Lewis & Ors v R [2014] EWCA Crim 48

Case No 201203813 B1; 201305828 B1;

201204007 B1; 201204005 B1; 201203883 B1.

Case No 201206392 B4

[2014] EWCA Crim 48

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM, The Honorary Recorder of Birmingham

(His Honour Judge Davis Q.C.)

T2012 7038; T20117989 and T20127196

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

Date 21/01/2014

Before

SIR BRIAN LEVESON

(THE PRESIDENT OF THE QUEEN’S BENCH DIVISION)

MR JUSTICE ROYCE

MR JUSTICE HADDON-CAVE

Between

JERMAINE NATHANIEL JUNIOR LEWISAppellants

NICHOLAS SHAUN TREVOR FRANCISAppellant

AMIRUL REHMANAppellant

TYRONE MARTELL LAIDLEYAppellant

WAYNE COURTNEY COLLINSAppellant

S. Rupasinha for Jermaine Nathaniel Junior Lewis

K. A. Metzger for Nicholas Shaun Trevor Francis

G. S. Garcha for Amirul Rehman and Tyrone Martell Laidley

J. Wood Q.C.and R. Thomas for Wayne Courtney Collins

P. Wilcock Q.C.for Beniha Laing

J. Bartfeld for Wesley Gray

A.Lockhart Q.C.and S. Davis for Crown

Hearing Hearing date : 5 December 2013

Judgment

The President of the Queen’s Bench Division:

[1]This case is probably unique in the annals of public disorder in this country in recent times. Late in the evening of Tuesday 9th August 2011, a group of some 42 masked or hooded individuals assembled outside the “Bartons Arms” public house in the Aston area of Birmingham. It had occupants upstairs. Members of the group proceeded to break into The Barton Arms and set the ground floor alight with petrol bombs which they had brought with them; its furniture was strewn over the A34 road outside. This was done deliberately to entice the police to the scene. When police officers arrived, members of the group used at least four different firearms to discharge at least 12 rounds in their direction. The police were forced to withdraw and, fortunately, nobody was struck. The group then moved off by foot through Aston. During their move away at least one further shot was fired at a police helicopter that was deployed to track their movements. Much of the incident was captured on CCTV or video footage taken from the helicopter itself.

[2]There was a substantial investigation. Arrests were made, some at the scene. There were two lengthy trials, both conducted in the Crown Court at Birmingham before the Honorary Recorder, His Honour Judge Davis Q.C. The first trial lasted from 23rd April to 7th June 2012 and involved eight defendants: Jermaine Lewis, Nicholas Francis, Tyrone Laidley and Wayne Collins, Amirul Rehman, Renardo Farrell, Salman Shah and Joyah Campbell. Lewis, Francis, Laidley and Collins were convicted of riot, possession of a firearm with intent to endanger life and arson being reckless as to whether life was endangered and were respectively sentenced to a total of 23 years, 30 years, 23 years and 18 years imprisonment (or, in the case of Laidley, detention). Rehman was convicted of riot and possession of a firearm with intent to endanger life and sentenced to a total of 12 years detention. Farrell was convicted of the same offences as Lewis, Francis, Laidley and Collins and sentenced to 18 years in a young offender institution. Salman Shah and Joyah Campbell were acquitted. Lewis, Collins, Laidley and Rehman subsequently lodged appeals.

[3]The second trial, founded on the same facts with similar evidence and issues, took place between 10th September and 9th October 2012 and involved four defendants: Beniha Laing, Wesley Gray, Janine Francis and Nadine Banbury. Laing and Gray were similarly convicted of riot, possession of a firearm with intent to endanger life and arson being reckless as to whether life was endangered. In addition, both were also convicted of different offences of possession of a prohibited firearm and possession of ammunition without authority. Laing was sentenced to a total of 35 years imprisonment (which included 5 years imprisonment consecutive for a firearms offence unrelated in time) and Gray to a total of 29 years imprisonment. Janine Francis was convicted of various offences of possession of prohibited firearms and sentenced to a total of 7 years 6 months imprisonment. Nadine Banbury was convicted of two offences of possession of prohibited firearms and sentenced to a total of 5 years imprisonment. Laing and Gray subsequently also lodged appeals.

[4]The cases arrive at this court by different routes. Lewis and Rehman appeal against conviction by leave of Sir David Calvert-Smith; they also renew applications for leave to appeal against sentence (as does Laidley) and Collins renews applications for leave to appeal against conviction and sentence in each case following refusal of leave by the same judge. Laing and Gray appeal against conviction and sentence by leave of Leggatt J. The recent appeals of Francis against conviction and sentence have been referred to the court by the Registrar. Having regard to the common issues that arise, the appeals and applications have been heard together. Although not strictly accurate, for convenience we shall refer to them collectively as “the appellants”.

The Facts

[5]It is a matter of public record that riots commenced in London on Saturday 6th August 2011. Very quickly, these riots had spread to various other parts of the country, including Birmingham. There was evidence that a group, which included some of the defendants, had begun to assemble in Birmingham from about the afternoon of Sunday 7th August 2011.

[6]During the evening of Tuesday 9th August, a police car on patrol in the Aston areareported driving through a group of masked youths, some of whom had thrown objects at his vehicle. CCTV footage showed a group of 26 masked youths going past The Barton Arms, one of whom was carrying an object resembling a candle. The group moved briefly to Park Lane, where the window of a taxi cab was broken.

[7]At about midnight on 9th August, the group then doubled back and attacked The Barton Arms.It was then that petrol bombs were used to set it alight and furniture from it was thrown into the A34 to block the road. Just as the public house was set alight, a second group of masked youths arrived. A collective roar of greeting went up. In the moments thereafter a car containing 3 special constables arrived, two of the group who were near this car than ran back towards the remainder of the group shouting words to the effect that the Police were now present. The group, almost to a man, then set off across the main road in the direction of where the car containing the special constables had been seen. This car moved away towards the public house but just at that moment a convey of police vehicles containing officers trained in the containment of public order arrived. The group moved away back over the main road to the Burlington Street junction. A section of the group slowly backed away and as they did so, a number of them fired at the police with handguns. At least one shot was fired at a police helicopter hovering overhead. Cartridges from a 9 mm pistol and a 2.25 calibre pistol were found at the scene. At one point on the escape route in Clifton Close the evidence showed that a member of the group took up a position as if to fire at the police helicopter. Later is was plain that a further shot had been fired in the direction of the helicopter as it hovered above. Various cartridges were found on the escape route used by some of the group, including a fired cartridge from a 9 mm weapon connected to a Fegarmy pistol later found in Bromfield Close. With the exception of two unknown individuals, most of the group moved through Aston. The group began to disperse as officers arrived and a number of arrests made (including some of the appellants).

[8]The prosecution alleged that those who now appeal to this Court were involved, all of whom lived either in Birmingham or elsewhere in the West Midlands, save for Collins who lived in Luton. His movements, prior to the incident, thus became relevant. During the afternoon of 7th August, Collins travelled from his home address to Birmingham and, that evening, there was irregular telephone contact between Collins and Lewis. At about 23.15 hours, police officers spotted Laidley and his car outside a “Dixie Chicken” takeaway restaurant. He was in conversation with a man called Anderson who was in a separate car. Four further cars, including both Collins’ car and another in which Lewis was seen as an occupant some two months later, arrived together. A short while later all six cars departed: they appeared to be in convoy.

[9]The car being driven by Anderson was stopped by police in the early hours of the following morning. Gray was present in the car and his DNA was later to be recovered from a gun subsequently found with ammunition at the address of Janine Francis, with whom Gray had contact. That gun, a 9mm Fegarmy Pistol, had been used to fire the spent cartridge later recovered from Vicarage Road; the point of dispersal of the group. In the early hours of the following morning, there was repeated telephone contact between Laidley and Gray.

[10]Between 16.30 and 17.00 on 9th August, a resident of Clifton Close in the Aston area of Birmingham witnessed a large group of young black males congregate; and two older men in their early to mid-thirties, to whom the younger men appeared to pay attention, also arrived. The resident overheard snatches of the loud conversation including the phrases, “Do not worry, I am armed up” and “I have got tings” (i.e. guns).

Attack on The Barton Arms

[11]At about 23.40 that evening, PC Burgess was on patrol with a colleague in a marked police car in Aston. Whilst in the vicinity of the Bartons Arms, they set off to answer an emergency call. As they turned the car around and started to head for the city centre, they witnessed a group of about 30 people who effectively split into two so as to form a phalanx on either side of the police car. They were predominantly wearing dark clothing and some had their faces covered. As the car approached, a number of the people raised their arms as if to throw something and one could be seen with a bottle in his hand. As the car passed through the group, the officers heard three or four bangs or crashes against the car and the sound of breaking glass.

[12]At a time proximate to this incident (the summing up suggesting that this occurred prior to the attack on the Bartons Arms although the Crown opened the case on the basis that entry to the public house was first to occur), a group of some 26 young men was seen on CCTV walking past the Bartons Arms. Again the members of the group were wearing dark clothing and were hooded with faces covered. One member of the group could be seen with something in his hand, such as a candle or a firework, which appeared to be alight. The group crossed Park Lane to a grassed area and went out of sight.

[13]Four men moved from the grassed area and attempted to attack a passing taxi. They tried to get into the vehicle and smashed the rear window before the taxi drove off. The driver said that one man with a handkerchief across his face was carrying what he described as a candle. The taxi having driven away, the four men returned to the grassed area from where the entire group of about 30 moved across to the Bartons Arms. It was accepted that Collins was part of the group by this point.

[14]Some members of the group proceeded to attack the public house. Some entered and could be seen on the CCTV removing significant quantities of furniture. Two could be seen on the footage attempting to set light to something, apparently a bottle. In any event, a member or members of the group set light to the Bartons Arms using at least one petrol bomb. Although at the time the public house was closed, staff who worked and lived there were present in the living quarters on the upper floor of the building. This incident is reflected in the indictment by the count of arson. At around the same time, a group of about eight stood in the area outside the pub and threw things at a passing police car.

[15]Meanwhile, a second large group approached the scene from Burlington Street. Upon their arrival, a large cheer went up which was captured on mobile phone camera footage. The two groups effectively merged as one and attention turned away from the Bartons Arms (which by then had been stripped of its furniture and was ablaze) to attacking other nearby properties, in particular The Drumnightclub, using the furniture that had been looted from the public house.

[16]Whilst those premises were being attacked, two men had gone to place items of furniture from the pub on the far carriageway of the main road. A police car carrying three special constables arrived from the direction of the city and the two men were challenged by the officers as to what they were doing with the furniture. The reaction of one of the men was to shout, “50 50” which, the prosecution alleged, was street slang for police (from the television programme Hawaii 5-0), their intention being to alert the rest of the group. The men dropped what they were carrying and returned towards the main group.

[17]The group then moved effectively as one to the central reservation of the carriageway, whilst the police car turned around a corner so as to face into the city. A convoy of police vans arrived. As soon as they had spotted the vans, the group moved back across the carriageway. Some of the group goaded the lone police car by throwing objects at it, whilst others threw things into the area where the convoy of vans was arriving.

Gunfire aimed at the Police

[18]The group then moved back into Burlington Street where it split, some moving into Burlington Street itself whilst others remained at its mouth. It was at this point that a number of live rounds were discharged by people in Burlington Street in the general direction of where the police vans had stopped. It was possible to ascertain both from the CCTV footage and from the cartridges found at the scene that at least four hand guns were discharged (in a concerted fashion) including a revolver, a 9 mm pistol, and 0.25 weapon. Various cartridges were found on the escape route used by the group including a fired cartridge from a 9mm weapon connected to a Fegarmy pistol which was later found in Bromfield Close. This conduct is reflected by the firearm allegation.

[19]Save for two who separated off, the group moved as one into the cul-de-sac. The movements of the group were then followed by a police helicopter and captured at points on CCTV footage. Although this footage was not of sufficient quality to enable any particular individual to be identified from facial features, the prosecution relied upon evidence that sought to track individuals by reference to clothing, build and mannerisms along with clothing, thereby leading to their identification. Various individuals on the CCTV were labelled “Person A”, “Person B” etc.

[20]Further along the route, a further seven of the group disappeared leaving the remaining group of 32 continuing together for a total period of about 20 minutes. At one point, the group gathered around as if in consultation. At another point, somebody knelt down and raised his hands, as if in the motion of a gun being pointed. As the group were entering Aston Park, one member was seen aiming an object skywards. A flash was seen, consistent with being the discharge of a firearm. That individual moved back into the group and was seen receiving small items which were dropped onto the ground. This individual was alleged to be identifiable as Laidley. Discarded bullets were recovered from elsewhere along the escape route.

[21]In response to a belief that a firearm was being discharged at the police helicopter, the pilot caused it to ascend from 1,000 feet to 1,500 feet. There was expert evidence that of the type of guns known to have been used earlier in Burlington Road, if properly aimed, both could easily have hit the helicopter at the given range.

Arrests

[22]At Park Circus, the group split up and some disappeared. Others continued to be tracked by police. At 00.18 hours, Rehman was detained in a wooded area after having been seen running by armed police officers. When challenged, he crouched behind a bush; and, when he came out, he was sweating and out of breath. About five minutes later, Collins and the co-accused, Farrell, were detained in a back garden. No other member of the group was captured by police that night, some having made their getaway by hijacking a car which was subsequently abandoned in Perry Bar.

[23]Laidley (identified on CCTV footage from the scene by way of his distinctive clothing which matched what he had been wearing earlier when captured on CCTV in a shop) was labelled as “Person F” in the footage. As well as having been seen firing what was believed to be a handgun at the police helicopter, he could also be seen as part of the group moving past and then back to the Bartons Arms; he kicked at the pub; he went into The Drum nightclub; he carried chairs to the central reservation; he was thereafter in Burlington Street, although he was one of those who moved at an early stage into the alleyway; he was seen along the escape route.

[24]Collins was also identified on the CCTV footage (labelled “Person C”) as being present in the area outside the pub. He was not seen to engage in any acts of violence. The prosecution alleged that Rehman had been identified by way of his clothing and appearance (“Person B” in the CCTV footage). This individual was seen to arrive on the scene with the second group after the pub had already been set on fire, and Rehman was thus acquitted of the offence of Arson by the Jury upon the direction of the Judge. “Person B” was seen to throw a chair at The Drum. He went across to the central reservation. He returned to Burlington Street and could be seen standing close to someone who, on the face of it, appeared to be reloading a gun, although the footage was of insufficient quality to be able to tell how much “Person B” could see of that. He remained with the group as it made its way through Aston.

[25]CCTV footage was obtained from the walkway across which Rehman had said in interview he had walked. The footage did not show any group of people running across the bridge, nor any sign of Rehman himself. Francis was said to be identifiable as “Person E” on the CCTV footage engaging in acts of violence. That person was present with the group arriving at, and attacking, the Bartons Arms. He picked up and later threw a chair and other objects at a passing police vehicle. He was amongst a group that fired at officers and appeared to have small silver handgun; and was in the fleeing group proximate to a man firing shots.

[26]Lewis, Laing and Gray were not identified on any of the CCTV footage and were arrested significantly after the incident.

Cell-site evidence

[27]The prosecution asserted that the cell-site evidence obtained from mobile phone usage showed a pattern demonstrating that Collins, and phones linked to both Lewis and the co-accused Francis, were in the same areas at the same time on the day in question. These areas were West Bromwich in the afternoon, Aston at about 20:30, moving into the Walsall area shortly before 21:00, near Junction 1 of the M5 shortly after 21:00 hours, and then back into the Aston area around 22:00 hours. The prosecution also pointed to the fact that, despite these men normally being in regular contact each other, there were no calls all made between Collins, Francis and Lewis during this period from which, the Crown alleged, it could be further inferred that they were, in fact, together throughout that evening. The prosecution asserted that the cell-site evidence in respect of the Lewis and Francis’ phones was also consistent with them having been amongst the men who had made their getaway following the incident in the hijacked car. There were three calls made from Collins’s phone to Lewis’ phone at 00:47, 00:48, and 00:49 on 10th August. Those calls respectively lasted 47 seconds, 29 seconds, and just over one minute. When the calls were received Lewis’ phone was using a cell-site consistent with him being in Perry Bar, the same area as in which Francis and Laing were present. There had been no hit on any cell-site by Lewis’ phone between about 22:00 and the receipt of these calls.

[28]The prosecution also alleged that cell-site evidence was consistent with Rehman being in the area of Aston during the day of 9th August 2011. On the following afternoon, five calls were made to Rehman’s phone from the phone of the co-accused, Shah. Those calls went unanswered as Rehman was by then in custody. Shah, although acquitted, had been, by his own admission, part of the second group to arrive in the vicinity of the Bartons Arms.

[29]At about 17:00 hours on 10th August, Lewis was stopped by police whilst in a car with Francis. In the boot of the car, the police found crockery and kitchen utensils. Lewis told police that he was in the process of moving house.

Collins’ phone calls

[30]Collins phoned his family whilst he was in custody. Those phone calls were recorded. In the course of the phone calls he spoke to them about retrieving his car from where he left it in Birmingham, the reason being that the presence of his car in Birmingham was inconsistent with the account he had given to the police in interview. He told his parents to make contact with “Phantom” because he knew where the car was. “Phantom” was known to be the street name of Lewis. During a subsequent phone call, Collins’ father said that he had spoken to “Phantom” and he had been told that the key to the car was not in the bag. Collins’ father informed Collins that “Phantom” had said that the car was outside his cousin’s house. In a further phone call on 24th August, Collins’ mother told him that “Phantom” had informed his father that the car had been picked up by the police, which was indeed the case.

Previous Convictions and Bad Character

[31]In relation to both trials, the Judge also admitted evidence of previous convictions and bad character. In that regard, Collins had a previous conviction and a caution for possession of a knife.

[32]Rehman had no previous convictions but had been cautioned for possession of cannabis. He did, however, appear in two videos featuring a group or gang known as “SAN”, which was alleged to be an acronym that stood for “Shot and Neel”. He also appeared in a further video referred to as the “Illution” video which began and ended with shots of men showing tattoos of the words “MOB” and “GSA”. The lyrics were not gang-specific, but members of the group, including Rehman, gave the “6” sign associated with gang membership.

[33]Gray and Laing both appeared on the “Illution” video, together with a substantial number of other young black and Asian men. A video entitled “Lean Back Take Over” featured a smaller number of men, in this instance of Asian origin. The video began with the letters “SAN” on screen. Rehman was clearly visible giving the “6” sign. Another video entitled “Mark my Words” was similar. It contained lyrics specific to “SAN” and gang behaviour. Rehman was visible and active throughout the video.

[34]Lewis had a number of previous convictions, including one for possession of an offensive weapon and a caution, which were placed before the Jury by way of admissions. There was also evidence of Lewis participating in a video called “Gangbusters R Us” together with Francis. Although his role was less prominent, Lewis did spend much of the video in close proximity to Francis. At one point in the lyric there was a reference to a “.44” and to “Phantom” (i.e. Lewis by his street name). Lewis is seen at this point on the video mimicking a shooting action. A downloaded picture was found on Lewis’ phone of the emblem of the “Raiders” (who were said to be a local gang) and the word “Menace”. Downloaded pictures of firearms were also found on his phone, including one picture of a hooded man pointing a handgun.

[35]Francis also appeared in other videos that were seemingly related to the “Raiders” gang. A photograph of a 0.25 gun similar to that seen on the CCTV footage (alongside images of Francis) was found on his phone.

The Indictments and the Issues for the Jury

[36]The indictment in the first trial contained the operative counts of Riot, contrary to Section 1 of the Public Order Act 1986 (count 1); Possession of a firearm with intent to endanger life contrary to Section 16 Firearms Act 1968 (count 3); and Arson, being reckless as to whether life be endangered contrary to Section 1(2) and (3) of the Criminal Damage Act 1971 (count 4). The indictments in the second trial contained similar counts, although there were also various separate firearms counts. All the present appeals broadly relate to these counts in their respective indictments.

[37]The prosecution case in relation to riot was that the group acted together with the common purpose of luring police officers to the scene in order to attack them. All were in it together by supporting and encouraging the use of violence, whether or not they personally engaged in acts of violence themselves.

[38]The prosecution case in relation to possession of a firearm with intent was that, even if an individual defendant did not have a gun himself, the group as a whole knew that guns were to be carried, the guns were ready for use if and when the occasion arose, and were to be used with the intent to endanger life. Those defendants remained with the group after the use of the firearms because their use came as no surprise to them.

[39]Finally, in relation to the count of arson, the prosecution alleged that the public house was deliberately set alight so as to lure the police to the scene. Firebombs were brought to the scene and concerted attempts made to set the pub ablaze from inside. The arson was carried out with reckless disregard as to whether the lives of those who were upstairs were put into danger.

[40]The two general issues for the jury on all counts were(a) ‘presence’ and

(b) ‘common purpose’. The jury had to decide in relation to each appellant whether, firstly, that appellant was present in the area of the Bartons Armsat the time of the violence and was together with the group responsible for the violence as it moved through Aston; and, secondly, whether that appellant shared a common purpose with others in the group to commit unlawful acts.

[41]The particular issues in relation to the allegation of riot were(a) whether the 12 or more persons using or threatening unlawful violence shared the common purpose of attacking the police and

(b) whether each appellant used unlawful violence, or encouraged others to use violence, for the common cause.

[42]The particular issues in relation to the firearm count were(a) whether each appellant was a part of the group that moved into Burlington Street from where the guns were fired;

(b) whether that appellant knew that at least one person was in possession of a firearm with intent to endanger life; and

[43]As for the count of arson, the issues for the jury were(a) whether each appellant realised that at least one member of the group might damage the public house by setting light to it;

(b) whether that appellant realised that such damage would put at risk the lives of those on the upper floor; and

The Evidence at the First Trial

[44]PC Nevin (who had a specific police role to engage with the local community with the aim of steering people away from gang membership) gave evidence that the present case concerned a Birmingham gang called the “Johnson Crew” which had existed for many years. He explained that there were a number of affiliated gangs with their own identities who were aligned with the “Johnson Crew”. An amalgamation of various affiliated groups known as “Mob Squad” had been in existence since 2009 or 2010. Members of these affiliated gangs had a particular hallmark which was a hand sign or gesture referred to as “throwing the sixes”. These gangs posted videos on the internet so as to announce the individuals’ membership of the gang. One gang, “Goon Squad Army” or “GSA”, posted videos in 2006 and 2007. Another group called “Money Over Bitches 19” or “MOB 19” had posted a video of an assault using a firearm on a social networking site.

