Ramsey & Ors, R v [2011] EWCA Crim 872

[2011] EWCA Crim 872

Case No 200906361 D2; 200904861 D2; 200904766 D2;

200904814 D2 and 200905193 D2

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT SHEFFIELD

MR JUSTICE GRIFFITH-WILLIAMS

TD20087480

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/04/2011

Before

LORD JUSTICE AIKENS

MR JUSTICE KEITH

MRS JUSTICE THIRLWALL DBE

Between

RRespondent

(1) Nigel Junior RamseyApplicants/Appellants

(2) Michael ChattooAppellant

(3) Levan Simeon MenziesAppellant

(4) Denzel Emanuel RamseyAppellant

(5) Keisha Mindley-DonaldsonAppellant

Ms Elizabeth A Marsh QC for Nigel Junior Ramsey

Mr Henry Grunwald OBE QC and Mr Neil Hawes QC for M Chattoo

Mr Nicholas P Rhodes QC for L Menzies

Mr James Baird for Denzel Emanuel Ramsey

Mr Daniel Bunting for Keisha Mindley-Donaldson

Ms Sarah C Wright for Crown

Hearing Hearing dates : 25 th March 2011

Judgment

[1]On Friday 25 March 2011 we heard renewed applications for leave to appeal against conviction by four young men: Michael Chattoo, Nigel Ramsey, Denzel Ramsey and Levan Menzies. In the case of N Ramsey he also applies for an extension of time of 6 months in which to renew his application for leave to appeal. The single judge refused leave to appeal in all cases.

[2]We also heard two appeals against sentence by N Ramsey and L Menzies. In those cases leave to appeal against sentence has been granted by the single judge.

[3]In addition we heard the appeal against sentence of Keisha Mindley-Donaldson.

[4]At the conclusion of the hearing we announced that N Ramey’s application for an extension of time would be granted, that leave to appeal against conviction would be granted for all applicants on one ground of appeal and that leave to appeal would be granted to M Chattoo on one further ground of appeal. Leave in respect of the remaining grounds was refused. We dismissed the appeals against sentence of N Ramsey and of Keisha Mindley-Donaldson. However, we allowed that of L Menzies. We said that we would hand down our reasons at a later date. These are our reasons. All members of the court have contributed to this judgment.

The Convictions

[5]On 7 August 2009, after a trial before Griffith-Williams J and a jury in the Crown Court at Sheffield, M Chattoo and N Ramsey were convicted of the attempted murder of Tarek Chaiboub, whom we shall refer to as “TC”. That charge arose from TC being stabbed on 6 July 2008. A co-defendant, Javan Galloway, was convicted of the same offence. The prosecution case was that the stabbing had been ordered by N Ramsey, who was at that time a serving prisoner, and that those involved in the stabbing were Chattoo and Galloway. That offence comprised count 1 on the indictment.

[6]Although TC was seriously injured, after he had been in hospital for several days he was discharged on 9 July 2008. But on 11 July at about 13.46 hrs he was shot dead outside a barber’s shop on Spital Hill in Pitsmoor, Sheffield. He was 17 years old.

[7]On 7 August 2009, after the same trial, M Chattoo, N Ramsey, D Ramsey and L Menzies were all convicted of the murder of TC. That was count 2 on the indictment. The prosecution case was that N Ramsey had also ordered that this killing take place. The prosecution alleged that Chattoo, D Ramsey and L Menzies were all present at the shooting.

[8]Griffith-Williams J sentenced the applicants as follows: Chattoo was sentenced to Imprisonment for Public Protection on count 1, with a minimum term of 6 years; that was to run currently with the sentence of imprisonment for life on count 2. The judge fixed a minimum term of 30 years pursuant to section 269(2) of the Criminal Justice Act 2003. N Ramsey was sentenced to Imprisonment for Public Protection with a minimum term of 6 years on count 1 and life imprisonment with a minimum term of 35 years on count 2. D Ramsey was sentenced to life imprisonment on count 2 with a minimum term of 25 years. L Menzies was sentenced to life imprisonment on count 2 with a minimum term of 20 years. The co-defendant, Galloway, was sentenced to 9 years detention on count 1.

[9]On 12 October 2008 Keisha Mindley-Donaldson pleaded guilty at the start of a subsequent trial which arose out of the events giving rise to the trial of the first four applicants before us. She pleaded guilty to two counts of assisting offenders, namely Chattoo, D Ramsey, L Menzies and Javan Galloway, with intent to impede their apprehension or prosecution. Other co-accused pleaded not guilty and a trial ensued before HHJ Keen QC and a jury. At the end of the trial, on 28 October 2008, Keisha Mindley-Donaldson was sentenced by Judge Keen to a total of 4 ½ years imprisonment.

The Facts

[10]For the purposes of the applications for leave to appeal against conviction we need only give an outline of the facts. In Sheffield in 2008 there was a gang known as the S3 gang. It was named after the area of Sheffield in which it operated. There was internecine strife in the gang and one faction murdered a member of the other faction, who was called Brett Blake.

