R v Morgan-Salih [2014] EWCA Crim 949

[2014] EWCA Crim 949Case No 201304914/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 10th April 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE JEREMY BAKER
RECORDER OF REDBRIDGE
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownJAMAL MORGAN-SALIHDefendant
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Garratt (Solicitor-Advocate) appeared for AppellantMr R Hearnden appeared for Crown
J U D G M E N T

LORD JUSTICE ELIAS:

[1]On 6th September 2013 in the Crown Court at Woolwich before Mr Recorder Lederman the appellant was convicted by a majority of 10 to 2 of possession of a firearm with intent to endanger life (count 1) and was sentenced to 6 years' detention in a young offender institution. The jury were discharged from giving a verdict on count 2 which was possession of a prohibited firearm, the alternative count. The co-accused, Gregory Fullwood and Akeem Harris, were found not guilty on the judge's directions following a half-time ruling of no case to answer. They too had been charged with possession of a firearm with intent with the alternative count of possessing a prohibited firearm. He now appeals against conviction by leave of the single judge.[2]The facts were as follows. At about 5.00 pm on Friday 12th April 2013 police officers Heywood, Dixon and Sibley were on duty in plain clothes in an unmarked police dog van. As they drove along Geoffrey Road in SE4 a black Volkswagen Golf drove towards them and turned abruptly across their path into Manor Avenue. The officers were suspicious and decided to follow the car. The car was travelling quickly and it suddenly pulled over but at that stage no one got out. The police officers decided to speak to the occupants. The appellant, Fullwood and Sibley then got out of the car and began to walk down the road. The appellant swiftly went into an alleyway in between numbers 12 and 14 Manor Avenue. Shortly thereafter all three males were detained and searched and another police unit was called. Whilst waiting for the unit the police dog found a loaded metal revolver in the hedge in between numbers 12 and 14 Manor Avenue. The appellant was asked why he had gone into the alleyway and said that he had needed to urinate. He was then seen to rub his hands on his clothes and on a leaf which had some water on it.[3]All three males were arrested and taken to the police station and interviewed. The appellant declined to answer any questions but relied upon a prepared statement, which was in the following terms:
"I wish to say that I deny any knowledge of this gun and never had possession of it. I had been collected by Ackeem in his Golf and Gregory was also in the car. I was collected less than an hour before we were stopped by police. We decided to go to a Chinese restaurant which was opposite where I was stopped by police. I got out of the car and wanted to go and have a piss and so went to an alley. After I did this I walked up to Gregory and Ackeem where police stopped us. I did not run from the police. Eventually the police stated that they had found a gun nearby. I again state I have no knowledge of this and have never had possession of it..."
[4]The prosecution case was that the revolver belonged to the appellant and therefore he was in possession of it. When he saw the prison officers he tried to get rid of it in a hedge in Manor Avenue. They said that he had rubbed his hands on the leaf in an attempt to get rid of any forensic evidence that may have linked him to the revolver. He gave evidence at trial which was broadly in line with the prepared statement. He also said in evidence that he had rubbed his hands on the leaf because it had water on it and he was wanting to wash his hands after having urinated.[5]The appeal in this case turns on an unusual feature of the trial. The judge, having delivered a full summing-up, two days later gave further directions to the jury to assist them in their deliberations. The circumstances in which this occurred are revealed by the chronology of events in this very short trial. The trial commenced with the Crown's opening at 11.48 am on 3rd September 2013. The Crown’s case was concluded on the same day. There were then successful half-time submissions by the co-defendants, the jury having been released for the day. On the following morning, the 4th September, the jury returned not guilty verdicts as directed by the judge in relation to those two co-accused. Later that day the appellant gave evidence and called a single defence witness in relation to his character. The judge concluded his summing-up and the jury retired to consider their verdicts at 2.07 on 4th September. Just after 4 o'clock on that same day the jury were released from their deliberations until midday on 6th September. This was because of medical appointments of the judge and one of the members of the jury.[6]Just prior to releasing the jury to continue their deliberations on the 6th, His Honour Judge Lederman noted that it had been some time since his earlier direction and he said it was worth perhaps reminding them of two quite separate points.[7]The single ground of appeal is directed towards the way in which the judge reminded the jury of these points. They were as follows. First, the judge directed the jury that the possession of the gun was critical to conviction. He directed them as to how they should determine whether the applicant was in possession of a gun or not, telling them that if the gun had been in the car and if the appellant had taken it to the hedge it would have been in his possession. He also reminded them about how to approach an element of the offence in count 1, namely the intent to endanger life. He directed them that they may think if the appellant's intention was to fire the loaded gun they might think that this would, as a matter of common sense, be sufficient to establish a requisite intention.[8]The second matter on which he directed them was to tell them they should reach their verdicts on the basis of the evidence which they had heard. He then told them that the absence of forensic evidence was not the end of the case; the lack of it was not positive evidence in favour of the defendant. It simply meant that the prosecution had to prove the case by the circumstantial evidence on which they relied. The judge told the jury that there may be many reasons why there was no forensic link between the defendant and the gun, such as the defendant wearing gloves, and then he said this:
"So you have to be very careful. What you have is the simple fact that .. ... the prosecution have no evidence [I interpose he means no forensic evidence then he continues]. Now, if that means that the rest of the evidence that the prosecution do have does not satisfy you beyond reasonable doubt, so be it. But what you must not do is, if you like, use the lack of the evidence to be positive assertion that you would expect there to be, because there has been no evidence about that."
After giving those directions the judge was asked by counsel for the appellant to remind the jury of the burden and standard of proof and to say that it remained at all times on the prosecution. The jury were called back. The judge told them it did not really matter where they sat because he was not going to be very long and then he said that:
"I remind you, at the end of the day, you say to yourselves, 'Have the prosecution proved the case either on Count 1 or on Count 2?'"
He did not therefore specifically remind them at that stage of the standard of proof but, as we have noted, just a few moments earlier he had told them that the prosecution had to prove the case beyond all reasonable doubt.[9]Counsel submits that this reminder, even with the additional comment made at his own request, was wholly inadequate and failed to counter the biased picture of the case which these fresh directions would have created. At the heart of the appellant's case was the contention that although there was plainly circumstantial evidence giving rise to a case to answer, there was nothing linking him to the gun except that circumstantial evidence. The absence of any forensic evidence was a very important hole in the prosecution case. But its significance could only properly be appreciated if the jury had fully in mind, in the context of considering this lack of evidence, that the burden was on the prosecution to establish guilt beyond reasonable doubt. Similarly, so far as element of intent to endanger life was concerned, the defence case was that even if the jury were sure he was in possession of a gun, they could not be sure, again having regard to the burden and standard of proof, that he was intending to use it to endanger life.[10]The submission therefore is that the judge, in this supplementary summing-up, highlighted features of the prosecution case but did not adequately address the defendant's response. The judge ought to have made these directions in a more even-handed way. These comments by the judge would have been the last words ringing in the jury's ear when they went to retire and they rendered the trial unfair and the verdict unsafe.[11]Prosecuting counsel submits that in fact these further directions were intended to remedy certain deficiencies in the original summing-up. He says, for example, that the direction on possession as originally given by the judge had not said that the appellant would be in possession of the gun if it was in his custody and control. Nor did he say, as he did in the supplementary summing-up, the gun would be in his possession or control if he had taken the gun to the hedge. But in fact the judge did say that in the original summing up.[12]In our view these additional directions were not intended to cure any perceived weakness in the summing-up. We think the judge simply intended to remind the jury, because of the two-day gap, of certain essential principles that it had to consider.[13]It was, we think, unfortunate that the judge chose to refresh the minds of the jury about these matters without telling counsel in advance and inviting their observations. But in principle there can be no objection to a judge reminding the jury of certain central elements in the case particularly where there has been a gap of a few days in their deliberations as there was in this case.[14]Of course, it is then critical that the reminder given by the judge must be carried out fairly and without bias. Whether that is so or not is very much a matter of impression. We have read the summing-up and we have read the additional directions given by the judge. We do not think that the judge in those additional directions has said anything that was inaccurate or wrong. He is criticised for reminding the jury, perhaps in too cavalier a way, that the burden of proof rested on the prosecution. They were not invited to come back formally into the jury box, as counsel submits they ought to have been, and it is said that the judge also ought to have reminded them of the standard of proof and summarised briefly, in more detail, the factors in favour of the defence.[15]We do not accept that these are material criticisms. The point made to the jury about the burden of proof is very brief. There is no reason why it should not have been made to the jury whilst they were effectively en route to the jury room. The jury must have been well aware of this direction in any event.[16]As to the standard of proof, it is true the judge did not remind them when asked to do so specifically about that, but he had told them moments earlier that they had to be satisfied that the case was established beyond all reasonable doubt. It was not the purpose of this reminder to go through all the factual material again; that would have been firmly in the jury's mind. We think therefore that these directions were fair, the additional directions were not inconsistent with the earlier ones and we do not accept that they would have left the jury with a biased view of the case or with any misunderstanding of the burden and standard of proof placed on the prosecution. For these reasons therefore we reject this appeal.