Mufty & Anor, R. v [2017] EWCA Crim 185

[2017] EWCA Crim 185Case No 201600002 C1; 201700523 C1; 201600945 C1; 201600228 C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 2nd February 2017
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE MACUR DBE
MR JUSTICE HADDON-CAVE
THE RECORDER OF YORK - HIS HONOUR JUDGE BATTY QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
R E G I N ACrownv
Between
PAYAM ABDUL KARIM MUFTYHAMZA MALIK
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms S Nabijou appeared for Appellant MuftyMr E McKiernan appeared for Appellant MalikMr W McGivern appeared for Crown
J U D G M E N T (Approved)

LADY JUSTICE MACUR:

[1]On 11 February 2015 police officers, acting on intelligence received, searched a block of flats called Gaydon House in London and noticed a raised ceiling tile on the first floor. A search of the cavity behind the tile revealed a blue holdall bag containing a sawn-off shotgun, two handguns and a blue plastic bag containing ammunition. They also found another plastic carrier bag from ‘Costcutter’, which contained approximately £20,000-worth of Class A drugs.[2]The scene and the items recovered from the scene were forensically examined. The appellant, Malik's fingerprints were found on the outside of the ceiling tile and on the Costcutter plastic bag containing the drugs, and the appellant, Mufty's fingerprints were found on the blue plastic bag containing the ammunition. Mufty lived in Gaydon House but on the 14th floor and Malik lived in an adjacent block of flats called Dartington House.[3]Malik was arrested on 4 June 2015. In interview, he declined to answer any questions.[4]Mufty was arrested and interviewed 14 days later. He denied that he had touched any items in the plastic bag which showed his fingerprints upon it, or knowing Malik well, said that he had no reason to enter the first floor of Gaydon House and that he only had one mobile telephone and SIM card. He was confronted with the fact that there had been other mobile telephones at his house and that Malik's bank card was in his kitchen cupboard underneath an article of crockery.[5]The appellants were charged in an indictment which contained counts of possessing a firearm with intent to endanger life (alternatively possessing a prohibited firearm) in relation to each of the firearms contained within the plastic bags; possessing ammunition without a firearm certificate, one count of which was dismissed by direction of the judge; and possessing controlled drugs of Class A with intent, namely AMT and cocaine.[6]Both appellants gave evidence at trial.[7]Malik was convicted of three counts of possessing a firearm with intent to endanger life, possessing ammunition without a firearm certificate, and possessing controlled drugs of Class A with intent.[8]Mufty was convicted of possessing a prohibited firearm, possession of ammunition without a firearm certificate and the two counts of possessing controlled drugs of Class A with intent.[9]Malik was sentenced to 16 years' imprisonment in respect to that indictment and another. Mufty was sentenced to a total of 10 years' imprisonment. Ancillary orders were made.[10]Both now appeal with limited leave of the single judge, who has directed that certain grounds of appeal applying to each respectively, are arguable before this court. They can be summarised as follows.[11]In relation to Malik: the inadequacy of a direction regarding DNA evidence; an erroneous judicial approach in relation to a shooting incident which occurred in November 2014; inadequacy of directions in relation to separate consideration of defendants and counts on the indictment; inadequacy of the direction regarding joint possession; and the absence of any direction regarding speculation.[12]So far as Mufty is concerned: inadequacy of directions concerning separate consideration, joint possession and speculation.[13]Ms Nabijou, on behalf of the appellant Malik, submits that the DNA evidence was wrongly admitted; alternatively, that the directions given were inadequate and, in fact, confusing. She relies on the authority of R v Dlugosz [2013] 1 Cr App R 32, at paragraph 24: “24 Nonetheless, it does seem to us that provided it is made clear to the jury the very limited basis upon which an evaluation can be made without a statistical database, a jury can be assisted in its consideration of the evidence by an expression of an evaluative opinion by the experts. We consider that on the materials with which we have been provided, there may be a sufficiently reliable scientific basis on which an evaluative opinion can be expressed in cases, provided the expert has sufficient experience (which must be set out in full detail in the report) and the profile has sufficient features for such an opinion to be given. If the admissibility is challenged, the judge must, in the present state of this science, scrutinise the experience of the expert and the features of the profile so as to be satisfied as to the reliability of the basis on which the evaluative opinion is being given. If the judge is satisfied and the evidence is admissible, it must then be made very clear to the jury that the evaluation has no statistical basis. It must be emphasised that the opinion expressed is quite different to the usual DNA evidence based on statistical match probability. It must be spelt out that the evaluative opinion is no more than an opinion based upon [the expert's] experience which should then be explained. It must be stressed that, in contrast to the usual type of DNA evidence, it is only of more limited assistance.[14]The DNA evidence which was obtained from the outside handle of the holdall and from one of the guns was insufficient for expert analysis in terms of statistical evaluation, but clearly and in accordance with the authority which she cites, was not thereby rendered inadmissible. We do not consider that the judge erred in his discretion in admitting the DNA evidence. We dismiss this aspect of the appeal.