[11]The two Ramseys, who are brothers, are also cousins of a young man called Junior Liversidge. Chattoo was a friend of Liversidge and Galloway is Chattoo’s cousin. L Menzies lived next door to the Ramseys. All were members of the S3 gang. Shortly after Blake’s funeral, Liversidge was stabbed by associates of the murderers of Blake. TC had a foot in each of the rival camps of the S3 gang.

[12]The prosecution case was that N Ramsey had wanted TC to be killed because N Ramsey believed that TC was responsible for identifying to the opposite camp in S3 the whereabouts of Liversidge on the day that he was stabbed. So N Ramsey ordered, encouraged or persuaded Chattoo, D Ramsey and L Menzies to murder TC. The first attempt, which failed, was the stabbing on 6 July. The prosecution case was that on 11 July Chattoo, D Ramsey, and L Menzies had gone to a barber’s shop in Spital Hill where TC was seeing a friend and he was shot there with a sawn-off shot gun. The judge found, for sentencing purposes, that Chattoo shot TC and the judge found as much when sentencing Chattoo. One witness said that there was a second weapon present, although it was never established who (if anyone) had it on him.

[13]The murderers of Brett Blake had been convicted by the time of the trial. So also had the attempted murderers of Liversidge.

[14]On 21 July 2008 a single barrelled 12 gauge, sawn-off pump action Beretta shotgun was recovered by the police from Osgathorpe Park in Sheffield. It was examined by Dr Mark Robinson, a forensic ballistics expert. In the gun was a Lyalvalve Magnum Maximum Game shotgun cartridge which was loaded with a 50 gram load of No 1 shot. The evidence of Dr Robinson at the trial (which was read to the jury and was not challenged by the defence teams) was that this type of pellet has an average weight of 0.25 grammes, whereas the normal weight for shot of this type is heavier, usually 0.28 – 0.31 grammes. Dr Robinson therefore considered the weight of the shot in that cartridge to be lighter than usual. The weight of the shot pellets recovered from the body of TC at the post-mortem was also about 0.25 grammes. Pieces of shotgun wadding that were recovered from TC’s body were also of the same type as that found in the cartridge recovered from the sawn –off shotgun. Dr Robinson considered that the marks on the base of the cartridge that was discharged into TC’s body were indicative of it having been fired from a sawn-off shotgun. He also considered that the marks were similar to those produced when he fired similar cartridges from the recovered gun.

[15]The police recovered from 97 Norgreave Way, where a taxi had taken Chattoo, D Ramsey and L Menzies, shortly after the shooting, six 12 gauge Lyalvale Magnum Maximum Game No 1 shotgun cartridges which were (in Dr Robinson’s view) identical to the cartridge in the recovered gun. The shot pellets in the cartridge weighed 0.25 grammes and the wadding was of the same type as that recovered from the body of TC and the cartridge found in the recovered gun.

[16]Dr Robinson’s evidence at the trial was that this type of cartridge was encountered less frequently than other types of shot by reference to the data in the National Firearms Forensic Intelligence Database.

[17]The prosecution case, as set out in paragraph 77 of its draft written opening, which we were told reflects how the case was put to the jury, was that there was a link between the cartridges recovered, the cartridge that killed TC and the gun that was recovered. This was said to be particularly forceful because a DNA sample recovered from the cartridge in the gun matched that of the younger brother of L Menzies, who lived with him. The prosecution said that all this provided a “conclusive tie-in” between the gun and L Menzies and the other two accused of being at the murder scene.

[18]We deal first with the application of N Ramsey to extend the time in which to renew his application for leave to appeal against conviction. The applicant was convicted on 7 August 2009. Leading Counsel advised on appeal and an application for leave to appeal conviction and sentence was lodged in time. The single judge refused permission to appeal on 3 March 2010. Notification of that refusal was sent to the applicant on 31 March 2010. The application to renew was lodged on 2 November 2010, some six and a half months out of time.

[19]The rules in relation to renewing applications refused by the single judge are now contained at Rule 65 of the Criminal Procedure Rules 2005, as amended. It is for the applicant to serve his renewed application on the Registrar not more than 14 days after refusal of the application that the applicant wants to renew. The power to extend time is set out in Rule 65.3. which so far as is relevant provides:

“The court or the Registrar may— (a) shorten a time limit or extend it (even after it has expired) unless that is inconsistent with other legislation;”

The rule governing applications for extending time is 65.4. “A person who wants an extension of time within which to serve a notice or make an application must— (a) apply for that extension of time when serving that notice or making that application; and (b) give the reasons for the application for an extension of time.”

[20]The principles to be applied by this court when considering an application for an extension of time were stated in a number of cases decided long before the present rules were formulated and, indeed, before the Human Rights Act 1998 came into force. They all emphasise that the rules are there for a reason and that the court must insist on its rules being obeyed rather than flouted. Therefore an extension of time in which to make a renewed application will usually only be granted if there is a good and exceptional reason for doing so. This has been held to be the case even where the reason for the delay is entirely the fault of the lawyers of the applicant.

