“… a group of three (3) people then came right up to the bench where the man was sitting on his own. They came round the benches. They started to talk to the man sat on the bench and it was noisy. I could not hear the person I was on the phone with anymore. I stood up to leave as I was trying to speak on the phone and one of the persons in the group raised his voice and started to shout at me “Stay here, stay here”
“The prosecution intends to use the material referred to in the skeleton in direct response to assertions made by… Gracia in his evidence. It was provided to the Gracia team many weeks ago. It was formally served in evidence at the end of examination in chief as a result of evidence given by [Gracia]. The Gracia team were aware I intended to use it before I began my cross examination. The prosecution will object to any attempt to rehearse the detail of this in open court through argument before questions are asked. This gives an obvious, and we would submit unfair, advantage to the defendant. The relevance will be made clear from the questions asked. If the relevance is not well-established then the Defence can object at that point.”
“Because me and Craig aren’t close friends. I don’t know really know his family like that, so”
“but I am going to leave manslaughter.”
“Mrs Morgan: I am very concerned as to the basis upon which a case might be advanced that manslaughter was available on the basis that someone shoots somebody but not intend at least really serious harm.”
“Well that is something as you know I have struggled with because I have asked Mr Wood for that.”
“But this is slightly different so I think on this – in this particular case it is finely balanced, I will leave it. But when I sum up the facts [inaudible]”
“Question 1 1. Are we sure that the defendant we are considering either: (a) shot Kwasi Mensah-Ababio; or (b) intended to and gave assistance or encouragement to another person to shoot Kwasi Mensah-Ababio? If NO, return a ‘Not Guilty’ verdict. If YES, go to Question 2. Question 2 2. Are we sure that, when he shot Kwasi Mensah-Ababio or gave assistance or encouragement to another person or persons to shoot Kwasi Mensah-Ababio, the Defendant intended that Kwasi Mensah-Ababio would be caused at least really serious bodily harm? If YES, return a ‘Guilty’ verdict. If NO, go to question 3 Question 3 3. Are we sure that when he shot Kwasi Mensah-Ababio or gave assistance or encouragement to another person to shoot Kwasi Mensah-Ababio, the Defendant intended that Kwasi Mensah-Ababio would be caused some harm? If YES, return a verdict of ‘Not Guilty of Murder but Guilty of Manslaughter’. If NO, return a verdict of ‘Not Guilty’”
“The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. … I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge … Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency. It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant’s right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant, who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge’s summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches…It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal. ”
“The law in this area has been considered in a number of authorities, most recently R v Coutts … and R v Foster[2007] EWCA Crim 2869 ,[2008] 1 WLR 1615 , a decision in four conjoined appeals heard by a five-member Court of Appeal. For present purposes the following summary may be distilled based on these decisions and others there referred to together with the discussion in Archbold at paragraphs 4-532 and following: The public interest in the administration of justice will be best served by a judge leaving to the jury any obvious alternative offence to the offence charged. The actual wishes of trial counsel on either side are immaterial. As observed by Lord Bingham in Coutts: 'A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.' Not every alternative verdict must be left to the jury. Plainly there is no such requirement if it would be unfair to the defendant to do so. Likewise, there is a 'proportionality consideration': Foster at [61]. The alternative need not be left where it would be trivial, insubstantial or where any possible compromise verdict could not reflect the real issues in the case (ibid). The requirements to leave an alternative verdict arises where it is 'obviously' raised by the evidence. It is one to which 'a jury could reasonably come' or, put another way, 'where it arises as a viable issue on a reasonable view of the evidence': Foster at [54]; Coutts at [85]. Subject to the above framework, whether in any individual case an alternative verdict must be left to the jury is necessarily fact specific. In this context, the trial judge will have 'the feel of the case' which this court lacks: Foster at [61]. Where an alternative verdict is erroneously not left to the jury, on an appeal to the court the question remains as to whether the safety of the conviction is undermined: Foster (loc cit).”
“The upshot, in our judgment, is that an alternative verdict of manslaughter was not obviously raised on the evidence. It did not arise as a viable issue on a reasonable view of the evidence. In the circumstances, the judge did not err in declining to leave the alternative verdict to the jury. The most that can be said is that some judges might have left it but that falls short of establishing error on the part of this judge in this case.”
“In such cases it is wholly understandable, indeed it can be necessary, for a judge to bring to the attention of the jury those parts of a defendant’s case which might bear particular consideration and to put what one defendant says in the context of the evidence of another witness, whether that witness be a co-defendant or prosecution witness. While the content of a question by counsel is not evidence unless accept by the witness, the proposition underlying the question often reflects the prosecution case and is a conclusion which the jury can draw from the evidence. There is nothing objectionable in a judge reminding the jury of such questions and the answer or lack of answer to them. The judge reminded the jury at length of your evidence (S/U p80D-81H, p83H-97D and p99A-109G). The summary contains no improper comment; it is a fair and balanced summary of your case about which you can have no complaint. Leave refused.”
“The learned trial judge’s directions upon the management of the jury in retirement, and when they ceased deliberation overnight, together with the extraordinary circumstances in which the jury were required to deliberate (as their number progressively diminished as a result of the onset of the coronavirus pandemic) combined to render the verdict of guilty against this applicant unsafe.”
