Franklin & Ors, R. v [2013] EWCA Crim 84

[2013] EWCA Crim 84Case No 201107069D1Case No 201107068D1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BLACKFRIARS CROWN COURT
HIS HONOUR JUDGE MARRON QC
T20117182,T20117189 & T20117323
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/02/2013
Before
LORD JUSTICE JACKSONMR JUSTICE BURNETTTHE RECORDER OF LONDONHIS HONOUR JUDGE BEAUMONT QC(Sitting as a Judge in the CACD)
Between
ReginaAppellantFRANKLIN, SALAU, GABBIDON & WOODSRespondent
Miss Nabijou appeared on behalf of FRANKLINMr P. Mostyn appeared on behalf of SALAUGABBIDON no representation,Miss L. Sweet appeared on behalf of WOODSMr H. Lodge appeared for CrownHearing Hearing date: 25th January 2013
Judgment
[1]This judgment is in four parts, namely: Part 1. Introduction, Part 2. The facts, Part 3. The criminal proceedings, Part 4. The applications and appeals to the Court of Appeal[2]This case arises out of the shooting of a young man at Harlesden railway station on the 9th March 2011. Four defendants were convicted of various offences in connection with that shooting and those four defendants now challenge their convictions and/or sentences. Those four defendants are Franklin, Salau, Gabbidon and Woods. For convenience we will refer to each defendant by his or her surname only.[3]The applications and appeals before the Court of Appeal raise a number of disparate issues, including the adequacy of the judge’s direction in relation to joint enterprise, what direction should be given in respect of bad character and a host of other matters.[4]In this judgment we shall refer to the Criminal Justice Act 2003 as “the 2003 Act”. Section 100 of the 2003 Act provides: “Non-defendant’s bad character (1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, or (c) all parties to the proceedings agree to the evidence being admissible. …. 3) In assessing the probative value of evidence for the purposes of subsection (1) (b) the court must have regard to the following factors (and to any others it considers relevant) — (a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; (c) where — (i) the evidence is evidence of a person’s misconduct, and (ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; (d) where — (i) the evidence is evidence of a person’s misconduct, (ii) it is suggested that that person is also responsible for the misconduct charged, and (iii) the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.” (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, (a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; (c) where — (i) the evidence is evidence of a person’s misconduct, and (ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, (i) the evidence is evidence of a person’s misconduct, (ii) it is suggested that that person is also responsible for the misconduct charged, and (iii) the identity of the person responsible for the misconduct charged is disputed,[5]Section 101 of the 2003 Act provides:
“Defendant’s bad character (1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if — …. (d) it is relevant to an important matter in issue between the defendant and the prosecution” (d) it is relevant to an important matter in issue between the defendant and the prosecution”
[6]Section 103 of the 2003 Act provides:
“Matter in issue between the defendant and the prosecution (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include — (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect. (2) Where subsection (1) (a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of — (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged.” (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect. (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged.”
[7]In this judgment we shall refer to the Criminal Justice and Public Order Act 1994 as “the 1994 Act”. Section 34 (1) of the 1994 Act sets out the circumstances in which the judge may make adverse comment on a defendants failure to mention matters in interview. Section 34 (1) provides as follows: “Effect of accused’s failure to mention facts when questioned or charged. (1) Where, in any proceedings against a person for an offence, evidence is given that the accused — (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.” (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,[8]Having set out the relevant statutory provisions we must now turn to the facts.

Part 2. The facts

[9]On 9th March 2011 a group of young men from south London came to play football against a team in Harlesden, north London. This match was part of what is called a “street initiative”. This is a project to encourage young people to take part in constructive recreations. We shall refer to the group who came from south London as “the footballers.”[10]After the match the footballers made their way to Harlesden railway station. In the course of this journey the footballers had various encounters with a group of young people who lived in the Harlesden area. We shall refer to these young people as “the Harlesden group”. There is no dispute that Woods, Salau and Franklin were or became among the Harlesden group.[11]The first confrontation between the footballers and the Harlesden group was in Mordaunt Road outside some flats. Harsh words were spoken on both sides. One of the footballers produced a knife. Another of the footballers, referred to only as “Paul”, asserts that a small white young man made a phone call in which he said “bring the ting”. The “ting” meant a gun.[12]The next encounter between the two groups was outside some shops in Mordaunt Road. This encounter began at about 1.50 p.m. and was filmed on a number of CCTV cameras. Woods can be seen as a white youth, ringed yellow on the CCTV footage which has been made up from the various cameras. Salau can be seen on the footage as a young man wearing a cap with a two toned jacket. Franklin can also be seen on the footage. She is a young black woman and to identify her there is a pink ring around her. It can be seen from the footage that Franklin joins the group of Harlesden youths at a later point. It can also be seen that there is a man in black clothes who is riding a bicycle. The prosecution say he is the defendant Gabbidon. On the footage he has a ring of red around him.[13]One of the footballers can be seen to drop a motor-cycle chain. Paul can be seen picking up and holding that chain. During the confrontation Paul asserts that he heard one of the Harlesden group say “Don’t shoot too close”. Paul then saw the short black lad put his hands down his trousers. That lad was on a BMX bicycle. According to Paul, he then said “If you are going to burst me, burst me now”. Paul claims that he said this loudly so that everyone could hear that he was being threatened.[14]The footballers then hastened towards the station. The CCTV shows that the footballers were sometimes walking and sometimes running. The Harlesden group or some of them were pursuing the footballers. The man in black clothes was still on his bike. There is no dispute that he was carrying a gun, although that cannot be seen on the CCTV footage.[15]A number of CCTV cameras captured events at Harlesden railway station. There was a confrontation at the steps leading down to the station entrance. Woods threw a rock. Paul threw the chain. Both missiles hit no-one. There is evidence from two witnesses that Woods was shouting out “I am going to kill you. I am going to shoot you.”[16]The footballers went into the station and descended a fairly long staircase which led down to the platform. The man in the black clothes followed the footballers into the station. A CCTV camera at the top of the long staircase filmed what happened next. Paul makes his was down the stairs. The man in the black clothing appears at the top. He takes aim with his gun and shoots Paul. Paul by now is near the bottom of the staircase. He collapses on the platform.[17]Other CCTV cameras pick up the story. The man in the black clothes flees from the station. The other members of the Harlesden group also flee. The man in black clothes leaves his bike on the ground outside the station. Franklin who is outside the station picks up the bike and cycles off.[18]Subsequently it can be seen that Franklin returned to the railway station and talked to two police officers. According to the police when Franklin was questioned she gave some false answers. She said her name was Chanelle Jones and gave an incorrect phone number. She said that the boys running away after the shooting were unknown to her.[19]In due course Gabbidon, Woods, Salau, Franklin and others were arrested in connection with the incident at the railway station. In interview Gabbidon, Woods and Salau made no comment in response to all questions asked. Franklin made a prepared statement and she also answered some questions, but refused to comment in response to other questions.[20]The bicycle on which the gunman had ridden to the station and on which Franklin cycled away after the shooting was never recovered by the police. Thus a valuable piece of evidence was lost.[21]Although Salau made no comment in interview, the text of a most revealing lyric was found in his possession. This text reads as follows:
“CCTV footage of the part we was playing, they just don’t know all the things we were saying. No comment all the way, no one’s betraying.”
[22]Following further police investigations criminal proceedings followed.

Part 3. The criminal proceedings

[23]Gabbidon, Woods, Salau, Franklin and two other men called Georgiou and Mene-Otubu were charged on an indictment containing four counts. On count one, Gabbidon, Woods, Salau, Franklin and Georgiou were charged with the attempted murder of Paul. On count two Gabbidon, Woods, Salau, Franklin and Georgiou were charged with possessing a firearm with intent to cause fear of violence. In both count one and count two the prosecution’s case was that Gabbidon was the man who held the gun and used it in attempt to kill Paul. The prosecution’s case was that the other four persons named in counts one and two were parties to a joint enterprise. Turning to count three, Mene-Otubu was charged with intentionally encouraging or assisting the commission of an indictable only offence, contrary to section 44 of the Serious Crime Act 2007. We need not say more about that count because in due course Mene-Otubu was acquitted and departed from the proceedings. On count four, Franklin was charged with doing acts tending and intended to pervert the course of justice. The particulars were that having removed the bicycle used by Gabbidon from the scene of a shooting outside Harlesden railway station, Franklin returned to the scene and when questioned by police officers about the shooting gave false information. So two matters are complained of here. First it is said that Franklin removed an important piece of evidence namely the bicycle because as a matter of fact after Franklin had cycled away on that bicycle it was never found again. Secondly, it is said that by the incorrect answers which Franklin knowingly gave to the police officers she disrupted or wrong footed the police investigation.[24]All defendants pleaded not guilty to all counts on the indictment. They stood trial before His Honour Judge Marron QC and a jury at the Blackfriars Crown Court in November 2011. A crucial piece of prosecution evidence was a DVD containing footage made up from a number of CCTV cameras at Mordaunt Road, the route between that road and the railway station and at the railway station.[25]Turning to the oral evidence at trial, the first prosecution witness was Paul. He described the various confrontations between the footballers and the Harlesden group. He then described what happened after he went to the railway station. He heard the noise of a shot as he descended the staircase. The prosecution next called witness A who was an independent person who had observed some of the confrontations between the two groups. That witness identified Woods, Gabbidon and Salau at an identification procedure held on the 15th March. So far as Gabbidon was concerned, witness A identified Gabbidon as the man in black clothes on the bicycle. So far as Woods and Salau was concerned there was no dispute that they were present on the occasion in question. The prosecution next called witness B, another independent witness who saw some of the relevant events. In particular he followed Paul onto the railway station and he actually saw the shooting. The prosecution also adduced the evidence of three police constables who knew Gabbidon. Those police officers had looked at a number of still photographs taken from the CCTV footage and they identified the man in black clothes as Gabbidon.[26]A number of other prosecution witnesses were called. We shall only refer to those witnesses if and in so far as it becomes necessary when dealing with the grounds of appeal. Two of the defendants gave evidence, namely Woods and Franklin. They denied any involvement in the shooting or any other offence. Gabbidon and Salau chose not to go into the witness box, so the jury did not hear their account of events.[27]In due course the jury returned the following verdicts. They convicted Gabbidon on count one, namely attempted murder. They convicted Woods on count one, namely attempted murder. They convicted Salau on count two, that was the offence of possessing a firearm with intent to cause fear of violence. They convicted Franklin on count two which was the same offence. They also convicted Franklin on count four, namely doing acts tending and intended to pervert the course of public justice.[28]The judge imposed the following sentences. He sentenced Gabbidon to detention for public protection with a minimum term of 6 years, 3 months less 294 days spent on remand. He sentenced Woods to detention for public protection with a minimum term of 6 years, 3 months less 294 days spent on remand. He sentenced Salau to 6 years imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 287 days should count towards sentence. He sentenced Franklin to 5 years detention in a young offender institution on count two and he sentenced her to a further one year detention in a young offender institution to run consecutively in respect of count four. He directed that 228 days which Franklin had spent on remand should count towards her sentence.[29]The defendants were aggrieved by their convictions and sentences. Accordingly they commenced applications and appeals to the Court of Appeal. Part 4. The applications and appeals to the Court of Appeal[30]Gabbidon applied for leave to appeal against both conviction and sentence. That application was refused by the single judge. Gabbidon renewed his application for leave to appeal with an oral hearing listed in the Court of Appeal on 25th January 2013. At the hearing of the various applications and appeals Gabbidon was not represented. In those circumstances we must proceed on the basis of the written material before the court.[31]So far as conviction is concerned, Gabbidon puts forward one ground of appeal only. This is that the judge failed to give a proper direction about the identification evidence. We do not accept that contention. The judge very fairly summarised the evidence which had been given by witness A and by the three police officers who gave identification evidence. The judge also gave a full Turnbull direction to the jury in the course of his summing up of the factual evidence.[32]Gabbidon accepted in his defence statement and the agreed facts that he was in the area at the time of the shooting. There was also evidence that Gabbidon’s phone was put out of use on 9th March 2011 soon after the shooting. Gabbidon boasted on Youtube that he was someone who used street violence. This material was played to the jury. There is also the fact that Gabbidon made no comment in interview, furthermore he chose not to give evidence. He could of course, if it were the case, have either said in interview or have said from the witness box that he was not the man in the black clothes riding a bicycle. On top of all that, the CCTV footage was of good quality and the jury saw it, no doubt, many times and the jury had an opportunity to look at Gabbidon in the dock. We have no doubt whatsoever that the direction given by the judge on identification was satisfactory and that the jury were quite entitled to come to the conclusion that Gabbidon was indeed the man dressed in black clothes riding the bicycle in the footage.[33]Complaint is made that the judge did not remind the jury that, in his initial statement, Paul said that the man in black clothing had a chipped tooth or a gap in his teeth. The judge did in fact make a reference to counsel’s submissions on this point in the course of the Turnbull direction.[34]We do not regard the summing up as defective in this regard. Nor do we have any doubt about the safety of Gabbidon’s conviction. This renewed application for leave for appeal against conviction is refused.[35]We turn now to sentence. Four grounds of appeal against sentence are advanced by Gabbidon. The first ground of appeal is that the minimum term of 6 years, 3 months based on a notional determinate sentence of 12 years, 6 months is excessive in all the circumstances, particularly as Samuel Woods received an identical sentence. We do not accept that there is any objectionable disparity here. It was Gabbidon who actually did the shooting and the notion that he should receive a shorter sentence than Woods is in our view not sensible. The second and fourth ground of appeal against sentence relate to psychological evidence and Gabbidon’s psychological condition. It is clear from the evidence that the intellectual abilities of Gabbidon were low. Equally however, it is clear that the judge took the psychological evidence into account. The third ground of appeal against sentence is that the judge had insufficient regard to the age of the applicant, who was aged 16 when the offence committed. In our view, the term imposed took full account of Gabbidon’s age. If Gabbidon had been an older man, the specified minimum term would have been much longer than 6 years, 3 months. We should add that no complaint is made about the decision to impose a sentence of detention for public protection. There is no dispute as to the dangerousness which was established in this case or as to the fact that detention for public protection was the right way to deal with dangerousness.[36]We should add that this was a horrific shooting. It can be seen on the CCTV footage that Gabbidon takes aim carefully and he fires at Paul’s back as Paul is descending the staircase. There is a clear intention to kill. Paul was hemmed in by the walls of the staircase. He had no opportunity to escape. The footage is chilling. It is almost as if one is watching an execution.[37]We turn now to the defendant Woods. Woods does not challenge his conviction. He does however apply for leave to appeal against sentence. That application was refused by the single judge and is now renewed before this court.[38]Miss Sweet on behalf of Woods does not challenge the appropriateness of the minimum term which was imposed. That was 6 years, 3 months based on a notional determinate sentence of 12 years and 6 months. Miss Sweet submits however, that there was no need to impose a sentence of detention for public protection. She submits that there should simply have been a determinate sentence, alternatively there should have been an extended sentence.[39]Miss Sweet took us in some detail through Wood’s previous convictions. She also took us through a list of other matters of which Woods had been accused but which, for one reason or another, were not prosecuted. In two instances there seems to have been witness intimidation.[40]We are quite satisfied that the judge was entitled to make a finding of dangerousness. On the other hand, given Wood’s age and his role in the present offence, we consider that an extended sentence would have been sufficient. In our view, a sentence of detention for public protection was not necessary. We reach this conclusion after careful consideration of the pre-sentence report and the other material before the court at the stage of mitigation. In those circumstances we quash the sentence of detention for public protection and we substitute an extended sentence of 17 years, 6 months. The custodial term will be 12 years, 6 months and the extension period will be 5 years. It can be seen that the custodial term which we are specifying is the same as the notional custodial term which the judge used in setting the minimum period for the purpose of the sentence of detention for public protection.[41]We turn next to Salau. Salau does not challenge his sentence. However, he renews his application for leave to appeal against conviction after refusal of such leave by the single judge.[42]Mr. Mostyn on behalf of Salau seeks to pursue five grounds of appeal. The first ground is that the judge erred in granting an application for anonymity in relation to two witnesses, namely Paul and witness A. The second ground is that the judge gave inadequate legal directions in relation to joint enterprise in the summing up. The third ground is that there was an imbalance in the summing up with a failure adequately to refer to the defence case and unfair or inaccurate commentary on the evidence. The fourth ground is that there was a material irregularity in the way the jury approached the issues in the case, in that they considered count two before count one. The fifth ground is that the cumulative effect of the first four grounds makes the conviction unsafe.[43]We shall deal with the grounds in that order. We deal first with ground one. We consider that there is no substance to this ground. The statutory criteria for anonymity were clearly satisfied both in respect of Paul and in respect of witness A. Paul was the victim of shooting by a gang, happily he survived. He had every reason to be fearful of the gang and not to wish his identity to be revealed. Furthermore when one looks at Paul’s evidence the principal parts of that evidence were uncontroversial. Paul was the victim of a shooting. Nobody disputed his evidence that he was shot. Nobody suggested that the person who shot Paul was acting in self-defence. This was, on the contrary, the cold-blooded attempted killing of a defenceless man who was walking away from the attacker. It does not follow of course that everything which Paul said was uncontroversial, but certainly the principal elements of his evidence were. The defence do not accept that Paul heard Woods saying the words “bring the ting”. On the other hand it is objectively a fact that someone did bring a gun shortly after the alleged phone call. Furthermore, in his evidence Paul gave a very precise and accurate description of Wood’s mobile phone. Paul could not have given that description if he had not seen Woods taking the phone out and making a phone call at fairly close quarters. It therefore follows that the area for challenging important parts of Paul’s evidence was strictly confined. In our view the case for anonymity was made out and this was a proper exercise of the judge’s discretion.[44]We turn next to witness A. Witness A was a person who lived in the area. Witness A had every reason to be fearful of reprisals, particularly as the defendants against whom the witness was giving evidence were members of a feared local gang. Witness A was a bystander who had no particular axe to grind. Although the accuracy of witness A’s evidence may be challenged here or there, it was not suggested that witness A was deliberately lying or was supporting one group rather than another. In our view it was entirely reasonable to allow witness A anonymity.[45]We turn now to the second ground of appeal. It should be noted that the judge gave a standard direction in the usual terms relating to joint enterprise. The judge stressed that mere presence at the scene was not sufficient to establish joint enterprise. At this stage in his summing up the judge said:
“Let me emphasise the next paragraph: mere presence at the scene is not enough to prove guilt – not guilty, ladies and gentlemen – to prove guilt, but if you find that a particular defendant was on the scene and intended and did by his or her presence encourage others, subject to intent, he or she is guilty of either Count 1 or Count 2. Mere presence at the scene is not enough to prove guilt, but if you find that a particular defendant was on the scene and intended and did by his or her presence encourage others, subject to intent, he or she is guilty of either Count 1 or Count 2.”
[46]The judge went on to direct the jury that any defendant must know about the gun before they can be convicted on count one or count two. Furthermore, the judge directed the jury that in relation to count one a defendant cannot be convicted of joint enterprise unless he or she not only knows about the gun but also intends that the gun should be used to kill Paul. In relation to count two the judge directed the jury that a defendant could not be convicted on that count unless the defendant not only knew about the gun but also knew that it would be used with the intention of causing Paul to fear violence.[47]We are satisfied that the joint enterprise directions given in the summing up were adequate.[48]We turn now to the third ground of appeal. This is that there was an imbalance in the summing up with a failure adequately to refer to the defence case and with unfair or inaccurate commentary on the evidence. We have read the whole of summing up with care. The prosecution case against Salau is set out clearly. We do not accept that there is any unfair or inaccurate commentary on the evidence. It is quite true, that much less is said in the summing up about Salau’s defence. There is however a reason for that. Salau never put forward a defence. He refused to answer any questions in interview. He declined the opportunity to go into the witness box and to give evidence.[49]Mr. Mostyn complains that there was no summary of the arguments presented on behalf of Salau. We agree that it would have been better if the judge, who summarised the prosecution arguments with clarity, had also summarised the arguments of defence counsel. On the other hand, Salau never put forward any positive defence. In those circumstances defence counsel put forward the best case that he could of behalf of Salau in his closing speech. The jury must have had this well in mind.[50]If a defendant never puts forward his own account and explanation of what has happened, it is not the task of the judge to invent possible explanations or to put those before the jury for consideration. We reject the third ground of appeal.[51]We turn now to the fourth ground. The complaint here is that an error was made when the verdicts were taken. The jury were directed that they should consider count one first and after they had reached their verdict on count one in respect of any defendant, they should then proceed to continue to consider count two in respect of that defendant. What in fact happened was this. Before the jury had reached a verdict on count one they were asked by the clerk of the court if they had reached a verdict on count two in respect of Salau. The jury replied that they had, they found Salau guilty on count two.[52]This was a cause of concern because, as previously mentioned, the judge had told the jury to consider count one before count two.[53]After discussing the matter with counsel

the judge gave the following direction to the jury:

“Yesterday we received your verdict on count 2 relating to Mr Salau. We should not have done so until we had your verdict on count 1. Even though you had returned a verdict on count 2, relating to Mr Salau you must still return a verdict on count 1 if you can. You can find him guilty or not guilty on count 1 or alternatively you may say that you agree and reach a verdict of you all. Accordingly, you should continue to consider count 1 and in due course return a verdict if you can. If you find that then Mr Salau is not guilty or you cannot agree whether he is guilty or not, your verdict of guilty on count 2 will stand. ”
[54]After they had received that further direction the jury duly retired. In due course they found Salau not guilty on count one and the verdict of guilty on count two remained.[55]Mr. Mostyn submits that the jury clearly disregarded the judge’s directions in relation to considering count one before count two. In those circumstances the verdict on count two is unsafe and should be quashed. We can see that a technical error was made and we can see that the jury reached a conclusion on count two which was the lesser count and easier to establish before they reached a verdict on count one. We do not, however, see in this series of events anything to give concern about the safety of the conviction. It is quite clear that the jury were satisfied that Salau knew about the gun. It is quite clear that the jury were satisfied that Salau intended that the gun should be used to cause Paul to fear violence. It is also quite clear that the jury were not satisfied that Salau had the intention that the gun should be used in order to kill Paul. We conclude that the technical error in this case does not render the conviction unsafe. There is a perfectly logical explanation for the decision which the jury reached.[56]When one looks at the CCTV evidence Salau certainly seems to be acting in concert with Woods and Gabbidon. When one adds to that the summary of the oral evidence and the lyric found in Salau’s possession on arrest, the case for saying that Salau knew about the gun is very strong. There is also a strong case for saying that Salau intended at the very least that the gun should be used to cause Paul to fear violence.[57]We would therefore reject Salau’s fourth ground of appeal. In those circumstances the fifth ground of appeal does not arise.[58]For all these reasons we refuse Salau’s renewed application for leave to appeal against conviction.[59]We come finally to Franklin. Franklin does not challenge the sentence imposed, but she does challenge her conviction. Miss Sherry Nabijou, who is Franklin’s counsel, produced an advice including grounds of appeal which runs to thirty four pages and elaborates seven separate grounds of appeal. Those seven grounds are as follows. Ground A is that the judge should not have allowed the bad character of Franklin to be put in evidence. Ground B is that the judge ought not, in the exercise of his discretion under section 34 of the l994 Act, to have allowed comment to be made about Franklin’s failure to mention certain matters in interview. Ground C is that the judge ought to have allowed evidence of Paul’s bad character to go before the jury. Ground D is that the judge’s direction concerning joint enterprise, knowledge and participation was incorrect. Ground E is that the judge gave a defective answer to a certain question sent by the jury. Ground F is that the jury did not follow the judge’s directions in relation to Salau, in that they gave a verdict on count two before count one. Ground G is that the judge made a reference to the failure of Franklin to name Gabbidon in her evidence, when this matter had not been foreshadowed by the Crown’s cross examination.[60]This thirty four page document is discursive and conversational in style. It contains many points which quite properly were put to the jury, but which cannot form the basis of a successful appeal. There is a danger that a document like this may lead to injustice. Good points may become overlooked amongst the mass of irrelevancies and bad points.[61]In those circumstances the single judge granted leave to appeal on grounds B, E, F and G. He added the following comment:
“I have considered the papers in your case and your grounds of appeal. As to conviction, the primary question is whether there are any arguable grounds on which the full court could conclude that the conviction was unsafe. The summing up was full and fair as to joint enterprise (Ground D). The jury appear to have considered the evidence for many hours and were entitled to reach the conclusions they did. There was no error in relation to “Paul’s” bad character (Ground C) or your own (Ground A). I am afraid that the written submissions are rather rambling and unfocussed, and I believe that it would be fair in the circumstances to afford an opportunity to argue Grounds B, E, F and G as there may be some merit in one or more of them. But the full court will need the assistance of a clear and carefully argued skeleton argument with proper cross-references to the relevant transcripts.”
[62]Counsel responded to the single judge’s order by preparing and filing a skeleton argument which (although unpaginated) runs to eighteen closely typed pages. In this skeleton argument counsel pursues all of her original grounds of appeal. She seeks leave to appeal in respect of those grounds where the single judge had refused leave. Our task is to discern whether any of the material within this skeleton argument, as elaborated in Miss Nabijou’s oral submissions, provides a proper basis for quashing Franklin’s conviction.[63]Before we turn to the individual grounds, we should say something about the general nature of Franklin’s defence. This was that although she was in the company of Gabbidon, Woods and Salau during the afternoon of 9th March, she was not part of any joint enterprise which those young men may have had. It can be seen from the CCTV that at many points in the various confrontations, Franklin was absent although the other defendants were present. She arrived at the station after the other defendants. It was said that she was essentially an onlooker, not a party to what was going on. Although Franklin rode away from the scene on Gabbidon’s bicycle, she was not trying to dispose of incriminating evidence. She was merely frightened and used the bicycle to get away quickly.[64]We shall not in this judgment go through each stage in the saga as recorded on the CCTV footage, but we very much have in mind the full nature of Franklin’s defence and the sections of the CCTV footage upon which she relies.[65]We turn now to ground A. In support of this ground Miss Nabijou relies upon the Court of Appeal decision in Hanson [2005] EWCA Crim 824. Miss Nabijou relies in particular upon the following passages, which we set out in order to do justice to her arguments. “7. Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered: 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? 2. Does that propensity make it more likely that the defendant committed the offence charged? 3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted? 8. In referring to offences of the same description or category, section 103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged. 9. There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity. 10. In a conviction case, the decisions required of the trial judge under section 101(3) and section 103(3), though not identical, are closely related. It is to be noted that the wording of section 101(3) - "must not admit" - is stronger than the comparable provision in section 78 of the Police and Criminal Evidence Act 1984 - "may refuse to allow". When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are …. 13. As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, as in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations. The observations made above in paragraph 9 as to the number of convictions apply equally here.”[66]We turn now to the previous convictions which the judge ruled should be admitted as evidence of Franklin’s bad character. These are set out in paragraphs 30 to 32 of the agreed facts as follows:
“30. On 1st February 2008 Chantelle FRANKLIN committed a theft. She demanded money and stole a mobile phone off a fellow pupil. When asked about the offence she said that the phone had been legitimately borrowed. In her police interview Chantelle FRANKLIN said, when her account was challenged, that the people giving evidence against her, including her teacher, did not like her and were lying. She pleaded guilty to the offence at Brent Juvenile Court. 31. On 13th November 2008 Chantelle FRANKLIN committed a robbery. The victim who was known to FRANKLIN was waiting for a bus after school on Wembley High Road. Chantelle threatened to beat up the victim and took her mobile phone, saying ‘I told you not to say anything. I am going to kill you. I will get people to stab you up.’ She pleaded guilty at Brent Juvenile Court. 32. On 22nd September 2010, Chantelle FRANKLIN and another girl attacked the victim on a bus after the other girl got into an argument with the victim. The other girl grabbed the victim’s throat. They both pulled her hair, the victim fell to the floor and Chantelle FRANKLIN and the other attacker kicked the victim at least ten times. Chantelle FRANKLIN then shouted ‘Let’s get her blackberry.’ In her police interview Chantelle said that the victim had been racially abusive to them, when the victim and another girl got into a fight she (Chantelle) tried to break it up. But CCTV from the bus showed that the victim was telling the truth. Chantelle pleaded guilty to assault occasioning ABH at court.”
[67]It can be seen that the matters set out in paragraphs 31 and 32 evidence a propensity for violence. The matters set out in paragraphs 30 and 32 evidence a propensity for lying. The matters set out in paragraphs 31 and 32 are relevant to count two. The matters set out in paragraphs 30 and 32 are relevant to count four. All of those previous convictions relate to matters within about three years before the shooting of Paul.[68]On 1st November 2011 the judge gave a ruling in respect of a number of admissibility issues. One of those matters was Franklin’s bad character which he held to be admissible. The judge carefully considered whether the earlier offences were of the same kind as the offences currently charged. He carefully considered whether those earlier convictions showed a propensity to commit the offences now alleged. The judge’s ruling in respect of those matters is entirely in line with the guidance given by the Court of Appeal in Hanson, even though the judge did not expressly refer to that authority.[69]Miss Nabijou submits that the judge did not address the issue of fairness, which is the third question identified in paragraph 7 of Hanson. The judge did not expressly discuss this issue. It is however, clear that the judge had questions of fairness in mind. At a later stage in his ruling he excluded certain Youtube evidence against another defendant because the admission of that evidence would be unfair.[70]In our view the judge exercised his discretion under section 101, (1) (d) and section 103 (1) and (2), in a manner which cannot be faulted.[71]Miss Nabijou makes the point that Franklin was not being violent in the way that the boys were. Franklin did not throw any missile or handle any gun. She was not leading the chase towards the station. On the contrary, she came to the station later than the others. That is all true. On the other hand the prosecution case was that Franklin was a party to a joint enterprise which had violence or fear of violence as its object. Therefore earlier offences of violence have an obvious relevance.[72]Miss Nabijou is also critical of the surrounding circumstances of Franklin’s previous offending on which the prosecution relied. She points out that they were not proved in any Newton hearings. That may well be so. Nevertheless those surrounding circumstances were set out in the sheet of agreed facts. This document was agreed by prosecution and defence to be factually correct. The prosecution were entitled to rely upon it.[73]Miss Nabijou also criticises the direction which the judge gave to the jury in respect of Franklin’s character. We reject that criticism. The judge gave the standard form direction in respect of bad character. He also directed the jury only to consider that matter if they were satisfied that each of the statutory conditions (which he spelt out) were satisfied. Miss Nabijou submitted that some of these directions were unnecessary because they were passing to the jury matters which the judge should decide himself. When pressed in argument, however, Miss Nabijou accepted that in so far as the judge went too far in that regard, this was helpful rather than prejudicial to Franklin, if (contrary to Miss Nabijou’s primary submission) that evidence should have been put before the jury at all.[74]Having carefully considered all of Miss Nabijou’s oral submissions and her eight pages of skeleton argument on this issue, we reject ground A of the grounds of appeal against conviction.[75]Miss Nabijou made it clear in her oral submissions that ground A was her principal ground and the principal focus of her appeal. In those circumstances we hope we shall be forgiven if we address the other grounds of appeal more briefly.[76]We turn now to ground B. The judge drew attention to what Franklin did say when she was interviewed and to the prepared statement which she made. In the course of his summing up, the judge also drew attention to matters asserted by Franklin at trial which she had not mentioned in interview. They were matters which she could reasonably have been expected to mention at the time of the interview. We do not accept that the judge disregarded the guidance given by this court in Argent [1997] 2 Criminal Appeal Reports 27, or in the other authorities cited by counsel. We reject ground B of the grounds of appeal.[77]We turn now to ground C. The judge declined to admit evidence of Paul’s bad character and his previous convictions. The circumstances in which the court allows evidence of a witness’s bad character to be admitted are tightly restricted by section 100 of the 2003 Act which we have set out in Part 1 above.[78]This is a case in which the main part of Paul’s evidence was uncontroversial. There is no dispute that he was running away from the Harlesden group, there is no dispute that the man wearing black clothing shot him in the back and, as previously mentioned, there is no suggestion of self defence.[79]We have previously discussed the extent to which Paul’s evidence about what Woods said on his mobile phone could seriously be challenged. We do not need to repeat that discussion.[80]In our view the conditions set out in section 100 (1) and (3) of the 2003 Act are not satisfied in this case. The judge cannot be criticised for not allowing evidence of Paul’s bad character to be adduced.[81]We turn now to ground D. We have dealt with the adequacy of the judge’s direction in respect of joint enterprise in relation to Salau’s application for leave to appeal. The judge gave a correct direction in respect of the law. He set out the Crown’s case in respect of joint enterprise. In relation to Franklin the judge also set out the defence case very fully on the second day of the summing up. In a lengthy passage on that day the judge summarised the evidence which Franklin had given. If that evidence were accepted, it is quite clear that on the judge’s direction of law the jury could not convict her of count two.[82]It is true that in his summary of Franklin’s evidence the judge made some adverse comments which, in the view of this court, would have been better omitted. Nevertheless the judge was entitled to make those comments and they certainly do not adversely affect the direction on joint enterprise.[83]Miss Nabijou submits that the judge erred in that he did not remind the jury that the time from beginning to end of the incident was very short. We reject that criticism. The jury watched the DVD compiled from the various CCTV cameras on many occasions. The timing of each event is shown on the DVD. We reject ground D.[84]We turn now to ground E. This relates to the following question which was asked by the jury after they had retired. “Would it be possible to be reminded of the evidence about whether Chantelle is part of the group that runs over to the flats in between the two incidents and if she returns with them?”

The judge’s response was to read out his note of the four witnesses who dealt with this issue.

[86]Miss Nabijou complains that the judge gave no answer to the second part of the jury’s question. The short answer to this complaint is that if evidence was not given on that final matter by any witness the judge could not read it out. The jury could of course see the CCTV footage which showed when various youths returned before or during the second confrontation.[87]It is true that the judge did not read out his summary of Franklin’s evidence, but her case was very clear to the jury. Franklin said that she was talking to someone else while the boys went to the flats. As we read the jury question, the jury were asking what other evidence there was in relation to this part of Franklin’s case.[88]We turn now to ground F. This is the same as ground 4 raised by Salau. Miss Nabijou adopts Mr. Mostyn’s submissions in relation to this ground. We reject ground F as a ground of appeal essentially for the same reasons as we rejected ground 4 of Salau’s appeal.[89]We turn next to ground G. This is directed to a passage in the summing up where the judge referred to Franklin’s alleged fear of reprisals if she named the man in black clothing. The judge commented that if the man in black clothing was not Gabbidon, why didn’t Franklin at least say that? The judge pointed out that this would entail no risk of reprisals.[90]Miss Nabijou complains that this is a wholly new point, not foreshadowed in the evidence. The prosecution never asked whether the man in black clothing was or was not Gabbidon. Our initial view was that this looked like a valid criticism of the summing up. However, Mr Lodge in his response has demonstrated that this point is flawed. It is clear from pages 21 and 22 of the transcript of the second day of summing up that prosecuting counsel specifically asked Franklin whether the man in black clothing was Gabbidon. Franklin refused to answer.[91]In the result we reject ground G.[92]In our view each of the grounds of appeal against conviction are unsound. Accordingly Franklin’s application for leave to appeal and Franklin’s appeal against conviction are dismissed.[93]In the result, therefore Gabbidon, Salau and Franklin fail in their applications and appeals. Woods succeeds in his application and his appeal against sentence to the extent indicated above.