Lovell, R. v [2018] EWCA Crim 19

[2018] EWCA Crim 19Case No 2017/0325/B3 AND 2017/0326/B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
His Honour Judge Bourne-Arton QC, Recorder of Middlesbrough
T20167169
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/01/2018
Before
LORD JUSTICE TREACYMR JUSTICE WARBYHIS HONOUR JUDGE MAYOSitting as a Judge of the CACD
Between
ReginaRespondentLuke Anthony James LovellAppellant
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Nicholas Johnson QC (instructed by Crown Prosecution Service) for RespondentMr Richard Sutton QC (instructed by Appleby Hope & Matthews) for AppellantHearing Hearing date: Wednesday 21 st December, 2017
Judgment As Approved by the Court
[1]This is an appeal against conviction coupled with a renewed application for leave to appeal against sentence.[2]The appellant was convicted of murder in the Crown Court at Teesside on 13 December 2016. On 19 December he was sentenced to life imprisonment with a minimum term of 25 years less time spent on remand being specified. There was a co-accused, Christopher Stubbs, who pleaded guilty to murder at the start of the trial. He was sentenced to life imprisonment with a minimum term of 24 years, less time served on remand. Gordon Smith was acquitted of murder but convicted of manslaughter and sentenced to 12 years’ imprisonment. The applicant requires an extension of time of 41 days in which to renew his application for leave to appeal against sentence. That delay arises out of a mistake on the part of the appellant’s legal team.[3]The facts show that about 5.00 p.m. on 1 March 2016 the deceased, Lee Pettite, aged 22, was chased through a park near his home by the appellant, Stubbs and Smith. Stubbs was armed with a gun with which he shot the deceased in the back, killing him. The appellant had an implement which looked to witnesses like a piece of piping but which the appellant himself said was a broken pool cue. That morning the trio had gone to the deceased’s address looking for him. He was not present but they spoke to his mother. She said that threats were made. Stubbs and the appellant were really angry, but Smith just stood there. The appellant had a stick or pole with him. Stubbs was shouting that he was going to kill her son and that they would wait till he returned so as to kill him. The trio left for a short period but then returned and repeated their threats.[4]On this occasion Vanessa Prest, the deceased’s mother, said that the appellant told her that three lads had come to his house and broken his windows. One of them was called Macca. He had broken the windows. Lee Pettite, the deceased, had been present in a taxi. The appellant had said “Macca’s the next one on the list for putting my windows through when I’ve got a one-year old”. This evidence came in the form of an ABE interview with Mrs Prest. When further questioned she said that she could not remember who on 1 March had told her that Lee had been present when Macca broke the windows, but it was one of the group who called at her house [on 1 March]. On any view of her account, this appellant had been present and speaking angrily during exchanges which indicated that Lee Pettite was a target for the trio because of his alleged presence at an incident at his house a few nights previously.[5]Very shortly after the encounter with the deceased’s mother, a neighbour let the appellant speak to the deceased on his phone and heard the appellant tell him: “You’re a dead man walking”.[6]After that, Smith and the appellant left the area but Stubbs remained, apparently for a number of hours. Late in the afternoon Stubbs and the deceased confronted each other in a park near the deceased’s mother’s house. During this confrontation Stubbs shot at the deceased, injuring his toe, but only causing superficial injuries. Very shortly after this Stubbs contacted the appellant by phone. The appellant in turn contacted Smith and the pair returned to the scene. Shortly after 5.00 p.m. the deceased reappeared. According to the appellant’s evidence, Stubbs told him that the deceased had a machete. The trio chased the deceased across the park. The appellant was seen by a number of witnesses to have a weapon consistent in appearance with part of a pool cue, of the kind to which we have already referred. The pursuers split up with the appellant leaving the other two, as the Crown suggested, in order to cut off the deceased. In the course of the chase Stubbs shot the deceased.[7]When arrested the appellant made no comment. He subsequently made a defence statement which contained lies which were the subject of a direction in the summing up. He then amended his defence statement at the close of the Crown’s case. The amendment included admitting that he was aware Stubbs had a gun prior to the shooting, whereas initially his case was that he only learned of a gun after the shooting.[8]The Crown’s case was that this was a joint enterprise with an intention that the deceased should be attacked and killed or caused really serious injury. The Crown relied inter alia on the actions of the group during the day, the accounts of witnesses from which the jury could be sure that the appellant was carrying a weapon during the chase, the fact that Stubbs was armed with a gun, and the appellant’s acceptance at trial that he knew Stubbs was carrying a gun, at least from the point when they met up before the final chase. In addition, there was evidence of mobile phone contact between the appellant and co-accused at material times, including immediately before and after the fatal shooting. The Crown invited the inference that the appellant had been told by Stubbs about the first shooting of Lee Pettite. Those phones were then discarded. The Crown also relied on the appellant’s initial failure to give an account and then his change of account.[9]In addition, the Crown relied on evidence of comments alleged to have been made by the appellant to a witness, Graeme Stewart, a few days before the killing “We are in a van with a gun, and we’re looking for him [Tommy Hoe]”. Those remarks were alleged to have been made by the appellant to Stewart in a phone call on 26 February after an incident at the appellant’s home the night before in which his windows had been smashed. It was accepted that Hoe and Macca had been present. Stewart had heard that the appellant was looking for Hoe as a result, and wanted to dissuade the appellant from visiting his address because Hoe, his brother-in-law, was not there. The Crown submitted that there was a link between Stewart’s evidence and the evidence given by Vanessa Prest, as set out above.[10]The Crown sought to admit Stewart’s evidence, either as bad character evidence pursuant to s.101 of the Criminal Justice Act 2003 or, alternatively, pursuant to s.98(a) of that Act as being evidence which had to do with the alleged facts of the offence. Objection was taken to the admissibility of the evidence, but the judge ruled in favour of the Crown. The judge gave a brief initial ruling which was followed by a subsequent reasoned ruling.[11]In his reasoned ruling the judge identified multiple bases for admissibility. He said Stewart’s evidence was important explanatory evidence in relation to the evidence of Vanessa Prest, so that s.101(1)(c) applied, and, linked to that, it provided evidence of motive. The evidence of Stewart rebutted Lovell’s claim, implied in comments within his defence statement, that he would not have anything to do with guns. It was also evidence of a propensity to be involved with guns, at least to the extent of making threats with them. It was also relevant to the issue of whether or not the appellant was part of a joint enterprise, knowing that a gun would be used. The judge also indicated that, alternatively, the evidence was admissible under s.98. In coming to his conclusion, the judge had considered submissions that the probative value of the evidence was clearly outweighed by its prejudicial impact, and had rejected them.[12]By the time the judge came to sum up the appellant had changed his case. Instead of claiming ignorance of the gun until after the shooting, he now admitted knowledge of the presence of the gun, and of Stubbs’ intention to use it, after returning to the scene shortly before the final encounter. His case was that he had come to witness a fair fight and that he had no intention that the deceased should be killed or seriously injured. He had only entered the field and followed Stubbs in chasing the deceased with an intention to try to stop Stubbs shooting him. He claimed that if he had known that Stubbs had a gun and was intending to use it he would not have returned to the scene.[13]The grounds of appeal challenge the judge’s decision to admit the evidence of the conversation with Stewart. There was no dispute that a conversation had taken place, but its content was in issue. It was argued that insofar as the evidence went to motive or was important explanatory evidence in relation to the evidence of Mrs Prest, it should not have been admitted because analysis of what Mrs Prest had to say failed to show that it was Lovell who had said that Lee Pettite had been present when the windows on his house were broken. Mr Sutton QC based his argument on the fact that Mrs Prest, whilst putting the appellant present at aggressive conversations on 1 March, had qualified her initial account that it was the appellant who said that Lee Pettite had been present when the windows were broken. He argued that if it was not the appellant who had said that, there could be no link back to the conversation with Mr Stewart.[14]We disagree. The evidence showed that this appellant, together with Stubbs and Smith, had gone to Mrs Prest’s house on 1 March. They had been aggressive, particularly Stubbs and this appellant. They were clearly looking for Lee Pettite. This appellant referred to the window-breaking episode and the fact that he had a list of people against whom he wished to take retribution. Whether or not he or one of the other two provided the information that Lee Pettite had been there, this appellant was present and part of the group clearly looking for Pettite, with the breaking of the windows being expressed as the reason for doing so. It matters not whether Pettite was in fact present when the windows were broken, what was important was that the group believed that he had been and were seeking revenge against those who had been involved. Very significantly in our view, within minutes of that conversation, it was this appellant who spoke on the phone to Lee Pettite and told him that he was “a dead man walking”. In those circumstances, it was readily open to a finder of fact to conclude that there was a link between the Stewart conversation and that involving Mrs Prest.[15]It seems to us in those circumstances, and we did not understand Mr Sutton to argue to the contrary, that the evidence of Stewart, if accepted, would provide important explanatory context to Mrs Prest’s evidence (if accepted). Moreover, the conversation with Stewart would demonstrate motive.[16]Mr Sutton also took issue with the admission of the evidence on grounds of propensity. He argued that the judge had, when considering admissibility, mis-characterised the appellant’s case as being that he was not the sort of person who would have anything to do with guns. We do not agree; it seems to us that that was clearly implicit in the original defence statement and had become explicit by the time of summing up. Secondly, he argued that the mere fact that a gun had been mentioned some four days earlier could not shed light on the appellant’s knowledge of a gun on the day of the shooting. Again, we disagree. The comments made to Stewart were made in the context of seeking out those responsible for breaking the windows, which was the same context that underlay the events of 1 March. The conversation with Stewart was in terms that the appellant was part of a group who had a gun. As the judge put it, in ruling:
“As to propensity, it is highly relevant in my judgment, bearing in mind that the issue here for the jury to determine is (1) whether Luke Lovell knew Stubbs had a gun; (2) whether or not he knew that Stubbs may be prepared to use a gun, and whether or not he was therefore part of a joint enterprise knowing that a gun would be used.”
In our judgment, that was plainly an important issue between Crown and defence concerning the appellant’s state of mind in respect of Stubbs’ possession of the gun at material times.[17]Accordingly, we consider that the evidence was admissible both under s.101(1)(c) and s.101(1)(d). It seems to us also that there was another route of admissibility for this evidence, namely, that under s.98(a). In his ruling the judge had referred to this as an alternative route of admissibility. In our view the conversation with Stewart was evidence which had to do with the alleged facts of the offence. There was a sufficiently close link in time and subject matter to fall within this provision. For all these reasons, we consider the evidence was properly admitted.[18]Mr Sutton further submitted that the directions on the Stewart evidence in the summing up were deficient. The judge referred to the evidence and identified ways in which it was relevant: i) It explained and put into context the conversation between Lovell and Mrs Prest. ii) It could provide a motive. iii) It could provide evidence as to whether Lovell was prepared to take part in a threat to Lee Pettite with a gun or to take part in an attack upon him using a gun. The judge’s direction included appropriate warnings as to the need to be sure as to the evidence given by Mr Stewart and Mrs Prest. He referred to its relative place in the case, and stated that the Stewart evidence could not of itself make the appellant guilty of murder or manslaughter. The jury was also reminded of the appellant’s denial of parts of the evidence given by Stewart and Mrs Prest and his positive assertion that he had no problem with Lee Pettite.[19]Apart from referring again to points already disposed of above, Mr Sutton submitted that the direction failed to give the jury appropriate help as to how propensity helped them. We have to say that the use of the word propensity may be something of a misnomer, even if all parties seemed to have used it as a form of shorthand. In our view, the matter is better analysed as falling within s.101(1)(d) because it relates to an important matter in issue between prosecution and defence, namely, the appellant’s professed attitude to use of a gun and his assertion that far from being part of a joint enterprise to use one, he was seeking to prevent its use by Stubbs on the occasion in question. Be that as it may, although the matter might have been developed with greater clarity by the judge, he had in our judgment made sufficiently clear to the jury that, if they accepted the evidence, it was relevant to the issue as to whether the appellant would involve himself by way of threat or attack with a gun upon the deceased. The way in which he left it to the jury was consonant with the route to verdict which formed part of the judge’s directions immediately before the passage complained of.[20]The fact that the judge approached the matter through s.101, rather than by s.98, as he might have done, meant that the judge considered submissions as to fairness, and as to whether the probative value of the evidence was outweighed by prejudicial impact by way of safeguard. He had rejected those submissions prior to admitting the evidence. None of the grounds raised before us provides any reason to doubt the safety of this conviction.[21]After the single judge granted leave, the appellant, in a series of documents, has sought to raise certain additional matters. Some of those matters included criticisms of his trial representative, but the appellant has declined to waive legal privilege. Counsel who represented the appellant below has seen and considered those documents. The appellant remains content for him to present this appeal. The matters raised by the appellant personally seek to revisit tactical decisions made at trial and it now appears, after further instructions have been taken from the appellant, that he is content that he was properly advised on those matters. Other parts of the appellant’s documentation sought to revisit issues addressed at trial or to suggest that there might be fresh evidence, for example, by showing that Stewart might have been biased against the accused. There is no evidence advanced before us to support those further matters. The complaints about the defence conduct of the trial are not maintained, there is no fresh evidence tendered to the court, and the remaining matters are attempts to re-argue issues covered at trial. We therefore conclude that having considered the additional material advanced by the appellant himself there is nothing in it.[22]There is no arguable case that the verdict was unsafe on any ground and the appeal against conviction is dismissed.[23]We turn next to the application concerning sentence. It was submitted that the sentence was manifestly excessive in that the judge had wrongly chosen a starting point of 30 years. That period was not appropriate where the appellant was not the person who used the firearm. We reject this argument. The language of paragraph 5 of Schedule 21 to the 2003 Act is sufficient to cover an offender involved in a joint enterprise. Secondly, it was argued that if the judge had correctly identified the starting point at 30 years, he did not take into account factors which would significantly reduce the minimum term. In particular, reference was made to absence of an intention to kill, use of the firearm by Stubbs rather than by the appellant, and Lovell’s position as a secondary party. In passing sentence the judge said that there was clear evidence that this was a planned attack in pursuit of a personal vendetta. He referred to the fact that Stubbs and the appellant had gone to look for the deceased on the night before the fatal attack and analysed the evidence to demonstrate that Stubbs must have been in possession of the firearm throughout the fatal day, from the time he first visited the deceased’s home in the morning. He was, nonetheless, prepared to say that he could not be sure that anything more than an intention to do really serious harm, as opposed as an intention to kill, was present. The judge found that the appellant was a willing participant because of his ill-feeling towards the deceased but that the episode a few nights before could not amount to any degree of provocation. We consider that the judge was right; this was an act of revenge, not a response to provocation. He accepted that the appellant had not provided the gun but said that he was aware that Stubbs had one and was prepared to use it. There was aggravation in the fact that he had recruited Smith to the enterprise so as to outnumber the deceased in any confrontation.[24]The appellant has a bad record showing over 50 offences. However, offences of violence on that record were committed when the appellant was in his early teens. The judge took note of the fact that Lovell was aged 22 at the time of sentence. We are unpersuaded that any realistic criticism can be made of the judge’s starting point of 30 years. A case will normally fall within paragraph 5 of Schedule 21 if it is a murder involving the use of a firearm. This was a planned enterprise in which this appellant had played a full and willing part. Although he did not source the gun or fire the fatal shot, he had threatened the use of a firearm in the aftermath of the damage done to his house, he had sought out the deceased with Stubbs on the day of the killing and had personally made a death threat to the deceased. After that he had proceeded with the enterprise to hunt down the deceased armed with his own weapon, and in the knowledge that Stubbs had a firearm. There is in our view no warrant for the suggestion that in those circumstances the 30 year starting point was not applicable to this appellant. The language of paragraph 5 is not confined to the person who actually pulls the trigger.[25]Thereafter, there was mitigation by reference to age and absence of an intention to kill. There could be no mitigation for any guilty plea. The fact that the appellant was the secondary party does not carry great weight in a crime where he was a full and willing participant in a joint enterprise. There was in our judgment nothing wrong with the minimum term imposed by reference to the facts of this appellant’s involvement, or indeed by comparison with the sentence imposed upon Stubbs. No tenable disparity argument can be made in circumstances where Stubbs had pleaded guilty and where reports showed that he had suffered some degree of mental impairment as a result of a serious brain injury sustained about five years before these events. For these reasons, we refuse an extension of time and this renewed application is dismissed.