[21]We accept that we have to examine each case in the light of the present rules and bearing in mind the ECHR rights of applicants, whilst emphasising that just because the applicant has ECHR rights, that is not a panacea in all cases. As the cases say, good reason has to be shown.

[22]In this case the reasons for the delay are set out in an advice of Miss Marsh QC dated 17 October 2010. It is stated that Miss Marsh advised after the initial refusal and that the applicant said that he wished to renew his application. Miss Marsh has told us, repeating what was said in writing, that she anticipated that the solicitors, or the applicant himself, would serve the renewal notice. There was some discussion about issues and materials for the renewal. But by August 2010 no renewal had been made and Miss Marsh learned, informally, of this. She drafted a renewal application and forwarded it to her instructing solicitors on 1 September 2010, asking them to approve and lodge it. This was not done. Miss Marsh realised this, via other counsel, on 24 September 2010. Miss Marsh had a further consultation with her solicitor on 8 October, whilst trying to obtain the grounds lodged by L Menzies. Then on 11 October 2010 Miss Marsh received a copy of a letter from the Registrar of Criminal Appeals to those instructing her, asking that the position of N Ramsey be notified within 14 days from 7 October. On 13 October 2010, Miss Marsh sent an email to the Criminal Appeal Office saying that she would complete the renewed application by 18 October 2010. In fact the form SJ was not received by the Criminal Appeal Office until 2 November 2010.

[23]This is a sorry story of delay coupled with a lack of any feeling of urgency which, we are forced to say, does not reflect well on any of the advisers of N Ramsey. If the application of N Ramsey stood alone, we think that it is unlikely that we would have been satisfied that there was sufficient good reason to extend the time for the renewal. But his application does not stand alone. We are today also considering the applications of the other three who have made their renewal application in time. There is no suggestion that those applications have been delayed by the late application to renew on behalf of N Ramsey. There would, we feel, be a justified feeling of injustice on the part of N Ramsey if his application was not considered on the merits at the same time as the other three. In those exceptional circumstances, we therefore grant the extension required.

The grounds of appeal: (1) “fresh evidence”

[24]The applicants between them had originally proposed six different grounds of appeal, relating to both counts. Before us all counsel have asked us to consider first one particular ground. We will come to the others in due course.

[25]The ground that is now particularly relied on concerns count 2 ; it is that there is now “fresh evidence” in the form of an expert report from Mr Geoffrey Arnold. He gave evidence at the subsequent trial before HHJ Keen QC. In that trial Daud Ahmed and Abdi Rahman Ali faced charges of assisting D Ramsey in the recovery of the sawn-off shotgun that had been recovered on 21 July 2008 and of having it in their possession between 11 to 18 July 2008. It was therefore of the essence of the prosecution case in that trial that the sawn-off shotgun recovered on 21 July 2008 had been the murder weapon. In the event D Ahmed and Abdi Rahman Ali were acquitted of those offences although they were convicted of others that are not relevant.

[26]Mr Arnold prepared a statement for the defendants Ahmed and Rahman Ali in the trial before HHJ Keen. He reviewed Dr Robinson’s three statements that had been in evidence at the first trial. He also reviewed Dr Robinson’s examination notes and the relevant exhibits with a view to commenting on:(i) any ballistic evidence relating to the brand of shot gun cartridge used in the killing of TC;

(ii) any ballistic or tool marking showing an evidential link between the gun recovered and the death of TC; and

(iii) any ballistic or tool marking showing an evidential link between the shotgun cartridge recovered with the shotgun and the cartridges recovered from 97 Norgreave Way.

[27]Mr Arnold’s first main difference of view with Dr Robinson was on whether the cartridge recovered from the shotgun came from the same source as those cartridges recovered at 97 Norgreave Way. He said that 45,000 cartridges of that type had been produced in the 4 years since their introduction up to the death of TC. Without supporting evidence of traces, he suggested that locating seven of the cartridges in two separate locations does not equate to supporting evidence that they originated from the same source other than the same manufacturer.

[28]His second main difference is that he did not agree that the correspondence between the wadding type (recovered from the gun and the body of TC) and the pellet weight provided strong scientific supporting evidence for the view that TC was shot using a Lyalvale Magnum Maximum Game No 1 cartridge of the type recovered. In his view, the cartridges, pellets and waddings are far from rare and the pellet-wadding combination could have originated from another cartridge manufacturer, not just Lyalvale.

[29]Therefore his conclusions were:(i) that there was no conclusive evidence that the cartridge used to kill TC was a Lyalvale cartridge;

(ii) there was no evidential link between the shotgun recovered and the killing of TC;

(iii) there was no evidential link between the wadding found at the scene and the test waddings produced using the shotgun; and

(iv) there was no evidential link between the shotgun cartridge recovered with the shotgun and the cartridges found at 97 Norgreave Way other than the fact that they originated from Lyalvale as similar cartridges.

[30]At the trial before HHJ Keen Dr Robinson gave oral evidence. A transcript of his cross examination was not before us at the leave hearing but we did have a note prepared by counsel. It appears that Dr Robinson accepted that when the gun was recovered on 21 July 2008 it was incapable of being discharged and that this was probably due to a build up of greasy deposits. He also agreed that he could not say that the condition of the gun would have been any different on 11 July 2008, when it was said to have been the murder weapon. Therefore he could not say that, on that date, the gun would have been capable of firing. It transpired that Dr Robinson had conceded this much in a third statement he had made at the time of the first trial, which we were shown. However, it is clear that this was not the case as put by the prosecution at the outset of that trial. The applicants say that the prosecution’s case in closing was that the gun recovered was the murder weapon and they say that this is clear from the way that the judge dealt with the matter at pages 90-92 of his summing up.

[31]It appears that Dr Robinson also said in cross-examination that he had used ammunition from a manufacturer other than Lyalvale for his test firings. That might have affected his conclusions. Dr Robinson also appears to have accepted that the fact that no gun shot residues were found and that no checks were done on swabs from the barrel of the shotgun recovered made it more difficult for the prosecution to demonstrate that that gun was the murder weapon.

[32]It appears that in the course of counsel’s cross examination of Dr Robinson, the judge said to counsel “you can’t do any better” and asked Dr Robinson if he could be sure that the gun recovered was the murder weapon. As a result of these interventions counsel cut short his cross examination and did not get onto details about the source of the pellets, their weight, the number of pellets manufactured and other materials dealt with in Mr Arnold’s statement.

[33]As already noted, Ahmed and Rahman Ali were acquitted of the counts relating to the shotgun.

[34]The submission of all applicants is that it is reasonably arguable that(a) the statement of Mr Arnold and

(b) the evidence of Dr Robinson at the subsequent trial constitutes “fresh evidence” that is admissible, credible, could not have been produced at the trial and affords grounds for allowing the appeals of all the applicants. Therefore leave should be given on this ground at least.

[35]The Crown’s response is that the evidence relating to the gun that was found at Osgathorpe Park and the cartridges that were subsequently found was not central to the prosecution case on count 2. The prosecution case was that the gun and the cartridge were consistent with the gun that had been used in the attack on TC and the cartridges had connections with those who the prosecution said were the murderers. That evidence was only one piece of the jigsaw.

[36]It is also emphasised that the fact that the weapon found was the gun used in the murder was an essential part of the case at the subsequent trial against Ahmed and others that he had assisted in disposing of THE weapon. Therefore the prosecution had to prove that it was such.

[37]The Crown also points out that at the time of the trial before Griffith-Williams J the defence had a firearms expert who had produced a report. This was Mr Dyson. That report was not served on the prosecution nor was Mr Dyson’s evidence relied on by the defence. It must be assumed, therefore, that he supported the conclusions of Dr Robinson and so would have opposed the conclusions of Mr Arnold.

[38]It is submitted that it is wrong in principle to permit a new expert to be relied upon at the appeal stage, unless there are exceptional circumstances and here there are none.

[39]The cases emphasise that it is the obligation of the defence to advance its whole case at the trial and it is not the object of section 23 of the Criminal Appeal Act 1968 to permit a convicted person to have a second chance to advance expert evidence that was not advanced at the trial unless there is some exceptional reason why it was not or could not be advanced. In effect, here, the applicants rely on the fact that there was a subsequent expert who disagreed with Dr Robinson in a way that the applicants’ own expert at the time of the trial did not.

[40]We have not explored in detail(a) the views of Mr Dyson at the time of the trial;

(b) why he was not called;

(d) what the prosecution knew about Mr Arnold’s evidence at the time of this trial;

(e) whether there are any disclosure issues that arise. Ultimately, however, we have come to the conclusion that we must grant leave to appeal on this ground. We accept that it is arguable that it would be in the interests of justice for the Court of Appeal to receive the fresh evidence of Mr Arnold and the subsequent evidence of Dr Robinson. We are not deciding that question; nor are we deciding any issue concerning section 23(2) of the Criminal Appeal Act 1968. Those will all be open for argument at the main hearing.

[41]However, it will be necessary for all the applicants to consider what evidence needs to be before the full court so that it can consider whether it should receive any fresh evidence from Mr Arnold. In particular we think that there will have to be evidence about(a) what expert evidence the applicants had available at the trial;

(b) why it was not used;

(d) why it was not disclosed if they did know.

[42]We order that there transcripts be prepared of the evidence of Dr Robinson and Mr Arnold at the trial before HHJ Keen.

