on himself. Develop it if you like, at the moment, speaking for entirely myself, I am not terribly sympathetic.

[52]MR COLE: I am duty bound to make the application and I do.

LORD JUSTICE MOSES: Why cannot the trial judge make the order if you want to go back in front of him?

[54]MR COLE: We will do it in that way.

LORD JUSTICE MOSES: He is in a much better position. Thank you all very much.

Cited in 5 later judgments