R v Josh Craig Hawthorn & Anor [2026] EWCA Crim 1058

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.[2026] EWCA Crim 1058Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 25 June 2026
Before
LORD JUSTICE COULSONMRS JUSTICE FARBEYHIS HONOUR JUDGE LICKLEY KC(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
JOSH CRAIG HAWTHORNYOUSSEF WYNNE__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR M FENHALLS KC & MR J NORMANTON appeared for Applicant HAWTHORNMR T CRAY KC appeared for Applicant YOUSSEF_________JUDGMENT
[1]The applicant, Youssef Wynne, is now aged 41. On 13 June 2024 in the Crown Court at Newcastle before Dove J ("the judge") and a jury, he was convicted of one count of murder, one count of robbery, one section 47 assault, two attempts to cause grievous bodily harm with intent and one count of causing grievous bodily harm with intent. He was sentenced to life imprisonment with a minimum term of 33 years less time spent on remand.[2]The applicant, Joshua Hawthorn, is now aged 24. At the same trial he was convicted of one count of murder and one count of robbery. He was sentenced to life imprisonment with a minimum term of 22 years less 272 days spent on remand.[3]We hope that they do not take it as a discourtesy that we shall refer to them throughout by their surnames. Their co-defendants, Wandless and Fawcett, were convicted of murder and other offences, and sentenced respectively to life imprisonment with a minimum term of 31 years and life imprisonment with a minimum term of 32 years.[4]Following refusal by the single judge, Wynne now seeks to renew his application for permission to appeal against conviction. He also seeks an extension of time of 111 days for permission to appeal against sentence. Those applications are again made following refusal by the single judge. Hawthorn seeks to renew his applications for permission to appeal against conviction and sentence, again following refusal by the single judge.[5]Although these are renewed applications for permission to appeal, which would normally be dealt with in relatively short order, we accept that the applications could not have more serious consequences for both Wynne and Hawthorn. Moreover, they are each represented pro bono by distinguished leading counsel and their juniors. In those circumstances, the Court allowed counsel to utilise the entirety of the original time estimate allowed for the applications, with this judgment being given outside that time estimate on the afternoon of the hearing. We are very grateful to all counsel for their assistance. The Facts of the Offending[6]Four separate attacks using sprayed ammonia took place in the Newcastle area in the space of 12 days in August 2023, the last resulting in the death of Andrew Foster. There was strong evidence that Fawcett was involved in all four attacks and was accompanied by Wandless for all but the first. There was also strong evidence that Wynne directed Fawcett throughout. Wynne was the only one of the defendants who knew each of the four victims. Hawthorn's involvement was limited to the final attack, the murder of Andrew Foster.[7]What was the reason behind the attacks? The judge accepted that the sustained violence which underlies these charges arose out of attempts by Wynne (a drug dealer) to tax other drug dealers by stealing their drugs and warn off competition. Drugs form the background to these offences. All of the defendants were involved in drugs in one way or another.[8]The first event chronologically occurred in September 2022, when Wynne assaulted another drug dealer, Andrew Foster (count 3). Much of the evidence concerning that assault was hearsay evidence from Hannah McNally and Katie Harrison, based on what Mr Foster had told them. He could not give evidence because, 11 months later, Mr Foster was murdered in his own home by Fawcett and Wandless at the direction of Wynne and, on the Crown's case, with the assistance or encouragement of Hawthorn.[9]It was the Crown's case that Wynne conceived of a plan in which he would organise attacks on other drug dealers at their homes by throwing or spraying ammonia or some similar substance into their faces in order to intimidate and warn them off. The first such attack took place on 9 August 2023, when Mark Dickinson was attacked in this way in his home. There was a second attack on Jonathan Hay, three days later on 12 August. The third attack took place four days later on 16 August, when a woman called Nicola Dixon was sprayed with ammonia and subsequently lost an eye. Drugs were demanded and stolen from her property.[10]On 20 August 2023, Andrew Foster was at home with his partner when two men (Fawcett and Wandless) entered his address and attacked him by throwing ammonia in his face. In consequence he could not breathe, and he suffered an immediate and severe respiratory attack which killed him. The men took drugs from his property before leaving.[11]There was a good deal of evidence against all four defendants, although naturally it varied in quantity and quality. In addition to the evidence of the victims there was evidence of an intelligence analyst, Kelly Reece, who demonstrated, by reference to CCTV footage and mobile phone data, the clear and repeated connections between the four defendants at the relevant times before and after the attacks.[12]As against Wynne, there was evidence of his communications with Fawcett coupled with the strong evidence that Fawcett carried out the four ammonia attacks; evidence that Wynne was directing Fawcett; evidence that Wynne drove to the area of the first two attacks and that messages were exchanged between Wynne and Fawcett prior to and just after the attacks.[13]Similar data demonstrated that Fawcett was in contact with both Wynne and particularly Hawthorn, immediately before and after the murder of Mr Foster. These included some important calls identified in greater detail below, in which immediately after the attack Fawcett was desperate to speak to Hawthorn.[14]None of the defendants chose to give evidence. Their Defence Statements were however considered by the jury. To save unnecessary repetition the particular issues on the prosecution evidence that are highlighted by these renewed applications are dealt with under the relevant headings below. All the defendants were convicted. Neither Fawcett nor Wandless have sought to appeal their convictions. Appeal Against Conviction - Wynne[15]There are two grounds of appeal relied on by Wynne in relation to his convictions. First, it is said that the judge should not have admitted the hearsay evidence of Ms McNally and Ms Harrison. That goes to count 3, although it is argued that because this evidence highlighted the relationship between Wynne and Andrew Foster, its significance went further than that. The second ground is that the judge should have given directions to the jury that at least on counts 4 to 6 (and possibly on count 1 too), even if they were sure that Wynne had authorised Fawcett to carry out a drug testing, Wynne would not have been guilty if Fawcett had, for example, selected different victims or otherwise departed from or gone outside the scope of the agreed plan (a so called "departure direction").[16]We consider each of these grounds separately below. We should make clear that at the outset that we consider that, even if there had been anything in either of these grounds, their force must be significantly diluted by Wynne’s decision not to give evidence in his own defence. The Hearsay Statements[17]There were two elements of the hearsay evidence. The first came from Ms McNally who was with Andrew Foster, in his house, at the time of the attack. She said that Mr Foster had gone to the door and did not come back for a long time. When he did his T-shirt was covered in blood. She said that he had told her that "Yussi" (Wynne) had punched him with a ring fist. He said that he owed Yussi money and that was the reason for the fight. Ms McNally said that she knew Mr Foster used to make edible drugs for Yussi. She took a photograph of his bloodied lip and another of the blood on the wall in the street outside.[18]The second strand of evidence was contained in an ABE interview given by Katie Harrison, Mr Foster's partner. Ms Harrison said that there was a time when Mr Foster "had a bit of an issue with Yussi". She said that this was because he owed Yussi money. She described what she had been told about the incident when Yussi punched Mr Foster, and said that, because the punch had been made with a fist with a ring on, "it has sliced through his lip like through to the other side”. “It was like a full hole that went right through."[19]It was the Crown’s case that this evidence was admissible on count 3, pursuant to section 116(2) (a) of the Criminal Justice Act 2003. That application was opposed by Mr Cray KC on behalf of Wynne. He submitted that the accounts of the assault originated from Mr Foster, and his drug dealing made him an unreliable witness. It was also submitted that the evidence of Ms Harrison and Ms McNally would have been the sole and decisive evidence on count 3.[20]In his oral ruling the judge admitted the evidence. He said that his preliminary view was that the evidence was not sole or decisive on count 3 because, not only were there two witnesses who gave mutually supporting evidence, but there were also the photographs. However, the judge said that if he was wrong about that, he would apply the test in R v Ibrahim [2012] EWCA Crim 837, and concluded that there was proper justification for admitting the untested hearsay evidence. The conditions set out in section 116(1) and 2A were satisfied the judge said because:• Andrew Foster was dead.• He was clearly identified as the source of the information.• His evidence would have been admissible both on the subject of the assault and his relationship with Wynne generally, including the connection with the drugs.[21]The judge said that the evidence was clearly very important on count 3. He concluded that it was demonstrably reliable, although he agreed that evidence tending to Mr Foster’s unreliability could also be admitted. The ultimate question of whether or not the evidence was accepted would be a matter for the jury. The judge indicated that it was demonstrably reliable because the photographs corroborated Ms McNally's statement, as did what Ms Harrison said in her interview. The Crown added that the reliability of the evidence was also demonstrated by the immediacy of the accounts. Ms McNally recorded what she saw immediately after the attack and Mr Foster told Ms Harrison about the attack the same day when she got home from work.[22]The final question is whether there were counter-balancing safeguards. By reference to section 114 of the 2003 Act and following the approach set out by this Court in R v Riat [2012] EWCA Crim 150; 2013 Cr App R 2, and recently reiterated in R v BOB [2024] EWCA Crim 1494; [2025] 1 WLR 101, the judge concluded that there were such balancing safeguards. Ms Harrison could be cross-examined. Evidence could be adduced as to Mr Foster's unreliability. The usual directions about the proper treatment of hearsay evidence would be given to the jury and they were. The judge refuted the idea that this would somehow give rise to satellite litigation or constitute a waste of court time. He said there was no unfairness to Wynne if the evidence was admitted.[23]As we have indicated the first ground of appeal is a restatement of the complaint that this evidence should not have been admitted. When the single judge considered that submission, he noted that the ground was significantly undermined by the contents of Wynne's own Defence Statement. That statement made plain that there had been an incident involving violence between Wynne and Foster. It also demonstrated that the connection between Wynne and Foster was drug related.[24]The relevant part of Wynne's Defence Statement are in these terms at paragraphs 11 to 13:
"11. In 2022, there came a point when Foster explained that were Mr Wynne to pay £400 up front, he would get 100 such edibles. Mr Wynne obliged. He had sold a car and had the wherewithal. Unfortunately, Foster did not reciprocate and ceased communications with Mr Wynne. In the event, Mr Wynne felt constrained to attend upon Foster’s home address. It was Foster who answered the door. Mr Wynne enquired whether he might have the edibles or in the alternative the return of his money. Foster gave an explanation as to why the edibles and the money were not available and indicated that the money could be returned in a number of weeks. Mr Wynne suggested that this was not acceptable. Foster became aggressive. 12. Foster was much bigger than Mr Wynne. Foster advanced upon Mr Wynne and lifted his hands to grab Mr Wynne around the neck or face area. Fearing the imminent use of unlawful force, Mr Wynne responded in a proportionate and reasonable manner and punched Foster twice to the face. This halted Foster’s advance. Mr Wynne used the opportunity to affect his egress. 13. Thereafter, Mr Wynne did call Foster. It was accepted that Foster would make good on his promise to provide Mr Wynne with the edibles. This followed Mr Wynne apologising for the way in which events had transpired and saying he would rather remain friends than seek the return of the money. The two men ended the call on good terms and subsequently remained on good terms. Indeed, a month or two later, Foster contacted Mr Wynne to say that he had made 60 edibles. However, Mr Wynne was instructed to pick them up at a time when Foster’s partner was absent. She had apparently threatened to end their relationship if any more people came to the door to pick up goods."
[25]The single judge went on to demonstrate that in many vital particulars that account was consistent with the account of both Ms McNally and Ms Harrison. He also referred to the same two points that the judge had identified, namely that the accounts of the two witnesses were capable of supporting one another, and there was the contemporaneous evidence of the photograph of the injury to Mr Foster and the blood outside. He also referred to the fact that once the hearsay evidence had been admitted, Ms McNally was not cross-examined. He concluded that it was unarguable that the judge erred in finding that the statutory hearsay test had been met.[26]On the renewed application, Mr Cray this morning took us to various documents which showed that originally, and before count 3 was added to the indictment, the Crown made a bad character application to admit this hearsay evidence, saying that it showed propensity on the part of Wynne to violence and therefore was relevant to the murder charge. It is not clear to us whether that application failed or was simply not pursued. It does not matter. Count 3 was subsequently added to the indictment, and the argument became one about the admission of the hearsay evidence to which we have referred. Mr Cray made the point that this showed the muddled way in which this evidence had eventually gone before the jury. He maintained his submission that it should not have been admitted because it gave rise to various subsequent problems. He also argued that the admission of the hearsay prejudiced Wynne, as he put it in his written advice, "well beyond confines of the alleged offence" ie count 3.[27]We have considered all Mr Cray's submissions carefully but, in our view, the hearsay evidence was rightly admitted, for the reasons given by the judge at that time. The single judge was therefore right to refuse this application. In short:• The hearsay was admissible because Mr Foster was dead and the other conditions in section 116 had all been met.• The hearsay evidence of Ms McNally and Ms Harrison was mutually supporting and was in any event supported by the photographs of the injury to Mr Foster and the blood on the wall outside.• The hearsay evidence was largely supported by Wynne's own Defence Statement in any event. As Mr Cray accepted this morning, there was no dispute about the underlying facts in the hearsay statements. The only issue was Wynne's suggestion that he acted in self-defence, but he chose not to give evidence in support of that defence at the trial. It would not have been something that either Ms McNally or Ms Harrison could have addressed anyway because they did not witness the assault.• The absence of any real issue on the hearsay evidence was demonstrated by the fact that Ms Harrison was not cross-examined on anything that she said and Ms McNally was not required to attend court. Her statement was read although it was not agreed.• Because of the absence of any real issue about the assault in September 2022, any question of the reliability of Mr Foster (the source of the evidence about what had happened) fell away.• The evidence was largely confined to count 3 but, because it touched on Wynne's drug dealing, it was also part of the wider picture. But it was far from the principal evidence that supported the Crown's case that Wynne was a drug dealer. There was plenty of other evidence to that effect including, amongst other things, the Defence Statements provided by some of the other defendants although, as we have said, none of them gave evidence to the jury.• Count 3 was plainly properly joined on this indictment. It identified violent offending against the same victim, by the same perpetrator, in the same location, over the same issue (drugs and money) as the murder 11 months later.[28]The fact that this material was originally the subject of a bad character application does not seem to us to matter. That application had numerous difficulties. However, once count 3 had been added to the indictment, the issue was confined to the admissibility of the hearsay evidence to support it, which was the actual application that the judge decided. We do not accept Mr Cray's argument that the procedural history meant that it was arguable that "something had gone wrong". Instead it was a fairly typical case in our experience, where the same evidence did not meet the criteria for one gateway for admissibility, but did meet another such gateway.[29]For those reasons therefore, we reject as unarguable Wynne's first ground of appeal against conviction. Ground 2. Authority of the Principal[30]During the discussion as to legal directions with the judge, Mr Cray sought a departure direction to the effect that, even if the jury were sure that Wynne had authorised Fawcett to carry out a drug taxing on the day in question, Wynne would not have been guilty if Fawcett had departed from the plan. This point was originally said to go to the three previous attacks prior to the murder of Mr Foster, namely counts 4, 5 and 6, although it is now said to go to count 1 as well.[31]The judge did not give that direction. Instead he dealt with Wynne's potential liability under those counts in the same way for each. We will take count 4 as an example. The directions came in two parts as follows:
"Are you sure that Youssef Wynne participated in the assault which was inflicted on Mark Dickinson on 9 August 2023 by intentionally instructing, assisting or encouraging others to use violence against Mark Dickinson? To answer this question, you must apply the directions given at paragraphs 19 to 21."
Paragraphs 19 to 21 set out the instructions to the jury on questions of joint enterprise. The key is at paragraph 21:
"In a similar way, in relation to count 4 the Prosecution say that if you are sure that Kenneth Fawcett assaulted Marc Dickinson by squirting him with ammonia then you must consider whether Youssef Wynne participated in the assault by instructing or assisting or encouraging that assault and that he was intentionally instructing or assisting or encouraging the assault."
The same approach was taken in the judge's Route to Verdict document.[32]In both the legal directions and the Route to Verdict, the judge not only gave the same directions in relation to Wynne's involvement in the murder of Mr Foster but he also directed the jury that before they could convict Wynne they had to be sure at the time of his participation that "he intended that Andrew Foster should be killed or caused really serious injury".[33]The second ground of appeal complains that the jury were not directed to identify the scope of the authority given to the principals (Fawcett and Wandless) or the ambit of what Wynne had allegedly required Wandless and Fawcett to do on his behalf. Mr Cray's written grounds at paragraph 27 go on to say:
"No, or no proper, consideration can therefore have been given to whether or not ammonia was required to be used or whether really serious harm was contemplated, required or ordered, as opposed to merely threatened."
[34]The single judge rejected that submission by reference to the way in which the judge actually directed the jury set out above. The single judge said that the jury were directed to ask themselves whether Wynne was "intentionally instructing, assisting or encouraging others to assault Andrew Foster by squirting him with ammonia." He described that as a “factually tailored and legally correct direction about participation”.[35]In his oral submissions today Mr Cray maintained his submission that a departure direction should have been given, but he candidly accepted that this was not as strong as his argument on the first ground.[36]We consider that that is a realistic assessment. In our view, the single judge was right to reject this second ground of appeal for the reasons he gave. The judge gave clear directions as to joint participation and intent. On the particular point in question, it can be seen that the judge was very specific about what Wynne's joint participation was: instructing/assisting/encouraging the squirting with ammonia as expressly identified. He also addressed Wynne's intention head on, directing that the jury had to be sure that he intended death or really serious injury. There was no room for any ambiguity. It was unnecessary for the judge to give a long and convoluted direction as to secondary participation or departure from a pre-arranged plan. Instead he gave directions that went straight to the heart of the prosecution case about what they needed to be sure of before they could convict Wynne on these counts. The jury would have been in no doubt that some sort of general introduction to the other participants would not do. They had to be sure of Wynne's intentional involvement in the specific act that took place.[37]There is a related complaint that the judge should have given directions that would have allowed the jury to reach alternative verdicts such as manslaughter, or assaults occasioning actual bodily harm, if they thought there was a joint enterprise but that Wynne did not direct that really serious harm should be caused to Mr Foster or any of the other victims. We reject that. The judge's directions were not only clear but they directed the jury on the evidence they had heard. There was no evidence that would have permitted the jury to reach alternative verdicts. It was all or nothing.[38]For those reasons we conclude that the judge's directions were impeccable and that the Single Judge was right to refuse permission to appeal on ground 2.[39]Our conclusions mean that there is no basis on which Wynne could seek to appeal his convictions. But we ought to add that in our view, considering the papers in the round, we consider that Wynne's convictions on counts 1 to 6 were entirely safe. There was a strong case against him, albeit one of inference, and we are wholly unsurprised by the jury's verdict.

Appeal Against Sentence - Wynne

[40]Of course the sentence on count 1 was life imprisonment, so the only issue can be the minimum term. The judge indicated that, pursuant to Schedule 21 of the Sentencing Act 2020, murder committed in the course of or furtherance of a robbery has a minimum term starting point of 30 years. Alternatively, even absent the robbery, the murder of Andrew Foster involved bringing a weapon to the scene, namely the ammonia, and that had a starting point of 25 years. The judge considered it was an aggravating factor that the offence of murder was planned and premeditated.[41]When

the judge sentenced Wynne he said this:

"Youssef Wynne, I have no doubt that you were the leader in relation to these attacks. They were your idea, you were the person directing what took place. That sets you apart from the other Defendants in this case. You have previous convictions but none which are of any special relevance to the sentence to be imposed. There can be no doubt in my view that this sequence of attacks which occurred in quick succession over a relatively short period last August, can properly be characterised as a campaign of violence designed to bring fear of retribution and reprisals to those who crossed you in your drug trading. There is little mitigation in your case to be taken into account, but I have borne in mind the character references which have been provided for you, particularly from your partner."
[42]Taking into account the other offences, the judge imposed a life sentence on Wynne with a minimum term of 33 years. He imposed concurrent sentences for all of the remaining counts.[43]The ground of appeal against sentence focuses on the submission that the judge was wrong to typify the offending as arising out of drug taxings. Mr Cray submitted that in the absence of any hard evidence as to taxings, the judge's approach to Wynne was open to question. He said that the judge “…could and should have adopted a more flexible and lenient approach to the sentencing of Wynne. By not so doing and by taking too much account of the characterisation of the crime as drug taxings there are arguable grounds for appealing the minimum term.”[44]The single judge did not agree. He said that the starting point was plainly 30 years pursuant to Schedule 21. He then identified the other attacks which caused devastating injury, including of course the loss of Ms Dixon's eye. There were plainly aggravating features such as the fact that the attacks took place at the victims' homes. The single judge concluded that it was not arguable that an increase from a notional 30-year starting point to 33 years, to reflect all the other offences, was manifestly excessive. Separately, the single judge concluded that the application to appeal against sentence was 111 days out of time and that no justification for that delay had been provided. He therefore refused the extension of time in any event.[45]If there had been anything of substance in the appeal against sentence then we may have extended time despite the absence of any proper justification for the delay. But for the reasons that we outline briefly below, there can be no criticism of the 33-year minimum term. Indeed it might fairly be said that the minimum term could easily have been longer.[46]First, this was a murder in which a robbery also took place. Accordingly the judge was plainly entitled to start the sentencing exercise at the 30-year term identified in paragraph 3(1)(a) of Schedule 21. Thereafter there was a series of other factors which pushed the minimum term well in excess of 30 years. In particular, there were the three other attacks on Mark Dickson, Jonathan Hay and Nicola Dixon, the last of which resulted in such serious injury to Ms Dixon. Since the minimum term was designed to reflect the entirety of Wynne's criminality, a term in excess of 30 years was inevitable.[47]Secondly, the judge presided over the trial. He was therefore uniquely placed to make findings of fact, such as the findings that he made about the drug dealing, the trading and taxings that were carried out. Such findings will not be overturned on appeal by this Court, which cannot hope to have that same level of knowledge, unless there was no basis at all for those findings. Here there was clearly plenty of evidence which supported those conclusions.[48]Indeed, it seems to us that the judge's finding that these attacks arose out of Wynne's ruthless pursuit of his drugs business was a relatively obvious conclusion to reach. Wynne dealt in drugs. The assault on Mr Foster in 2022 was about money paid for drugs not supplied. Drugs were demanded and stolen during the assault of Ms Dixon and the murder of Mr Foster. There were messages and images on the defendants' phones relating to the supply of drugs, together with images of large bundles of cash. Hawthorn had a conviction for supplying Class A drugs and much of the money he received from third parties was passed on to Wynne. The case advanced on behalf of Fawcett positively relied on drug dealing. Any other view about the background to these shocking offences was, we think, untenable.[49]The judge was also entitled to consider the alternative. If these were not drug taxings or connected with drug dealing then, in the absence of any evidence from the defendants, it would have been an extraordinary coincidence that four unconnected people in the North East were randomly targeted and attacked by being sprayed with ammonia by drug dealers and their associates, all in the space of 12 days.[50]Thirdly, we do not consider that, ultimately, the judge's finding that these were drug taxings makes any appreciable difference to the sentence that was imposed on Wynne. As we have said, a minimum term of 30 years is the statutory starting point for murder with robbery. The other offences would justify the increase to a 33-year minimum term, whether they were connected to drug taxings or not.[51]Accordingly, we reject the submission that this sentence was manifestly excessive. Indeed, for the reasons we have given, the sentence could easily have been longer. For those reasons the appeal by Wynne against sentence must be refused. That means the application for an extension of time is also refused.

Appeal Against Conviction - Hawthorn

[52]It was accepted on his behalf that Hawthorn was a low-level drug dealer. The case against Hawthorn on counts 1 and 2 largely turned on his connection with Kenneth ("Kenny") Fawcett. There were lists on Hawthorn's phone which showed the division of monies between, amongst others, himself and Fawcett, with other amounts allotted to, for example, the bank or the driver. Credits to Hawthorn's and Fawcett's bank accounts were in multiples of £5 or £10, which expert evidence said was consistent with the sale or purchase of Class A drugs. All this showed evidence of a joint involvement in the same activity by the two men, and the Crown's case simply asked the jury to infer that it was drug dealing.[53]At the close of the prosecution case it was submitted on behalf of Hawthorn that no jury could properly exclude the possibility that, on 20 August 2023, the night of the murder of Mr Foster, the applicant was merely dealing drugs to Fawcett and not taking part or participating in the murder of Mr Foster. This submission relied on the suggestion in Hawthorn's Defence Statement that Hawthorn was Fawcett's drug dealer, a proposition for which there was no real support, even inferentially. But based on that proposition it was said that, when seen in context, the telephone messages between Hawthorn and Fawcett did not reveal any involvement on the part of Hawthorn in the murder, and were just as consistent, if not more consistent, with ordinary drug dealing.[54]The Crown submitted that there was no factual foundation for those submissions. Moreover they said that the relevant telephone exchanges between Hawthorn and Fawcett at the relevant time, and their urgency and frequency, were entirely inconsistent with everyday drug dealing, and supported the Crown's case that the applicant had played a role in coordinating the attack on Mr Foster. In any event, the inference to be drawn from the calls and the text messages was entirely a matter for the jury.[55]In his ruling, the judge set out in some detail the telephone calls and text messages between Fawcett and Hawthorn before and immediately after the murder of Mr Foster. He summarised the submissions that had been made on behalf of Hawthorn and on behalf of the Crown as to what the jury could or may infer from those calls and text messages. The judge concluded there was evidence upon which the jury could properly reject the possibility of this exchange of communications both before and after the attack as being related to Hawthorn's supply of drugs. The judge accepted the Crown's case that "the nature of these communications and their association in timing with one another and with the attack" was, or might be considered by the jury to be, inconsistent with ordinary drug dealing. He said that the jury could reject that possible explanation as to why the calls and messages were taking place with such frequency, urgency and obvious importance. The material was not consistent with communication between a drug dealer and his client.[56]The ground of appeal now advanced by Hawthorn is, in essence, a repeat of the application that there was no case to answer. The application for permission to appeal reiterates that there were "a host of alternative explanations available" for some of the messages and that in particular the calls before the murder "were as (if not more) consistent with the applicant's explanation than with the prosecution case." Of course at the close of the Crown's case there had been no such explanation: it was all a question of the inferences that could be drawn from the evidence.[57]Hawthorn's application for permission to appeal against conviction was refused by the single judge. He acknowledged that the many factually specific submissions on the evidence advanced on behalf of Mr Hawthorn were reasonable arguments that could have been made to the jury at the end of the trial. From our reading of the transcripts, it seems that they were. But as the single judge noted, a reasonable jury could reasonably reject those arguments, and this jury did just that. The judge had to take the prosecution case at its highest and decide, on that basis, whether a reasonable jury was entitled to reach those adverse inferences. The single judge found that it was not arguable that the judge erred in accepting that it was open to the jury to conclude that the messages demonstrated culpability on the part of Hawthorn.[58]In his oral submissions today, Mr Fenhalls began by pointing to the evidence of Hawthorn's cognitive function and intellectual limitations, before submitting that Hawthorn "was not the brains of anyone's operation", nor the sort of man to whom you would turn in a crisis. Again, these points were made to the jury in Mr Fenhalls’ speech at the end of trial. But at half time, the evidence of Hawthorn's intellectual limitations was not before the court (it not being part of the Crown's case), so they were not matters that were strictly relevant as to whether or not Hawthorn had a case to answer.[59]Although we have however considered Mr Fenhalls’ thoughtful submissions with some care, we have concluded that the single judge was right to reject this ground of appeal. Why is that? First the law, which is succinctly summarised by Aikens LJ in R v G and F [2012] EWCA Crim 1756 as follows:
"(1) In all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the 'classic' or 'traditional' test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury."
[60]It is not unfair to observe that far too many unsuccessful appeals against conviction focus on the last words in (2) above, and ignore the opening words of (3). Moreover, the test in relation to inferences and a submission of no case to answer was refined in R v Masih [2015] EWCA Crim 477 so that the question becomes:
"Could a reasonable jury, properly directed, exclude all realistic possibilities consistent with the defendant’s innocence?"
Crucially therefore, the question is whether a reasonable jury could, on one possible view of the evidence, discount innocent explanations. It is not whether all juries would do so. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury.[61]The principal evidence against Hawthorn came from the telephone contact with Fawcett before and after the murder of Mr Foster. Those calls and messages have to be considered together. Individual calls cannot be considered in isolation. One call or message may on its own appear entirely innocent but when taken together, it may very well be that a different picture emerges. In our view, that is the case here.[62]On the night of the murder, by about 6.30 that evening, Mr Foster's address and photographs of his home had been acquired by Fawcett, and were found in a download on his phone. A little later, around 9.40pm, Hawthorn sent Fawcett a message "happening pal?" It is right to note that "happening?" was a term used regularly in his messaging by Hawthorn as a shorthand way of asking friends and family what was happening, what were they doing? Here, what was happening was that Fawcett with Wandless were getting ready to spray a deadly chemical into Mr Foster's face. In any event Fawcett replied that he was "just getting picked up". The jury was entitled to infer that these were the calls setting up the ammonia attack on Mr Foster: from that collection Wandless and Fawcett were to drive to Mrs Foster's house.[63]Subsequently at 10.29 pm, there was an attempt by Fawcett to contact Wynne. That called failed, but a minute later, Fawcett did make a call to Hawthorn. Again, there was an inference that, in the absence of Wynne, it was Hawthorn who was the person to speak to about the imminent assault. Moreover, the evidence was that immediately before the attacks on Hay and Dixon, Fawcett had spoken to Wynne; with Wynne unavailable this time, one conclusion that the jury could come to was that he spoke to Hawthorn instead.[64]On three separate occasions after that, that is to say 10.30 pm, 10.32 pm and 10.35pm, as he travelled to Mr Foster's house in a stolen VW Golf, Fawcett contacted Hawthorn on the phone. This was the car used in the other ammonia attacks and subsequently found burnt out. As the Crown submitted, they were plainly not social calls. The inference was that Hawthorn was coordinating the attack on Mr Foster. It is submitted on behalf of Hawthorn that they could have been in relation to Fawcett buying drugs from Hawthorn, and that was a possibility the jury were expressly asked to consider. That was despite the fact that there was no evidence that Fawcett was himself a drug user.[65]The attack on Mr Foster took place around 11.00 pm. The WV Golf was seen leaving the area about 11.05. Thereafter, Fawcett attempted to contact Hawthorn on the phone, at 11.09 pm, 11.13 pm, 11.14 pm and 11.15 pm. All calls failed to connect. Following that, Fawcett texted Hawthorn telling him to "answer the fucking phone, man". As the single

judge put it:

"This obvious urgency and insistence in the immediate aftermath of a murderous attack is a matter of potential significance in the drawing of inferences."
[66]Fawcett tried to call Hawthorn again at 11.17 pm and again failed. He then messaged Hawthorn to say "not fuckin happy like coming to yours". Again, that conveyed a sense of urgency which might be described as entirely inconsistent with an ordinary drug deal. Thereafter, there were further failed calls from Fawcett both to Wynne and Hawthorn. At 11.47 and 11.48 pm Hawthorn attempted but failed to call Fawcett. At 11.49 pm Fawcett, using Wandless's phone, sent Hawthorn a text message saying:
" It's Kenny. My phone's dead."
At 1.36 am, Wynne messaged Fawcett to ask "where u at?". Again, if the calls related to a drug deal, it was apparently taking an awfully long time to arrange.[67]Thereafter following his arrest Hawthorn's phone was downloaded and it became apparent that he had accessed a news article on 28 August about Mr Foster's death and the arrest of Fawcett and Wandless.[68]In our view, this evidence meant that, far from being irrational, the judge's ruling that the issue of Hawthorn's liability on counts 1 and 2 should be left to the jury was undoubtedly correct. Ultimately the question was whether the evidence of the text messages and the frequency of the calls was only consistent with drug dealing, or whether that evidence could reasonably implicate Hawthorn in a direct involvement in the attack on Mr Foster. That was the choice and, as the judge said, it was a matter for the jury what inferences they drew from the evidence in order to help them decide if they were sure of Hawthorn's involvement in the murder and robbery.[69]It is incorrect to suggest that these calls or messages were in some way only consistent, or at the very least much more consistent, with ordinary drug dealing. In our view, for the reasons we have given, the contrary is the case. The proximity of the calls and messages to the timing of the attack on Mr Foster, the insistence and repetition of Fawcett's contact with Hawthorn on the way to the attack and his attempts at contact immediately after it, the tone of the text messages and their content, are all much more consistent with the planning of a major crime, and that major crime then beginning to unravel.[70]Moreover, if these calls and messages were about drug dealing alone, then it is noteworthy that at no point in the messages anywhere is there any reference to drug availability, pick up times, delivery, that sort of thing. As we have already noted, there was no evidence from which the jury could even infer that Hawthorn dealt drugs to Fawcett, or that Fawcett was a drug user, or that he was desperate to acquire drugs on that night. The alternative scenario was advanced in submissions by Mr Fenhalls to the jury as a possibility, but it was not rooted in hard evidence.[71]In any event, there was in our view a rational and reasonable basis for a jury to reject the drug dealing possibility in relation to the messages, and to accept the Crown's case that the calls, and the particularly urgent attempts to contact Hawthorn after the murder, showed his participation in that murder. As we put it to Mr Fenhalls during argument this morning, one fairly obvious way in which the jury could have reasonably excluded the drug dealing explanation was by concluding that Fawcett would not have been dealing in low-level drugs with Hawthorn immediately before and then, with increasing desperation, immediately after, his murder of Mr Foster. He might have been expected to have other things on his mind. More generally, the more detailed the arguments were that were advanced on behalf of Hawthorn as to the inferences that could be drawn, the more it became apparent to us that this was a matter that could only properly be left to the jury.[72]The other points raised by Mr Fenhalls in his helpful advice are, on analysis, unsustainable. There is no significance in the fact that Hawthorn was not charged with the assault of Mark Dickinson (count 4) despite the fact that there was a call with Fawcett prior to that attack. There was nothing like the plethora of calls on the night of the murder of Mr Foster. In any event, the fact that Hawthorn was not charged with count 4 cannot in any way be relied on to say that he was "not essential to any plan to commit an ammonia attack", which is the point made at paragraph 15(d) of the grounds of appeal. Wandless was plainly involved in the attack on Mr Foster: he drove Fawcett there and entered the house with him. But he was not charged with count 4 either.[73]As regards the earlier attacks, in our view Hawthorn was irrelevant. In contrast, for the murder of Mr Foster he was directly involved, as the calls and text messages show and as the jury's verdict demonstrates. The reason why he was involved could only have been provided by Hawthorn himself, or indeed one of the other defendants but, as we have said, they chose not to give evidence.[74]For these reasons we reject Hawthorn's renewed application for permission to appeal against conviction. Appeal Against Sentence - Hawthorn[75]When he sentenced Hawthorn

the judge said this:

"Joshua Hawthorn, you were only convicted of the final attack and its associated robbery, and to that extent you are in a far less serious position than your co-Defendants. You were not part of the persistent campaign of violence across the four attacks in this case. You were, however, clearly instrumental in the last and most serious attack. I accept that you were not at the head of the chain of command in relation to this attack or involved directly in its planning. That was Youssef Wynne. Nonetheless, on the night of these events, when he was not available, it was obviously to you that Kenneth Fawcett looked for final instructions in relation to the attack. After that short call with you, the attack was launched. You were also the person to whom Kenneth Fawcett resorted when it was clear that the attack had not gone as he had wished. It was to you that Kenneth Fawcett and John Wandless went shortly after the attack. You have previous convictions in relation to the supply of drugs, but none relating to violence. In fixing the minimum term in your case, I have taken account of your personal mitigation. The psychological reports upon you explain the issues in relation to your thinking skills and suggestibility. You were also far younger than the others you were involved with, in particular Youssef Wynne, and much less mature. The psychological reports also explain you have suffered with anxiety and depression and this is also mitigation in your case. I also accept that you had an extraordinarily difficult start in life and a very unfortunate family background. I have borne in mind the evidence of your partner and her explanation of how you became involved with drugs and became drawn into this offending, and I have taken account of the fact that the sentence which I must impose in the light of the jury’s verdict will prevent you from playing any meaningful part in the life of your young children. The clear differences in your position from that of the others and the very extensive personal mitigation available to you has enabled me to make a significant reduction from the starting point in your case."
[76]The judged did not indicate a different starting point to that which he had taken for the other three defendants, namely 30 years. That is the only such starting point identified in the earlier part of his sentencing remarks. For the reasons that he explained, he then reduced that starting point significantly to the minimum term of 22 years.[77]Two criticisms are made of the judge's sentencing exercise. The first is that, given Hawthorn's involvement as a secondary party who was not at the scene, the judge should not have taken the 30-year starting point and should instead have started at 15 years. The second resolves around criticisms made of two of the judge's factual findings, that these attacks arose out of drug taxing and Hawthorn was the person to whom Fawcett resorted "when it was clear that the attack had not gone as he wished." It is said that those findings, particularly the latter finding, were contradicted by the evidence and contrary to logic.[78]We start with this second criticism, namely the judge's findings of fact. We reject the submission that the judge was not entitled to make the findings of fact that he did. The finding as to the drug taxing and the money being made from the defendants’ drug dealing business were open to him, primarily for the reasons that we have already explained in relation to Wynne. As to Hawthorn’s involvement in drugs, his phone and bank account showed the money he personally was making from drug dealing with or for Wynne. There was expert evidence that the large number of credits to the accounts of Hawthorn and Fawcett were consistent with payments for drugs. In any event, the finding as to drug taxing made no or no significant difference to the sentence imposed on Hawthorn since he was only involved in the single murder and robbery of Mr Foster.[79]The finding that Hawthorn was the person to whom Fawcett resorted when the attack went wrong was, we think, justified on the evidence of the calls and messages, for the reasons explained by the single judge. The suggestion advanced on behalf of Hawthorn is that it was unjustified because it would not have been clear to Fawcett and Wandless that Mr Foster had suffered a respiratory attack by the time they stole his drugs and left his house. But the evidence from Ms Harrison was that he started screaming straightaway and was shouting that she needed to call an ambulance and that he could not breathe. He became unresponsive as she dialled 999. So the jury could infer that Fawcett and Wandless realised that something had gone wrong immediately or almost immediately after the attack. Moreover it might be argued, although it was for the jury to decide, that the urgency and insistence of the attempted contact by Fawcett made no other conclusion plausible. We therefore reject that second criticism of the judge's sentencing exercise.[80]We acknowledge that, on the face of it, the first criticism might be thought to have a little more force. Hawthorn was a secondary party and the degree of his involvement remains unclear. But in a joint participation case like this, those responsible for a murder for gain are subject to the 30-year starting point, and it will always be a matter of fact and degree whether secondary parties are also to be liable to be sentenced on the basis of that starting point, albeit with a potentially significant reduction.[81]These issues tend to be fact specific and authorities are of limited assistance. The case of Fearon [2021] EWCA Crim 1706, on which Mr Fenhalls relies in his written advice in support of the contention that the judge took the wrong starting point does not assist, because the facts were very different. There, the robbery was a spur of the moment decision following the infliction of the injury. So a 15-year starting point was chosen for a secondary party. By contrast, this was murder for gain and involved the robbery of drugs, just as drugs had been stolen from Ms Dixon's home. The 30-year minimum term was therefore triggered, at least as a starting point. Sentencing in these kinds of cases must always be fact specific.[82]Here, as we have said, the judge started at 30 years and reduced that to 22 years. That was 11 years less than Wynne, 10 years than Fawcett and 9 years less Wandless. We consider that that approach was open to the judge and it demonstrates that he did not apply the minimum term in Schedule 21 in a mechanistic or unthinking way. So we do not think it arguable that the term of 22 years was manifestly excessive in a case of murder for gain.[83]In the alternative it might be said that the right starting point was 25 years because the murder involved taking a weapon (the ammonia) to the scene. Although Mr Fenhalls suggests there was no evidence that Hawthorn knew about the ammonia, that was not the jury's verdict. They convicted him on the judge's direction that they were sure that Hawthorn had participated in the assault "by intentionally instructing, assisting or encouraging others to assault Andrew Foster, by squirting him with ammonia". If that was the correct starting point, the judge's decision to make a further reduction down to 22 years might be thought to have been generous to Hawthorn.[84]But finally, even if the right starting point had been 15 years, as Mr Fenhalls submitted this morning, there would have then been a substantial uplift, because this was a murder for gain committed by a group in the victim's house, involving a weapon being brought to the scene in the context of drug dealing. Mr Fenhalls realistically conceded that there would have been a substantial uplift to the 15 years perhaps closer to 20 years. On that analysis therefore, there was very little between him and the conclusion reached by the judge.[85]So however it is analysed therefore, we conclude that the 22-year minimum term imposed on Hawthorn could not be said to be manifestly excessive nor wrong in principle. For those reasons the renewed application for permission to appeal against sentence is refused. Disposal[86]For the reasons we have given we refuse Wynne's renewed application for permission to appeal against conviction and sentence. For the avoidance of doubt, we also refuse an extension of time to Wynne to bring that application for permission to appeal against sentence. For the reasons given above, we also refuse Hawthorn's renewed applications for permission to appeal against conviction and sentence. Again, we reiterate our thanks to leading counsel for clear and helpful submissions both in writing and this morning. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk