R v S [2015] EWCA Crim 558

Case No 201405007 C2[2015] EWCA Crim 558
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Central Criminal Court
HHJ Wide QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 03/12/2021
Before
SIR BRIAN LEVESON PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE CRANSTONMR JUSTICE SINGH
Between
RRespondentSAppellant
Mr Timothy Raggatt QC and Mr Salis appeared for AppellantMr Duncan Atkinson appeared for RespondentHearing dates 12/03/2015
Judgment
[1]This is a tragic case. On his 15th birthday, 22 March 2014, the applicant killed his girlfriend, Shereka, also 15 years old, by shooting her. At the Central Criminal Court September last, the jury acquitted him of murder but convicted him of gross negligence manslaughter (count 2 on the indictment) and possessing a firearm with intent to endanger life or to enable another person to do so (count 3). On the two counts the judge imposed concurrent, extended sentences of 14 years, comprising custodial terms of 9 years and extension periods of 5 years. The applicant had pleaded guilty to possession of a prohibited weapon and of ammunition but the judge imposed no separate penalty. The applicant renews his application for leave to appeal his conviction and sentence after refusal by the single judge.[2]At the time of the shooting, the applicant was living with his father but, having previously lived with his mother, he still had access to her house. He met Shereka there that afternoon. She had a birthday present for him, which she had bought earlier in the Westfield Shopping Centre in Stratford. There was no evidence before the jury of any falling out between the two.[3]Eight minutes after their final text message, he called 999 and asked for an ambulance. He was distressed. Some 45 minutes later, whilst still in the applicant’s old bedroom at his mother’s house, she was pronounced dead. She had been killed by a gun. The police who attended the mother’s home and spoke to him at the police station described him as distressed and saying that he wanted to see Shereka’s mother to apologise.[4]The applicant told the police that he found the gun the previous day in Hackney Marsh, a Beretta 7.65mm self-loading pistol. The gun and the type of ammunition, which came with it, had previously been discharged a month earlier in an incident in Finsbury Park. He said he was showing the gun to Shereka, they were both holding it and it fired unexpectedly. A subsequent search of the bedroom found a stab vest hidden under a blanket on a shelf. At trial the applicant’s brother said that the bedroom was now his alone and it was his stab vest.[5]Three days after Shereka’s death, when interviewed with his father and a solicitor, the applicant maintained that he found the gun and had removed the magazine to make it safe, but did not realise that there was a bullet in the chamber. He said it fired unexpectedly when they were both holding it.[6]Later that day, he submitted a prepared statement stating that he had been given the gun to look after.[7]The applicant subsequently varied his earlier account, acknowledging that he accidentally pulled the trigger while showing off with the gun. That was his evidence at trial.[8]The pathologist stated that Shereka had been killed by a single bullet, which passed through her wrist and then entered her neck. She was holding her arm across her face when she was shot, with her palm to her face and the back of her hand facing outwards. The gun was discharged a very short distance away from her.[9]The undisputed evidence of the prosecution’s firearms expert was that, if the slide, which carried the bullet from the magazine to the chamber, was forward, it was not possible to see if there was a bullet in the chamber unless one looked into a small hole and identified it as the brass ridge at the end of the cartridge. In order to fire the gun it was necessary to remove the safety catch, the slide had to be forward, the hammer had to be cocked and concerted pressure had to be applied to the trigger. The inference was that the weapon had been discharged deliberately.[10]In essence, the prosecution case on count 2 was that it amounted to gross negligence to point the gun and pull the trigger, without having ensured that it was safe to do so. On count 3 the prosecution case was that the applicant’s intent to endanger life or to enable another to do so could be inferred, in particular since the gun was in working order and found with live ammunition.[11]At trial the judge ruled that a stab vest found in the bedroom was relevant evidence in relation to count 3. Given its proximity in time and space to the gun and ammunition, it was ‘to do with the facts of the offence’ and did not therefore amount to evidence of bad character in accordance with section 98 of the Criminal Justice Act 2003. The judge further ruled that any potential prejudice by the admission of this evidence in relation to counts 1 and 2 could be cured by a clear direction to the jury.[12]In his summing up the judge said that the vest was “completely irrelevant” to counts 1 and 2 and it was only potentially relevant to count 3, assuming that they accepted that he knew about it, “if you are sure that it went together with the pistol: one to shoot, one to protect”. Later in his summing up the judge referred to the applicant’s evidence that he did not know of the vest and his brother’s evidence that it was his.[13]During the trial the judge refused submissions of no case to answer. With respect to count 2 the judge ruled it was plainly a question for the jury as to whether the applicant’s conduct fell so far below the standard of care required that it was grossly negligent, such that it constituted a crime. With respect to count 3 the judge ruled it was obvious a reasonable jury, properly directed, could conclude that the applicant had the requisite intent to endanger life, or to enable another to do so, by virtue of the nature of the gun and the fact that it was found with ammunition.[14]In his summing up, the judge read and explained his analysis of the law in a “routes to verdict” document. After dealing with count 1, murder, he turned to count 2. His direction on that read:
“Are we sure that all the circumstances in which the pistol came to be fired were such that a reasonably prudent person of [the applicant’s] age and experience would have foreseen a serious risk of death to Shereka? If yes, go to question two, if no, verdict not guilty.”
There was an explanation that the word “circumstances” meant all of the circumstances as the jury found them to have been, “… including what steps, if any, [the applicant] took to ensure that the pistol couldn’t be fired, any genuine and reasonable belief held by him as to whether the pistol could be fired, how the pistol came to be pointing at Shereka, and how the trigger came to be pulled.” The judge emphasised the importance of each word, drawing attention as an example to the word “reasonable”.[15]The routes to verdict document said that to convict the jury had to be sure that, having regard to that serious risk, the applicant’s conduct was in the circumstances grossly negligent, consequently a crime. If sure, verdict guilty, if not, verdict not guilty. They were referred back to the meaning of “circumstances”. The judge said that the words “grossly negligent” were there for a reason and it followed that mere negligence alone was not enough.[16]In the course of summing up, the judge referred to the expert evidence about the gun. The judge reminded the jury of what the applicant said in interview about the gun firing accidentally and his not pulling the trigger. That was a lie, as was his story about finding it on Hackney Marsh. The judge also reminded the jury of his account of the person he would not name – because he said he was scared of the consequences for his family – who asked him to look after it. He did not know what the man did for a living or what he wanted the gun for, but agreed he was a dangerous person. As to the gun, the judge recalled that the applicant had said he did not know what the safety catch was, understand how it worked, and did not know that this gun had one. He certainly did not know there was a bullet in the chamber. The hammer might have been cocked but he did not do it. The gun fired accidently.[17]Just before the jury retired,

the judge recalled the defence case on count 2:

“[A]ny negligence must be gross, criminal negligence before he can be convicted. It is submitted that he took out the magazine before he showed the gun to Shereka, as he must have done, it is submitted, and which the expert, Fiona Richie [the expert], said is the first obvious step for someone wanting to make a gun safe. If he had taken the magazine out before he showed the gun to Shereka, what more could he have been expected to do? As an inexperienced 14 (sic) year old, he may well have had an honest and reasonable belief that the gun was harmless. His behaviour after that may have been crass, stupid, juvenile, even outlandish and arrogant, but that doesn’t make him guilty.”
[18]In retirement, the jury asked for a legal definition of gross negligence and an example. After discussion with counsel,

the judge said:

“So in relation to the word “gross”, you must concentrate on whether or not the prosecution have made you sure that the defendant’s conduct, considering all the circumstances you have heard about and as you find them to be, fell so far below the standard to be expected of a reasonable 15 year old with his experience, that it was something that, in your assessment, was truly exceptionally bad and which showed such an indifference to an obviously serious risk to life, and a such a departure from the standard to be expected, as to amount, in your judgment, to a grossly negligent and therefore criminal act.”

Conviction

[19]Mr Raggatt QC’s key submission was that, in the unusual circumstances of the case, if the applicant was not guilty of murder he could not be guilty of gross negligence manslaughter. There was nothing that could give rise to an inference of foreseeability on his part. His evidence was to the effect that he removed the magazine from the handle to render the gun harmless: this account appeared to be supported by the rest of the evidence. In particular, the evidence of the firearms expert was that for the applicant to have been aware that there might have been a bullet in the chamber he had to look through a small hole at the top of the chamber. There was no evidence to show that he had done this or was even aware that the presence of a bullet could be detected in this way. There was also his age and the evidence about his ignorance of firearms. Thus, argued Mr Raggatt, there was no evidence from which it could safely be inferred that he either knew or believed there was a bullet in the chamber at the critical time. The directions should have been more careful in explaining to the jury how it was possible to reach a conclusion of gross negligence manslaughter in the absence of any knowledge or belief that the gun was loaded.[20]In our judgment, the issue for the jury on count 2 was not based on a subjective test (what did the applicant know, believe or foresee) but rather an objective one: whether a reasonable and prudent person of the applicant’s age and experience would have foreseen a serious risk of death and, if so, whether the applicant’s conduct fell so far below the standard of care required that it was grossly negligent such that it constituted a crime. In answering that objective question, it was open to the jury to conclude on the evidence before it that the applicant’s conduct fell below the standard of care in pointing a gun and pulling the trigger when just a short distance away from Shereka. The judge distinguished ordinary negligence and said that whether this was gross negligence turned on the circumstances.[21]Contrary to Mr Raggatt QC’s submission, we take the view that the judge did assist the jury by outlining relevant circumstances both initially and when the jury asked for further guidance after retirement. Among the circumstances he mentioned was the applicant’s state of belief as to the gun being loaded, which as a matter of law was one of the factors to be taken into account. It was made clear to the jury that they had to decide whether a reasonably prudent person, in the applicant’s position, would have taken all obvious and necessary steps to ensure that a gun, fitted with a magazine, and being left with him along with other loose bullets by the dangerous acquaintance, was not loaded before he pointed it at Shereka and pulled the trigger. In the summing up, the jury were reminded of the applicant’s evidence, including his knowledge of guns, and the evidence of the firearms expert. We reject this ground.[22]Mr Raggatt QC invited us to deal with the other grounds on the papers. We can do that briefly. First is the contention that the direction on count 3 was inadequate, in that it is a crime of specific intent and the evidence was incapable of establishing the basis upon which an intention to endanger life could reasonably be inferred. Mr Raggatt QC readily conceded that this was not his strongest point, as indeed it was not. We have referred to what the judge said earlier. The fact is that the applicant possessed the gun together with ammunition. That was coupled with the evidence about how he came by it, in particular his evidence but lack of details about the dangerous acquaintance who asked him to mind it. There was also the stab vest. In our view that was sufficient to establish the inference in the eyes of the jury. We reject this ground.[23]Along with the single judge, given what we have said about the prosecution evidence on grounds 2 and 3, we also reject the grounds challenging the rulings that there was no case to answer.[24]Finally, we reject the submission that evidence of the stab vest should have been excluded because it was of limited probative value, but highly prejudicial. It was capable of being of probative value, as the judge explained. Given the way it was put to the jury, there is no basis for saying its admission was prejudicial.

Sentence

[25]The applicant had one previous court appearance dating back to 2012, when he pleaded guilty at the youth court to two offences of robbery. He was sentenced to a referral order of 6 months.[26]The judge had a careful and detailed pre-sentence report. The report writer said that, although the applicant demonstrated a significant level of remorse, he remained unable to understand that it was his reckless actions that caused the deceased’s death, rather than bad luck. He minimised the risks associated with looking after the gun and showing it to the deceased. In addition, said the expert, his lies to police in the aftermath of the shooting demonstrated that other factors weighed more heavily than his remorse.[27]The report contained a section entitled "Assessment of risk to community including dangerousness". Included there were these paragraphs:
“Access to weapons. The applicant’s first offences in December 2012; the incident with knives that he was involved in, in March 2014 and the current offences suggest that in the community he had access to weapons, ranging from knives to guns. His association with pro-criminal peers further increased his chances of using and carrying weapons.”
Patterns of offending behaviour. Taking into consideration the applicant’s use of a screwdriver to threaten the victims of the attempted robbery (December 2012); the presence of knives in the confrontation that he was involved with in March 2014; and the current offences, which involved the use of a gun and the possession of ammunition. I assess that a pattern of offending behaviour with regard to the use of weapons had emerged. Likewise, the applicant’s participation in violent fights at school, in the community and in custody suggests that a pattern of behaviour whereby he used violence to solve conflict had also emerged.”[28]In relation to protective factors, the report stated that the applicant had a strong Christian faith and his close and extended family had remained supportive of him. The report continued:
“Assessment of risk of harm to others. … The applicant’s actions appear to have been intended (in those incidents) to cause some level of harm to his victims; and in some instances (school and custody) the violence appears to have been intentional. The applicant’s association with pro-criminal peers and appearing “seduced” by a criminal lifestyle are added factors that increase his risk of harm to others. Therefore, the applicant’s skewed views about violence, coupled with his recklessness and his access to weapons, and not least the fact that serious actual harm has already resulted from his actions; I therefore assess his risk of harm to others as high. Equally, should he return to the community to live under similar circumstances, continue to associate with pro-criminal peers and continue to consider violence as a legitimate way of dealing with conflict, the risk of him causing serious harm to others through the commission of further specified offences would also be high.”
[29]This part of the report concluded with the assessment that the current risk of offending was medium.[30]There was also a psychological report and an addendum psychological report by Dr Halari. It stated that the applicant was not likely to experience difficulties in any area of cognitive functioning. With respect to the offences he faced, Dr Halari opined that the applicant did not appreciate the risks and dangers of hiding or handling the gun. In that regard, he demonstrated a significant level of immaturity such that he was unable to appreciate the dangerousness of showing the gun to Shereka. It seemed that it was the first time he had handled a gun and that he was unaware of how to do so.

The judge also had the victim personal statements of Shereka’s mother and aunt.

[32]In passing sentence the judge said that, with respect to count 2, the applicant failed to check sufficiently that the gun was not loaded. He would be sentenced on the basis that he pointed the gun at the deceased, and pulled the trigger, in order to scare her, albeit temporarily. The judge accepted that following the shooting, he was genuinely distressed and remorseful. With respect to count 3, the judge said that he would sentence the applicant on the basis that he was looking after the gun, knowing of its potential to be used in violent gang confrontation. It was no coincidence, said the judge, that a stab vest was found in the same small bedroom that he previously shared with his brother.[33]As to the applicant's age, the judge said that much had been made of his youth but during the trial he demonstrated "a quite remarkable coolness and when you were cross-examined the ability to stand up to experienced QCs, showing a considerable presence of mind, able to understand a nuance of language and, as it were, to steer a way through difficult moments… No doubt you lack maturity – you are still only 15 – but in others you have demonstrated considerable presence of mind and demonstrated disturbingly adult life experiences."[34]The judge then turned to dangerousness. The information before him gave him cause for concern. There were the two previous convictions for robbery, when he was young, one of which involved a bladed weapon, probably a screwdriver. More recently, there were photographs of him with imitation guns and knives, which demonstrated a worrying attitude to weapons. In addition, he had twice been excluded from school for violence and he had also been violent whilst on remand. There was a text message to Shereka, which revealed his involvement in a violent incident on 1 March 2014, in which he was armed with “a shank”, a knife.[35]As to the psychologist's conclusion of a significant level of immaturity, such that he was unable to appreciate the dangerousness of the gun, the judge unhesitatingly rejected it: the psychologist had not heard all the evidence at trial, as he, the judge had.[36]The judge then quoted the parts of the pre-sentence report, which we have quoted, as to the applicant's association with pro-criminal peers and identifying patterns of behaviour involving weapons and violence. In light of all of this the judge concluded that the applicant was a dangerous offender.[37]We part company with the judge in his conclusion on dangerousness. Certainly the judge was entitled to make a global assessment, taking into account all the available evidence before him to evaluate the relevant risks. In this case, however, there was the difficulty of basing a conclusion of dangerousness on a verdict of gross negligence manslaughter. Moreover, although the pre-sentence report fully explored the risk factors associated with the applicant, some very concerning, it did not draw the conclusion that the applicant was dangerous. Whatever conclusion is drawn about his maturity, the fact is that the applicant had just turned 15 when he killed Shereka. In our respectful view the judge’s finding of dangerousness cannot be justified. That means he could not impose an extended sentence. In our view the appropriate sentence was a determinate custodial term of the length that the judge imposed, namely 9 years’ detention pursuant to the provisions of s. 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We grant leave and allow the appeal to the extent of substituting this for the sentence the judge imposed.