SC, R. v [2016] EWCA Crim 604

[2016] EWCA Crim 604Case No 201502194/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 15th March 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE SPENCER
MRS JUSTICE ELISABETH LAING DBE
Between
R E G I N ACrownv
Between
SC
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R Ward appeared for AppellantMiss C Farrelly appeared for Crown
J U D G M E N T (As Approved by the Court)

LORD JUSTICE DAVIS: The appellant is now aged 18.

[2]In this appeal, brought by leave of the single judge, the appellant seeks to challenge the rejection by the trial judge of a submission of no case to answer made at the close of the prosecution case. The appellant also seeks to challenge the judge's decision to permit the prosecution to adduce certain bad character evidence. It is said that on either or both of these grounds the conviction is rendered unsafe.[3]The background is founded on gang violence. At the relevant times the appellant was aged 15. There was an amount of evidence to show that he, at those times, was a member of a gang based in Finchley and calling itself "Finchley 197". That gang was rival in particular to another gang called the Deansbrook gang. It was the robbery and stabbing of a member of the Deansbrook gang which gave rise to the indictment in this case.[4]That indictment contained a number of counts relating to a number of co-accused, all said to be part of the Finchley 197 gang. In particular, so far as this particular appellant was concerned he, with others of the co-accused, was facing a count, which was count 1 on the indictment, of conspiracy to cause grievous bodily harm. In addition, he was facing a second count, count 2 on the indictment, of a count of conspiracy to rob. A further count on the indictment, count 8, related to him alone. That was a count of handling stolen goods and in respect of which he had changed his plea to guilty at an earlier stage in the proceedings.[5]In the result, at the end of a first trial in the Crown at Wood Green, the appellant was unanimously convicted by the jury of conspiracy to rob: that is to say, count 2. The jury were unable to agree with regard to count 1. He was retried on that matter. At the second trial he was acquitted at the judge's direction, following a successful submission of no case to answer. In due course he was sentenced on counts 2 and 3 to a term of 4 years' detention in a young offender institution; and although that sentence was originally challenged there is no renewed application in that regard and indeed the appellant has now been released from that sentence and has been present in court today.[6]There were, as we have said, various co-accused. One, a man called C, changed his plea to guilty in respect of both count 1 and of count 2; and in due course he was sentenced to a substantial term of detention in a young offender institution. Another, a man called I, was convicted of conspiracy to rob, that is to say count 2, as well as doing an act tending or intended to pervert the course of justice. Following a retrial the jury apparently were unable to agree in his case, as had been the case at the first trial and he was acquitted on the judge's direction. Various other co-accused named on the indictment were acquitted.[7]Another co-accused, a young man called R, was convicted at the end of the first trial on count 2, that is to say the count of conspiracy to rob. He along with I had been acquitted of other counts including counts of attempted murder. A further co-accused, N, pleaded guilty to count 2, that is to say the count of conspiracy to rob and received a substantial custodial sentence.[8]There was another named accomplice on the indictment, a young man called L, but he had died before trial as a result of an entirely separate stabbing incident.[9]Put very shortly for present purposes the facts are these. There was an undoubted history of rivalry and violence between the two gangs, that is to say Finchley 197, said to be appellant's gang, and the Deansbrook gang. The Deansbrook is a gang with which the various complainants were associated.[10]That history finds its reflection in the very carefully prepared time line which was produced and used at trial. That shows that N had in the early part of 2012 been stabbed by a group of youths who had attacked him. It seems also items were stolen from him. At all events in due course there was recovered from N's phone an entry dated 13th September 2012, which records a message received from a person to N saying, amongst other things, that Shiva was the one who had stabbed N and "S stole off you man". "S" in the event was to feature very much in the course of this particular incident and trial. That is because the indictment related to events, particularly which occurred on 15th January 2013 at about 7.00 pm.[11]The complainant's group that evening comprised a man called S (otherwise having the street name of "S"), F and W. The Crown's case was they had been lured to Watling Park in London primarily at the behest of as they thought, C: possibly on the pretence of a drug deal. There, on the Crown case, the group of three was subjected to a preplanned and violent attack by not less than five youths. During this particular incident S was robbed of his mobile phone and virtually all of his clothing. Further, he suffered a life threatening stab wound to his chest and indeed was in hospital for a very significant time after this incident before he could be released. Another of the group (F) was also slashed on the back with a knife as he ran away. It was the case of the Crown that the men with the knife or knives who had done the stabbing were I and R but they had acted pursuant to a concerted plan, formed before this for this purpose. The prosecution case was that there was an agreement between the six co-accused charged on the indictment by reference to counts 1 and 2, along with others, that is to say, C and L, to rob and to seriously injure the complainant S (or S).[12]Whilst probably only six of them, having first met at a McDonalds restaurant, had travelled to the park, the prosecution was that others not present, including C and this appellant, were nevertheless party to the planning and were part of a joint enterprise to rob and to inflict grievous bodily harm. It was further the Crown case at trial that shortly before or even during the incident the co-accused, R and I, had formed an additional intent to kill S. In respect of the count of attempted murder they were in the event acquitted.[13]The charge of handling stolen goods, which was count 8 on the indictment, related to the appellant's receipt and disposal of S's Blackberry phone very shortly after the incident.[14]The case against the appellant rested almost entirely upon evidence of BBM messaging between him and various of the other accused. In addition the Crown also placed reliance on aspects of his bad character. It was said that although he had not travelled to Watling Park with the others he had been keen to be involved; and that the BBM messages made clear that he wanted to assist by arranging transport for the others and by helping to recruit I and that overall he was very interested in the events and furthermore, on more than one occasion, expressed hostility towards S.[15]In the event there was also evidence that under his profile titled "Ace 197" he had stated after the event "Another man down. Who's next. We will see whose on the list" and later "Better stay indoors". He had also posted images of himself posing as a gangster.[16]The defence case overall at trial was that whilst the appellant had engaged in messaging or telephoning various of his co-accused about the complainant S, and knew that there was a meeting arranged, he was not party to any conspiracy and had no knowledge that the others intended to rob or seriously injure anyone. His offer to provide them or some of them with a car, as evidenced in the messaging, was purely so that he could feel included but he had no means of actually providing transport to them nor did he do so. In any event putting it shortly, the defence case was in effect was that the appellant (15 years old as he was at the time) was in effect "bigging himself up" without being party to or intending to be a party to any agreement either to rob or to cause really serious injury.[17]At the trial, members of the complainant's group gave evidence. S himself was to say that he had been in a coma for some time after the incident, that it had taken him 6 months to recover and he had no real recollection of events. Others who gave evidence described the group of men approaching and looking for things to rob before the attack occurred. There was unchallenged forensic evidence which related to blood on the trainers ofI and R which matched DNA from the complainant, S.[18]The time line of the various messages was the crucial part of the Crown case. It is not necessary or us to go through the detail of all the entries which were most impressively prepared in the document produced at trial. Suffice it to say that on 14th January 2013 R had posed on BBM as C and had asked S to meet him the following day. Later R was to send a message to L telling him about the planned attack on S and asking that another of the gang should be informed. At around 4.30 pm on that day R, posing as C, sent a message to S asking to buy an ounce of cannabis from him, to which S agreed. At 4.49 there was a message from the appellant to the co-accused I stating: "S tomorrow ... are you rolling?" which the prosecution say it was an indication that S was, as the appellant knew and intended, to be the subject of an attack.[19]On 15th January 2013 itself, the actual day of the attack, there were various messages exchanged between various of the co-accused and also between S and R, still posing as C, regarding a meeting place. At 11.10 am the appellant sent a message to R asking:
"Is it S's time?" to which R indicated this would be later in the day. The appellant then messaged: "
How we going?" A few minutes later the appellant sent a message to R inquiring about a car and indicating that he would try to assist by getting one and asking where the meeting was.[20]At 11.32 there were messages between R and L about the planned attack in which R mentioned the appellant was supposed to be sorting out the obtaining of a car. At 11.35, during the message conversation with R, the appellant had asked:
"So he [that is C] is basically setting up S?" to which R replied that C hated S. At around 12.00 pm I asked the appellant to call him and there was evidence of a phone call from the appellant to I at 12.15 pm. At around 2.00 pm C sent a message to R to the effect: "
So you are finally getting your revenge. I was the only one who could set him up." There is an answer which possibly indicates R indicating that he will cut C in on a share of the drug proceeds if successful: at least that is the way the Crown interpreted the messaging. During the afternoon messages continued to be exchanged between various of the co-accused about what was being planned. At 4.10 pm I asked the appellant what was happening and whether a car had been organised. At 4.17 the appellant told I that he did not think a car had been organised, and I then told him to forget about the plan. At that stage the appellant sent a message: "I don't like S".[21]At 5.20 R and I sent messages discussing who was to be involved. I preferred to keep the number to four, including the appellant amongst those. R said that he wanted the appellant to be left out and I said that the appellant would be angry about that because he had a point to prove.[22]There was evidence from CCTV footage of R subsequently exiting a McDonalds take-away with a group of between four and six men and getting into one of the co-accused's cars. At around 5 o'clock that car arrived at the park entrance. It was common ground that the appellant had not been one of those at the McDonalds restaurant and he was not one of those who went to the park.[23]At 7.15 pm there was a message from R to S informing him that he was near to the playground where they were due to meet. The attack and robbery then occurred.[24]Very shortly after the attack there were various messages between various of the co-accused and the appellant. In particular the appellant had phoned L at 7.43 pm and 8.08 pm and also phoned I at 7.53 and 8.20 pm. At about 8.19 pm I had sent a message to the appellant stating:
"Lol the ting", to which the appellant had replied: "
Lol, you're mad". Later that evening the appellant sent a general message to R instructing anyone he had told about what had happened to delete him from their contacts list. The same message was sent to I.[25]Appellant was also in phone contact with L later on, relating to the perceived activities of the Deansbrook gang. There were also further calls between the appellant and another of the co-accused. Furthermore at around 11.30I arranged to meet the appellant outside a supermarket. The appellant requested that he be added to the contacts list on S's stolen phone so that he could read the updates: although I refused that.[26]There was cell site evidence that on 16th January S's mobile phone handset was with the appellant. He was later to send a message that he had sold it for £30.[27]The appellant was arrested on 22nd January 2013. In interview he gave a prepared statement denying any involvement in the alleged offences but stating that he had been sold the phone by a black man on his way to school which he had subsequently sold on for a small profit. That, by reference to what he had subsequently had accepted and to his case at trial, was a lie.[28]The appellant gave detailed evidence in accordance with the case as outlined by him in interview: namely, that he had no involvement in any conspiracy. His overall approach was that he "talked the talk" but never did anything. He did not know any details of the meeting because he had not been told. He denied that he had recruited I to any conspiracy and he denied that it had any means of getting a car for the others. He said that his offer was not serious and he was really just trying to impress the others.[29]At the close of the prosecution case during the first trial Mr Ward, appearing then as he does now on behalf of the appellant, submitted to the trial judge that there was no sufficient evidence on which a reasonably jury, properly directed, could properly convict the appellant either on count 1 or on count 2. His position was that even if there was evidence that the appellant was party to agreeing to something untoward towards S there was no sufficient evidence that the appellant was party to agreeing either to commit grievous bodily harm or to commit robbery.[30]The judge rejected that submission. He accepted that there was no evidence to show that the appellant had gone to Watling Park that evening, nor had he been at the McDonalds restaurant beforehand. The judge reviewed the history of the gang provided, including the previous attack and robbery of N. The judge reviewed very fully the time line including the messages and including the point that S was going to be lured to the area ostensibly to do a drugs deal. Having fully reviewed the evidence the judge concluded that there was a case to answer on both counts fit to be left to a jury.[31]Before us today Mr Ward now accepts that there was sufficient evidence capable of showing that the talk was more than being of the nature of the mere discussion of mere possibility of committing serious crime and was capable of evidencing an agreement. That is something which had previously been challenged. But it was rejected by the single judge and Mr Ward realistically does not seek further to challenge that point. But what Mr Ward does still continue to maintain was that the judge was wrong to reject the submissions of no case to answer; indeed he maintains his objection both with regard to count 1 and as well as to count 2 because although ultimately the appellant was at the second trial acquitted, on the judge's direction, on count 1, it is suggested by Mr Ward that the failure of the judge to accede to the submission on count 1 at the first trial unfairly tainted what happened thereafter, not least with regard to count 2.[32]Mr Ward submitted that there was insufficient evidence of any agreement to which the appellant himself was party to cause really serious injury, even if no doubt he had been discussing and involving himself in some proposal that something unpleasant be prepared for S. He emphasised, as he had in the court below, that the appellant had not himself been at the park nor had he been at the McDonalds restaurant. He sought to argue, on behalf of the appellant, that the various relevant communications, as shown in the time line, were, he suggested, at a relatively early stage of the goings on. There was nothing, Mr Ward submitted, to show the nature of any plan to which this appellant was party.[33]In our view, so far as the submission with regard to count 1 is concerned, the judge was fully entitled to reject the submission as he did. The whole background here was one of gang feuding and gang violence, with a clear motive for potential revenge for a prior serious attack on N, one of the Finchley 197 gang, at the hands of the Deansbrook gang. Furthermore, the entire context and content of the various BBM messages between various members of the Finchley 197 gang both before and after the incident, and in which the appellant himself had been closely involved both before and after the incident, made the judge's rejection of a submission on count 1 a proper one, in our judgment.[34]Mr Ward nevertheless submits that at all events there was no sufficient evidence of conspiracy to rob S to which the appellant was party. We disagree on that point too. That there was in fact such a conspiracy is evidenced by the pleas of guilt of the co-accused, C and N; indeed it is to be borne in mind that C, who had pleaded guilty, was himself neither present at McDonalds nor present in the park which renders very difficult Mr Ward's submission that such conspiracy as there was was only formed at a very late stage indeed. There was a significant amount of evidence that the appellant was party to the relevant conspiracy, borne out not only by the entire background and the proposed revenge on the Deansbrook gang but also by the content of the various BBM messages to which he had been party with various of the other accused. Moreover, it is striking that this messaging continued and involved this appellant very shortly after the robbery and stabbing in Watling Park. There was nothing whatsoever to indicate that the appellant was surprised or astonished as to what happened. There was nothing to indicate that he dissociated himself with what happened. There was nothing to indicate that he was shocked at what had happened; to the contrary; he plainly was gloating over what had happened and gave every impression that what had happened was precisely as had been planned and intended. Furthermore, over and above the various messages which he had sent shortly after the robbery and stabbing there is is the fact that he was entrusted with the mobile phone of which S had been robbed and thereafter he sought to dispose of it.[35]Mr Ward was in a position to make a number of points with regard to each individual strand of the Crown's case and he did so very skilfully before us, as no doubt he did in the court below. But it is of course essential that the Crown's case be looked at as a whole. Taking all the matters cumulatively we are in no doubt that the judge was entitled to conclude as he did and to reject the submission of no case to answer on count 2.[36]The final ground of appeal relates to admission of bad character evidence relating to this appellant. The prosecution had sought to put in a great deal of proposed bad character evidence. In the result the judge greatly circumscribed that which the prosecution was allowed to adduce. In particular, the judge had allowed to be adduced evidence of the appellant's possession of a knife some 3 weeks after this particular incident and in respect of which in due course he pleaded guilty to possession of a bladed article. Furthermore, the judge permitted to be adduced evidence of two photographs, one of the appellant wearing a bandanna, in perhaps purported gangster style and another of the appellant holding a weapon, seemingly a ceremonial sword of some kind.[37]Mr Ward objects that such evidence as the judge allowed to be adduced in this regard was of peripheral relevance to the prosecution case at best, but would have had unduly prejudicial impact upon the defence case. He asserted indeed that the prosecution had sought thereby to get in this evidence in order to strengthen an otherwise weak case.[38]Although the judge's reasoning as expressed on this point was perhaps not wholly clear, we think that he was entitled to reach the conclusion that he did. That this appellant, in a gang context, was prepared to go around with a knife, even if as he was to say for "protection", in the aftermath of the Watling Park incident, is revealing of his mindset and as showing that he was at least aware of potential violence and perhaps expected violence in this particular gang context. It was a jury point for Mr Ward to make to stress that he only started, according to Mr Ward, to equip himself with a knife after the incident in Watling Park.[39]The judge was perfectly entitled to take the view that even though he was in possession of the knife after the Watling Park incident, that was capable of casting light on the appellant's intention at the time of the actual stabbing and the robbery of S and that this was a relevant and important matter in issue. So also, in our view, with regard to the photographs which also went to show that the appellant was involved not just with a group of young associates but with a gang.[40]Overall such evidence, as the single judge pointed out, added to the evidence showing what the appellant could have inferred to have agreed would happen at the relevant time. This evidence thus was properly admissible: and it was a matter for the judge's evaluation as to whether to exclude it as being unduly prejudicial to the defence. In our view, he was entitled to decline to exclude it; and indeed it may be noted that it cannot have been unduly prejudicial because the jury did not convict on count 1 to which this particular evidence would most materially have related.[41]In the result, we reject these grounds of appeal. We are satisfied that this conviction was safe. The appeal is dismissed.[42]We would like to add this. These matters occurred some time ago now when the appellant was, as we have said, only 15. He has now been released from custody. We were glad to hear from Mr Ward today that he has moved to a different part of North London and that apparently his mother is very pleased with his progress. He seems to have severed his connection with members of the Finchley 197 gang and indeed is said to be in employment. This appellant is amply young enough to put these matters behind him and to get on with leading a decent and worthwhile life. We hope that he will. It is up to him.