The grounds of appeal: (2) the written directions of the judge to the jury

[43]The second ground that is pursued by all applicants is that the judge erred in giving to the jury the written directions on the law that he did. It is not suggested that there are any erroneous directions of law in the written directions. But it is submitted that the judge should have acceded to the submissions of defence counsel at the trial not to give them to the jury. The argument was that the written directions ran the risk of concentrating the jury’s mind too much on the matters of evidence - indeed, on what the prosecution’s case on that evidence was - that had to be referred to in the written directions, although the judge kept those to a minimum to explain the points of law he was dealing with. The argument must be that this led to unfairness and to some disadvantage for the applicants.

[44]This is not arguable at all. It has been the practice of trial judges for at least 12 years to our knowledge to provide juries with written directions on the law in complex cases – and often in more straightforward ones. The judge identified five very sound reasons why it was proper to give written directions in this case when he gave his ruling on this topic. The practice of giving written directions on the law is to be encouraged. This ground is dismissed.

[45]The next ground, which is advanced only on behalf of Chattoo, is that the judge wrongly refused at the conclusion of the evidence to add to the indictment a count of section 18 wounding with intent to cause GBH as an alternative to count 1 – the count of attempted murder. Chattoo’s defence to count 1 was self-defence; he said that TC started the fight with a knife. The argument is that if, as obviously happened, the jury rejected that defence, they were left with no alternative but to convict of attempted murder and so there must have been obvious pressure on them to do so in the absence of an alternative count. It is suggested that the evidence of an intention to kill on Chattoo’s part was far from compelling.

[46]The general principle is that a judge is not obliged to leave to the jury an alternative count of a lesser offence unless that possibility has obviously been raised by the evidence, so that in the interests of justice, the judge should leave such a verdict on a lesser offence to the jury: R v Coutts

[2006] 1 WLR 2154

[47]It is for the judge to decide whether the evidence requires that he take this course. The question here must be: if the jury rejected self defence, was it obvious that the evidence raised the possibility that the intent of those involved was only to commit GBH or some lesser injury as opposed to an intent to murder. The judge had to take a view on that. We were told by Mr Grunwald QC on behalf of Chattoo that he and counsel for N Ramsey and Galloway made submissions to the judge that he should leave to the jury the possibility of a conviction under section 18 of the 1861 Act but he refused, without giving any reasons. In those somewhat unusual circumstances we decided we should grant leave on this ground.

[48]We order that there should be a transcript of the submissions made to the judge on this issue and his ruling on it.

Grounds of appeal: (4) “lurking doubt”

[49]The next ground of appeal on conviction we have to consider is that raised by Mr Grunwald on behalf of Chattoo and Mr Bourne QC on behalf of D Ramsey, The ground relates to count 2. It is that the description of the assailants, none of whom was formally identified by witnesses, was at such variance to that of the applicants in terms of his build and appearance that there remains a “significant lurking doubt” about the safety of their conviction on count 2.

[50]Mr Grunwald and Mr Bourne submit that the evidence of Mrs Goodlad, who was called as a witness by the defence, was important and credible evidence that contradicted the prosecution case in important respects. First, it contradicted the prosecution case on where the assailants had come from to get to the barber’s shop. Secondly, it contradicted the actual appearance of M Chattoo and D Ramsey in almost every respect. Thirdly, her evidence suggested that three Asians were involved in the killing, which may have been significant given a background of a possible robbery by TC and the background of those involved in that affair.

[51]The judge set out clearly the defence case on this in his summing up at page 22E to 24D. He set out the prosecution case on the evidence of Mrs Goodlad at page 20B-D. He dealt with her evidence in three places: 26B-D, where he said that her evidence on where the three men, who were the assailants, came from was reliable and he invited the jury to accept it. Secondly, at page 89A where he has just reminded the jury of the evidence of Shavana Clark about the description of the people standing on the steps of the barber’s shop, a flash and then three men running past her, two of whom had guns. At page 89A the judge says that the jury might like to consider that evidence when they also consider the evidence of Mrs Goodlad. That is dealt with by the judge again at page 125A to 127B. He goes through her evidence in detail, including her evidence on the description of two Asian boys and another man she saw when walking back to work with her sandwiches. He reminds the jury that she did not pick out D Ramsey on a video ID procedure.

[52]It is submitted that, although the judge summarised accurately the evidence of the prosecution eye witnesses and that of Mrs Goodlad, yet he erred in the way that he invited the jury to deal with the description evidence given by prosecution witnesses and that of Mrs Goodlad. He said, in relation to the first, that their evidence was only to show that the their general descriptions were not inconsistent with those of Chattoo, D Ramsey and L Menzies, whereas in fact it clearly was. In relation to Mrs Goodlad the judge’s use of the statement that she “clearly believed” that what she had described had, indeed, happened, suggested that the judge thought that belief was wrong.

[53]We cannot accept that these criticisms produce an arguable ground of appeal. The judge put Mrs Goodlad’s evidence very fully to the jury. He reminded them on more than one occasion that they had to consider that evidence with all the other evidence of description given by prosecution witnesses. We are quite satisfied that the judge dealt with this issue fully and fairly. This is not an arguable ground of appeal.

Other grounds of appeal

[54]There were other proposed grounds of appeal on behalf of all applicants. They were abandoned before us and we need not deal with them at all.

Conclusion on leave to appeal against conviction

[55]The upshot of all this is that we grant leave to all the applicants to appeal on what we have described the “fresh evidence” point. We also grant leave to Chattoo and N Ramsey to argue the issue of the judge’s decision not to leave an alternative verdict to the jury on section 18 of the 1861 Act on count 1.

[56]We gave the following directions in relation to preparation of the appeal hearing:

[57]We also said that we thought that, given the time this constitution has already spent reading the papers in this case (far longer than the estimate of 2 hours that had been given to the exercise), it would be an efficient use of court time for the same constitution to hear the appeals, unless counsel objected to that course. None did.

Sentence appeals

[58]We announced our decision on the issue of leave to appeal on conviction at the end of counsels’ submissions. We asked counsel for N Ramsey, Miss Marsh and counsel for L Menzies, Mr Rhodes QC whether they had any objection to us considering the appeals against sentence of their clients at this hearing despite the fact we had granted leave on the conviction appeals. They had no objection, so we went on to deal with the appeals against sentence of N Ramsey and L Menzies.

[59]N Ramsey’s appeal is limited to his sentence for the murder of TC. The sentence of life imprisonment is fixed by law. His appeal is, therefore, confined to the length of the minimum term which he must serve before his release from prison on licence can be considered by the Parole Board.

[60]L Menzies was only 16 years old at the time of TC’s murder, and the sentence that he be detained until Her Majesty’s pleasure be known is also fixed by law. So like N Ramsey his appeal relates to the length of the minimum sentence which he must serve before his release from prison on licence can be considered by the Parole Board.

Sentence appeal of N Ramsey

[61]In the course of his sentencing remarks, the judge explained the context in which TC had been murdered. N Ramsey was the leader of the S3 gang in Sheffield which engaged in robberies, dealt in drugs and resorted to extreme violence in order to achieve its ends. Its members were indifferent to the standards of those who want to live in a civilised society, and the rule of law meant nothing to them. Not only had TC been murdered because he had told members of one faction of the gang where a member of another faction was going to be so that he could be killed, but he had been murdered only a few days after an earlier attempt to murder him had failed. The effect of the jury’s verdict was that TC’s murder had been ordered by N Ramsey from prison. It had been both planned and premeditated. The fact that N Ramsey had not been there himself when TC had been shot, and had therefore been unable to direct operations on the ground, did not begin to reduce his culpability. The judge said that the fact that it was N Ramsey who had ordered the murder of TC entitled him to conclude that N Ramsey’s culpability was higher than that of those who actually carried out the murder. N Ramsey may not have given instructions about precisely where and when TC was to be killed, but it is not suggested that he did not know that a firearm was to be used to kill him.

[62]The judge also concluded that N Ramsey’s culpability was higher than those who were responsible for carrying out the murder because it was N Ramsey who arranged for TC’s killers to get out of Sheffield. It was argued before us by Miss Marsh QC that there was no evidence that N Ramsey had made any such arrangements immediately prior to the shooting of TC and that the pattern of telephone calls to or from N Ramsey’s mobile phone (which he had in prison) proved that this was the case. That might be so (though we note that the judge who presided over the trial of his girlfriend, Keisha Mindley-Donaldson, thought otherwise), but the fact is that prior to the shooting of TC, N Ramsey had made arrangements for those who had been involved in the stabbing of TC to get out of Sheffield, and within a short time of the shooting of TC, N Ramsey was on the phone to his girlfriend making arrangements for TC’s killers to be looked after. Miss Marsh also argued that there was no evidence that N Ramsey was specifically involved in organising the weapons used. Nor did he persuade Mindley-Donaldson to assist prior to the murder of TC. None of those points persuades us that N Ramsey’s authority within the group was any less than the judge thought it was.

[63]N Ramsey was 23 years old at the time of sentence. He had previous convictions for supplying hard drugs, or possessing them with intent to supply, for which he had received detention and training orders. The sentences he was serving at the time of TC’s murder were sentences of detention for public protection for offences of wounding with intent and unlawful wounding. There were differing views relating to his behaviour during his sentence. Wing staff reported a polite co-operative prisoner, whereas his security file was said to have “numerous entries indicating assaults, intimidation, threatening and abusive” behaviour to staff and other prisoners. He showed no signs of moderating his behaviour. The person who conducted an OASys assessment of him was tempted to recommend that he be upgraded from a category C prisoner to a category B prisoner.

[64]Since the murder of TC involved the use of a firearm, this was the sort of case whose seriousness would normally be regarded as particularly high, and for which the appropriate starting point for the minimum term would therefore be 30 years. We have no doubt – indeed it is not contended otherwise – that the judge was right to take that as his starting point. We appreciate, of course, that a minimum term of 35 years was a crushing sentence for a man of his age, but he had been an adult aged 22 at the time of TC’s murder, and he had used his authority and power to order the murder of a 17 year old youth.

[65]A minimum term of 35 years was justified in his case, and his appeal against sentence must be dismissed.

Sentence appeal of L Menzies

[66]L Menzies’ extreme youth called for a different approach in his case, as did the fact that he was not a member of the gang. However, the judge described him as “an enthusiastic hanger-on”, who was “happy to be part of the murderous expedition to kill a man in cold blood”. It looks to us as if he was earning his spurs. The judge could not be sure that Menzies was the man who had a second gun, and Menzies was accordingly sentenced on the basis that he knew that the two other men were armed with guns.

[67]The judge initially thought that Menzies’ involvement in the murder could have been put down to his immaturity, and in that connection the judge noted that Menzies’ intellectual functioning had been assessed as below average. But the judge had had the opportunity to observe Menzies giving evidence. Menzies struck the judge as being “streetwise”, and the judge’s conclusion was that his offending was “explained by the criminal environment in which [he had] been brought up and by [his] willingness to be led”.

[68]Menzies had a number of previous convictions, but he had not had a custodial sentence. The judge said that he did not regard Menzies’ record as an aggravating factor.

[69]Since Menzies was under 18 when TC was murdered, the appropriate starting point for the minimum term in his case was 12 years. That starting point applied whatever the circumstances of the murder, unlike offenders aged 18 or over, for whom the law distinguishes between those murders whose seriousness is particularly high (for which the appropriate starting point is 30 years) and other murders (for which the appropriate starting point is 15 years). The judge was entitled to treat the fact that this was a murder involving the use of a firearm (which would have justified the higher starting point for someone aged 18 or over) as an aggravating factor which could justify a minimum term in excess of 12 years: see Attorney General’s Reference No. 126 of 2006

[2007] 2 Cr. App. R. (S) 59

at [33].

[70]In the case of D Ramsey, the judge specified a minimum term of 25 years, , a reduction of 5 years from the starting point of 30 years which the judge was obliged to take in D Ramsey’s case. The judge described him as one of N Ramsey’s lieutenants. D Ramsey was 19 at the time of TC’s murder, and 20 at the time of sentence. Like Menzies, the judge could not be sure that D Ramsey was the man who had a second gun, and D Ramsey was accordingly sentenced on the basis that he knew that the other two men were armed with guns.

[71]The principal point of Mr Rhodes QC, for Menzies was that although the appropriate starting point for the minimum term in D Ramsey’s case was 30 years, the judge reduced that by 5 years, even though there were no particular mitigating features. Plainly, the judge did that to distinguish D Ramsey’s case from that of Chattoo, who had been 20 at the time of TC’s murder and 21 at the time of sentence. He was someone else who the judge described as one of N Ramsey’s lieutenants, but the judge was sure that it was he, M Chattoo, who had actually shot TC.

[72]The argument is that the difference of five years between D Ramsey’s minimum term and that of Menzies is inappropriate. If a 25 year minimum term was right for someone whose starting point was 30 years, a 20 year minimum term was not appropriate for someone whose starting point was only 12 years. It should have been a lesser figure.

[73]We accept this argument in part, but the logic of it cannot be taken to extremes. The logic of the argument is that there should have been a much greater distinction between the minimum terms simply because the starting points were so different. That does not find support in the cases which have addressed the difficulties which can arise when offenders of different ages are to be sentenced for murder. In Taylor [2008] 1 Cr. App. R.

(S) 4, the Court said at [8]:

“… if two offenders of equal culpability kill in the course of a robbery and one was aged 17 and a half and the other 18 and a quarter, the statutory starting points would be 12 years and 30 years but significantly divergent minimum terms for the two offenders would be neither just nor rational.”

[74]In Attorney General’s References Nos. 143 & 144 of 2006

[2008] 1 Cr. App. R. (S) 28

, the Court at [27] rejected the argument that the sentencing judge “should determine the sentence of each offender independently of the position of the other”. The court said that where “different starting points” are provided for “only because of the disparity between their ages … the sentencer should move from each starting point to a position where any disparity between the sentences is no more than a fair reflection of the age difference between the offenders.”

[75]In our view the critical question in Menzies’ case is whether the fact that this was a murder involving the use of a firearm, albeit not used by Menzies, in which TC had been deliberately targeted, justified a minimum term of 20 years for a streetwise 16 year old with learning difficulties, who was content to join in the enterprise, but who was willing to be led. We are very hesitant to interfere with the judge’s assessment since he was well placed to evaluate all these factors, but as the single judge noted, the sentencing judge found Menzies’ case “particularly concerning”. Our final view is that a minimum term of 20 years in the particular circumstances of Menzies’ case was too long. We think that the appropriate minimum term was one of 17 years. Accordingly, we allow his appeal against sentence, and we substitute for the minimum term which the judge imposed a minimum term of 17 years.

Sentence appeal of Keisha Mindley-Donaldson

[76]Finally, we come to Keisha Mindley-Donaldson. She was tried at the same time as Ahmed and others before HHJ Keen QC on the same indictment as them. On 12 October 2009, also at Sheffield Crown Court she pleaded guilty to two counts of assisting an offender. A few weeks later, she was sentenced by Judge Keen QC to 18 months’ imprisonment and 3 years’ imprisonment on each count, those sentences to be served consecutively to each other, making 4½ years’ imprisonment in all. She now appeals against her sentence with the leave of the single judge.

[77]The count on which she was sentenced to 18 months’ imprisonment related to her finding of accommodation in Birmingham for the two men who had stabbed TC on 6 July, that is: Chattoo and Javan Galloway. She had been called by N Ramsey within an hour of the stabbing to find accommodation for them. Following a Newton hearing, the judge found that she had been aware of what they had done. She booked accommodation for them, and was in touch with N Ramsey about what she had organised.

[78]The other count related to finding accommodation in a hotel near Wolverhampton for the three men who had shot TC on 11 July 2008 and taking other steps to assist them. Following the Newton hearing, the judge found that she had known in advance that a further attempt was to be made to kill TC, and she had been called by N Ramsey shortly before the shooting. Since she had been telephoned by D Ramsey within an hour of the shooting, that was presumably when she was told that the shooting had taken place. Not only did she book the accommodation for them at a time when she knew that TC had been shot, but she collected two of the men from their hotel and took them shopping. The following day she booked them into another hotel, but she had been less than professional in her approach, since she had allowed her mobile to run out of charge, with the result that Chattoo had not been able to contact her when he had wanted to. She later wrote to N Ramsey in prison apologising for that.

[79]It is apparent that some of the things which Mindley-Donaldson did (albeit reluctantly) following her arrest on 19 July 2008 in fact helped the prosecution of those who had attempted to kill TC and those who had murdered him. She was driven around by police officers, and she pointed out the various places where the men had stayed, as well as the shops and other locations they had visited. As a result, the police obtained CCTV footage from many of those places showing the men. The police were also able to obtain forensic evidence in the form of D Ramsey’s DNA found on clothing which he had left at the first hotel in Wolverhampton.

[80]The maximum sentence on the count for which she was sentenced to 18 months’ imprisonment was 5 years’ imprisonment, and on the count for which she was sentenced to 3 years’ imprisonment the maximum was 10 years’ imprisonment. It is accepted, of course, that the custody threshold had been crossed, and that consecutive sentences were not inappropriate, provided that the overall sentence did not breach the principle of totality. The judge did not state what his starting point was before giving Mindley-Donaldson credit for her pleas of guilty, but he noted that she had pleaded guilty on the date fixed for her trial, having indicated her intention to plead guilty only a week or so before.

[81]It is true that she had not previously been arraigned, but there had been a number of previous hearings, and she had had every opportunity to plead guilty at those hearings. Moreover, her claim that she had not known what the offenders she was assisting had done had made it necessary for there to be a Newton hearing, though the judge said that he was not going to reduce the discount which he was going to give her for her pleas of guilty on that account. The judge said that she was not entitled to “a lot” of credit for her pleas of guilty. It appears as if the judge took something in the region of 5 years’ imprisonment overall as his starting point. We think it is not arguable that he gave Mindley-Donaldson insufficient credit for her pleas of guilty in these circumstances.

[82]Mindley-Donaldson was 23 at the time of these offences. She is 26 now. She had only one previous conviction – for criminal damage – though when she was in her teens she had been cautioned for an offence of common assault and two offences of assault occasioning actual bodily harm. N Ramsey had been her boyfriend for two years before he went to prison, and she still regarded herself as in a relationship with him when he persuaded her to assist those who had attacked and later killed TC. She had a daughter who was 8 years old in May 2010 when a pre-appeal report was prepared on her, and she was then being looked after by Mindley-Donaldson’s mother in Wolverhampton and her aunt in London. Mindley-Donaldson is still in denial about knowing what the offenders she assisted had done, though she acknowledges that she had her suspicions that they had done something wrong.

[83]Mr Bunting submitted that the judge had to consider the extent of the assistance given by the appellant, its impact, the nature of the underlying offences and her plea of guilty and the other personal mitigation available to her. He accepted that she could have indicated her guilty plea at an earlier stage, although he said that the reason she was not arraigned had been stated to be the need to see whether there were convictions in the earlier trial of Chatoo, N and D Ramsey and L Menzies. Mr Bunting emphasised that the appellant was of previous good character, was not in a gang and was a single mother.

[84]We take into account these submissions and we also take account of the reluctant assistance which Mindley-Donaldson gave the police. Although the prosecution described N Ramsey as a very manipulative man, she went along with what he had wanted her to do, and there is nothing to suggest that she felt that she could not refuse to help him had she chosen to. The fact is that she assisted three men who had committed a murder involving the use of a firearm, having previously helped those who had stabbed the eventual murder victim and having agreed to do so in advance of the murder. Sentences totalling 4½ years’ imprisonment were tough, but they were not too long.

[85]Accordingly, her appeal against sentence must be dismissed.