[45]PC Bennett (an officer with a particular knowledge of, and interest in, Birmingham gangs) gave evidence about “SAN” and the “Raiders”. “SAN” was a junior peer-group affiliated to the “Johnson Crew” (who had a significant bad reputation). “SAN” consisted predominantly of young Asian males. In August 2011, “SAN” had not been identified as being a group engaged in any specific criminality; but, instead, was made up of “wannabes”, i.e. young men who aspired to membership of the “Johnson Crew”. The “Raiders” were a drug-dealing and firearm-using gang based in West Bromwich who took their name and emblem from an American football team. Videos posted on the internet showed members of both the “Raiders” and the “Johnson Crew” together, thus demonstrating a link between the two gangs.

[46]Detective Constable Pittaway said that the clearest view of “Person B” occurred late on in the CCTV footage and he was able to work back and trace his movements all the way through. He was able to identify him as “Person B” was one of only six people wearing blue jeans but his were lighter than others. “Person B” also had a particular mannerism of putting his hand to his face which was unique amongst those wearing jeans. He was able to identify the logo on his shoes at a couple of points. He knew the clothing that Rehman was wearing upon arrest and he could make no distinction between that and the clothing worn by “Person B” in the footage.

[47]William Platts, an expert witness, said that there was support for Person B and Rehman being the same person, applying criteria of height and build, although the height ascribed to Person B by Platts was significantly different from Rehman’s actual height. There was moderate support for the footwear being the same, although it was only visible on random occasions; there was limited support for the top being the same because it was so nondescript; but there was strong support for the trousers being the same given the white marks that were visible on the jeans. Person B appeared to be wearing a peaked cap in the footage but no such item of clothing was recovered from Rehman.

[48]Mr Kevin Weeks gave expert evidence that the cell-site evidence demonstrated a pattern of corresponding movement between the phones of Collins, Lewis and Francis (see further below). PC Watkins and PC Devlin gave evidence regarding the arrest of Collins. The process of arresting Collins had begun at 00:45 hours. The handcuffs that had been placed upon him by firearms officers were removed and replaced by regular police handcuffs with his hands behind his back. He was then placed into a police van. This whole process would have taken about 5 minutes. Devlin thought it unlikely that Collins would have been in a position to use his mobile phone (to contact Lewis) even if it was in his back pocket.

[49]As for the defendants at the trial, Collins gave evidence that he was present outside the Bartons Armsand had been correctly identified on the CCTV footage. He was not prepared to answer any questions about anyone else who was at the scene through fear of reprisals. He said he had come to Birmingham from Luton on 7th August with the intention of going to the Handsworth Carnival followed by an after-party before returning to Luton. As it was he never made it to the carnival. He accepted that he must have been at “Dixie Chicken” on 7th August but did not actually recall going there. He had simply been following another car. So far as he was concerned, there was no meeting at “Dixie Chicken”, no convoy, and no prior arrangement to go there. That night he went to a club and stayed with a friend. He could not remember specifically what he did over the following two days but he was just driving around. On the Tuesday, he left his own car outside a house in Tipton and got into somebody else’s car. That evening they were driving around looking for petrol when the other person said that he was going to buy some cannabis and set off on foot to do so. Collins followed him and they ended up at the grassed area in Park Lane where a group of 15 to 20 people had congregated. The man he was with walked off towards the Bartons Armsand the other people present told him to cover up his face.

[50]Collins said that he took off his vest and used it as a face covering. He did so because he was confused and did not know what was going on. He went across to the pub. He did not see anyone with either a gun or anything that might be described as a fire bomb. He just stood in front of the pub for a minute or two. There were people throwing chairs, smashing windows, and throwing things into the road. He just stood and watched. He could not recall going to the central reservation but accepted that he did so. The next thing he could recall was walking down Burlington Street. He was with the person with whom he had arrived but he started running because everybody else did and he did not want to get left behind. He stayed with the group because he did not know the area. He never heard a firearm being discharged. He jumped over a fence and into the garden where he was eventually arrested because he thought that the person he was with had also jumped over a fence. He had lied in interview because he could not talk about the person with whom he had gone to the scene and so he invented a story. He refused to answer any questions about telephone calls that he had made. In cross-examination, Collins said that he could not have made any phone calls following his arrest as his hands were in handcuffs behind his back. He said it was possible that he had sat on his phone in the van and caused it to dial.

[51]Laidley gave evidence that that he had attended “Dixie Chicken” on 7th August to meet Anderson. He did not speak to anyone else and was not aware of anyone else present. He was not present at the meeting in Clifton Close on 9th August. He had gone out to Aston that night to try to purchase some cannabis. Telephone calls he made to the co-accused, Campbell and Gray, were all in connection with trying to buy cannabis. He was nowhere near the Bartons Arms that night and the individual supposedly identified as him on the CCTV footage was not in fact him.

[52]Salman Shah (who was acquitted by the Jury) said that he was out in the area with friends when he happened by chance upon the group near the Bartons Arms. He and his friends followed the group but he did not really know why. He was simply present and did not participate in any violence. When the group ran from the scene he ran with them but again did not really know why other than he was frightened of being arrested. He was not at any stage aware of gunfire. “SAN” was just a group of local lads who made music. The tattoo and picture that he had relating to “SAN” was just a bit of fun. He took part in the “Illution” video because he just happened to be in Aston Park with his friend, Rehman, and others when they were asked to take part in the video. He had made the “6” gesture simply because he had been told to. He had no idea as to its meaning.

[53]Joyah Campbell (who was also acquitted by the Jury) gave evidence that he knew of Rehman from the local area, but otherwise gave no evidence relating to those appealing conviction. His defence was one of alibi, specifically, that he was at home during the time of the incident save for a 15-minute period during which he went out to purchase some cannabis. His sister also gave evidence on his behalf to the same effect.

[54]Rehman, Lewis and Renardo Farrell did not give evidence.

[55]Although Nicholas Francis did not give evidence, a witness, Dean Nisbitt, was called on his behalf. He said that he had recorded the soundtrack to one of the videos upon which Francis appeared. He said that the videos were merely part of popular culture and had no sinister connotation. They certainly did not show that the people in the videos were members of, or associated to, any criminal gang.

The Evidence at the Second Trial

[56]At the second trial involving Laing, Gray, Janine Francis and Banbury, the convictions of the defendants in a first trial of Lewis, Francis, Laidley, Collins, Rehman and Farrell were adduced as prima facie evidence that the rioting and arson had occurred as alleged. The issues, evidence and both prosecution and defence cases followed a broadly similar pattern to the first trial.

[57]Both Laing and Gray denied being in the area of the Bartons Arms at the relevant time, or being part of the group either at the public house, or when it moved away. Laing’s case was that he was at home in Walsall. Gray’s case was that he was in the flat of his ex-partner in Aston, which happened to be close to the Bartons Arms. Gray denied having anything to do with the gun and ammunition that was found at Janine Francis’ flat during a police search 19th October.

[58]Janine Francis admitted possession of the firearm and ammunition found by the police at her flat on 7th October and relied on the defence of duress. The prosecution case was that at least one cartridge had been discharged in the vicinity of the Bartons Arms and that the pistol had been handled by Gray at some point before it was recovered by the police on 7th October. The prosecution relied on evidence of the presence of his DNA on the magazine or bullets.

[59]The prosecution adduced evidence of Laing’s previous conviction (for possession of a firearm and ammunition which had been kept at his girlfriend’s house) as evidence that he was a person who associated with automatic weapons and kept them with a female friend. The prosecution also called similar evidence of ‘rap’ videos which it was alleged showed Laing’s association with gang membership and the type of gang which would have been likely to have been involved in such an incident as occurred at the Bartons Arms (see further below). Evidence was also called from Detective Constable Nevin concerning gang culture in Birmingham.

[60]The prosecution also relied upon cell site analysis of a number of mobile phones including one with the last three numbers 560, attributable to Laing. This had been used for the first time on 6th August and was in use on 9th and 10th August. The prosecution case was that this phone could be shown to have been used at or in the vicinity of the Bartons Armsand had then moved away from the public house, going to Perry Bar with Lewis and Francis: this allegation was based on usage pattern of the three phones. The prosecution also relied upon the list of contacts on the phone and the traffic with those contacts to refute the appellant’s evidence that he had given the phone to someone else. Until the 11th August there had been 468 calls to or from contacts. The prosecution further submitted that, if the Laing was to be believed, and he had handed over that phone to another, then the absence of traffic on the only other phone available to him showed that he had moved from being someone who used a mobile phone regularly to someone who barely used one, before resuming high usage after 11th August. The prosecution also submitted that the length and type of calls rebutted the assertion made by Laing that this was a phone used for drug deals.

[61]On 7th October, police had recovered a Fegarmy pistol and ammunition from the home of Laing’s girlfriend, Janine Francis, at Broomfield Close. This had been thrown out of a window as police arrived. Laing was not charged with any offence relating to the pistol and there was no scientific evidence to link him to it. A fired cartridge and an unused cartridge connected to the pistol had been found in Vicarage Road which was on the escape route. Police also recovered a lot of ammunition which the prosecution alleged could be connected to Laing. It was also alleged that, in the 10 days or so before the firearm was thrown out of the window, there was a lot of contact between Laing and Janine Francis. In the immediate aftermath of the gun being found, there were calls between Laing, Francis and Gray.

[62]On 19th October 2011 a dog handler had conducted a search in a park next to Bourne Mill Drive. A bag was found containing a St Etienne pistol loaded with 6 bullets with 10 secreted in a child’s sock. All the bullets were 0.44 calibre. All but two of the bullets could be shown to have been from the same casting as those seized at Broomfield Close, it not being possible to make a determination about the remaining two. The prosecution relied upon material consistent with Laing’s DNA (not a full profile) being found on the strap of the bag. The strap had been removed so that the bag could be examined. The defence suggested that the strap had been contaminated in some way while being examined and, the strap later having been mislaid, the continuity of the evidence was unreliable.

[63]The prosecution also relied upon surveillance evidence from officers (who gave their evidence behind screens) regarding of a meeting between Laing and Nadine Banbury who arrived in a taxi. Laing took something from a Volvo and there was a handover of an unidentifiable object between them. Not long thereafter, Laing was seen walking into Burlington Street, a cul de sac going down the side of the park. Various witnesses testified to seeing Laing in the park but none of them saw him with a bag.

[64]Laing was interviewed in the presence of a solicitor and declined to answer questions.

[65]The prosecution adduced evidence of the Gray’s involvement with videos and tattooing as evidence of his involvement in gang culture and likelihood to get involved in actions such as the attack on the Bartons Arms. Evidence was adduced from DC Nevin of the significance of tattooing in gang culture.

[66]The prosecution also relied upon cell-site analysis of a mobile phone with an number ending in 941which Gray accepted that he had with him during the relevant time and which he had been using. The prosecution case was that the pattern of usage during the day of 9th August was consistent with Gray and Laing’s phones being physically together. The prosecution also submitted that immediately after the events at the Bartons Arms,Gray had made contact with Nadeen Barnes on nine separate occasions and was also in contact with the 560 phone and the phone attributed to Laidley.

[67]Recoverable DNA was also found on magazine and bullets of the Fegarmy pistol found at Broomfield Close. This DNA from at least two individuals. A major profile matched every component of Gray’s sample.

[68]In interview, Gray relied upon a prepared statement. In that statement, however, Gray he did not mention being in the flat and hearing the gun shots.

[69]Turning to the defence, Laing gave evidence that he was living in Walsall at the relevant time and had been living there for about a year. He admitted knowing Laidley, Lewis and Farrell, all of whom had been convicted in the first trial. He agreed that he had a conviction for a firearm offence in 2004 for which he was released in 2010. He then sold cannabis, having no legitimate employment, obtaining it from growers such as Janine Francis. He agreed that he had appeared on videos but said that he was a rapper. He said he not a gang member and the videos were not gang videos but just ‘rap’ culture. Laing denied making or receiving calls on any of the phones said by the prosecution to be attributed to him. His phone would be used by other people to sell drugs, which Laing said was his use for it also. Laing said he was not the only person who put a name on the phone as a contact. He had last used the 560 phone on 7th August and had then handed it over that afternoon to someone, whom he was not prepared to name. Other people knew his contacts and may well have spoken to them.

[70]Laing also stated that he had never been in Clifton Close at the relevant time but had in effect spent the three days at home and had been at home at the time of the attack on The Barton Arms. Laing also denied knowing that Janine Francis had been keeping a firearm (the Fegarmy pistol) and denied that he had been the one who had been threatening her. He could not recall what the calls to Francis and Gray had been about which had occurred following the recovery of the firearm. He also denied ever having the Prada bag found on 19th October and denied that the text that he had sent about a “ting” was a reference to a gun but, rather, it referred to a girl. The stop by armed police had been a shock to him and he had nothing to do with a gun.

[71]Gray gave evidence was that his home address was 17 Clifford Street but that he had been living mainly with Nadeen Barnes in Marsden Green, He also had a child by Charmaine Rylings who lived near the Bartons Armsand saw his daughter nearly every day. Gray accepted that he had a number of convictions for robbery, the last in 2004, but no convictions relating to firearms. For the past three years he had been involved with a Christian organisation called Bringing Hope and called evidence from Reverend Carver Anderson to that effect. Gray also described his involvement with the New Day Foundation which he co-founded and which was aimed at stopping young people becoming involved with gangs. He called evidence from Sister Helen Ryan concerning his involvement with this group.

[72]Gray accepted that there was hostility between post codes in Birmingham and that when he grew up he had been sucked in. He also said that they acted like brotherhoods and if crime was committed that was down to individuals and not the gangs. In respect of the ‘rap’ videos, he was generally in them to make up numbers. He said he was trying to make his name as a rapper. He agreed that he had a number of tattoos on his arm. Gray stated that he was aware of strong feelings in Aston over the shooting of Mark Duggan in London and that a number of youths, including Laidley, were getting worked up. Grey said that he had told Laidley not to start anything. He described Laing as a good friend. He also knew Lewis and Francis.

[73]Gray denied being at Clifton Close on 9th August saying that he had gone to Walsall in the early evening. He must have been visiting friends. By 10.00 pm he had been visiting Charmaine and his daughter. It was not possible to see the Bartons Arms from the flat. He heard sirens and what sounded like gun shots while inside the flat. He thought police were shooting at people. He had left the flat at about midnight and called Nadeen Banbury, his partner. He described going to his car which he had parked out of the way because it was uninsured and drove home. He denied any knowledge of the Fegarmy pistol although he admitted knowing Janine Francis and said had been to her house to smoke cannabis. In respect of Gray’s DNA, the scientists were unable to state how it had got on the pistol and secondary transfer could not be excluded. In respect of the DNA on the magazine, Gray said that he had picked it up at one time thinking it was a cigarette lighter.

[74]Janine Francis gave evidence that a man had threatened to shoot her and her family previously. Two days prior to her arrest the same man had told her that he needed to leave something at her address and pulled out a gun and bullets. He threatened to shoot her. She had left the gun and bullets on the bed where he had thrown them for two days. She accepted that other bullets had been found in her attic saying that the same man must have put them there. She explained images from Sky news found on her phone as having been posted on a group site of which she was a member. She denied taking the gun apart.

[75]Nadine Banbury gave evidence that she knew Laing but only saw him occasionally. She had not been delivering a firearm to him in the park but had been delivering cannabis. She accounted for the image of a female holding guns found on her phone by saying that it reminded her of one of her favourite films. The Appeals against Conviction Bad Character

The Appeals against Conviction

[76]The main ground of appeal common to all those appealing conviction (save Collins) is to the effect that the Judge was wrong to admit bad character evidence that the appellant in question was a member of, or associated with, street/criminal gangs in the Birmingham area.

[77]In the first trial, the prosecution put its application to adduce bad character evidence this way:

“For such well organised violence to have been perpetrated, the irresistible inference to be drawn is that it must have been instigated and carried out by persons who, in part or together, were known to each other and who harboured similar attitudes. The association and knowledge enabled the defendants and others to organise themselves into a concerted armed group bent upon serious violence to be perpetrated against the police.” “Video and U Tube footage. The prosecution have trawled through the available footage on the internet which relates to these defendants. Much of what has been obtained has emanated from the U Tube website where a number of videos have been posted for the world to see. A number of defendants can be identified on the videos. A police officer acquainted with this type of video and the language thereon has watched and listened to the videos. Transcripts will be served for ease of reference for each video. A number of defendants are identifiable on the footage; they are occasionally in company with co- defendants. Taken together with the lyrics, the pictorial content, the sound effects and general themes, the video footage will go to assist a jury in determining the issues in this case.”

[78]In the second trial, the prosecution put the matter similarly: “The prosecution contended that the evidence was Bad Character evidence admissible to prove association; gang association; similar conduct as a gang; and pro-firearm and anti police tendencies on the part of the various defendants. It was admissible under section 101(1) (d) of the 2003 Act as being ‘relevant to an important matter in issue between the defendant and the prosecution’”.

[79]The relevant issues according to the prosecution were four-fold. First, it was common purpose: did the group act with a common purpose or was this violence simply coincidental to the other countrywide disorder occurring at the time? The second was identification: are those defendants who dispute presence correctly identified as having been at the scene? The third concerned rebutting innocent presence: are those defendants who admit presence at the scene likely to have been there as they assert by chance or inadvertence? Finally, the fourth was the possession (whether personally or jointly) of firearms: are these defendants persons who have links to or access to the use and carriage of firearms?

[80]Turning to the law, it is now well established that evidence of membership of, or association with, a criminal gang may be admissible under gateway (d) of section 101(1) of the Criminal Justice Act 2003 (‘the 2003 Act’): see e.g. R v Smith

[2009] 1 Cr App R 36

and R v Elliott

[2010] EWCA Crim 2378

. Smith concerned a joint enterprise murder with a firearm. Elliot concerned possession of firearms and supply of cocaine.

[81]In Elliott, giving the judgment of the Court, Holroyde J said:

“9. The first question which arises is whether evidence tending to show the applicant’s membership of a violent gang was capable of being admissible, pursuant to section 101 (1) (d) of the 2003 Act as being “relevant to an important matter in issue between the defendant and the prosecution. In our judgment it plainly is. 10. As Mr Bowers accepts, the case of R v Smith [2009] 1 Cr App R 36 provides support for the view that evidence gang membership is in some circumstances admissible as evidence of bad character. The jury in this case had to decide whether they were sure the applicant was in possession of all or any of the items to which the charges related. As part of that decision, they had to consider whether they could exclude any reasonable possibility that an item, particularly those in the store cupboard, was the property of a person or persons other than the applicant. Evidence which would satisfy them that the applicant was a member of a gang which was involved with drug crime and in the carrying or use of firearms was plainly capable of assisting the jury to reach their decision.”

[82]Analysing the issue in a case such as the present, there are four questions that a judge has to consider:(1) Is the evidence relevant to an important matter in issue between a defendant and the prosecution?

(2) Is there proper evidence of the existence and nature of the gang or gangs?

(3) Does the evidence, if accepted, go to show the defendant was a member of or associated with a gang or gangs which exhibited violence or hostility to the police or with links with firearms?

(4) If the evidence is admitted, will it have such an adverse effect on the fairness of the proceedings that it ought to be excluded?

[83]We set out our analysis of the answers to each of these four questions below.

[84]The first question concerns relevance to an important matter in issue between a defendant and the prosecution and we have identified the four issues in respect of which the prosecution contended that the evidence of gang membership was relevant as common purpose, identification, innocent presence and firearms.

[85]In his ruling in the first trial,

the judge said :

“So is the evidence relevant to an important matter in issue? In relation to some of these defendants the issue is whether they were at the scene at all. Membership of a violent gang is relevant to that issue. It is capable of supporting the other evidence that the relevant defendant was at the scene… In relation to Rehman, the issue is whether he came into contact with the group by chance at some late point in the evening’s events. His membership of a violent gang (if proved) would undermine his case.”

[86]In the second trial, the judge referred to his ruling and reasons in the first trial and, in effect, incorporated them into his bad character ruling in that trial.

[87]We are satisfied that, in principle, the evidence in question was of potential relevance to each of the four issues set out by the prosecution. The judge was certainly entitled to conclude it was relevant in the case of a defendant who disputed that he was there, and in the case of a defendant who said, in effect, I was there ‘by chance’. The bad character evidence did not have to be considered on its own, but, rather, in conjunction with the other evidence against a defendant.

[88]Turning to the second question, namely the sufficiency of proper evidence of the existence and nature of the gang or gangs, at the first trial, there was evidence was from officers from the Multi-Agency Gang Unit and the West Midland Police ‘Gang Taskforce’. The officers had over a number of years dealt with the activities of street and criminal gangs in the Birmingham area. They had accumulated such experience and knowledge of the gangs as to be entitled to give evidence of the existence and operation of various gangs and about relevant signs and insignia associated with them. It was not contended at the first trial that the officers in question did not have the requisite knowledge and experience.

[89]In the second trial, however, it was argued on behalf of Laing and Gray that DC Nevin who was to give the evidence, did not have the requisite knowledge and experience. Mr Bartfeld pursued similar argument on behalf of Gray before us.

[90]In a detailed ruling, the judge set out what DC Nevin had said at the first trial about his experience and knowledge. In summary, this was that, from 2006, he had been a police officer in the Newtown and Aston area just north of central Birmingham; and on the beat, he had come to understand the gang culture that existed there, partly from what he observed, and partly from what he heard from others. Then he moved to the Multi-Agency Gang Unit, set up in 2008, in which he worked with other police officers, the Youth Offending team, the Probation Service and other agencies. The purpose of the Unit was to try to persuade people who had some kind of affiliation with gangs to turn away from them. In the period 2008 to 2011, he spoke to many people in the Unit and with those affiliated to gangs. He learnt about the gangs, what they did, and what their signs were. He learned that some of the gangs produced videos. He knew about, or learned about, some of the crimes in which the gangs had been involved. The judge set out in detail what he said about each gang and affiliated gang.

[91]Mr Bartfeld argued that DC Nevin could give evidence of what he had observed, but if he was relying in part on what he had been told, he would have to identify each and every source so it could be verified. The judge rejected that argument. He referred to R v. Hodges

[2003] 2 Cr App R 15

and to Elliott (supra).

[92]Hodges was a case involving evidence given by an experienced police officer about the street price of heroin, how it was usually purchased in a £20 bag and about how 14 gms would normally be more than for personal use. The officer had been the drugs liaison officer. His knowledge came from his own observations; from talking to prisoners and informants; and from forensic science reports. He was not able to identify his individual sources. It is sufficient to note that the Vice-President, Rose LJ, said (at paragraph [..]):

“In our judgment, the evidence of DC Stevens of facts and opinion, was in the light of his experience, properly admitted.”

[93]Reverting to Elliott, the prosecution in that case adduced evidence of bad character under section 101(1)(d) of the 2003 Act from DC Whiteway; this specifically related to the applicant’s membership of a violent street gang. That evidence related to the existence in Peckham, and involvement in drug and gun crime, of criminal gangs including the “PYG” (“Peckham Young Guns”) and the “YBS” (“Yellow Brick Shower”) formerly the “YBM” (“Yellow Brick Massive”). There was separate evidence seeking to show the applicant’s membership of one or more of those gangs. On this issue, Holroyde J said (at paragraph [11]):

“So far as the existence and criminal activities of the relevant gangs are concerned, this court is satisfied that the evidence of DC Whiteway was properly admitted. He was an officer of considerable experience of the violent criminal gangs of areas of south London including Peckham. The judge was entitled in accordance with the principles stated in Hodges (2003) 2 CR App R 15 to permit an experienced police officer to give evidence based on his own knowledge and experience about the existence of the gangs and about the insignia of the gangs.”

[94]In the present case, DC Nevin’s evidence came in part from his own observation; in part, from other cases with which he had had involvement; in part, from what he had been told by ex-gang members or current gang members; and it also came from his discussions with colleagues in the Unit.

The judge said:

“Now it is true that DC Nevin is relying in part on hearsay. True it is that he is relying on sources which are unidentified, but the same plainly applied in the case of Hodges, and plainly applies in many cases heard up and down the country about drug suppliers, and it plainly must have applied to Mr Whiteway who was talking about gangs in south London.”

[95]In our judgment, the judge was entitled to conclude that this evidence came within the same ambit of evidence considered in Hodges and in Elliott and was admissible and that DC Nevin clearly had the requisite knowledge and experience.

[96]The third question concerned whether the evidence, if accepted, went to show that the relevant defendant was a member of or associated with a gang or gangs which exhibited violence or hostility to the police and/or with links with firearms. Recognising that membership cards or documentary records of membership of street gangs were unlikely, the judgment in Elliot went on (at paragraph [17]): “With a gang of this nature, it is not to be expected that there would be any formality about membership, and reference to a gang member or cognate terms must be taken as no more than a convenient shorthand to encompass membership of, or affiliation to, or support for the gang”.

[97]In this case, the prosecution relied principally on appearances by the appellants on one or more videos which make some reference to gang activity. The prosecution contended that no one would be allowed to be present at the making of such video and allowed to appear on it unless he was trusted by and affiliated to the relevant gang culture.

The judge took a more limited approach:

“For the video material to be relevant evidence as to gang membership, there must be something more than an appearance on a video. That may be what the person does or says on the video. It may be appearances on more than one video. It may be an appearance on a video coupled with other evidence linking the defendant to a gang or gangs.”

[99]The video evidence in question was accompanied by a commentary by officers explaining where the videos were apparently filmed; the significance of the signs used; the significance of particular bandanas; and the significance of particular names. In our judgment, the appellants can have no valid criticism of the judge’s approach. That is not to say, however, that an appearance on only one video could not, in appropriate circumstances, show gang membership or association.

[100]The argument mounted by the defence was that these ‘rap’ videos were nothing more than that a demonstration of involvement in a musical genre; they did not signify gang membership and, in particular, the words and gestures should not be taken at face value. At the first trial (but not at the second), evidence was called before the jury by the defence to support that contention. That evidence, however, goes to weight: the issue before the judge was admissibility, and the judge was perfectly entitled to conclude that the evidence was clearly capable of showing membership of, or association with, a gang or gangs, exhibiting violence or hostility to the police or links with firearms.

[101]The final question (and the argument most forcefully deployed both before the judge and before us) concerned the final question, namely whether the evidence, if admitted would have such an adverse effect on the fairness of the proceedings that it ought to be excluded. The argument before us was that the material was insufficiently probative and too prejudicial. It was likely to deflect the jurors rather than to assist them. Each appellant developed the argument based on the facts of his case.

[102]During the course of his ruling, the judge referred to section 101(3) of the 2003 Act and clearly had it in mind. He concluded that he should not exercise his discretion under section 101(3) to exclude the bad character evidence; it was probative and would not have such an adverse effect on the jury so as to cause irremediable prejudice. It is significant, during the first trial, similar gang membership evidence was also admitted against Shah; but unlike some of his co-defendants, he gave evidence explaining it. The Jury was clearly not unduly prejudiced against Shah, however, because he was acquitted.

[103]We turn to the individual appeals on this topic. In his ruling in relation to Rehman,

the judge summarised his video appearances in this way:

“He appeared on three videos. ‘Illution’ begins and ends with shots of men with significant tattoos showing the words MOB and GSA. Members of the group including Rehman give the “6” sign which is associated with gang membership. One of the featured vocalists is Laing. Grey also appears on the video. Unusually it is a mix of Asian and black men. ‘Lean Back Take Over’ features a smaller number of men. They appear to be of Asian background /origin. The video begins with the letters ‘S.A.N.’ on screen. Rehman is clearly visible giving the ‘6’ sign. ‘Mark my Words’ is similar (if not the same) in terms of location and personnel to the previous video. It begins with ‘S.A.N.’ on the screen. The lyric is specific in relation to ‘S.A.N.’ and gang behaviour, both at the start and at the end. Rehman is visible and active throughout the video. The combination of the number of videos, the explicit reference to a gang and Rehman’s active participation is sufficient to allow the jury (should they think it appropriate) to conclude that Rehman is/was a gang member. It will be for the jury to decide whether the material has the effect contended for by the prosecution. It was argued on behalf of Rehman that the gang evidence in his case is not critical and it would distract the jury from the real issue in the case. I accept that the gang evidence is not essential for the prosecution case. Equally, it is relevant to the relevant issues in his case, i.e. was he present at the Bartons Arms or was his presence around Park Circus at the same time as a group that had just engaged in violent conduct involving guns purely coincidental? I do not consider the admission of the evidence would have an adverse effect on the fairness of the proceedings.”

[104]This was essentially a judgment to be reached by the judge under section 101(3). He considered the probative value. The fact that the evidence was not “essential” did not mean that it should not be admitted. It was potentially supportive. He did not err in his approach. In our judgment, it cannot be said he was wrong to conclude as he did.

[105]There is a supplementary point. After the video evidence had been played, PC Bennett, when giving his evidence about the “S.A.N.” gang, explained that the “S.A.N.” gang was a junior peer group affiliated to the “Johnson Crew”; however, as at August 2011 it had not been identified as having engaged in any criminal activity. It was a group of what might be described as “wannabees”.

[106]The question of the effect of the video evidence was raised with the judge and he was asked to reconsider his original ruling. He declined to alter it but indicated he would direct the jury to attach limited weight to the evidence in Rehman’s case. That is what he did in appropriate terms in the summing up (at page 88 B-D). No application was made for the jury to be discharged in relation to Rehman.

[107]It is contended by Mr Garcha, on behalf of Rehman, that the admission of the video evidence became even more prejudicial in the light of PC Bennett’s evidence. We consider, however, that the judge’s direction adequately dealt with the matter. As we have already pointed out, Shah who also featured on the “Illution” video making “6” gestures; but he was acquitted by the jury.

[108]Turning to Francis, he appeared on three videos. In “Gangbusters R Us” there was a chorus referring to the “Johnson Crew” in which Francis participated. He delivered part of a lyric which could have referred to firearms. The “6” sign was made by him. “RAD 70” also featured him and involved “RAD” T-shirts and caps with the “Raiders” emblem and/ or masks/ bandanas. Francis is masked at one point. His part of the lyric made reference to the “RAD” gang and guns. There was other evidence on his mobile phone of images of a hand gun; a revolver; a “Raiders” emblem and cap; a masked figure in a “RAD” gang shirt.

[109]In his ruling, the judge said: “The argument put on behalf of Francis is that he is a rap musician of genuine talent and the videos are much the same as many available on the internet or elsewhere. In essence what can be seen on the videos is just youth and/or black culture which does not have the connotation argued for by the prosecution. That is a proposition which can be put before the jury. Francis can support it by evidence if he wishes. But this argument is an argument for the jury to consider given the content of the video material. “

[110]In relation to the images of the guns,

the judge said:

“[T]he defence argument … is that they are not necessarily photographs taken of actual weapons, rather they are downloaded images taken from the internet or a photograph of a photograph. Therefore the weapons were not available for Francis’s use. It is argued that many young men have stored images on their telephones or elsewhere. Again that is an argument for the jury to consider. When considering the argument the jury will be entitled to consider the combination of the material and its cumulative effect. I have considered section 101(3) in the case of Francis. Admission of this material will not adversely affect the fairness of the proceedings in his case.”

[111]Before us it was contended that the video evidence was just ‘too emotive and prejudicial’. We consider the judge was right to conclude it should be considered in conjunction with the images on the mobile phone. The material did have potentially significant probative value. The judge’s approach to section 101(3) cannot be faulted.

[112]Lewis appeared on “Gangbusters R Us”. His role was less prominent than that of Francis, but he spent much of the video in close proximity to Francis. At one point, Francis made reference to a “.44” and “Phantom”. Lewis at that point was standing close to Francis and is shown miming a shooting action.

[113]The judge accepted that taken on its own the material might not be sufficient to show gang membership. But he went on to say:

“Lewis’s telephone at the time of his arrest contained images of his face coupled with the Raiders emblem and the word “Menace”

. It also contained downloaded images of a small automatic handgun - probably 0.25 mm calibre - and a larger handgun and an image of a hooded man pointing a handgun of some description. This evidence in combination is sufficient for a jury to consider as evidence of gang membership”.

[114]It was further argued, on behalf of Lewis, that the case against him was weak and, applying Hanson

[2005] 2 Cr. App. R. 21

, this evidence should not be admitted to bolster a ‘weak’ case.

[115]The judge accepted that the core of the case against Lewis was the telephone evidence linking him with others and their respective movements. The prosecution contended this made a strong circumstantial case against Lewis. The defence argued it was weak. The judge decided that he would review the position after that evidence had been given. If he concluded the primary case was weak, he said the introduction of the gang evidence would not be enough to save the prosecution case.

[116]In the context of this case, this was a prudent course for the judge to take. In a complex case the strength of a circumstantial evidence based on inferences to be drawn from cell-site analysis is not always easy to determine at the outset. Often it becomes much clearer when the evidence is given and tested.

[117]In the event, the judge later concluded the case was of sufficient strength that the admission of this gang evidence was not simply to bolster a weak case. He was entitled to conclude that it did not require to be excluded under section 101(3).

[118]Further, we reject Mr Rupasinha’s suggestion that ‘propensity’ cannot properly be used to show presence as the scene of a crime. It patently can. The present case of evidence of gang association is just such an example.

[119]Turning to the second trial, Laing appeared on seven different videos. In “Illution” those on the video frequently give the “6” sign. The video begins and ends with shots of men with obvious tattoos declaring gang affiliation. “Gangbuster R Us”, which also featured Francis and Lewis, has a gang-specific chorus, lyrics with reference to relevant firearms and men giving the “6” sign. “Verse of the Sword” featured Laing as the principal vocalist with a closing gang specific lyric and what is intended to represent a shot from a gun. “Trappin” includes Laing showing a “6” sign and imitating pulling the trigger of a gun. “Propane” has Laing as a vocalist with gang related lyrics and showing the “6” sign. “B 6 Slash” also features Laing as a vocalist with gang references in the lyrics.

The judge concluded that:

[120]“[T]hey present a significant picture of a man closely associated with gang culture and wholly sympathetic to it”.

[121]On behalf of Laing, Mr Wilcock QC accepted realistically that the evidence was admissible subject to section 101(3) of the 2003 Act. He submitted that the essential matters in issue in Laing’s case were(i) whether he was at home in Walsall at the time of the offences; and

(ii) whether someone else was in possession of his 560 phone at the time. He further submitted that the Jury was aware that Laing had a conviction for possession of a firearm which was loaded and that he had relatively recently been released from a prison sentence. They were also aware that he had used the “560” phone for his drug dealing activities. He thus argued that gang evidence added little to the prosecution case. He pointed out that in the “Propane” video there was a lyric which included the words “Batty Boys, snitches and cops will get murdered” that he said was highly prejudicial. He contended that the probative value of the gang evidence was limited and its prejudicial effect was very great.

[122]In his ruling, the judge said: “[W]hile it is undoubtedly true that the material underlines the gang connotations of this case, I do not consider that its admission does or may so undermine the fairness of the proceedings as to require its exclusion. What occurred outside the Bartons Arms on the night of the 9th August was most unusual. Police officers were fired on by men with handguns in indiscriminate fashion. That some of those alleged to have been involved in this activity had demonstrated allegiance to groups whose apparent views matches the very kind of violence carried out on 9th August is highly relevant. Its probative value is potentially very significant”.

[123]We agree with that analysis. Some of the material was undoubtedly prejudicial, but it was potentially highly probative. The judge was entitled not to exclude it. Albeit in the first trial and not before this jury, we point out again that Shah also featured in the “Illution” video making “6” gestures but was acquitted by the jury who tried him and who received similar directions as to the use to which this evidence could be put.

[124]Finally, Gray appeared on “Illution”,“Verse of the Sword”, and “B6 Slash”. He played an active part in each of them. On the last of the videos, he is seen making signs as if using a gun. In “Half Stepping” in which he appears, the lyric refers to gangs and guns. In “Don’t get caught slipping” there is clear reference to the “MOB” squad and it features Gray making a gun sign and the “6” sign. On “Let me tell you” Gray is the vocalist and the lyric appears to refer to “B6” and the video involves significant reference to guns with Gray imitating the firing of a gun at one point.

[125]On behalf of Gray, Mr Bartfeld argued that the prejudice was very substantial. He said that the natural reaction on looking at the videos is one of horror. He submitted that it would be very difficult for a Jury to approach the case in a balanced way.

The judge dealt with this submission in this way:

“Taking all six videos together there is significant material to show allegiance to groups whose motivation is wholly consistent with the events at or near the Bartons Arms. It goes substantially beyond that which is otherwise available in Gray’s case. I do not consider that it is superfluous to the prosecution case as is argued on behalf of Gray.”

[127]We conclude that the judge was in a good position to determine whether the evidence should be excluded under section 101(3). He had already presided over the first trial and, thus, was well aware of the fact that the jury had not been overborne by the prejudice that flowed from the admission of gang evidence against Shah (who appeared in the “Illution” video making “6” gestures). He was entitled to admit the evidence in the second trial.

[128]In that context, it is important to remember that an assessment of the fairness of the proceedings should not only embrace consideration of fairness to the defence but also fairness to the prosecution. The second aspect of that balancing exercise is sometimes insufficiently considered.

[129]In the circumstances, the appeals against conviction based solely upon the admissibility of bad character evidence are dismissed; the applications for leave to appeal against conviction on those grounds are refused.

Other Grounds: Lewis

[130]Lewis was granted leave to appeal against conviction on two further grounds. The first was that the judge erred in law when he refused to accede to a submission that there was no case for him to answer on any of the counts that he faced. The second was that the judge erred in law when he allowed the prosecution to lead evidence of a hearsay conversation about the activities of Lewis. The Crown submitted the judge was correct on both rulings and the convictions of Lewis are safe on all counts.

[131]It is convenient first to deal with the complaint regarding the admissibility of the transcripts of telephone conversations made by Collins to his parents from prison which touched both on the knowledge of Lewis (or “Phantom”) as to the location of Collins’ car and also his access to a bag belonging to Collins which had car keys in it (see paragraph 31 above). As against Lewis, it was common ground that the evidence was hearsay.

[132]The judge ruled that this evidence was admissible against Lewis under section 114(2)(d) of the 2003 Act. He did so on the basis that the hearsay evidence had real probative value in relation to the issue whether Collins and Lewis were together in the lead up to the events, which was a “very significant part” of the case against Lewis since whilst there is no doubt that Collins was at the scene, Lewis denied being present.

[133]Mr Rupasinha made three submissions. First, he challenged the probative value of the hearsay evidence and suggested that Lewis could have learned of the location of Collins’s car and bag from another person, i.e.a cousin who lived in the area. In our view, however,

the judge was entitled to find that:

“…the fact that Lewis knew of the location of the VW Golf car does have some probative value in showing that they (Collins and Lewis) were together at that time when considered in conjunction with the cell-site material”

. The fact that some other explanation might be postulated does not mean that the judge’s finding was unreasonable. It was not.

[134]Second, he submitted that it was ‘unfairly prejudicial’ for Lewis to be associated with the lies Collins told in interview as to how he had arrived in Birmingham which were the reason why he wanted his car moved. In our view, however, there in nothing in this point. The tape was plain and the judge was entitled to take the view that it showed Collins asking his father to get “Phantom” (i.e. Lewis) to get a spare key from his bag and the close connection between them at this time.

[135]Third, he submitted that it was ‘disproportionate’ to admit this evidence against Lewis because he had no means of dealing with it other than by giving evidence himself. As the judge pointed out, however, it by no means exceptional for a defendant to be placed in the position where, if he is to challenge hearsay evidence, it would be necessary for him to give evidence himself. The judge dealt with the issue in his summing up.

[136]It should be noted that, even without the hearsay material, there was other prima facie evidence of Lewis’s presence at the scene from the telephone traffic and the cell-site material (which the judge considered in depth when dealing with the submission of no case to answer). The hearsay evidence, therefore, supported an inference that already arose on other admitted evidence. In short, therefore, there was no error by the judge in deciding in the exercise of his discretion to admit the hearsay material.

[137]Turning to the submission that there was no case for Lewis to answer, the judge approached the exercise on the basis that he would not take account of the bad character evidence which he had ruled admissible (on the basis that bad character should not be used to bolster a case that would otherwise be insufficient to leave to the jury).

[138]In short, the prosecution case in respect of Lewis was that he was present at the scene as one of the crowd. The telephone evidence placed him in the general area both before and after the incident, but also linked him to a number of others who were at the scene. The hearsay evidence of the phone calls between Collins and his parents supported the assertion that Lewis and Collins were together on the day of the incident. Mr Rupasinha for Lewis submitted both to the judge and to us that the cell-site and phone call evidence was insufficient to support the inference that Lewis was present and involved in the events in question.

[139]The jury heard detailed evidence from the prosecution cell-site expert, Mr Weeks, and were given their own coloured copies of the cell-site material. Mr Weeks was cross-examined extensively by defence counsel, including Mr Rupasinha, on this material and the inferences that could be drawn from it. It was Mr Weeks’s evidence that the cell-site evidence demonstrated a pattern of corresponding movement between the phones of Collins, Lewis and Francis and the post 00:47 hours cell-site evidence suggested that Lewis had travelled away from the relevant area with Francis and Laing and that later Collins contacted him to tell him that he had been arrested.

[140]Mr Rupasinha made two submissions. First, the cell-site evidence was ‘too inexact and imprecise’ to support a safe inference that Lewis at the scene of the offending at the relevant time. Second, the cell-site evidence did not support an inference that Lewis, Francis and Collins attended the scene in the same vehicle, a matter which it was essential to prove in order to implicate Lewis.

[141]When dealing with this submission, the judge applied the principles regarding the approach to circumstantial evidence which I sought to summarise in Goring

[2011] EWCA Crim 2

(when sitting with Davis and Lloyd-Jones JJ as they both then were) in these terms: “34. As to the primary ground of appeal, the traditional approach identified by Lord Lane CJ in R v. Galbraith

[1981] 1 WLR 1039

(if a reasonable jury properly directed could not on the evidence find the charge proved beyond reasonable doubt) concerned the weight to be attached to evidence implicating the defendant upon which the Crown relied. The application of that principle to cases of circumstantial evidence, however, has been the subject of further debate, primarily in a number of unreported decisions which were considered accurately to reflect the common law by the Judicial Committee of the Privy Council in DPP v. Varlack

[2008] UKPC 56

which concerned an appeal from the Court of Appeal of the British Virgin Islands.35. Thus, in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, in the Supreme Court of South Australia, King CJ summarised the appropriate approach in these terms: "[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. … Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence."

36. This was the conclusion reached in this court in R v. Bokkum (7 March 2000, unreported), where Tuckey LJ rejected, as contrary to Galbraith, the proposition that in a case dependent on circumstantial evidence, the judge would be required to withdraw the case if some inference other than guilt could reasonably be drawn from the facts proved ... .. This approach was approved in R v. Edwards

[2004] EWCA Crim 2102

(paras 83-5) and adopted in R v. Jabber

[2006] EWCA Crim 2694

in which Moses LJ said (at para 21): "The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude." "[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. … Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence." "The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude."

[142]Having identified his approach, the judge set out his ruling on the submission and the evidence linking Lewis to the offending with admirable detail and clarity. When dealing with the cell-site evidence, the judge said this:

“During the afternoon and early evening of the 9th August 2011 the usage of mobile telephones attributed to Lewis and to Nicholas Francis showed a pattern consistent with the users of those two telephones being together for much of that time. In general terms they were in the West Bromwich area. … This evidence is relied on by the prosecution to show that these three defendants were together over this period. The evidence of Mr. Weeks shows that any individual call may have been made within a relatively wide area and that the use of a single cell-site by different telephones does not mean that the telephones necessarily were together. However, it is a legitimate exercise to consider the pattern of usage and the apparent movement of telephones. A jury plainly would consider the pattern of usage and movement in the light of other evidence in the case. I consider that a jury could conclude that the evidence showed that the three telephones were together in which event a jury could conclude that the three relevant defendants were together.”

[143]The judge also pointed to(i) the evidence regarding Collins’s telephone call to Lewis after he had been arrested which the judge held would allow a jury properly to conclude that Collins deliberately made contact with Lewis;

(ii) the recovery of Collins’s car from outside an address associated with Lewis; and

(iii) the evidence of dealings between Collins’s father and Lewis whilst Collins was in custody. The judge went on to say this:

“This evidence, when put together with all of the other evidence, is capable of supporting the inference that Lewis and Collins were together in the period leading up to the incident on the 9th and 10th August. Taking all of these matters into account I conclude that a jury could properly conclude that Lewis was at the scene of the incident.”

[144]In our judgment, the judge’s ruling cannot be faulted. Furthermore, we emphasise that the judge heard all the evidence including the cross-examination of Mr Weeks and was best placed to make what was essentially a qualitative assessment of all the evidence against Lewis, including the cell-site evidence and to consider the inferences that could legitimately and appropriately be drawn from it. In such circumstances, this court will be slow to substitute its assessment of the strength of that evidence, or inferences properly open to the jury, unless a patent error of fact or approach is evident. No such error is evident here.

[145]In the course of his submissions, Mr Rupasinha (who did not challenge the propriety of the judge’s approach based on Goring) sought to take us to the cell-site material itself and subjected the court to a lengthy rehearsal of what appeared to be essentially the same arguments as he had made to the judge below. We did not find this a helpful approach. It is rarely legitimate to seek re-argue the facts before this court in this way. Submissions on appeal should be directed to where, and how, it is said the judge at first instance fell into error. They should not simply be a re-heat of factual arguments which failed to find favour below. In the circumstances, this appeal against conviction is dismissed.

Other Grounds: Gray

[146]Gray renewed an application for permission to appeal the judge’s refusal, in the second trial, to accept his submission that there was no case to answer in relation to the allegation of arson being reckless as to whether life would be endangered.

[147]Gray’s submission was based on the agreed premise that those that arrived at the Bartons Armsdid so in two distinct groups, separated by a few minutes, and that it was is clear from the CCTV footage that the offence of arson was complete before the second group arrived. It was submitted that since (as was the case in relation to other defendants such as Joyah Campbell) it was not possible to identify which group Gray was in, or to exclude the possibility that he was in the second group, the judge ought to have directed the Jury to acquit Gray of arson.

[148]The judge rejected the submission. The judge held that where the evidence was otherwise unclear as to whether a defendant was in the first or second group that attended at the Bartons Arms, it would be necessary for the prosecution to adduce some further evidence before the Jury could properly infer that the particular defendant was, in fact, in the first group and, therefore, had a case to answer on the Arson charge. In Gray’s case, the prosecution relied upon a number of factors which pointed to Gray being in the first group, in particular,(i) his DNA on one of firearms seized giving rise to the inference that he was one of the gunmen at the scene and arrived together with the other gunmen in the first group (i.e. Laidley, Francis and Laing) and

(ii) his telephone traffic which showed that he, together with Laing, was an organiser and planner and present throughout. The judge highlighted these factors when dismissing Gray’s application that there was no case for him to answer in relation to the arson charge: in our judgment, his approach and reasoning cannot be faulted. This ground of appeal is unarguable and permission is refused.

Collins

[149]Collins renewed his application for permission to appeal against conviction. His sole ground of appeal was that the directions on secondary party liability were flawed because the judge failed properly to direct the Jury as to the requirement of ‘active encouragement’ amounting to participation.

[150]The prosecution case in respect of Collins was that, whilst he had not engaged in any act of violence himself, it was plain that he was encouraging others by his presence at the scene from the position in which he stood and the manner in which he was directing his attention. He had attended Birmingham with a view to taking part in violence; he met and made arrangements with others in respect of the violence; his presence at theBartons Arms was deliberate; he well knew the nature and purpose of what was to take place and that was why he was present and remained.

[151]On behalf of Collins, Mr James Wood QC, advanced two main points. The first was a complaint regarding Question 4 of the judge’s directions in the Route to Verdict copies of which were given to the Jury and which provided as follows (emphasis added):

“In the case of the defendant whose case you are considering, did he use unlawful violence for the common purpose? If yes, verdict GUILTY. If no, verdict NOT GUILTY. • Apersonis guilty of riot only if he intends to use unlawful violence or is aware his conduct may be violent. • A person may be guilty of riot because he personally used violence or because he encouraged others to use violence. • Mere presence at the scene of an offence (in this case riot) does not prove guilt. In order to prove guilt on the basis of encouraging others, it must be proved that the defendant deliberately gave encouragement to others and that he did so intending to encourage others to use unlawful violence. • Such intentional encouragement may be established by the prosecution proving that a defendant joined a group which was using unlawful violence or which thereafter began to use unlawful violence and that the defendant then stayed with the group and was present as unlawful violence was used. Whether it is so established will depend on whether you reject any other explanation for a defendant behaving in that way. You would have to be satisfied that his presence did encourage others in their use of unlawful violence and that he intended that it should do so.”

[152]Mr Wood submitted that the words underlined in the fourth bullet point (“…Whether it is so established will depend on whether you reject any other explanation for a defendant behaving in that way”) had the effect of reversing the burden of proof. He further submitted that the fourth bullet point was, in any event, otioseand should have been omitted (as it was in the second trial). The judge had provided his written directions in draft to counsel and there has been some debate about the passage in question. It was suggested by defence counsel that the words could amount to a reversal of the burden of proof, but prosecution counsel submitted that the words were entirely neutral. The judge was satisfied with his own wording.

[153]In our judgment, he was right to be. The criticism of his fourth bullet point is unfounded and stems from a failure to read it in context. The four bullet points were clearly intended to be read sequentially. The first bullet point makes it clear that an “intention”to use unlawful violence is required. The second bullet point makes it clear that “encouragement”to others to use violence may suffice. The third bullet point makes it clear that “…[m]ere presence at the scene of an offence… does not prove guilt” but it must be proved that the defendant “deliberately gave encouragement to others”to use unlawful violence with that intent. Thus, it cannot be said that the fourth bullet point reversed the burden of proof. Further, each defendant, including Collins, had advanced an explanation for his presence at the scene. The direction in the fourth bullet point merely highlighted the fact that the Jury would have to reject the explanation given by the defendant whose case they were considering in order to be satisfied that the prosecution had proved its case on “intentional encouragement”. There is nothing in this complaint.

[154]Mr Wood’s second complaint was that the judge’s oral exposition in his summing up impermissibly deviated from his written directions. He submitted that where the judge purported to explain Question 4, he materially deviated from his written directions. Mr Wood criticised the following passage in judge’s summing up (at page 13D) (emphasis added):

“Now, you have been addressed by a number of counsel, there is no evidence that anybody was seen patting people on the back and saying "well done, carry on". In a sense you would be surprised if you could see that.”

[155]Mr Wood took particular objection to the words underlined. He submitted that there was no warrant for the judge adding these wordsand it was problematic for him to have done so since it amounted to a dismissal of a critical aspect of the case and what the prosecution had to prove, i.e. active encouragement.

[156]We disagree. We emphasise, again, that, it is important to read the passages in question in context. This passage in the judge’s ruling is preceded by two clear statements by the judge:(i) “The fact that you are just present at the scene of an offence, in this case riot, does not prove guilt”; and

(ii) “Now, in order to prove guilt on the basis of encouraging others it has to be proved that the defendant deliberately gave encouragement to others”. The judge was emphasising respectively that (i) mere presence was not enough and (ii) deliberate encouragement was required. In the next passage (i.e.the passage in question) the judge was seeking to neutralise defence counsel’s somewhat forensic suggestion that that there was no deliberate encouragement because no actual ‘patting on the back’ was seen. In our view, it was right that he should do so: the Jury could have been misled by defence counsel’s suggestion into thinking that the legal test as regards active encouragement was higher than it was.

[157]In our judgment, the judge’s direction was orthodox and in line with Jefferson

[1994] 99 Cr App R 13

and not open to challenge. Permission to appeal on this ground is refused and, in the upshot, all appeals against conviction are dismissed and all applications for permission to appeal conviction refused.

The Appeals against Sentence

[158]The appellants (save for Laing and Gray) were refused leave to appeal against sentence by the single judge. Those who were not granted leave renew their applications before us.

General observations

[159]When considering the appropriate level of sentence, the underlying facts bear repetition and are particularly chilling. At a time when the wave of rioting and lawlessness which swept through English cities in early August 2011 was both threatening and profoundly shocking, a premeditated plan (which must have involved considerable organisation) was put into effect. A group of 21 hooded and masked men moved to the Bartons Arms in Aston with a clear purpose. Some had guns. Some had petrol bombs. This was not rioting to loot or steal. It was not mindless vandalism. Its sinister purpose was to lure police officers to the scene so they could be terrorised, attacked and shot at. The deliberate arson of the Bartons Arms showed the group cared nothing for the terror and risk to those in the building. The second group, similarly hooded and masked, joined in enthusiastically. They were greeted on arrival with a cheer. There was concerted shooting at the police, including at the police helicopter. It was fortuitous that the helicopter was not hit and that police officers were not left dead on the street.

[160]Although there is ample authority for the proposition that offences connected with firearms can justify consecutive terms of imprisonment, we do not dissent from the proposition that this criminality was legitimately considered in the round: firearms were not used to facilitate some ulterior offending; their use constituted the dominant purpose of what had been planned. Concurrent sentences, however, required consideration to be given to the overall criminality, that is to say the riot and the arson clearly designed to attract the attention of the police and the possession and use of multiple firearms with the intention of endangering life (in this case, the lives of police officers who were required to intervene in the arson and riot).

[161]Taking the firearms offences first, therefore, in R v. Avis

[1998] 1 Cr App R 420

Lord Bingham CJ made clear that any sentence for a relevant offence contrary to the Firearms Act 1968 would be of considerable length. There were four questions to be considered. These are:(1) What sort of weapon was involved?

(2) What use was made of the firearm?

(3) With what intention was the firearm possessed?

(4) What is the record of the defendant? In R v. Sheen and Sheen

[2011] EWCA Crim 2461

, two further questions were added:

(5) Where was the firearm discharged and who was exposed to danger by its use?

(6) Was any injury caused by the firearm and, if so, how serious was it?

[162]Giving the judgment of the court Sheen and Sheen, Stanley Burnton LJ went on (at paragraph [12]):

“It was a premise of the submissions before us that the offence of possessing a firearm with intent to endanger life is necessarily less serious than the offence of attempted murder. We do not accept this. Parliament has decided that the maximum sentence for both offences is life imprisonment. It follows that the view of the legislature, which the Court must take into account, is that the offence under the Firearms Act may, in appropriate circumstances, require a custodial sentence that is as long as, or may even be longer, than a sentence for attempted murder.”

[163]Looking at the guidance issued by the Sentencing Guidelines Council where, if the charge had been murder, that murder would have come within paragraph 4 or paragraph 5 of Schedule 21 of the 2003 Act (which any murder of a police officer or murder by firearm would have done), the starting points are between 15 and 30 years custody depending on the nature and extent of any physical or psychological harm. The guideline, of course, deals with a single offence by an adult of good character convicted after a trial. Multiple offences involving real risk to multiple potential victims are obviously far more serious.

[164]Applying the Avis guidelines (as supplemented by Sheen and Sheen), the weapons were loaded handguns which were discharged on multiple occasions to attack police officers on the ground and in a police helicopter. The clear intention was to endanger the lives of a number of officers. As the judge concluded, although no physical injury was in fact suffered that fact was wholly a matter of luck.

[165]On top of these aggravating features is the further serious element of the offending which flows from the fact that it was committed during the course of riots that were taking place across the country. In R v. Blackshaw and others

[2011] EWCA Crim 2312

, [

[2012] Cr App R (S) 114

page 677, Lord Judge CJ described the necessary effect of this element in this way (at paragraph 4): “There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in their homes or in businesses and the street and to protect the homes and businesses and streets in which they live and work. This is an imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and sentences should be designed to deter others from similar activity. “

[166]Lord Judge went on to observe (at paragraph 8) that courts could not ignore the context in which crimes were committed. If arising out of widespread lawlessness or when disorder was at its most disruptive and alarming, the seriousness of individual offences is hugely aggravated. Thus, sentences for burglary well in excess of those that would have been imposed for single isolated offences were upheld when that offence was committed as part of the mob criminality which produced the public disorder. We add that the position is even more serious when the offending is part of a planned and concerted activity as the judge found to be the case. Furthermore, it cannot be ignored that the precipitating offence (namely the arson) risked the lives of the occupants of the Bartons Arms.

[167]When fashioning the overall sentence, therefore, all these elements had to be considered. If the offences in Blackshaw were serious, what happened here was in an altogether different and far more serious league. Indeed, the riot (aggravated by life endangering arson) only set the scene for attacks on the police which were themselves of exceptional gravity.

[168]In the very particular and striking circumstances of this case, in our judgment, the judge was entirely correct to conclude, following Sheen and Sheen,that this was a case in which the offending was more serious than one of attempted murder. He said:

“This is such a case. Multiple gun shots were fired at police officers doing their duty at a time of widespread public disorder by members of a gang carrying out a deliberate plan to attack the police. Had any police officer been struck by a bullet and had the charge been attempted murder, proper application of the definitive guideline would have led to a sentence of at least 30 years imprisonment.”

[169]All the submissions by the appellants and applicants argued that the judge had taken a starting point that was far too high. We will deal with each appeal and application individually but, as a matter of generality, it is sufficient for us to indicate that we do not agree.

Laidley

[170]Laidley was sentenced to a total of 23 years imprisonment comprising(i) 23 years detention in a young offenders institution for possession of a firearm with intent to endanger life;

(ii) 7 years concurrent for riot; and

(iii) 7 years concurrent for arson being reckless as to whether life was endangered.

[171]The judge found that Laidley had been present at the scene and involved in the planning from the outset. He was one of those in the first group. He was directly involved in the attack on the Bartons Arms. He had a hand gun. He fired a shot at the police helicopter. He was aged 19 at the time of the offence and aged 20 when sentenced. He had a limited previous record.

[172]It was argued on his behalf that comparison with the Najeeb

[2003] 2 Cr. App. R. (S) 69

concerning the Bradford riot case, where policemen were injured and the riot lasted much longer, suggested that Laidley’s sentence of 23 years was too long. It is also argued that the sentence here for a young man was simply too long.

[173]We do not agree. The Bradford riot case was not a case involving the use of firearms; the offenders were sentenced only for the offence of riot (the maximum sentence for which is 10 years imprisonment): almost all entered early guilty pleas and expressed remorse. Laidley’s actions (and, in particular, in firing at the helicopter) were in an entirely different league of offending in respect of which Najeeb provides no assistance at all. Notwithstanding his age and limited record, the most serious nature of his offending demanded an exemplary sentence. His renewed application must be refused.

Collins

[174]Collins was sentenced to a total of 18 years imprisonment comprising:(i) 18 years on the firearms offence;

(ii) 6 years for the riot concurrent; and

(iii) 6 years for the arson concurrent.

[175]Collins had come from Luton on the afternoon of 7th August. On that evening he spent time with Lewis and Francis. The judge concluded that the purpose of his continued presence in Birmingham was to take part in the attack on the police on the 9th. Francis was carrying a gun and the judge concluded that Collins went with him knowing that he was armed. Although Collins played no active part, his presence as part of the first group acted as encouragement to others.

[176]Collins was aged 25 at the time and had a limited record. He was a working man with a family. On his behalf it is emphasised that it is clear from looking at the video he played no active role in the ransacking of premises and was merely part of the group. It was submitted that, for a secondary party, the total sentence of 18 years was too long.

[177]We do not agree. Not only did Collins encourage by his presence but, on the jury’s verdicts, he intended to do so in relation to the riot, the arson and the use of firearms directed at the police: this was participation in extremely serious offending. The video demonstrated the group moving in concert to achieve its goal; the limited nature of his responsibility as compared with those who personally discharged firearms was reflected in the lesser sentence that he received. His renewed application must also be refused.

Rehman

[178]Rehman was sentenced to 12 years detention under section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000 on the firearms offence with no separate penalty for the offence of riot (the reason for this approach being that the offence of riot carries a maximum sentence of 10 years imprisonment and, thus, does not qualify as a grave crime for the purposes of s. 91).

[179]He arrived with the second group at the front. Once there, Rehman joined in with the attack on premises close to the Bartons Arms. He stayed with the group when shots were being fired in Burlington Street. He was close to a man reloading a handgun while others were firing. The judge rejected the proposition that he only became aware of the presence of guns at some later stage.

[180]He was 16 years at the time and 17 at sentence. He was effectively of good character. On his behalf, it is argued that for a young man of 17 the sentence is a crushing one and that the judge failed properly to take account of the overarching principles issued by the Sentencing Guidelines Council in relation to the sentencing of young offenders. That is to the effect that where an offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as his chronological age and that it may be appropriate to consider a starting point from half to three quarters of that which would have been identified for an adult offender. It is further pointed out that he did not fall to be sentenced for the arson as he was in the second group and the fire had already been set.

[181]The nearest comparator in relation to Rehman was Collins who, similarly, was not personally involved in the discharge of a firearm but again, on the verdict of the jury, participated in the offence. As we have just identified, he received a sentence of 18 years imprisonment and the judge clearly took fully into account the guidance, by reducing the sentence passed on Rehman referring specifically to his age. It must be borne in mind that the particular circumstances of this case require the strong message to go out that those, of whatever age, who are tempted to become involved in this sort of group offending must expect significant deterrent sentences despite their youth. In our view, the discount here was sufficient taking into account his age, the guidelines and the fact that he did not fall to be sentenced on the arson. The renewed application must be refused.

Francis

[182]Francis was sentenced to a total of 30 years imprisonment comprising:(i) 30 years on the firearms offence;

(ii) a concurrent sentence of 7 years for riot; and

(iii) a concurrent sentence of 7 years in relation to the arson.

[183]Francis was part of the first group. He played a full and active part in the violence. He was armed with a gun. The judge concluded he had used it to shoot at the police from the area of Burlington Street.

[184]Francis was then aged 27. Of particular significance is the fact that he had a bad record, having been sentenced, in 2005, to 5 years detention for robbery. He was a member of the “Raiders” gang which was associated with the “Johnson Crew”. The judge concluded he enjoyed the notion of handling and using firearms and had a deep antipathy to the police. He was dangerous and came close to requiring a life sentence.

[185]On his behalf it is argued that the judge was wrong to apply the guidelines for attempted murder, alternatively had selected too high a starting point. For the reasons that we have sought to elaborate in our general observations, we disagree. The judge was obviously right that only a very lengthy sentence would suffice in the case of Francis and may be considered fortunate not to have received an indeterminate sentence. As with the other renewed applications, it must be refused.

Lewis

[186]Lewis was sentenced to a total of 23 years imprisonment comprising:(i) 23 years on the firearms offence;

(ii) 7 years concurrent for the offence of riot; and (ii) 7 years concurrent for the arson offence.

[187]Lewis spent the evening of 9th August with Francis and Collins and drove them to the Bartons Arms area later on. The judge concluded that he knew full well that he was taking an armed man to the scene so that guns could be used to fire on the police. He made his escape from the Aston area with Francis and, in order to do, hijacked a car by force from an innocent bystander.

[188]Lewis was 27. He had no significant criminal history but, like Francis, he was an active member of the “Raiders” gang which had used firearms in the past. The video material and that from his phone demonstrated his attitude to guns and the police. It was pointed out, on his behalf, that he did not have any gun or use any gun. Furthermore, it was suggested there was a disparity between his sentence and that of Collins. In all the circumstances, it was submitted that the sentence was too long.

The judge obviously regarded as significant the role that Lewis took:

[189]he drove Francis to the scene, knowing Francis had a gun intending to shoot at the police. The judge was quite entitled to reach that conclusion. It was an aggravating factor that Lewis was party to the taking by force of a car to facilitate his and Francis’ getaway. At a time of national riots, this must have been a most frightening experience for the innocent car driver involved. The judge was also entitled to take account of the position and attitudes of Lewis from his membership of the “Raiders” and his attitude to guns and the police. Those features did not exist in the case of Collins.

[190]The judge, having heard the case, was in a good position to determine the respective roles and culpability of the different offenders. He also had to have in mind the need to protect the public. The attitude of Lewis to guns and the police was highly relevance. We do not accept that there is a valid disparity argument. In our judgment, the sentence of 23 years for Lewis was not manifestly excessive. The renewed application must also be refused.

Laing

[191]Laing was sentenced to a total of 35 years imprisonment comprising:(i) 30 years on the firearms offence;

(ii) 7 years concurrent on the Riot and Arson offences; and

(iii) 5 years consecutive in respect of a separate firearms offence committed in October 2011.

[192]The judge was satisfied that Laing was one of the organisers. There was an irresistible inference that he was armed, probably with the St Etienne revolver. The judge drew that inference from his previous possession of a handgun; the nature and extent of his involvement with the gang culture as apparent from the video material; and from the evidence of use of a revolver during the events together with his possession of the St Etienne revolver in October 2011.

[193]Laing was 29 at the time of the offences. He had a very bad record including offences of armed robbery and possession of a loaded handgun. He had been sentenced to 6 years 6 months in 2004. The offence of possession of a firearm in October 2011 was a separate offence which required a consecutive sentence.

[194]On his behalf it is argued that the judge took insufficient account of the fact that no physical injury was in fact caused. It was submitted that the resultant sentence was too long.

[195]We do not agree. As the judge indicated, Laing’s case came very close to requiring an indeterminate sentence: he was, indeed, fortunate that such a sentence was not imposed. A very long determinate sentence was undeniably justified and, for the reasons we have explained, the general level of sentence cannot be criticised. The renewed application is refused.

Gray

[196]Gray was sentenced to a total of 29 years imprisonment comprising:(i) 29 years on the firearms offence;

(ii) 7 years concurrent for riot;

(iii) 7 years concurrent for the offence of arson offence;

(iv) 5 years for the separate offence of possession of a prohibited firearm. This second firearms count related to the recovery of a firearm in October 2011 from which his DNA was recovered.

[197]The judge found that he had been armed with the Fegarmy pistol that night which he had fired at least once. That was, he concluded, the firearm recovered in October 2011.

[198]Gray was 27 at the time. He had a bad record, although not as bad as that of Laing or Francis. He had convictions for robbery in 2002 and 2004. In respect of the 2004 robbery he had been sentenced to 6 years in a Young Offender Institution.

[199]It was argued on Gray’s behalf the judge should not have concluded that Gray had fired a shot that night. Gray’s DNA was found on the Fegarmy pistol which was recovered from Janine Francis in October 2011. She had been a safe haven for the gun.

[200]Furthermore, there was evidence that, on the escape route used that night, a spent cartridge had been found next to a bulleted cartridge which had been chambered in the gun. That was consistent with the gun having been fired at some stage in the incident and unloaded on the escape route. The judge was entitled on all the evidence to draw the inferences he did and to reach the conclusion he did. We do not consider that he sentenced Gray on an incorrect factual basis, let alone one that was not open to him on the evidence. The judge concluded that he was dangerous and, again, he was fortunate to avoid an indeterminate sentence. Bearing in mind his role as a principal and his record the total sentence passed was not manifestly excessive. His appeal must be dismissed

Conclusion

[201]In the result, all the appeals against conviction and sentence, along with the applications for permission to appeal against conviction and sentence are dismissed.

[202]In addition to thanking all counsel for their help in this case (and, in particular, those who appeared pro bono), we cannot leave it without paying tribute to the trial judge, His Honour Judge Davis QC, the Recorder of Birmingham, for his exemplary and skilful handling of these two major trials.

Lewis & Ors v R [2014] EWCA Crim 48

The Facts

Attack on The Barton Arms

Gunfire aimed at the Police

Arrests

Cell-site evidence

Collins’ phone calls

Previous Convictions and Bad Character

The Indictments and the Issues for the Jury

The Evidence at the First Trial

The Evidence at the Second Trial

The Appeals against Conviction

the judge said :

The judge said:

The judge took a more limited approach:

the judge summarised his video appearances in this way:

the judge said:

The judge concluded that:

The judge dealt with this submission in this way:

Other Grounds: Lewis

the judge was entitled to find that:

Other Grounds: Gray

Collins

The Appeals against Sentence

General observations

Laidley

Collins

Rehman

Francis

Lewis

The judge obviously regarded as significant the role that Lewis took:

Laing

Gray

Conclusion

Cited in 2 later judgments