[15]Experts called by prosecution and defence agreed that statistical evaluation was not possible. The disagreement between the experts related to the weight to be attached to a non-statistical evaluation of the likelihood of the DNA emanating from the respective appellant Malik and therefore the degree of support, if any, that could be provided to the prosecution case.[16]We have read the respective reports prepared and filed in the case for the purpose of judge and counsel, and have seen the ‘agreed facts’ prepared for the jury concerning this aspect of the evidence. We are in no doubt that the areas of expert disagreement were investigated during the course of cross-examination and demonstrated that the continuing difference of opinion would need to be analysed for the jury to enable them to make a determination on the same, if possible.[17]We have read the summing up which deals with this evidence on several occasions. The judge’s summing up dealt with the evidence of DNA in very scant detail. We agree with Ms Nabijou, that it was entirely unsatisfactory for the judge to direct the jury "fairly brutally" that the experts had said "I have been doing this work for ages, I do an awful lot of it, my opinion is that you can regard this evidence as ...", and then to invite the jury to decide whether or not they accepted the opinion of the prosecution expert, who said that it was strong evidence, or the defence expert that there was very limited support for the prosecution case.[18]Quite clearly, once this evidence had been admitted, the judge was under an obligation to give directions as to the experience of the relevant experts, the nature of the evidence they had given and the disagreements between them in order that an evaluation and an assessment could be made by the jury as to whether or not the support that was garnered by the prosecution from this evidence was or was not merited. (See above -Dlugosz). We find unequivocally that the judge failed to do so. The issue of admissibility of evidence relating to the fact of the 2014 shooting episode in which the appellant Malik had been injured, was determined when Malik was giving evidence with the agreement of all trial counsel.[19]Ms Nabijou argued then and now that it was inadmissible evidence; either because the judge should have regarded the incident as evidence of bad character and required the prosecution to establish the gateway by which such evidence became admissible – which they could not; or otherwise, failed to consider the probative value of the evidence as compared to the prejudice to the appellant in admitting the evidence pursuant to section 78 of PACE 1984.[20]We are satisfied that the evidence of the shooting, which had taken place but two months before the discovery of the contraband within the roof void of Gaydon House, was sufficiently proximate to render it a background event and potentially relevant to the circumstances of this case. We do not accept Ms Nabijou’s description of this evidence as necessarily being bad character evidence; the fact that it may well indicate gang affiliation in other circumstances is not the only relevance to be attributed to it. In this case, the prosecution relied upon a previous event to predispose Malik to have access to a firearm for future protection. We do not consider that he acted outside the reasonable bands of his discretion in determining the admissibility of the admitted episode in evidence. For the reasons we have given, namely proximity in time, we are satisfied that it could be properly admitted into the evidence. We dismiss this aspect of the appeal.[21]The judge deals with evidence of the 2014 shooting in two parts of the summing-up. First, as preamble, indicating that the actual event had occurred, and indicating to the jury the manner in which the prosecution sought to make use of it: that is, by pointing out a prospective motive for Malik in wanting to arm himself and an association with the contraband found within the roof void when seen in context with the other evidence against him. Secondly, later in the summing up, to remind the jury that it was necessary to step back from the fact that Malik was a victim of the shooting, and should not necessarily assume that this would result in a motive for having firearms and ammunition, whether per se or with the intent of endangering life. In this respect the judge said: " it is unfortunately the case that one or more of you may well have been on the wrong end of a burglary, but that means you are connected with a crime, but only as a victim, it does not say anything if you have the misfortune to be accused of a crime".[22]We regard the direction to be sufficient on this point and must be seen in the context of the evidence against this appellant as a whole and is in no way the sole or central plank in the prosecution case.[23]Finally, we come to the adequacy of the summing-up, particularly as regards the directions in relation to separate treatment of defendants and charges, joint possession, speculation and generally what Ms Nabijou refers to as a lack of balance, the emphasising the prosecution case without due reference to the defence case on various issues.[24]We identify in the summing-up a direct instruction to the jury that they are to consider each defendant separately. We also consider that there is sufficient implicit direction given in the description of the elements of the alternative offences in relation to the firearms to indicate that the jury must regard the evidence against each defendant and in relation to each count separately, and are satisfied that, taken together, the jury may be assumed to have borne in mind that instruction, as is demonstrated by the differential verdicts returned in relation to the appellants. We dismiss this aspect of the appeal.[25]We consider that the direction regarding joint possession, although not the standard direction, was sufficient to indicate the differences in the elements of the alternative offences and the necessity to be satisfied that the two defendants were working together to find the appellants guilty of joint possession. That is

the judge made clear that it was:

"... a matter for you whether possession is proved as against either of the defendants, but you can see it is open to you to say, 'Well, we think that one defendant did know where these items were, did have control of them - in other words, could get at them - but we are not sure about the other one.' You might take a view, on all the evidence in the case, that the two defendants were involved together, and then you can say they are both in possession."
We regard that direction to be satisfactory and sufficient for the purposes and in the circumstances of this case. We dismiss this aspect of the appeal.[26]Ms Nabijou and Mr McKiernan, on behalf of Mufty, argue that the necessity for a direction not speculate, which is given now routinely in the majority of cases, is thrown into stark relief, when as in this case the judge was discursive, rambling and potentially confusing matters of evidence and speculative possibilities by way of the examples that he gave at frequent intervals throughout the summing-up.[27]Mr McGivern on behalf of the prosecution, accepts that there is no direction to the jury to avoid speculation. However, this, he argues, is ameliorated by the reference at the outset and at the close of summing-up to the fact that the jury must have regard to the evidence, and that there would be nothing further.[28]Mr McKiernan adopts the arguments of Ms Nabijou in relation to the summing up. Further, he argues that the Costcutter plastic bag is a movable item, and in the nature of things, something which required little more to be said than the fact that Mufty’s fingerprint upon the bag did not necessarily mean that it became deposited there during the course of criminal activity. He particularly raises as a real issue in the case the fact that speculation was in fact invited by the judge in considering the manner in which fingerprints were or were not deposited upon various items.[29]We bear in mind that the summing up was not a model of its kind in the circumstances of this case and put into the balance the absence of any direction as to speculation when considering, as we must do, the safety of these convictions.[30]We have regard to the total evidence in the case and come to agree with the prosecution description of this case as strong in circumstantial evidence, and which thereby affords protection against all but the most unbalanced and inadequate of summings-up. In that respect, the evidence upon which the prosecution relied and continue to rely is the forensic evidence of fingerprints and DNA evidence in relation to Malik, the motivation which may be inferred from Malik's involvement in a shooting incident but two months before, and also the failure of Malik to respond in interview; and, in the case of Mufty, the lies told as to his association with Malik and the efforts that appeared to have been made to alert Malik to the imminent arrest, since Mufty's, brother had been previously and wrongly arrested and interviewed on suspicion of the offences ultimately charged.[31]We have little hesitation in reaching the conclusion that, even in the absence of DNA evidence, and discerning no useful purpose of reminding the jury of each and every point taken on behalf of the appellants which were inherently improbable and unrealistic as to the manner in which a fingerprint came to be deposited on the outer tile of a ceiling 7 foot 2 inches above the ground, or the necessary contextual element of fingerprints on bags within the void matching one found on an outer ceiling tile, the association between the two appellants amply demonstrated by the telephone traffic, the implausible explanation for which was obviously rejected by the jury.[32]In these circumstances, we do not consider the inadequacies correctly identified in the summing-up undermine the strength of the evidence or the safety of the convictions as recorded against the individual appellants.[33]Consequently, the appeals against conviction will be dismissed. (Submissions were heard in respect of sentencing)

LADY JUSTICE MACUR: We are asked to consider the renewed application of Malik in relation to sentence. We have done so with the assistance of Ms Nabijou.

[35]This applicant was sentenced to a total of 16 years, made up of 10 years' imprisonment concurrent on each count of possessing a firearm with intent to endanger life, 10 years concurrent for possessing ammunition without a firearm certificate, 6 years' imprisonment concurrent on each count of possessing a controlled drug of Class A with intent. He was also sentenced in respect of two other offences on a separate indictment to which he had pleaded guilty. For possession of a controlled drug of Class B and for possessing criminal property he received a 2-year sentence of imprisonment on each to run concurrently with each other and with the sentence for the offences on the trial indictment.[36]The sentence imposed in relation to possession of ammunition is unlawful. The maximum term of imprisonment is one of 5 years' imprisonment. Unfortunately, it was not identified as such at the time of sentence. That sentence will be reduced in order to comply with the statutory maximum. It will be one of 4 years' imprisonment to be served concurrent with the other sentences.[37]Other than that, we find no merit in the application. The offences of possession of drugs of Class A is undoubtedly and significantly aggravated by possession of firearms with intent to endanger life. So far as the personal circumstances of the appellant/applicant are concerned, they are unremarkable. Despite a lack of relevant previous convictions, his convictions in relation to drugs offences on the second indictment, mean that he cannot be regarded as a man either of good character or one who was acting out of character.[38]The serious nature of the offences individually and cumulatively and come to the conclusion that the total sentence of 16 years' imprisonment cannot be said to be manifestly excessive. The renewed application for permission to appeal against sentence is dismissed.[39]The same correction for the same reasons will be made in relation to the sentence of imprisonment of 6 years imposed in relation to the appellant Mufty. A sentence of 4 years concurrent will be imposed, meaning that there is no difference to the sentence to be served in total.