Lewis & Anor, R v [2017] EWCA Crim 1734

Case No 201704321 B5 & 201704322 B5[2017] EWCA Crim 1734
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE STATMAN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/11/2017
Before
LORD JUSTICE DAVISMR JUSTICE LAVENDERSIR NICHOLAS BLAKE
Between
REGINAAppellantDEAN MALCOLM LEWISRespondentsJAMES MARSHALL-GUNNRespondent
P Bennetts QC for CrownF Gerry QC and J Bloomer for 1 st RespondentP Sinclair for 2 nd RespondentHearing Hearing date: 17 October 2017
Judgment

Introduction

[1]This is an application for leave to appeal, brought by the prosecution under s. 58 of the Criminal Justice Act 2003, against a terminating ruling. The relevant undertakings have been given and it is agreed that this court has jurisdiction in the matter.[2]The ruling was given by HHJ Statman in the Crown Court at Maidstone on 22 September 2017. By his ruling the judge accepted the submission of no case to answer made, at the close of the prosecution case, on behalf of each of the two defendants, who were standing trial on a count of murder. The Crown indicated that it proposed to appeal against such ruling. The jury have been discharged.[3]The essential ground on which the appeal is based is that the ruling was a ruling that it was not reasonable for the judge to have made: see s. 67 of the 2003 Act. Given the nature of the proposed appeal and given the circumstances we have decided to grant leave.

The background facts

[4]The position was this.[5]On 7 March 2017 Giles Metcalf died as a result of a fire at Torrington Road car park in Tunbridge Wells. He was 43 years old.[6]At that time he was living a disordered life. He was separated from his wife. He was homeless. He on occasion would drink to excess. The evidence was that he was planning that night to sleep in the car park, which was in the centre of Tunbridge Wells. Previously he had been, from 9 February 2017, in a shelter in Tunbridge Wells. It was said that, whilst there, he was polite and never gave rise to any issues, apart from returning inebriated on occasion. The defendants also had on occasion stayed at this shelter, although there was no evidence that they were particularly friendly with each other.[7]There was agreed medical evidence indicating that Mr Metcalf had in the past suffered from stress and had periodically been prescribed Citalopram (an anti-depressant drug): most recently on 6 February 2017. There was, however, no evidence of him having threatened to self-harm.[8]The defendants had been in each other’s company for, it seems, much of 6 March 2017. A CCTV camera shows the two together in the evening at 9.13 pm. They had met up with Giles Metcalf at some stages during the day and in the evening: in fact a CCTV camera shows all three present at 10.19 pm in a nearby Sainsbury’s store when a bottle of Scotch whisky was purchased. There had also been telephone contact between the first defendant and Mr Metcalf.[9]Shortly before midnight a woman called Katherine Domanski went to the car park. Her evidence was that she saw five people – three men and two women – in the lobby area at Level 1 of the car park. It was accepted that the three men were Mr Metcalf and the two defendants (Ms Domanski in fact recognised the first defendant). The two women were Michelle Sharp and Vivien Martin. Ms Martin was at the time in a relationship with the first defendant. Ms Domanski noticed no signs of animosity or friction between the members of the group.[10]Ms Sharp was to give evidence at trial. (A statement had also been obtained by the prosecution from Ms Martin, which was disclosed to the defence as unused material. We were told that the view was taken by the prosecution that her evidence was not such as to be capable of being relied on.) As it emerged at trial, there were problems with Ms Sharp’s evidence.[11]She confirmed that the five had been together in the lobby, socialising. She said that at one stage Mr Metcalf had said to Ms Martin: “Are you married? If not, come in here” – indicating his sleeping bag, which she said was green. According to Ms Sharp, the first defendant did not appear to take notice of the comment, although she gave evidence to the effect that she observed a facial look on the part of the first defendant suggestive of some form of displeasure at the comment made by Mr Metcalf.[12]She also gave evidence to the effect that at some stage it was said that Mr Metcalf was someone interested in taking out school children (nothing at all indicates that that was in fact any proclivity of his): as the judge found, to the extent anyone made such a comment at some time then, on Ms Sharp’s own evidence, it was not the first defendant but Ms Martin.[13]Ms Sharp was further to say that she and Ms Martin and the first defendant went by car that night to a nearby Shell garage to buy cigarettes and alcohol. In her statement she said that when she and Ms Martin came out of the garage shop the first defendant was having an argument with another man, the first defendant saying in an angry way:
“I will burn you out”
. However, this all fell apart in the course of her oral evidence. At the time, Ms Sharp was a cocaine addict. She frankly accepted that she was not to be regarded as a reliable witness. CCTV evidence obtained from the garage, whilst showing the presence of the two women, does not show the presence of the first defendant at all, let alone him having an altercation with another man. Thus if he had gone to the garage he had remained in the car. Ms Sharp, when this was put to her, was then to say that maybe it was some other garage or some other occasion. In the result Mr Bennetts QC (appearing for the Crown below and before us) very fairly accepted before us that no aspect of this part of her evidence could be relied on. At all events, her evidence was that they then returned in the car to the car park, where the two women left the first defendant.[14]It appears that Mr Metcalf had remained in the car park lobby throughout. At 10.38 pm he had sent a text to his wife, from whom he was separated, saying:
“Settling down for the night. It’s all good xx.”
In the event, of course, he thereafter had been in contact with the two defendants and Ms Sharp and Ms Martin.[15]At 1.20 am on the morning of 7 March 2017 CCTV cameras capture the two defendants together in the stairwell of the car park. They then leave the car park.[16]At 2.07 am the defendants are captured on the CCTV cameras returning to the car park. They carry three bags between them. They are walking, with the first defendant in front of the second defendant. A statement read to the jury made by a Ms O’Donnell, who was sleeping rough under the stairwell and who was awake at the time, stated that she heard two men talking. One said:
“That’s the lady down there, we look out for her.”
She heard footsteps going up the stairs. A few seconds after that she heard some noises above and about 15 minutes after that she heard a fire alarm go off.[17]At 2.13 am the defendants are shown on CCTV leaving the car park area. They are walking at ordinary speed, the one in front of the other, and with three bags.[18]Subsequent reconstruction of events indicated that a time of between 1 minute 42 seconds and 1 minute 58 seconds would be taken to get from the lobby area by the exit route taken by the defendants that night and around 1 minute 4 seconds to get to the lobby area by the entry route taken. Although total precision was not possible the Crown’s case, not really challenged, was that the two defendants on that basis would have been in the lobby area itself for just under two and a half minutes (2 minutes 29 seconds) at the relevant time.[19]Close study of the CCTV evidence indicated reflections of a flash from the first floor area of the car park timed at 02.12.54. A fire alarm was activated at 02.27.52. The fire service was notified shortly thereafter. Staff of an adjoining store attended at around 3 am, to investigate. The area was completely full of smoke. The body of Mr Metcalf was then observed lying in the lobby area of the first floor. Police were summoned at 3.52 am.

Examination of scene, clothing and body

[20]The body and clothing of Mr Metcalf were badly burnt. The burnt remains of a pink, floral-patterned sleeping bag and of a mat were also found. An open bottle of barbeque lighting fluid, with some fluid left in the bottle, was found near the body. Also found near the body were two disposable lighters, one red and one neutral–coloured. Numerous cigarette stubs were noted in the vicinity. (It seems that Mr Metcalf and the first defendant were both smokers, as no doubt were others who frequented the lobby.)[21]The clothing that Mr Metcalf was wearing was forensically examined. His jeans, upper body clothing and socks contained traces of paraffin (kerosene). The barbeque lighting fluid contained kerosene.[22]Pathological evidence was to the effect that the cause of death was a combination of inhalation of fumes and burns. There was no evidence of any bruising or defensive injuries. Examination of Mr Metcalf’s blood alcohol level revealed 278 mg per 100 ml (around 3½ times the drink driving limit). It was said that examination of the liver did not suggest consumption of large amounts of alcohol on a daily basis; and it was suggested that “the deceased may have been asleep and relatively oblivious to the presence of anyone around him….”

Forensic evidence

[23]The barbeque lighting fuel bottle was forensically examined. At the base of the bottle there were indications, from the DNA recovered, of at least four individual contributors, with no apparent major contributor. The DNA evidence was consistent with the proposition that the second defendant could be one of those contributors, albeit no full statistical examination was feasible. In addition, a low-level and incomplete DNA result was obtained from the top of the bottle. That indicated the presence of two contributors: many of Mr Metcalf’s DNA components were represented within this result, indicating that he may have been a potential contributor.[24]The lighters were also examined. The result with regard to the red lighter was such that it was said that Mr Metcalf could have contributed to most of the DNA found to be present. The result with regard to the clear lighter was such that many of Mr Metcalf’s components were also represented, such that he could not be excluded as a potential contributor. With regard to these lighters, the presence of DNA from at least three individuals was indicated. No evidence was found to link either of the defendants to either of the lighters, however.[25]Examination of a Scotch whisky bottle found in the lobby area showed fingerprints or marks attributable to each of the defendants.[26]The expert evidence also was to the effect that in liquid form at normal temperature kerosene such as was present in the barbeque lighting fluid cannot readily be ignited by a naked flame. However when added to combustible material (for example, clothing) the material can act as a wick and so be ignited by the application of a naked flame within a few seconds. Once alight the fire may develop slowly but eventually the rate and extent of the fire would be accelerated. Although the expert could not totally exclude the possibility of accidental ignition of combustible materials by careless use of smoking materials such as cigarettes, the view was expressed that the most likely cause was application of a naked flame to combustible materials, most probably the sleeping bag.

Arrest and interviews

[27]The first defendant was arrested at Ms Martin’s home the following day. Her and his mobile phones were seized. The SIM card from his phone was missing. Examination of her phone indicated frequent telephone contact between her and the first defendant that night until 2.04 am. However the content of those calls was never ascertained.[28]Various items of the first defendant’s clothing were seized and examined. Traces of kerosene of the same generic type as contained in the bottle of barbeque lighting fluid were found on shoes of the description shown in the CCTV footage as being worn by him that night. No such traces were found on any of the other examined clothing.[29]When interviewed, the first defendant declined to answer questions. However, he had first put in a prepared statement. Amongst other things, he indicated in that statement that the three men had been together after returning from Sainsbury’s. He said that he had provided Mr Metcalf with a sleeping bag. He further said this in the course of the prepared statement:
“Giles then started saying loads of really weird stuff… the other guy was still there. Giles then poured lighter fluid all over himself. This freaked me out and I left. I left and went back to my girlfriend’s…”
[30]It might be added that the subsequent Defence Case Statement of the first defendant provided a rather different version of events, including a statement that Mr Metcalf “squirted the barbeque fluid around… In seconds he had a cigarette in his hand and the sleeping bag caught fire.” But of course the Defence Case Statement was not in evidence before the jury at the close of the prosecution case.[31]As for the second defendant he was not immediately arrested. He was eventually located in the Charing Cross area of London (where he habitually went when not in Tunbridge Wells). He was arrested on 12 March 2017. It appears that he not only had serious alcohol issues but also has significant mental health issues. He was not fit to be interviewed when arrested. It was nevertheless decided to charge him that same day. When cautioned he indicated that he was not guilty.

The prosecution case

[32]The Crown’s case thus was entirely a circumstantial one.[33]That case (necessarily a cumulative one) had the following elements: 1) First and foremost, the movements and timings derived from the CCTV evidence, showing the arrival and departure of the defendants together before and after the time the fire was evident at 02.12.54 (and consistent with the actual lighting preceding that). “In, fire, out” was the refrain adopted by the prosecution. 2) Evidence of motive: in the light of the collapse of much of Ms Sharp’s evidence, this essentially rested on the evidence she gave of the first defendant apparently not liking the proposition said to have been made by Mr Metcalf to Ms Martin. 3) The forensic evidence suggestive of a DNA link of the second defendant to the barbeque lighting fluid bottle. 4) So far as the first defendant was concerned, the admission in his prepared statement that he was present when the barbeque lighting fluid was poured; coupled with what were said to be lies in the prepared statement. 5) So far as the first defendant was concerned, the failure to answer questions in interview. 6) The presence of kerosene on the first defendant’s shoes and the presence of the finger marks of each defendant on the whisky bottle. 7) The apparent disposal by the first defendant of the SIM card. 8) The expert evidence as to the likely mechanism being the application of a naked flame to combustible materials such as the sleeping bag. 9) The presence of kerosene on the deceased’s clothing.[34]The opening speech of Mr Bennetts at trial, as evidenced by his opening note, was not at all specific as to just how, precisely, the case was being put against each defendant. However, as we were told, each defendant had renewed, at the first day of trial, an application to dismiss (previous such applications which had been made much earlier had been refused). The judge rejected such applications made at that stage. However in the course of discussions at that time, in the absence of the jury, Mr Bennetts made clear that the prosecution case was that the defendants were both liable as joint principals. The case was not put against them on the footing of this being a joint enterprise involving encouragement or assistance by one or the other. As recorded by the judge, that remained the prosecution’s case when the submission of no case was being debated. It remained the prosecution’s case before us.

The judge’s ruling was notably thorough and fully reasoned.

[36]He reminded himself in detail of the principles of Galbraith (1981) 73 Cr App R 124. He reviewed very carefully the evidence thus far presented. He noted the weaknesses and concessions in the evidence of Ms Sharp. He reviewed the forensic evidence very thoroughly. He also recorded, saying that it was “one of the matters that troubled me”, that the Crown’s case specifically was not put on the basis of joint enterprise and that questions of encouragement and of the application of the principles of Jogee [2016] 1 Cr. App R 31 were not relied on. The case was that they were joint principals.[37]The judge accordingly directed himself as to the unlawful act constituting the actus reus and the mens rea with regard to each defendant separately. Doing that, the judge considered that there was “no evidence here as to who threw the liquid, if it was thrown, or who set the fire.” He later said:
“There is evidence, of course there is, of presence. There are surrounding circumstances…. Association is not enough. Suspicion is not enough. There must be an actus reus, there must be a mens rea of intent to kill or cause really serious bodily harm.”
The judge went on to hold that this was not a case which ought properly to be left to a jury. “There simply just is not enough” was his conclusion.

Submissions

[38]In essence, Mr Bennetts repeated before this court the arguments advanced below. He carefully reviewed the evidence, in writing and orally. His submission was that the judge simply got it wrong: there was enough here whereby a reasonable jury, properly directed, could properly infer the guilt of both defendants.[39]For the first defendant, Miss Gerry QC, leading Mr Bloomer, submitted that the judge was right for the reasons he gave. She further and if necessary said that his conclusion was correct even had the case been put on a joint enterprise basis (which it was not). Mr Sinclair likewise submitted that the judge's reasoning and evaluation of the evidence was entirely justified, Mr Sinclair understandably focusing on the case as advanced to the judge below. Both Miss Gerry and Mr Sinclair also said that suspicion or even probability could not suffice of themselves in a context such as this.

Disposition

[40]Having carefully considered the matter we conclude that this appeal must be dismissed. There was no error of law or principle in the judge's approach: he correctly directed himself. Thus we are concerned to ask ourselves whether the judge's ruling was one which it was not reasonable for him to make. We cannot so conclude. This was a ruling which, on the evidence, was one which it was reasonable for him to make.[41]For this purpose it does no harm, and perhaps does some good, first to focus on the position of the second defendant.[42]The Crown's case was, among other things, that the two men returned to the car park together at 2.07 am having the shared intent to kill, or seriously injure, Mr Metcalf. If that was the plan, what was the reason for it? The evidence of motive relating to the first defendant was exiguous enough: based on Ms Sharp's perception that the first defendant may not have liked the suggestive proposition made to Ms Martin. But the evidence was that the group thereafter stayed together, seemingly amicably; and the conversation overheard by Ms O'Donnell as the two returned also was not indicative of a shared nefarious intent. But the point remains, so far as the second defendant was concerned, that he himself had no obvious reason to hold any nefarious intent against Mr Metcalf at all: other than, perhaps, support of the first defendant.[43]Further, the second defendant had (unlike the first defendant) not made a seemingly false prepared statement at interview. Nor could any inference arise in his case from any failure to answer questions in interview. There was no forensic evidence linking him to either of the lighters. The fingerprint on the whisky bottle was not of itself of any obvious importance, given that it had clearly been jointly purchased and consumed.[44]In truth, the Crown's case against the second defendant rested heavily on the DNA attributable (albeit not on a statistical basis) to him, as found on the base of the barbeque lighting fluid bottle. But, as the judge pointed out, the difficulty with that was that there was simply no evidence as to when or by whom this bottle was purchased or when or by whom it was brought to the scene. Indeed, it had DNA on it potentially attributable to a number of others, including, at the top of the bottle, Mr Metcalf himself. Thus (potential) presence of the second defendant's DNA on the bottle was scarcely of the significance for which the prosecution contended. Moreover, there was in any event the possibility of secondary transfer (as recorded in paragraph 11 of the Agreed Facts).[45]There were here a number of potential scenarios:(1) The two defendants acted as joint principals, each having the necessary intent, in setting light to Mr Metcalf - the prosecution case.(2) The first defendant set light to Mr Metcalf with the necessary intent, the second defendant playing no part.(3) The second defendant set light to Mr Metcalf with the necessary intent, the first defendant playing no part.(4) One of the two set light to Mr Metcalf encouraged and/or assisted by the other who did not actually set Mr Metcalf alight: each having the necessary intent.(5) What happened was caused by Mr Metcalf himself, either accidentally or deliberately.[46]On the fourth scenario - the joint enterprise scenario - it would not be necessary to identify which of the two men was the actual principal and which the actual accessory, so long as the jury were made sure that each defendant was one or the other. That is not an unfamiliar scenario in joint enterprise cases: for example, where a group of men together attack a man who dies from a single knife wound. As stated in Jogee at paragraph 88: "In some cases the prosecution may not be able to prove whether a defendant was principal or accessory, but it is sufficient to be able to prove that he participated in the crime in one way or another" - provided, we would also add, he has the requisite knowledge and intent. But we need not discuss that scenario further, as that has never been the Crown's case in these present proceedings.[47]Reverting to the first scenario - which was the Crown's case - the judge was, in our judgment, entitled to conclude that the evidence thus far adduced was not such that a reasonable jury could draw the required inference. Indeed it is difficult to see the basis on which that scenario, on the evidence, could safely be accepted whilst safely rejecting the second and third (quite apart from the fourth) scenarios. At all events, the law has always had to be - unattractively but necessarily - that if the jury are sure that either A or B must have committed a particular crime but cannot be sure which then both must be acquitted: see Bellman [1989] 1 Cr. App. R 252 at p 259 A (per Lord Griffiths, referring to Lane and Lane (1986) 82 Cr. App. R 5).[48]We were referred, in this context, to the case of Banfield [2013] EWCA Crim 1394, where this principle was applied. We agree with Mr Bennetts that that was a decision on its own facts (it was also, we note, in part put as a joint enterprise case): in particular the presence of either of the two accused at the time of the (presumed) killing could not, in that case, be established: which is potentially in contrast to the present case. But the difficulty remains here that the prosecution were not able to adduce a sufficient case entitling a reasonable jury to infer that both defendants participated as principals with the necessary intent.[49]Whilst, as indicated above, in respect of the case against the first defendant there certainly were points available to the prosecution which were not available with regard to the second defendant, ultimately the same difficulty arises for each. At all events, the trial judge was in our judgment entitled, having assessed the evidence, to conclude that no case to answer was made out with regard to either.[50]Miss Gerry further submitted that there was no case to answer on a basis wider than the judge thought it necessary to adopt. She submitted, for example, that the prosecution had failed to raise a sufficient case, by the close of the prosecution evidence, to rebut the possibility of self-harm or accident on the part of Mr Metcalf; she correspondingly said that a case based on joint enterprise, had it been advanced, should also have been rejected on the footing that there was insufficient evidence to permit the jury to infer the necessary shared intent or assistance or encouragement. We do not need to address these points further (and Mr Sinclair did not think it necessary to advance such points himself). It is sufficient for us to say, as we do, that the judge was entitled, on the evidence, to accede to the respective submissions of no case to answer on the basis that he did in the light of the prosecution case being advanced.

Conclusion

[51]Clearly there were highly suspicious circumstances here. But suspicion is not enough. In a case where the issue revolves around the inference that a reasonable jury may draw from evidence which is circumstantial the essential question is whether or not there is evidence, taking the prosecution case at its highest, upon which a reasonable jury, properly directed, could convict: see Khan [2013] EWCA Crim 1345, which considers authorities such as Goddard [2012] EWCA Crim 1756. For the reasons given, the judge's ruling to the effect that, on the particular facts of this case, there was not a case to answer was a reasonable ruling. That being so, we must confirm his ruling, dismiss the appeal and direct that both defendants be acquitted of the offence with which they were charged.

Cited in 1 later judgment