“The bad character evidence you wished to adduce in respect of Montaque simply did not pass the statutory threshold for the reasons given by the judge in her ruling. Your application to adduce third party bad character evidence was partly successful in that the judge permitted you to adduce evidence of the connection between Bryant and firearms. This was important as you said that Bryant could be seen on CCTV footage handling the man-bag carried by Montaque and allowed you to say that Bryant supplied the gun which Montaque used to kill Ababio. There was ample evidence of the drugs background to the killing before the jury and you had adduced evidence of Wilson removing a mobile phone from the body of Smalls after he had been shot and using it to try to contact Montaque. The other third-party evidence you wished to adduce added nothing to the evidence already available and, again for the reasons given by the judge, did not pass the statutory threshold.”
“A number of complaints are contained in this ground including the nature of discussions between the judge and counsel about directions which can have no impact on the safety of your conviction. Although this ground complains that the judge “erred in her directions to the jury upon all the issues relating to bad character” your complaint seems to centre on p11A-D of the summing-up and the way she dealt with the issue of gangs. This extract has to be looked at as part of the passage which began at p9G in which she gave appropriate directions on how the jury should consider the evidence of your knowledge of and contact with gang members (See in particular p10F-H). There were allegations made by the prosecution and co-defendants that defendants had lied. There was a danger that the jury would accept such an allegation and hold it against a defendant in a way which was improper. A protective Lucas direction was, therefore, necessary. Contrary to your submission, your case and your case against Montaque was fairly left before the jury by the judge. The judge reminded the jury of your evidence in detail (p114C-131F). Leave refused”
“…the questions complained of elicited the fact that you had been a victim of crime and were intended to show that you would have been aware of the potential danger of standing around the shrine of Small. This was not bad character evidence and had it been thought that this evidence would lead to an unsafe conviction, application to discharge the jury should have been made at the time. Any possible prejudice caused by these questions and the answers given to them was dealt with by the directions given by the judge, both general (S/U p9G-10C) and specific (p12E-G). Leave refused.”
“Your answer gave a false impression within the meaning of the Act and there was a risk of misleading the jury as to your character. The judge was uniquely well placed to judge the impact of your answer on the trial; she had the terms of the Act and her exclusionary powers under PACE well in mind and her decision cannot be criticised. The manner in which the matter was dealt with gave you the advantage of dealing with the admitted conviction during your evidence in chief. Leave refused.”
“This ground adopts, almost in their entirety, the grounds of appeal advanced by your co-defendant Gracia and seeks to apply them to your case. However, apart from pointing out that you and Gracia were in each other’s company and your explanations for entering the park and descriptions of what happened in the park were the same, no detail is given of how the matters referred to in Gracia’s grounds “impacted significantly” on the safety of your conviction. I deal with these grounds under the lettered/numbered paragraphs set out in your ground: [Grounds 4 and 5] …I have given leave to Gracia to develop these matters before the full court. However, the issues do not affect the safety of your conviction. [Ground 6] …The bad character evidence that Gracia wished to adduce in respect of Montaque simply did not pass the statutory threshold for the reasons given by the judge in her ruling. His application to adduce third party bad character evidence was partly successful in that the judge permitted him to adduce evidence of the connection between Bryant and firearms. This was important as Gracia said that Bryant could be seen on CCTV footage handling the man-bag carried by Montaque and allowed him to say that Bryant supplied the gun which Montaque used to kill Ababio. There was ample evidence of the drugs background to the killing before the jury and Gracia had adduced evidence of Wilson removing a mobile phone from the body of Smalls after he had been shot and using it to try to contact Montaque. The other third party evidence Gracia wished to adduce added nothing to the evidence already available and, again for the reasons given by the judge, did not pass the statutory threshold. [Ground 7]… Although this ground complains that the judge “erred in her directions to the jury upon all the issues relating to bad character”
“Whatever the nature of the Defendant’s act(s) of assistance or encouragement, you must be sure that any act of assistance or encouragement came to the attention of the person who shot Kwasi Mensah-Ababio, and did so before the fatal wound was inflicted. On the other hand, the Crown do not have to prove that the Defendant’s act(s) had a positive effect on that person’s conduct or affected the outcome of the shooting of Kwasi Mensah-Ababio.”
“Once encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove that it had a positive effect on D1’s conduct or on the outcome: R v Calhaem[1985] QB 808 . In many cases that would be impossible to prove. There might, for example, have been many supporters encouraging D1 so that the encouragement of a single one of them could not be shown to have made a difference. The encouragement might have been given but ignored, yet the counselled offence committed. Conversely, there may be cases where anything said or done by D2 has faded to the point of mere background, or has been spent of all possible force by some overwhelming intervening occurrence by the time the offence was committed. Ultimately, it is a question of fact and degree whether D2’s conduct was so distanced in time, place or circumstances from the conduct of D1 that it would not be realistic to regard D1’s offence as encouraged or assisted by it.”
“If D provides assistance or encouragement to P, and P does that which he has been encouraged or assisted to do, there is good policy reason for treating D’s conduct as materially contributing to the commission of the offence, and therefore justifying D’s punishment as a person responsible for the commission of the offence, whether or not P would have acted in the same way without such encouragement or assistance.”
“The qualification to this (recognised in R v Smith (Wesley), R v Anderson;R v Morris and R v Reid) is that it is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death.”
“A, B and C ride out together with intention to rob on the highway. C taketh an opportunity to quit the company, turneth into another road, and never joineth A and B afterwards. They upon the same day commit a robbery. C will not be considered an accomplice in this fact. Possibly he repented of the engagement, at least he did not pursue it. Nor was there at the time the fact was committed any engagement or reasonable expectation of mutual defence and support, so far as to affect him.”