Grant & Ors v R. [2014] EWCA Crim 143

[2014] EWCA Crim 143Case No 201202542 B3/201202635 B3/201202560 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Stephens QC
T20117178
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/02/2014
Before
LADY JUSTICE RAFFERTY DBEMRS JUSTICE THIRLWALL DBEHIS HONOUR JUDGE CAREY QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
NATHANIEL GRANTAppellantsANTHONY MCCALLAAppellantKAZEEM KOLAWOLEAppellantREGINARespondent
Edward Brown QC (instructed by CPS) for RespondentStephen Kamlish QC (instructed by Virdee Solicitors) for GRANTMark Milliken-Smith QC (instructed by Rustem Guardian) for MCCALLACourtenay Griffiths QC (instructed by Virdee Solicitors) for KOLAWOLEHearing Hearing date: 19 th December 2013
JudgmentLady Justice Rafferty :
[1]Nathanial Grant ( 22) Kazeem Kolawole (21) Anthony McCalla (21) on 26th March 2012 at the Central Criminal Court were convicted of attempted murder (Count 1) and of two counts of causing grievous bodily harm with intent to cause grievous bodily harm (Counts 2 and 3, but 4 and 5 originally). On 19th April 2012 they were sentenced to concurrent sentences of custody for life on each count with minimum terms of 17 years for Grant, 14 years for Kolawole and McCalla.[2]The original counts 2 and 3 (attempted murder) had been dismissed pre-trial following submissions. The jury was not required to return a verdict on count 6 (which became count 4) tried in the alternative.[3]They appeal against convictionby limited leave of the single judge.[4]On 29th March 2011 three males on bicycles drew up outside the Stockwell Food and Wine shop directly after Roshaun Bryan had run inside at 9.07pm. One gunman fired two shots into the premises. One bullet hit and paralysed 5 year old Thusha Kamaleswaran (“Thusha”) and one hit, and remains in the head of, a customer, Roshan Selvakumar (“Selva”). Bryan was unhurt.[5]CCTV footage from nearby Foxley Square recorded the movements of various youths during the early evening of 29th March 2011. It showed association between the three Appellants prior to the shooting. Thirty minutes before the shooting said the Crown, there had been near Foxley Square a test firing of the gun to be used in the shop. Footage, although not continuous, showed three masked men on bicycles leaving Myatts Field and emerging onto Stockwell Road. Two men, one of them Bryan, ran across Stockwell Road chased by the trio on bicycles. Bryan and his companion took refuge in Stockwell Food and Wine. The Crown’s case was that the trio intended to kill Bryan with a gun.[6]The trio circled on bicycles outside the shop. A shot was fired in the direction of the shop. The gunman halted outside the open shop door, straddled his bicycle and fired a second shot through the door. The gunman was said to be Grant, Kolawale and McCalla secondary parties. The bicycles have not been recovered or seen again. No clothing of interest was recovered from searches following the arrests other than a top which may have been worn by McCalla under his jacket on the night and a pair of jeans said to be linked to him.[7]Pre-trial on 29th October 2011 HHJ Rook QC dismissed the then Counts 2 and 3. At trial a submission at the close of the Crown’s case of no case to answer was rejected.[8]The Crown’s case was that the appellants were the trio on bicycles, members of or associated with the Grind and Stack gang (GAS) or Organised Crime/One Chance gang (OC). Bryan was or was suspected to be a member of a rival gang, the All ‘Bout Money gang (ABM). It suggested Count 1 reflected the trio’s plan to kill Bryan or another ABM member. They travelled together, tested their gun, chased Bryan and made off together. Grant was the gunman but they were all jointly responsible for the attempted murder of Bryan. Thusha (Count 2) and Selva (count 3) were shot by bullets intended for Bryan and fired intending to cause “at least” very serious injury to Bryan.[9]The case for Grant and Kolawole was alibi. Neither gave evidence. Their cases were that there was no evidence either had been (Grant) or was (Kolawole) a member of a gang or of enmity between the gangs concerned. The police had deliberately kept from the jury CCTV evidence showing Grant in Stockwell, so-called enemy territory, on 28th and 29th March. CCTV of the night showed the gunman’s clothes and bicycle differed from his.[10]Kolawole aligned himself to an extent with McCalla’s case. There were 3 critical gaps in CCTV continuity, only 2 cyclists seen en route to the shop and there were differences between Kolawole’s cycle and that seen at the shooting. Cell site evidence was inconclusive.[11]McCalla’s case was that he had met Grant and Kolawale at Foxley Square and cycled off with them. He had separated from them and met two others he would not name, believing that he and they were to rob a drug dealer. With that plan in mind he was, by coincidence, at the shooting. It shocked him and he rode away. He disposed of his jacket and bicycle and met Grant on return to Foxley Square. He had not known a gun would be involved and was not in possession of one.

The Judge identified for the jury the issues:

[12]i) Count 1: was the jury sure it was the defendant whose case it was considering who had attempted to murder Bryan? Grant and Kolawole; was it sure the defendant whose case it was considering was at the shooting? Grant: was it sure Grant was the gunman and he intended to kill Bryan? McCalla: was it sure he was at the scene participating in the attempt to murder Bryan? Kolawole and McCalla: was it sure the defendant whose case it was considering was supporting and encouraging Grant, intending to kill or realising Grant might shoot and intend to kill? ii) Counts 2 and 3: Principles of joint responsibility applied save that the jury had to be sure that on the case it was considering the defendant had an intention to cause “at least” really serious injury. Grant and Kolawole: was it sure the defendant whose case it was considering was there? McCalla: was it sure he was at the scene engaging in the offence charged? iii) Count 4 Grant: was it sure he had a gun with him and that intended to use it with intent to endanger someone’s life? Kolawole and McCalla: was it sure the defendant whose case it was considering knew Grant had a gun and each intended he should if necessary use it to endanger life?[13]The Crown ledexpert evidence about gangs and produced messages from a BlackBerry belonging to Sarah Amin, McCalla’s girlfriend, in which Kolawole referred to disputes with pagans (rival gangs or individuals mistrusted) and to territorial issues, by deduction with ABM. Amin referred to Grant as one of the senior members. Bryan hung around with ABM. Bryan remembered little because he had smoked cannabis. He awaited trial for supplying drugs. Selva, standing by the door of the shop, heard what he thought was gunfire and saw Bryan and his friend run into the shop and to the back. He saw a man sitting on a stationary bicycle a metre from the front door. The gunman fired into the shop and Selva felt a blow to his face.[14]In the left front pocket of jeans belonging to McCalla was a moderate amount of type 8 gunshot residue (“GSR”) associated with .22 ammunition used in the shooting. It lent some support to the suggestion that jeans and wearer had had contact with a .22 calibre gun. No GSR was found on any of McCalla’s other clothes including the jacket he wore on the night.[15]Grant called a member of ABM, Byron Robinson, who told the jury that months after the incident Bryan had a telephone call from OC gang telling him that they would get him next time. Robinson had first mentioned the conversation 2 weeks before he gave evidence.[16]McCalla told the jury that when he left prison in 2010 he wanted to get away from the gang and was looking for work. When the shots were fired he was outside the shop, neither Grant nor Kolawole with him. He had not known a gun was to hand. He would not say who had been there because it would place his family in danger. He met two youths who supplied him with a mask and bandanna. He could not explain how covering his face with a mask and bandanna fitted in with posing as purchaser of drugs for the purposes of robbery. He did not know who was to be robbed or anything about a gun. In Foxley Square at 8.48pm with Grant and Kolawole he discussed cannabis with Grant, borrowed gloves and at 8.53pm returned to Grant to arrange where to meet (after the robbery of the drug dealer) so as to sell cannabis. At 8.54pm he met Grant and Kolawole and rode with them to Fountain Place where they parted.[17]As the others pursued a youth holding a sports bag McCalla joined in thinking him the robbery victim. He heard a shot and was about to ride away when he was called by one of the men, who shot again. When the gunman left McCalla followed. They threw their bicycles over a fence and jumped over it. The gunman told him to remove his body warmer and leave it and his bicycle in the park. He did, anxious to get away. As arranged he met Grant, explained what had happened, Grant left his bicycle and dumped his jacket. He and Grant just walked around, Grant sold some cannabis and McCalla stayed the night with him. He did not answer questions in interview lest he be in trouble with his associates for cooperating. He did not know if the jeans taken from his hostel even belonged to him. He could not explain how GSR got on to them. He had committed robberies with the OC. There were no issues between the OC and the ABM.[18]Natalie Birchard of the Young and Safe programme told the jury of McCalla’s progress. Her job was to try to move him on from the OC. She knew he was in fear for his life and would avoid certain places.

Submissions

[19]The Judge ruled against McCalla’s opposition to the introduction of the evidence of GSR on jeans found in McCalla’s hostel. Grant submitted that the Crown should be made to elect between count 1 or counts 2 and 3. McCalla and Kolawole submitted that the survival of count 1 depended on the removal of counts 2 and 3 which were bad in law. The complainants in counts 2 and 3 were not the intended victim. Different specific intents had to be proved, in Count 1 to kill, in Counts 2 and 3, to cause grievous bodily harm. They were mutually inconsistent, and could not found convictions based on different intents but one actus reus.The Judge ruled that if a defendant shot with the intention of killing he intended to cause at least really serious bodily harm. A single act could amount to more than one offence, and the relevant counts in the indictment were not mutually exclusive. The lesser intent may be subsumed in the greater.[20]McCalla submitted that counts 2 and 3 were bad in law, he being a secondary party. The wording of section 18 of the Offences Against The Person Act 1861 did not permit the Crown to allege that a defendant caused grievous bodily harm to X with intent to do grievous bodily harm to another. Counts 2 and 3 were outside the pleaded and provable enterprise in his case, such that there was no or insufficient evidence of his commission of them. The Crown was conflating transferred malice with joint enterprise and those principles were mutually inconsistent. He could not be liable for the actions of the primary party who went outside the agreed enterprise by shooting an unintended victim. The Crown submitted that legislative history made clear that section 18 was designed to deal with a defendant who caused grievous bodily harm to an unintended victim intending to cause it to another. The 1861 legislation contained “any” altered from “such'' which settled the point. The trial judge rejected the submissions.

Grounds

[21]Common to all three appellants: The judge erred in ruling against the submissions of no case to answer. It was not possible to seek a conviction for two different offences of specific intent which had an identical actus reus and mens rea.[22]Ground advanced by Grant: The judge erred in rejecting the submission that the allegation of criminal intent in respect of anyone other than Bryan was wrong in law and fact.[23]Ground advanced by McCalla: The judge erred in refusing to exclude GSR evidence and failed to give sufficient reasons for doing so. He failed to direct the jury on how to treat the GSR evidence against McCalla.

Renewed applications

[24]The reference to Grant as opposed to “the gunman” in Steps to Verdict was unfair. The judge failed fairly to represent Grant’s case and denigrated it during his summing up.[25]The judge misdirected the jury orally and in the Steps to Verdict document as to the ingredients of counts 2 and 3 and his directions were incompatible with his ruling on the submission of no case to answer.[26]He refused to correct his direction about McCalla’s bad character. He should have reminded the jury about McCalla’s reliance on his own previous convictions

Developed arguments

[27]It is convenient to take the combined submissions of all Appellants together. It was submitted that counts 2 and 3 were inconsistent in fact and in law with the count of attempted murder as all three counts alleged a crime of specific intent arising out of the same act and intent, the firing of the gun at Bryan intending to kill him. There was no basis upon which the Crown could prove that the gunman who intended to kill Bryan also intended to do grievous bodily harm to Bryan, identified in Counts 2 and 3 as “another”. Seriously injuring the victims as opposed to killing Bryan was, on the Crown’s case, a mistake and thus not intended.[28]Grant argued before us that as soon as the jury was satisfied a defendant intended to kill Bryan it would not have to consider whether any element of S18 were proved before it convicted upon Counts 2 and 3. The Crown need prove only the elements of Count 1 to prove Counts 2 and 3. Further, once the elements of Count 1 were proved the jury would convict upon the Court’s direction and any direction that the counts required separate consideration was a misdirection. Upon a count of attempted murder, a direction that the Crown must prove the defendant intended “at least really serious bodily harm” was a misdirection.[29]By finding that a lesser specific intent “may be subsumed” into the greater the Court is said to have transformed two crimes of specific into two of basic intent. The ruling that the lesser intent “may” be subsumed into the more serious was likely to have been so as to avoid the criticism at the heart of the submission of no case to answer.[30]The argument before us was said by Grant to recognize that shooting in a public place must leave an offence on the indictment which could result in a conviction. That recognition could be achieved, so we were told, by requiring the Crown to elect between Count 1 and Counts 2 and 3, treating them as alternatives. The effect of that course would have been that a conviction upon Count 1, attempted murder, required no verdict on Counts 2 or 3, causing grievous bodily harm. Sentence for attempted murder would encompass the harm caused to Thusha and to Selva. If unsure the gunman intended to kill Bryan the jury would consider whether he intended seriously to harm an individual, intending when the gun was fired to cause really serious harm.[31]The involvement of HHJ Rook at the dismissal hearing provides a degree of narrative sitting at the back of the argument advanced to the trial judge and to the submissions before us. In his brief ruling on the topics of interest in this appeal, HHJ Rook said:
“The remaining submissions raise the legal point as to whether…transferred malice can be applied to (i) attempted murder (ii) causing grievous bodily harm with intent to do grievous bodily harm….The main focus…has been on (sic) upon the two counts alleging attempted murder of the unintended victims. The mental element of attempted murder is intent to kill a particular victim – in this case Bryan. The offence…is complete once the gun was fired. It is submitted on behalf of [the Appellants] that the intent to kill Bryan (the intended victim) cannot be transferred to a (sic) charges of attempted murder in respect of the unintended victims. It is argued that this applies whether [the Appellant] was a principal or a secondary party. Furthermore in seeking to apply…transferred malice to secondary parties the Crown is watering down a mental element that requires a specific intent to kill a particular person to criminal liability based on foresight that a gun might be used. In the absence of English authority I have been referred to People v Bland (2002) 28 Cal.4th 313, 121 Cal.Rptr. 2d 546; 48 P.3d1107 in support of the contention that the intent to kill cannot be transferred to the unintended and unexpected victim of a non-fatal injury. The paucity of authority on this point may derive from the fact there is no obvious lacuna in the law and the point is theoretical…. There are great difficulties in applying…transferred malice to attempted murder of an unintended victim. The intent alleged…is…to kill a particular victim, Bryan. No further intent can be said to have been formed after the pulling of the trigger. The offence was complete at that stage. …In my view it is not open to the Crown to put before the jury counts alleging attempted murder of the two unintended victims. The position is not the same as with murder…This does not expose a lacuna in the law. The shootings are the proper basis of Count 1 (attempted murder of the alleged intended victim) and Count [6] possession of a firearm with intent to endanger life. Furthermore…the Crown are entitled to proceed as against all defendants on the 2 counts alleging grievous bodily harm with intent in respect of the actual victims…. it is submitted on behalf of the alleged secondary parties K and M that… transferred malice cannot apply to secondary parties in respect of…..S18 and the Crown must limit themselves to allegations under S20. …It is illuminating to consider the legislative history which makes it clear that S18 is designed to deal with…a defendant [who] causes grievous bodily harm to an unintended victim when intending to cause serious harm to another. The wording of particular statutes created difficulties in the nineteenth century as to the application of …transferred malice in respect of offences alleging ain intent to do grievous bodily harm. (see Criminal Law Glanville Williams 2nd Ed 1961..). S4 of the Offences Against the Person Act 1837 required an intent to harm “such person” ie the one actually harmed. This led to conflicting decision as to whether this permitted the introduction of transferred malice. This was addressed in the 1861 legislation with the wording being altered from “such” to “any”
. That settled the point beyond doubt. This applies to secondary parties who are in the words of Glanville Williams.. …responsible not only for the principal’s mistake but for his clumsiness of execution. It follows that [counts 2 and 3] are good in law in respect of all three [Appellants] …..”[32]In Bland a decision of the Superior Court of Los Angeles County the court said:
“In its classic forms, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder. Whatever its theoretical underpinnings, this result is universally accepted. But conceptual difficulties arise when applying the doctrine to other facts. Here, defendant shot at three persons, killing one and injuring, but not killing, the other two. “We conclude that transferred intent ….does not apply to an inchoate crime like attempted murder. A person who intends to kill only one is guilty of the attempted (or completed) murder of that one but not also of the attempted murder of others the person did not intend to kill. Thus, in this case, whether defendant is guilty of the attempted murder of the two surviving victims depends on his mental state as to those victims and not on his mental state as to the intended victim. ”
[33]Reference was made to People v Czahara in which the rule was summarised: Where a single act is alleged to be an attempt on two persons’ lives the intent to kill should be evaluated independently as to each victim and the jury should not be instructed to transfer intent from one to another.’ There was no need to employ the legal fiction of transferred intent in order fully to punish the defendant for the attempt. It said:
“To be guilty of attempted murder the defendant must intend to kill the alleged victim, not someone else.”
[34]Bland is of no assistance on these facts. The court is no longer concerned with the attempted murder of more than one victim, consequent upon the ruling of HHJ Rook.

Conclusion on the primary argument

[35]In our view there has been identified no rule of law nor any legal principle nor any policy ground which supports the arguments advanced. Within the Appellants’ intention to kill Bryan lay an intention to cause really serious physical harm to Bryan.[36]Proof of the mens rea for attempted murder by definition involves proof of the mens rea for causing grievous bodily harm with intent. Once that is clear the fallacy in the submissions is exposed. An useful test of whether submissions to us were well founded lies in considering the obverse. If the point were well made it would follow that an intent to kill must exclude an intent to cause grievous bodily harm.[37]The assertion that as a matter of law the two specific intents are mutually exclusive or inconsistent does not withstand scrutiny. Let us assume Bryan died as a result of being shot, that bullets went on to injure the other two victims, and that all three Appellants were charged with the murder of Bryan and with causing grievous bodily harm to the other two victims.[38]The jury when considering murder would be directed that it must be sure of either i) an intention to kill or ii) of an intention to cause really serious harm. It would not be necessary that the jury should agree upon which intention provided it agreed it was one or the other. Were the two specific intents mutually inconsistent as a matter of law that course would not be possible. The jury would have to be directed to deal with the counts sequentially and tell the court how it found.[39]The point falls into yet sharper focus when considering the necessary direction upon the grievous bodily harm counts. Were the Appellants’ submissions well founded the Judge would have to direct the jury that it should go on to consider the section 18 counts only if it were not satisfied of an intention to kill, because an intent to kill on the argument advanced is inconsistent with an intention to do really serious harm. That is plainly untenable. There would be no reason not to leave the grievous bodily harm counts to the jury if it had convicted of murder.[40]On these facts a finding of intention to kill (count 1) leads inevitably to a finding of intention to cause grievous bodily harm (counts 2 and 3) - the consequence of the hierarchy of intent, with intention to kill at the top. It is impossible to kill without causing really serious harm.[41]When dealing with counts of attempted murder and counts of grievous bodily harm the jury is in general directed to approach the intents sequentially. That is not since they are mutually inconsistent but so as to permit the Judge to identify where, in the hierarchy, the intent falls so as to determine the level of criminality for the purposes of sentence.[42]Counts 2 and 3 are freestanding offences known to law. If, on particular facts, a jury were almost certain to convict of a count or counts as a consequence of its decision to convict on one it considered earlier, that cannot render the subsequently reached convictions wrong in law. There may be little for a jury to do, but that is a separate point and without more falls far short of a ground of appeal. Often, as here, a trial judge will tell a jury that if a particular course is followed a verdict on another count is unnecessary. It does not elevate to a matter of law the near inevitability of the overall verdict nor can it without more mean that the direction requiring separate verdicts becomes a misdirection. It is no more than a day-to-day exercise in pragmatism.[43]Neither are these counts alternatives such that the Crown should have been required to elect. There were different de facto victims. The facts which founded the counts simply amount to a near inevitability that conviction on Count 1 would mean conviction on Counts 2 and 3. That is not the same as an alternative basis. There is nothing in this point.

Ground 2 Steps to Verdict wrong in law and a linked misdirection

[44]This Ground relies upon the criticism we have set out above, and adds complaint as to a part of the summing-up when

the Judge said:

“The bullet was meant for Bryan and was intended to cause him at least really serious injury.”
[45]“At least”, Grant argued before us, is meaningless – the only intended harm more serious is an intent to kill - and potentially confusing. Its effect, we were told, permitted the jury to convict upon Counts 2 and 3 on a finding of intent to kill. Consequent confusion both on this point and cumulatively renders the verdicts unsafe.Additionally, “at least” adds to the statutory definition of Section 18 an element bad in law.[46]We can take this Ground shortly. We have already reached a conclusion on the primary point. The words the Judge chose in the summing-up must be seen in context. There is nothing confusing about them nor do they add impermissibly to a statutory definition. They convey, clearly and without fuss, “not less than” really serious injury. That is the answer and an end to the point.

Ground 6 reference in Steps to Verdict to ‘Grant’ as opposed to ‘the gunman’

[47]Before the jury retired Steps to Verdict were distributed. They read as follows:
“Steps to Verdict Grant. There is no dispute that on 29 March 2011 two shots were fired into Stockwell Food and Wine store and that Thusha and Selva were hit and each was caused really serious injury. 1. Are we sure that Grant fired the shots? If yes go on to question 2, it no grant is not guilty of counts 1 2 3 and 4. 2. Are we sure that when he fired the gun Grant intended to kill Bryan? If yes Grant is guilty of count 1, go to question 2. If not Grant is not guilty of count 1, go to question 3. 3. Are we sure that when he fired the gun and caused really serious injury to Thusha Grant intended to do really serious injury to a person? If yes is guilty of count 2, go to question 4. If no he is not guilty of count 2, go to question 4. 4. Are we sure that when he fired the gun and caused really serious injury to Selva Grant intended to do really serious injury to a person? If yes is guilty of count 3, you go no further. If no he is not guilty of count 3, go to question 5. 5. Are we sure that Grant had the gun in his possession with intent by means thereof to endanger life? If yes he is guilty of count 4 if no he is not guilty of count 4. Steps to Verdict Kolawale. There is no dispute that on 29 March 2011 two shots were fired into Stockwell Food and Wine store and that Thusha and Selva were hit and each was caused really serious injury. 1 Are we sure that K was present at the scene when the gun was fired? If yes go to question 2, if no K is not guilty of counts 1 2 3 and 4. 2. Are we sure that K, knowing that the gunman had a loaded firearm and …that he had it with the intention of killing or realising that he might fire it with than intention encouraged and intended to encourage the gunman to kill Bryan? If yes he is guilty of count 1, go to question 2. If no he is not guilty of count 1 go to question 3. 3. Are we sure that K, knowing that the gunman had a loaded firearm and that he had it with the intention of causing really serious injury to a person or realising that he might fire it with that intention encouraged and intended to encourage the gunman to fire the weapon thus causing really serious injury to Thusha? If yes he is guilty of count 2, go to question 4. If no he is not guilty of count 2, go to question 4. 4. Are we sure that K, knowing that the gunman had a loaded firearm and that he had it with the intention of causing really serious injury to a person or realising that he might fire it with that intention encouraged and intended to encourage the gunman to fire the weapon thus causing really serious injury to Selva? If yes he is guilty of count 2, go to question 5. If no he is not guilty of count 2, go to question 5. 5. Are we sure that K knew Grant had a gun with him and he intended that Grant should if necessary use it to endanger life? If yes he is guilty of Count 4, if no he is not guilty of count 4. Mutatis mutandis the same Steps were recited in respect of McCalla.”
Mutatis mutandis the same Steps were recited in respect of McCalla.”[48]Counsel reminded the Judge that where relevant to McCalla and Kolawole “the gunman” featured in all but the final paragraph which read “Grant”. That the gunman was Grant was a decision not made since no verdict had been returned.[49]The guilt or innocence of the two alleged to have assisted the gunman did not depend on his identity. McCalla claimed he had left Grant and Kolawale shortly after leaving Foxley Square and was near the shop with two others. Kolawale advanced no positive case but at no stage conceded presence. The Crown agreed that for “Grant” thereshould be substituted ‘the gunman’ albeit when the Judge declined so to do its position was and remains that the safety of the conviction is not affected by his refusal.[50]The misdirection, as it was described before us, we were told was expanded to a precondition that Grant must be found to have been the gunman before Kolawale or McCalla could be convicted of any offence. On 20th March 2012 the jury sent a note asking when it was necessary for the offenders to have made Bryan their target for the purpose of Count 1. In his answer the Judge named Grant rather than referring to the gunman. The argument advanced before us was that Counts 1, 2 and 3 stood or fell together so that misdirection, as it was described, went to all counts.[51]It would have been better had the Judge amended the Steps to Verdict as counsel suggested. It would also have been preferable when answering the jury’s question to say “the gunman”. However, the jury was well aware of how parties put their cases. The Steps and the answer, seen against the backdrop of the contested trial, recite the case for the Crown. That being the task for the jury in any event, and the jury being well aware that from alpha to omega Grant contested his role as gunman, we see no reason to conclude that this use of words challenges the safety of the conviction. Ground 7 failure to represent Grant’s case and denigration of it.[52]Grant’s case was that he could not have been the gunman; he was a friend of Bryan and had spent time with him in ABM territory. Grant called Robinson after the close of his case on the basis that Robinson had learned latterly that Bryan claimed not to know Grant. Robinson told the jury inter alia that Bryan had claimed the OC gang told him (Bryan) it had failed to kill him the first time but would get him next time. Bryan, recalled to deal with this, admitted he knew Grant and had spent time with him. He could not say whether he had been told of the OC position.

The Judge said in summing up:

““Bryan was recalled to the witness box as [counsel for Grant] had come up with a witness…“[Grant] called …Robinson, albeit at the last moment. ..Bryan and Grant are friends, according to Robinson, says counsel””
He dealt with the evidence of Bryan on this topic in short order, and, counsel complained to us, did not remind the jury that Bryan and Grant were friends, that Bryan knew of no reason why Grant should want to harm him, that they had socialised locally in what the Crown called enemy territory for Grant, and that Bryan did not dispute the possibility of the Otrey position statement. In summarizing this part of the evidence the Judge referred only to how the Crown put its case.[54]This passage from the summing-up is unfortunate. Leaving aside the absence of a summary of how Grant put his case, leading counsel was obliged to do all he properly could to advance the position of his lay client and, absent tenable accusations of poor professional conduct, was entitled to better than the slight he endured. That said, the jury heard what we are confident was his powerful final speech and could hardly have wondered how Grant put his case. There is nothing in this point.[55]McCalla: Ground 2, refusing to exclude GSR evidence and to give reasons therefor and Ground 5, failure to direct the jury as to how to treat GSR[56]It is convenient to consider these two Grounds together. The evidence, counsel submitted, was crucial in view of McCalla’s case that he did not know of the presence of a firearm prior to his arrival at the scene and had not come into contact with that item or any of its parts. It should have been excluded given that: i) It did not found any proper inference that McCalla was in contact with the firearm and thus was not relevant; ii) In the alternative, any probative value was outweighed by its prejudicial effect and the Court ought to have exercised its discretion to exclude pursuant to s78 Police and Criminal Evidence Act 1984.[57]For McCalla the primary issue was what enterprise he had agreed to embark upon and his intent at the material times. His case was that he was a cannabis user (as shown by his antecedent record), and intended to rob a cannabis dealer of his goods. There was some evidence to found the suggestion that Bryan was a drug supplier in possession of drugs at the crucial moment. McCalla told the jury he was no longer a gang member on 29th March and was seeking to distance himself from gang activity.[58]Addresses connected to McCalla revealed a top that he had been wearing on the night of the shooting and numerous pairs of jeans. The front left pocket of one pair was contaminated with a moderate quantity of Type 8 GSR particles. The Crown’s case was that they were similar to those used in the shooting. The unrecovered 0.22 calibre hand gun would have discharged bullets with type 8 GSR, present in about 3% of all ammunition submitted to the Crown’s expert’s laboratory but one of the most common types of ammunition in circulation.[59]The Crown’s GSR expert Mr Warman found no GSR on any item save one pair of jeans:
“…several particles that are potentially Type 8 GSR ….mostly in a cluster in the left front pocket…. constitute a moderate (4-12 particles) level….The GSR …suggests something with this type of GSR on it has come into contact with the pocket, possibly a hand, the gun or a spent cartridge at some time. Their presence does not help to address whether or not the jeans were exposed to the discharge of the gun…Particles are easily transferred from one surface to another so could be picked up without any direct association with firearms.”
[60]His conclusion was that the GSR on the jeans lent some support for the jeans or wearer having contact with a .22 calibre gun, but did not address whether either were exposed to the shots fired. Type 8 residue is rarely encountered in calibres other than 0.22 and on average about 3% of cartridges examined in his laboratory contain Type 8 but it was one of the most common particles in the general population. It was more likely a cluster would get into a pocket by direct contact with a fired gun or spent cartridge or a hand which recently touched a gun or spent cartridge than by exposure to discharge.[61]McCalla denied coming into direct contact with the gun or the GSR. He told the jury the jeans were not his. There was evidence that youths on Myatt’s Field regularly swapped clothes and CCTV footage showed McCalla borrowing gloves on 29th March 2011 which he relied on as one way in which GSR could be transferred. It was not in issue that the jeans recovered were not worn by McCalla from the day before the shooting until his arrest.[62]The Crown contended for inferences that the GSR was from the gun used in the shooting and was deposited between shooting and arrest, thus linking gun and McCalla, so as to set up knowledge by McCalla prior to the shooting. McCalla criticised this approach as unreasonable speculation. The expert evidence was that once in a pocket GSR could remain undisturbed for a very considerable time, it was not possible to say how long it had been in the pocket, and the high water mark for the Crown was no more than that it might have come from the spent cartridge and/or gun.[63]The ruling (there is no transcript) is said inadequately to have addressed the submissions or set out reasons for admitting the material and, given the crucial importance of the evidence, its wrongful admission undermines the safety of the convictions. The Judge is said to have summed-up the evidence without identifying for what purpose or in what way the jury could use it. The only reference to the Defence evidence was:
“[the expert] confirmed…that no residue was found on any of McCalla’s other clothes, including the jacket… he was seen wearing on the night of the shooting. That is the one with the rather ornate decoration on it.”
[64]Mr Warman’s evidence was summarised thus: “In my work.....of the .22 cartridges we have tested, Type 8 has been found in 3 per cent of the cases”.[65]The witness had confirmed that while that was an accurate description of the items his laboratory had tested, type 8 GSR was one of the most common particles in the general population. The expert, said the Judge: “does not purport to say how it could have got there”.[66]The effect, we were told, was to allow the jury to use GSR as quasi-bad character evidence without any direction on how it could assist it to resolve the issues. Without a direction as to how to use the evidence the jury was left to speculate. The evidence went to the heart of the issues, i.e. would McCalla have gone to Stockwell knowing that others had a firearm and did he do so on 29th March? None of those questions could or should have been answered by reference to GSR.[67]This evidence was rightly admitted. Its scope was narrow and its potential relevance obvious. If McCalla were found by the jury to have had connection to the GSR then his link to the shooting was arguably stronger. In issue was his knowledge of the gun. Were the jury to reject his evidence that the explanation for his not wearing a particular pair of jeans at the relevant times was the common currency among his peers of clothes-exchange, it was entitled to go on to consider any relevance of Type 8 GSR in jeans found in an address connected to him. Even tersely expressed reasons would have added little to this distillation, which no listener could have failed to grasp. It is unnecessary for us to consider S78 Police and Criminal Evidence Act.[68]Next, the entirety of the relevant evidence on the topic was before the jury. Not only was it offered assistance from the expert, but McCalla himself explained his case. It could not have failed to understand, particularly, we assume, after listening to his counsel’s final speech, that McCalla relied on the concessions made in the course of the expert’s evidence.[69]Some judges might have summed up the evidence on GSR in greater detail. That the trial judge did not is far from fatal to the safety of the conviction. The evidence, both expert and lay, was not remotely complex. It amounted to a small quantity of commonly found GSR in, for an unknown time, the pocket of jeans not worn by McCalla from 28th March until 31st March. How it got there was impossible to say. Youths in his milieu commonly swapped clothing. He told the jury he had had no contact with anything which would inculpate him in this regard. There was nothing difficult to understand about any of this, and it was in a narrow compass. The use to which the jury should put it was self-evident. If it disbelieved him, the evidence was capable of supporting the Crown’s case that he was involved in the shooting at whatever distance. There is nothing in these Grounds.

Ground 6, refusal to correct a direction on bad character or give reasons for refusing

[70]McCalla told the jury he had previous convictions. He explained each one without challenge by the Crown. They were, we are told, led to show: i) His association with cannabis; ii) His involvement in robberies and acquisitive offences; iii) The robberies did not involve his use of weapons; iv) He had not used serious violence; and v) Save one previous conviction for an imitation firearm with intent to cause fear (a pellet gun) he had no association with firearms or ammunition or propensity for gun use. Those factors were said to make it more likely he would join in robbery of a drug dealer but less likely he would join in a shooting. The issue was said to be central.[71]The Judge, to the surprise of all counsel, we were told, gave a bad character direction. Its terms suggested that the Crown pointed to his possession of the pellet gun as relevant to the offence when the Crown had not done so. The direction did not address how it might assist McCalla nor rehearse his election to introduce his history. In accordance with case law and as a matter of fairness the Judge was, so the argument goes, required to do so.[72]The submission advanced to us was that absent a bad character application by the Crown the Judge was wrong to invite the jury so to treat his previous conviction for possession of a pellet gun. Section 101(1)(b) Criminal Justice Act 2003 permits a defendant to disclose his previous convictions for whatever reason he sees fit. The 2012 edition of Archbold reads:
“If evidence of his bad character is not and does not become admissible via any of the other gateways then, subject to R v Highton; R v Van Nguyen; R v Carp and R v Campbell the use that may be made of the evidence will be determined by the purpose for which the defendant has introduced the evidence.”
[73]The Judge is criticised for allowing the evidence to be used for other purposes. McCalla’s counsel raised the failure to give a proper direction. The Judge’s ruling was: “Right. Well, I will deal with the first of those matters [something completely different] but not the other two.”.[74]The following day the Judge rejected a developed submission without giving reasons.[75]The submission before us was that a “full picture” direction should have been given. The effect of the summing-up was to turn a point McCalla sought to make to the advantage of the Crown.[76]Whilst we have some sympathy for the submission, and whilst it would have been preferable for the jury to have a “full picture” direction, the way the Judge configured his summing-up was plainly designed to protect McCalla. He down-played the evidence as against him, warning the jury against giving it too much weight. No damage was likely to have been done to his case. The only remaining issue is thus whether by the omission of the direction for which he argued McCalla is so prejudiced that the safety of his conviction is called into question.[77]Like that as to GSR this evidence was neither complex nor layered. Counsel, we can be confident, spelled out to the jury the advantages to McCalla of how his previous convictions supported his case. The jury certainly had an explanation of how he put his case – there is no complaint as to that, nor could there be – and that, combined with a warning going only to McCalla’s benefit, makes it difficult to see how the safety of his conviction is called into question. It should also be remembered that the jury was told to reach verdicts upon the whole of the evidence. In McCalla’s case that included issue joined on whether he were candid when telling the jury he had turned his back on gangs and crime and would not involve himself with guns. The Crown relied on his having been with Grant, in its contention the gunman, when all the shots were fired, that he remained with Grant afterwards for some hours, and that he was in company with Grant when the latter shed both bicycle and clothing. The jury can have been in little doubt that the competing cases were as the Crown suggested and as McCalla suggested, fortifying his evidence by reliance on his previous convictions and his arguably improved behaviour.[78]That being so the way in which the summing-up was configured did him no disservice such as to call into question the safety of the conviction.[79]Consequently, for all the reasons given we reject all Grounds and this appeal is dismissed, the renewed applications are rejected.