Hamilton & Ors, R. v [2021] EWCA Crim 424

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.[2021] EWCA Crim 424
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO
202000116/B1-202000127/B1-20200066/B1-202000693/B1-202000696/B1-202000712/B1
Venue Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 9 March 2021 and Thursday 11 March 2021
Before
LORD JUSTICE BEANMRS JUSTICE WHIPPLE DBEMR JUSTICE CALVERREGINAVOJAY HAMILTON SHANE LYONSTYRELL GRAHAMJAYDEN O’NEILL-CRICHLOW__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 18-22 Furnival Street, London EC4A 1JSTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR T MOLONEY QC & MR D JAMESON appeared on behalf of the Applicant HamiltonMR M ALDEIRI appeared on behalf of the Applicant LyonsMR D BENTLEY QC appeared on behalf of the Applicant GrahamMR M BROMLEY-MARTIN QC appeared on behalf of the Applicant O’Neill-Crichlow MR O GLASGOW QC & MR P JARVIS appeared on behalf of the Crown._________J U D G M E N T (Approved)
Between
Hamilton & OrsDefendantRCrownDate 2021-03-11

Tuesday 9 March 2021:

[1]the other and then boasting about them online.[2]conviction or sentence.[3]then was).[4]appeals against sentence with leave of the single judge.[5]at Her Majesty Pleasure, with a minimum term of 21 years and appeals against sentence[6]with leave of the single judge.[7]following refusal by the single judge.[8]the Cloud Video Platform at a stage when we had heard argument on the conviction[9]applications but before we were able to hear counsel in support of the sentence appeals and application. This therefore is our judgment on the applications for permission to appeal[10]against conviction by Hamilton and Lyons.[11]injuries but which he survived.[12]previous stabbings committed against other members of the Wood Green Mob.

In May 2019 O'Neill-Crichlow, along with two others, appeared in another video in which they

[13]rapped about gang related activity and the possession of knives and firearms. On the night before the incident O'Neill-Crichlow, Lyons and Hamilton were captured together on CCTV on the Broadwater Farm estate in Tottenham using a Peugeot car which apparently[14]belonged to O'Neill-Crichlow's mother.[15]in fact Lyons.[16]mobile phone. Fortunately that incident came to an end without violence.[17]Cookhorn drew a handgun which he fired. The cartridge casing was later recovered and was consistent with the firearm being a semi-automatic handgun. O'Neill-Crichlow and Lyons both brandished large silver knives. Although the precise number of shots fired from Cookhorn's handgun was not known, witnesses recalled hearing two or three rounds being discharged. One of the discharged rounds went across the pedestrian area and in through the open doors of a shop in which several customers and security guards were present, ultimately striking a display stand but without causing any injuries. As the defendants came into view of another CCTV camera, Graham could be seen with a large black knife in his hand, Lyons was still brandishing his knife, while Hamilton had his right hand inside his clothing; the prosecution alleged that this was indicative of him holding a[18]concealed weapon.[19]inside his clothing.[20]also sustained a wound to the buttocks from shotgun pellets.[21]Corsa. O'Neill-Crichlow and Graham came back into view and collected their bicycles.[22]Lyons and Hamilton came back into view with Lyons picking up his bicycles and Hamilton appearing to place something into his trousers, which had possibly been passed[23]to him by Patridge/Lyons.[24]customers waiting her turn to be served had a baby. There was also an 8-year-old girl and a 4-year-old girl in the salon. These people were witnesses to the car being surrounded by masked figures. One man fired shots at the window of the car before jumping onto the bonnet and smashing the gun down on the windscreen. A second man also jumped onto the bonnet and struck the windscreen with what appeared to be a machete.[25]Mr Gabbidon-Lynck got out of the car, ran to the salon chased by several men who swung[26]their weapons at him. He ran into the salon but was unable to keep the door closed. The attackers gained entry to the shop. Everyone inside began screaming and rushed to the rear of the salon as the deceased cowered in a corner trying to fend off the attack. He was set upon by more than one attacker who stabbed and slashed at him with their knives, eventually turning away leaving him fatally wounded. He died in hospital from his injuries. The attacking group made their way back to the car park on the Broadwater Farm estate where O'Neill-Crichlow had parked the Peugeot and where they appeared to[27]change their clothing.[28]away, "I hope you lot cut down on knife violence, and all that".[29]from the front passenger footwell and a knife in the rear door. The defendants were identified by police from the Broadwater Farm CCTV footage. We turn to the applications for leave to appeal against conviction. Hamilton had a previous conviction for possession of a bladed article in June 2017, 20 months before the incident in the present case. He was 14 years old at the time of that previous conviction and 16 at the time of the instant trial. His ground of appeal against conviction is that the judge was wrong to accede to the prosecution application to admit the previous conviction as evidence of misconduct and that its admission was unfairly prejudicial to Hamilton's defence. It is instructive to note the basis of plea which Hamilton sought to tender in a document dated "i. I was in possession of the bladed article for a short period of time. ii. At no time while in possession of the bladed article (or before or afterwards) did I have any intention to use it to do harm to others, or to threaten or cause fear. iii. On 22 February 2019, after hearing a loud bang as a car collided with another, I was in a state of shock. I saw a commotion taking place in a nearby shop and I wanted to get out of the area quickly. As I cycled off, someone stopped me and passed me a bladed article which I put down the waistband of my trousers before I cycled away." This basis was not acceptable to the prosecution.[33]prosecution application to admit the previous conviction:
"The jury will have to consider his [Hamilton's] explanation for the possession of the knife in the light of all the evidence in the case – not just the few seconds of CCTV when any exchange of knives might have taken place. Furthermore his young age at the time of the previous conviction must be considered alongside his guilty plea for knife possession on the night in question. I am satisfied that the previous conviction is properly admissible not just because it is capable of showing a propensity to carry knives but also as rebuttal of how he says he came to be in possession of a knife on 22 February, 2019."
[34]basis to admit the previous conviction as evidencing a propensity to carry a knife. The conviction could not, independently of propensity, rebut the applicant's account of his possession of the knife on the night in question. It was also submitted to us, as it was to the judge, that the legitimate public concern surrounding possession and use of knives in London could lead to unwarranted prejudice on the part of the jury. It was unfair for the conviction to have been admitted when it went to such a fundamental aspect of Hamilton's[35]defence.[36]difficulty.[37]prosecution and the defendant, although it was not the fundamental question in the case. The fundamental question was whether the prosecution could satisfy the jury that Hamilton was part of the group who carried out either or both of the attacks, in the sense that he assisted or encouraged those who actually inflicted the wounds on either or both of the[38]victims.[39]taking a minicab home.[40]by the then Vice-President (Rose LJ) in Hanson [2005] 1 WLR 3169 at paragraph 9:
"There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity."
[41]relation to the offence charged.[42]him, handed to him at a very late stage, possibly after the fatal stabbing of[43]Mr Gabbidon-Lynck, rather than having been brought by him to the scene. The fact of the previous conviction for the identical offence in law only 20 months earlier went directly to this important matter in issue between him and the prosecution and did so irrespective of the details of the facts underlying the previous conviction, such as the precise size and type[44]of the bladed article which he had in his possession on that occasion.[45]renewed application for permission to appeal against conviction.[46]there should be regular breaks with sessions lasting no longer than 1 hour. No complaint is made on behalf of Lyons about these directions, nor could it be. The argument is rather than the directions were not adhered to, or not sufficiently adhered to, by Mr Glasgow QC for the prosecution during his cross-examination of Lyons. Mr Aldeiri, who has appeared in this Court, submits, adopting the written submissions of Mr John Cooper QC who led the defence of Lyons at trial, that the appellant was exhausted following intense cross-examination that was beyond the scope of the ground rules. It is submitted that the judge's control of that situation was inadequate with him merely commenting that it was simply Mr Glasgow's style of advocacy.[47]courtesy and care.[48]reference by Mr Glasgow to lying. Although the days of counsel haranguing witnesses with repeated accusations that they are lying should be over, we do not think that the questioning on this (or any other) point was at all inappropriate even when put to a 16-year-old witness. It was perfectly fair to put to the defendant that, if what he was saying about having got a minicab from home to the scene was true, that fact should be confirmed by the records which all minicab companies keep.[49]therefore refused. Thursday 11 March 2021:

Thursday 11 March 2021:

LORD JUSTICE BEAN:

[50]Tuesday refusing two applications for permission to appeal against conviction.[51]imposed pursuant to that provision. The second technical point is that the judge erred in imposing concurrent sentences on the charge[52]in custody, but it is right to put the record straight.[53]complaint is or could be made of it.[54]were aptly summarised by

the judge in his sentencing remarks at page 7C-G:

"The most serious extra aggravating feature is the gang-related background to this case. The tragedy of that background is as futile as it is evil. The pointless gang rivalry has resulted in the loss of one young man’s life, the serious injury to another and five young men who will spend at the very least the best years of their lives in custody. You were all linked to one gang, the North London Park Killers and this was a planned and premeditated mission to find and attack members of a rival gang. The message must be understood that young people who involve themselves in this sort of conduct can expect little mercy from the Courts. That is why I have lifted all reporting restrictions not withstanding your ages so that other young people and their families can know of the consequences of such conduct. Your actions terrified innocent members of the public going about their business on a Friday evening, first of all in the Hollywood Green area of Wood Green and then in and around the hair salon on Temple Terrace. The murder was witnessed by a four year old child and the owner of the salon was so traumatised by what she saw that she was too ill to give live evidence at your trial, some nine months later. The victim personal statements from a grieving family makes sad reading."
[55]said:
"By paragraph 5.1 of schedule 21 of the Criminal Justice Act 2003 for an offender who commits murder when over 18 and where the seriousness of the offence or the combination of the offence and one-on-one offences associated with it is particularly high the starting point is a minimum term of 30 years. Paragraph 5.2 provides that a murder involved in the use of a firearm will normally fall within this category. I am satisfied that for you, Sheareem Cookhorn, that this is the appropriate starting point and is the factual basis on which I set the minimum term for the remainder of you."
It is submitted that when the judge said "and is the factual basis on which I set the minimum term for the remainder of you" he meant that he was holding that the minimum term that would have been appropriate in each of the cases before us (that is to say all the defendants except Cookhorn) would have been 30 years. It is submitted that this case was not, at least as regards the defendants other than Cookhorn, a murder involving the use of a firearm.[56]the intent to use it to commit an offence or to have it available for such use, is 25 years by virtue of paragraph 5A of Schedule 21. Here there was a murder by stabbing, using one or more knives taken to the scene, and in addition(a) the discharge of a firearm by Cookhorn and(b) the ferocious attack on Jason Fraser, who was lucky to escape with his life. Had the defendants been adults, therefore, a statutory starting point of 30 years would certainly have been justified in the case of Graham and possibly also in the case of[57]the other defendants.[58]sufficient account of the applicant's age and level of maturity at the time of the offending. In refusing permission to appeal on the papers the single

judge said:

[59]"Your pursuit of the victim into the hairdressers and repeated stabbing of him in front of terrified customers including a 4 year old girl, was enough to mark this murder out as justifying a significant uplift from the starting point of 12 years by reason of your age. Given that you continued to associate with Cookhorn after he first discharged the gun the judge was also entitled to take into account when sentencing you your knowledge of his having a gun and his willingness to use it without regard to the danger posed to innocent passers-by. Moreover, having tried you and all your co-defendants, the judge was best placed to evaluate your role in the offences and your culpability for it and he was satisfied that you were one of the ringleaders and one of the two responsible for inflicting the violence on the victims. Despite your age I do not consider it is reasonably arguable that either the minimum tariff of 25 years for the murder or the 20-year sentence for the attempted murder in your case was manifestly excessive." We agree, and the renewed application by Graham is refused.[60]offences. The additional points made in the individual cases are as follows.[61]convictions, but one previous reprimand for possession of a bladed article.[62]him.[63]his bedroom carefully wrapped in a sock.[64]distinguishing between these three defendants.[65]conclusions of the sentencing

judge at paragraph 10:

"(i) The appellant had been responsible for corralling the group which proceeded to kill the deceased. Despite his age, the appellant was influential in the gang. (ii) The attack was a premeditated, targeted revenge attack. (iii) The appellant – and indeed the others convicted of murder – had an intention to kill the deceased. (iv) The appellant and [his co-accused] Yenge took the two knives used in the attack to the scene, but all knew that knives were there and to be used. (v) Overall, the appellant had a prominent, leading role in what occurred. (vi) The killing was the result of a long-standing hostility between the gangs. (vii) All the co-accused had taken care to turn off their telephones to avoid the possibility of their movements being traced. After the attack, they not only disposed of their weapons, but also washed their bodies and clothes in an attempt to eliminate forensic traces."

The Lord Chief Justice said at paragraph 22:

[66]"The aggravating features identified by the judge in his sentencing remarks are unimpeachable, but we find ourselves in respectful disagreement with the judge's conclusion that, despite the appellant's youth and background, the starting point should be as high as 21 years. The appellant was a good deal younger than the others. That is itself a factor which carries significant weight. Moreover, a striking feature of this case is the appellant's circumstances, which we have summarised. They led him to be a drug user at 11, an addict by 13, and by the same age a professional drug dealer. By then he had been swept up into gang violence. Violence had been a constant background of his life from a very early age." The minimum term of 21 years imposed on Davies was reduced by this Court to one of 16 years.[67]appellants would have been no higher than 16 years and possibly a little less. Putting these factors together, we have come to the conclusion that the minimum terms of 21 years did not make adequate allowance for the youth and immaturity of these three defendants. We will in each case quash the minimum term of 21 years and substitute a term of 19 years. Time spent in custody prior to sentencing will count towards the minimum term in the usual way. The result is that the earliest time when these three appellants will be eligible for release will be in 2038, by which time they will be 35 years old. Even then, each of them will only be released if the Parole Board is satisfied that it is safe to do so. These remain severe sentences for defendants who were aged only 16 when the offences were committed, but they are appropriate ones in such a serious case. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk