R v Marcus Pottinger [2026] EWCA Crim 416

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 416Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Wednesday 11 March 2026
Before
LORD JUSTICE POPPLEWELLMR JUSTICE PEPPERALLHER HONOUR JUDGE MORELAND
Between
REXCrownv
Between
MARCUS POTTINGER__________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 DEAN GEORGE KC & MR JONAS MILNER appeared for AppellantMR KARIM KHALIL KC & MR CHARLES MYATT appeared for Crown_________JUDGMENT
[1]At a trial before His Honour Judge Mayo KC and a jury at the Central Criminal Court, Mr Pottinger faced charges on six counts on the indictment:• Count 1 charged attempted murder• Count 2 (as an alternative to count 1) charged wounding with intent contrary to section 18 of the Offences Against the Person Act 1861• Count 3 charged possession of a firearm with intent to endanger life• Count 4 (which was an alternative to count 3) charged possession of a firearm with intent to cause fear of violence• Counts 6 and 7 charged possession of prohibited firearms. He was convicted on counts 2 and 4 and acquitted on the other counts. He appeals with the leave of the Full Court against the conviction on count 2. There is no appeal against the conviction on count 4. This appeal is only concerned with the subject matter of counts 1-4. Counts 6 and 7 are irrelevant to the appeal and we need say no more about them. The facts[2]The victim was a man named Brandon Malutshi, who in the early hours of the morning of Tuesday 30 August 2022 was shot in the thigh at a nightclub called the Oval Space in Hackney, and again in the other thigh when pursued into the Hackney Road. The man who shot him was Chris Kaba.[3]The motive for the shooting was said by the prosecution to be gang violence. It was an agreed fact that Mr Malutshi was affiliated to the Wandsworth-based 1-7 Gang, renamed as such after the death of his brother on 1 July. It was common ground that Mr Kaba was a core member of a rival gang called the 6-7 Gang from Brixton Hill.[4]Mr Pottinger's five co-defendants on counts 1-4 were Shemiah Bell, Simeon Glasgow, Carl Tagoe, Connell Bamgboye and Hamza Abdi.[5]Mr Bell was convicted on counts 2 and 4 and acquitted on counts 1 and 3. Mr Bamgboye was convicted on count 4 and acquitted on counts 1-3. Mr Glasgow, Mr Tagoe and Mr Abdi were acquitted on each of counts 1-4.[6]Mr Kaba was not on trial because he had been stopped and shot by a police officer a few days after the incident. The police officer was prosecuted for his murder, and a reporting restriction was imposed pending the completion of that trial. The officer was acquitted, and the reporting restriction has been lifted.[7]It was the prosecution case that Mr Glasgow, Mr Bell and Mr Bamgboye were Gang 6-7 affiliates, in Mr Bell's case it being an agreed fact at the trial. Although the case was opened on the basis that Mr Pottinger was also a gang affiliate, that case was not maintained, and there was an agreed fact in his case that there was no evidence of his affiliation with the gang. The same applied to Mr Tagoe.[8]In his evidence at trial Mr Pottinger, who was 29 at the date of the incident, described his relationship with the co-defendants as follows. Mr Glasgow and Mr Tagoe were close friends whom he had known since his primary school days. He had known Mr Bell since secondary school, but not to the same extent; he said he would regard him as a friend. He said he did not know Mr Bamgboye or Mr Kaba and had only met Mr Abdi once previously. He said he knew about the 6-7 Gang but did not know of any violence associated with it.[9]CCTV outside the club captures all the defendants apart from Mr Abdi arriving at the club at about the same time. People had to go through security and be searched in order to gain entry. Mr Pottinger had previously worked at that club as a security guard and was familiar with the premises. He knew some of the security staff on duty that night. When they were outside the club, Mr Pottinger received a bag from Mr Bell, described as a messenger bag. As the prosecution alleged, and the jury subsequently found by their verdict on count 4, this contained a gun. CCTV captured Mr Pottinger after he had received the bag going with a security guard on their own to a side door to the club, to what was said by the prosecution to be an entrance for authorised personnel bringing in stage equipment and said by Mr Pottinger to be a VIP entrance. The prosecution alleged that this was chosen by Mr Pottinger because the bag would not have to go through security and be searched. The security guard made a number of attempts to open the side door with his security card. The door would not open, and in due course Mr Pottinger returned, after hanging around a little, to the front of the queue, still holding the bag. He then went to what he described as the fast-track entrance. He remained in the search area for a while, during which Mr Glasgow, Mr Tagoe and Mr Kaba could be seen to be looking over in his direction with what the prosecution suggested was keen interest as to whether he would get the gun through security. He approached and hugged a security guard whom he obviously knew and whose name he gave when he was giving evidence. She let him in without being searched. By the time the CCTV picked up the defendants again inside the club, the bag had been returned to Mr Bell, somewhere which was not covered by CCTV.[10]During the evening thereafter, the CCTV shows Mr Kaba appearing to identify Mr Malutshi in the club. Following that, Mr Bell handed Mr Kaba the bag and a glove, which Mr Kaba then put on his right hand. Mr Kaba can be seen to take the gun out of the bag near to where Mr Pottinger was, he being at the bar with other friends. Mr Pottinger's evidence was that he had not seen this occur. There were words exchanged between Mr Kaba and Mr Pottinger, with Mr Glasgow and Mr Tagoe nearby, shortly after which Mr Kaba shot Mr Malutshi in the thigh. Mr Malutshi fled and Mr Kaba followed him out, as did Mr Bell, and a number of the co-defendants going to the door, but Mr Pottinger remained at the bar without showing apparent concern. His evidence was that he had not realised that a gun had gone off and had thought that it was a carton or balloon which had been stepped on. There was evidence that others did not realise that a gun had gone off.[11]The prosecution case was that Mr Pottinger's part in the plan for this gang-related violence was to bypass security to get what he knew to be a loaded gun into the club. The case that the gun was loaded when in the bag was said to follow from the CCTV footage which showed that Mr Kaba did not load it between taking it from the bag when it was handed to him by Mr Bell and the time at which the CCTV showed the shot being fired towards Mr Malutshi .[12]Mr Pottinger's evidence was as follows. On that evening of 29 August 2022 into the 30th he went to a party which finished at about 1.30 am. He had drunk quite a lot. When he and his friends left, they stood outside and he continued to drink and to take balloons. Mr Bell gave him balloons and three canisters. He then drove himself and some others to the Oval Space. He said he did not notice Mr Kaba and Mr Tagoe approach the car after they had pulled up, nor did he recognise Mr Kaba, who was wearing a balaclava in the queue. He, Mr Pottinger, spoke to security staff whom he knew through having worked there about getting in. It was crowded and he thought there might be a difficulty about it. He then returned to his friends in the queue and told them to get rid of their balloons so that they would not have any difficulty in getting into the club. He believed it was then that he saw Mr Kaba, and he told Mr Kaba to remove his face covering. He said he had not spoken to him before then that evening. His evidence was that Mr Bell had asked a security guard if he could take balloons in but the security guard had not responded. Mr Bell had then asked the appellant, Mr Pottinger, if he could get the balloons in. The appellant assumed that Mr Bell must have canisters in his bag, but he did not look inside the bag at any point. The appellant then told a security guard that Mr Bell wanted to get his balloons in, and the guard replied that he did not know Mr Bell so would not do him a favour. Mr Pottinger said he interpreted this as indicating that the security guard would or might let Mr Pottinger in with the balloons instead. He therefore took the bag in order to do Mr Bell a favour.[13]He said he was not concerned about being searched himself. He said he hugged the security officer at the table, the officer whom he knew, and she walked him into the venue and neither he nor the bag was searched. He then passed the bag back to Mr Bell as they were going up the stairs to the club. He said he then came back down the stairs and waited for a number of minutes to make sure that Mr Glasgow and the women that he had been with came into the club. He denied that his attempt to enter the club via the staff door was with the intention of bypassing security and smuggling the bag in. He denied that he knew there was a gun in the bag. He did not know why Mr Glasgow, Mr Kaba and Mr Tagoe were looking over in his direction when he was in the search area. He suggested that it was possible that Mr Kaba had the gun stashed in his groin as he was searched, which was the effect of Mr Bell's evidence.[14]He did not recall Mr Bell wearing a glove that night. When they were in the club, he had not noticed Mr Kaba wearing a balaclava as he approached the bar. He noticed it later and asked Mr Kaba why. Mr Kaba replied, "It’s bait in here", which Mr Pottinger said he understood to mean that there were lots of people so he would rather cover his face. Mr Pottinger's evidence was he tried to reassure Mr Kaba, who was moving and fidgeting; that Mr Tagoe then shouted at Mr Kaba, "In here is calm. Chill out. Don't do anything stupid"; that Mr Tagoe was very angry with Mr Kaba, but that he, Mr Pottinger, "signed out of the conversation". He did not care because he was on "good vibes". He was not aware of Mr Kaba taking the bag from Mr Bell and he could not think of any reason why he would do that. He did not see Mr Kaba wearing the glove while they were talking near the bar although he had seen Mr Bell pass it to him. He was not aware that there was going to be a shooting. He agreed that when Mr Kaba walked off towards Mr Malutshi, Mr Tagoe, Mr Glasgow and Mr Bell seemed to be looking towards where Mr Kaba was walking to, but he said that he, Mr Pottinger, was at that stage looking straight ahead and possibly pouring himself a drink. He said he heard a loud ‘pop’ but did not know what it was and was not really paying attention to it. Some of his friends then followed Mr Kaba out of the bar but he had stayed at the bar. He stayed there for a while, and eventually when he left, he met up with Mr Glasgow and drove back to his flat in Mr Glasgow's car.[15]He gave a ‘no comment’ interview. He said in his evidence that that was on legal advice. He also said in his evidence that when he met Mr Bell in prison, he was angry. He asked Mr Bell what was in the bag and at that stage Mr Bell swore that there was no gun in it when he handed the bag to Mr Pottinger.

The proceedings

[16]After the conclusion of the evidence, the Judge gave a split summing-up, with legal direction Part 1 before closing speeches, and a summary of the evidence, legal directions Part 2 and a route to verdict after closing speeches. The directions and route to verdict were shared with counsel in draft in the usual way and there was no objection to them in the final form in which they were given, both orally and in writing, to the jury. In the legal directions Part 1 the ingredients of the offences were identified, including for the section 18 offence the mental element of an intention to cause really serious bodily injury. There was also a separate section on the necessary ingredients of accessory liability by joint participation, with the actus reus involving assistance or encouragement, and with the relevant intention being an intention that the victim should be caused really serious injury. There was a separate section in the written directions Part 1 which dealt with intention. We will return to those directions in due course.[17]Those legal directions were immediately followed by prosecuting counsel's closing speech which took place on 30 and 31 January 2024. In the closing speech, Crown counsel said:
"Once inside the club, the bag with the gun was handed back from Mr Pottinger to Mr Bell. Mr Pottinger's work was now done. He could continue his evening, secure in the knowledge that he had ensured that, when the gun was needed, he had made it available. His act of assistance and encouragement could not [have been] more clear. What is also clear is that the gun was already loaded. Nobody loaded it inside the club. So it was loaded before it was smuggled into Oval Space."
[18]That, taken on its own, indicated reliance on the smuggling in of the gun as the relevant act of assistance and encouragement on Mr Pottinger's part as giving rise to accessory liability. But the remainder of the speech made clear that that was not the only basis on which it was suggested that Mr Pottinger offered encouragement and was guilty of accessory liability. At pages 7G-8A of the transcript Crown counsel is recorded as saying the following:
"Brandon Malutshi was spotted across the club ...You [will] remember one of the startling phrases that Tagoe damned his own account with? He said, ‘Kaba said he’d seen my ops.’ ... Kaba was referring to his opponent, a rival gang member ... It is clear that the path was set certain for Kaba to shoot Malutshi . He immediately spoke with Bagmboye. Bagmboye immediately put on his balaclava. The heightened activity involving Mr Bell, the bag-passing, Tagoe, Glasgow, and Kaba, followed thereafter, with Mr Pottinger right there as one of the group among them."
The Crown's speech went on shortly thereafter: "The bag with the loaded gun was passed by Mr Bell to Mr Kaba, together with a single black glove. That glove was now needed by Mr Kaba to keep his prints off the gun. You see on the CCTV how close the others were and paid close attention to what was going on. Bell has given no sensible explanation for passing his bag to Kaba, claiming that Kaba simply took it from him. But why? ... Because Kaba must already have known that there was a loaded gun in the bag. How could Kaba have known that if it had not been discussed by those five defendants previously? The evidence, we say, of their joint knowledge is clear. The evidence of their joint participation in what Kaba did with the gun, by assisting or encouraging him, is clear.They gathered around Mr Kaba as a group. And any claims they did not know who and what Mr Kaba was and what he was going to do are respectfully as hollow as the muzzle in the gun he was about to use. They were all looking towards where Malutshi was standing, some even craning their necks to do it, others moving aside and around for better to get a view of what was about to happen. This is not idle curiosity. It was purposeful and it was deliberately done.They were each participat[ing] by assisting and encouraging Kaba. Some defendants spoke with him, clearly, we say, giving that extra impetuous to carry on." (The underlined and italicised passages involve our emphasis.)[19]Then when playing the jury again the clips of the footage for the brief period after the handover of the bag by Mr Bell to Mr Kaba, which were played numerous times to the jury in the course of the trial and which we have seen and studied carefully, counsel referred to the presence of Mr Pottinger at the "gathering together with Kaba, Tagoe and Glasgow" and what he described as "agitated conversation with Kaba". He made reference to Mr Tagoe talking to both Mr Pottinger and Mr Kaba at this stage.[20]When it came then in the closing speech to dealing with the accounts given by each of the individual defendants, in relation to Mr Pottinger, Crown counsel recounted, at a little length, his account of the interaction with Kaba just before the shooting and gave reasons why he invited the jury to disbelieve Mr Pottinger's account, including Mr Pottinger's account of the content of the conversation, saying that from the clips it was perfectly clear that Mr Pottinger's version was not what was going on at that stage. In a concluding section of the speech, counsel invited the jury to conclude that Mr Pottinger had lied in a number of respects including in his account of "checking out of events" when they were happening right in front of him in the space at the bar immediately before the shooting.[21]When summing up the evidence, which took place on 14 and 15 February 2024, the Judge told the jury that they would need to consider carefully the competing suggestions of the Crown and defence respectively of what all five defendants were saying and doing in the moments before the shooting (including therefore Mr Pottinger) and that for this purpose the CCTV was deserving of their careful attention. The Judge set out at some considerable length Mr Pottinger's evidence about that stage of the incident and what he said he had been seeing and doing at that stage.[22]When the Judge was addressing what the jury could properly draw by way of inferences from silence in interview by reference to the standard direction under section 34, the Judge identified one of the facts which the prosecution said that Mr Pottinger could have been expected to rely on at interview, giving rise to an adverse inference, was his account of his conversation with Mr Kaba at the bar shortly before the shooting.[23]At the conclusion of that day, after he had dealt with the position vis-a-vis Mr Pottinger, the Judge asked Mr Pottinger's junior counsel whether there were any significant errors or omissions which he wished to bring to the Judge's attention, to which the answer was ‘no’.[24]At the conclusion of the summing-up the jury was provided a route to verdict which asked as a preliminary question for all of counts 1-4:
"Are we sure that the gun that was used to shoot Brandon Malutshi was concealed in Shemiah Bell’s bag and carried into the Oval Space by Marcus Pottinger?"
The route to verdict directed them that they would have to answer that question “yes” if they were to consider convicting any of the defendants on any of those counts.[25]Following verdicts on 19 February (there were some delays caused by the repeated sickness of a juror who was ultimately discharged), the matter was adjourned for sentence. Sentencing notes were uploaded in advance of the sentencing hearing which took place on 19 April. The note submitted on behalf of Mr Pottinger had the following passages:
" …the Court should interpret the verdicts of the jury as finding that Mr Pottinger’s involvement in hostilities towards Mr Malutshi was limited to a few moments when inside the Oval Space. … … the Court should consider that Mr Pottinger’s actions are consistent with him becoming aware of any intent to cause harm at the last moment. ... In the case of Mr Pottinger, it is respectfully submitted that the Court should not find an intent falling just short of an intent to kill. His involvement in this offence must have occurred moments before the shooting ..."
[26]When sentencing,

the Judge said this:

"Although I am sure the Prosecution are correct in saying that gang rivalry between these two gangs was a feature of the background to this case, I cannot be sure that it was the reason why the gun was taken into the nightclub that evening. Importantly, the Prosecution did not present any evidence at trial which would permit me to safely conclude that you, the defendants, knew that the victim, Brandon Malutshi , would be at that nightclub that evening. It follows that whilst I am sure that gang rivalry was one driver of the enmity which Kaba felt towards Malutshi when he saw him in the nightclub, I cannot be sure that was a significant driver of the actions of you, Mr Bell, or you, Mr Pottinger. I have therefore not increased the sentence I impose on you to reflect the gang background."
And then a little later:
"I turn now to interpret the jury's verdicts. Having presided over the trial, which lasted 13 weeks, I believe that I am particularly well placed to make sound judgments about the factual basis upon which you should be sentenced. I believe I am similarly well placed to interpret the verdicts returned by the jury. My interpretation of the jury's verdicts is that, at the time that the gun was smuggled into the club, they were sure that you had all agreed to assist or encourage that, knowing that the gun would be used, if the need arose, in any confrontation which may arise inside the nightclub. But the jury were not sure that, at that stage, you intended that life would be endangered through the discharge of that gun ..."
And then a little further on: "I am sure that once Kaba had spotted Malutshi , he told you, Bell, that he wanted the gun because he planned to confront and shoot Mr Malutshi , and that you agreed to assist in that endeavour by handing over the bag, the glove, and the gun. The jury's verdicts mean that they were sure that, thereafter, you and Mr Pottinger encouraged Mr Kaba in his plan. The jury were directed that they had to be sure that you shared Mr Kaba's intention. The verdicts returned by them demonstrate that they were not sure that you shared Mr Kaba's intention to kill, but you did share his intention to shoot and thereby inflict really serious harm on Mr Malutshi ." (Again, the emphasis is ours.) Submissions[27]Three written grounds of appeal were advanced for which leave was granted.• Ground 1: The learned judge failed sufficiently or at all to set out the limits of the prosecution case as against Mr Pottinger, such as to permit them to return an impermissible basis for returning a guilty verdict on count 2.• Ground 2: The jury reached conclusions that no reasonable jury applying its mind to the evidence could have reached based on the verdicts they returned.• Ground 3: The verdict on count 2 is inherently inconsistent with an acquittal on count 3 in view of the factual position in Mr Pottinger's case.[28]Following the grant of leave written skeleton arguments were served both for the Appellant and for the Crown, which in each case went through more than one iteration and which we have considered carefully. Mr George KC, who represented Mr Pottinger at trial, also made submissions on his behalf to us, for which we are grateful. In the Appellant's written skeletons and in the oral submissions, the arguments roamed widely, and well beyond those which were strictly speaking within the confines of the grounds for which leave was granted, but we do not treat that fact as limiting the basis on which we should consider the merits of the appeal. However, the width of the submissions was such that at times they seemed to us to be self-contradictory and took a form which we have found difficult to summarise concisely. We understood the following to be the main points which were being advanced. (1) The prosecution case was limited to Mr Pottinger's act of assistance of encouragement comprising the smuggling of the gun into the club, reflected in what was said in the prosecution's closing speech, that:
"Once inside the club, the bag with the gun was handed back from Mr Pottinger to Mr Bell. Mr Pottinger's work was now done. He could continue his evening, secure in the knowledge that he had ensured that, when the gun was needed, he had made it available. His act of assistance and encouragement could not have been more clear."
Therefore, the submission went, in order to be convicted on count 2 he had to have had the necessary intention that the gun would be used to cause really serious injury at that time, namely at the moment of smuggling the gun into the club. (2) However, there was no evidence that anyone knew that Mr Malutshi or anyone else from the 1-7 Gang would be at the club and no evidence of a plan having been formed at or prior to that time to shoot a rival gang member. There was therefore no basis on which at the time Mr Pottinger smuggled the gun into the club he can have intended it to be used in gang violence, which was, it was submitted, the extent of the prosecution case. That was supported, it was said, by what the Judge said when sentencing about the absence of gang rivalry explaining his smuggling of the gun into the club. That was also said to be the only conclusion which was consistent with the acquittal of the co-defendants on counts 1 and 2. (3) Moreover, the jury's verdict on count 3, acquitting Mr Pottinger of having an intention to endanger life, was inconsistent with his having had the intent to commit a section 18 offence at that time. What the jury must have done, it was submitted, was to conflate, and erroneously conflate, the intent they found proved on count 4 (that the gun would be used to cause fear of violence) with the intent necessary for the section 18 offence in count 2, namely an intention to cause really serious injury. (4) The jury can only have convicted on count 2 by some form of impermissible speculation that something which occurred in the club itself gave rise to the liability on the part of Mr Pottinger. But, it was submitted, that would have been inconsistent with the prosecution case, which relied on the participation being by smuggling the gun into the club, and inconsistent with the acquittals of the other defendants who were present with Mr Pottinger when the events shortly before the shooting unfolded. Further, it was submitted that it would in any event be a matter of speculation, not proper inference, on the evidence from the CCTV clips and the evidence which was before the jury about what happened at the club.[29]On behalf of the Crown, Mr Khalil, for whose submissions we are also grateful, submitted that there was evidence on which the jury could properly have concluded that at the time the gun was smuggled in, some gang members, at least, knew or suspected that a rival gang member would or might be in the club and that they intended at that time that the gun would be used to cause serious injury if that was the case; and that that was an intention which was shared by Mr Pottinger when playing his part in smuggling the gun into the club. Further, he submitted that the prosecution case was not limited in the ways suggested by Mr George to a case that Mr Pottinger's relevant assistance was confined to smuggling the gun into the club. The prosecution case included, he submitted, that by Mr Pottinger's involvement with Mr Kaba shortly before the shooting, after it was clear that Mr Malutshi had been identified by Mr Kaba as a target, Mr Pottinger had encouraged Mr Kaba and at that time shared Mr Kaba's intention to cause really serious injury specifically to Mr Malutshi . That was, he submitted, the interpretation put upon the verdict by the Judge on sentencing and that was indeed the defence sentencing note’s version of events, which the defence invited the sentencing judge to treat as his basis for sentencing. Discussion and conclusion[30]There are potentially three ways in which the jury might have reasoned their way to a conviction on count 2 which fall for consideration.(1) The defendants did not know or have any reason to believe when they arrived at the club that a rival gang member would be there, but that in smuggling the gun into the club, Mr Pottinger shared the intention of Mr Kaba and others to use it if occasion arose to inflict really serious injury to someone generally in the club, that being one of the reasons why a person might smuggle a loaded gun into a nightclub.(2) The defendants did know or suspect that some 1-7 Gang member would or might be at the club when they arrived, if not specifically Mr Malutshi, and that in smuggling the gun into the club, Mr Pottinger shared the intention of Mr Kaba and other gang members that it would be used to cause serious injury to a rival gang member if they were present at the moment they entered the club or became present at some later stage when those defendants were in the club.(3) Mr Pottinger's relevant act of joint participation was not smuggling the gun into the club but the group encouragement of Mr Kaba to shoot Mr Malutshi after he had been spotted at the club, in which Mr Pottinger participated, as was evidenced from the various defendants getting together at the time of the transfer of the bag and in particular when Mr Pottinger spoke to Mr Kaba shortly before the shooting.[31]As it seems to us, the Crown did not put the case on the basis of the first of these possibilities and the directions which the jury were given did not address conditional intent in terms which would encompass that basis for the verdict. We need therefore say no more about that route to a conviction on count 2.[32]The second possibility did reflect the way — indeed the main way — in which the prosecution put its case. The fact that the Judge said, as he did when sentencing, that he could not be sure that gang rivalry was the reason why the gun was taken into the nightclub that evening, and that he could not safely conclude that the defendants knew that the victim, Mr Malutshi , would be at the nightclub that evening is not conclusive of the question of whether the jury can properly have convicted on this basis. The relevant question is whether there was evidence upon which a jury properly directed could have been sure that the intention was to use the gun on a rival gang member if the occasion arose. The argument advanced on behalf of Mr Pottinger appeared to us to mean that counts 1 and 2 should in his case have been withdrawn from the jury at the conclusion of the prosecution case, because if the argument were sound Mr Pottinger could not have had the relevant intent at the time of his assistance in smuggling the gun in; indeed, that was how it was expressly put in one of the Appellant's written skeleton arguments. When we put this in the course of argument to Mr George, he said that he could not have made a submission of no case to answer at the conclusion of the prosecution case. After a number of answers to further questions we put to him seeking to clarify his position, we put to him our understanding in these terms, "So is it right that you are not saying that there was no evidence on which a jury could properly have concluded that at the time that Mr Pottinger entered the club there was an intention to cause serious injury to a rival gang member?" to which Mr George replied, "Not quite. There was evidence on which a jury could conclude that there was a joint plan at that stage to injure a rival gang member." We do not see any relevant distinction between those two different ways of putting it.[33]We accept Mr Khalil's submission, reflected in what Mr George said, that the gang background and the fact that Mr Bell and Mr Kaba, who were acknowledged gang members, arranged to smuggle a loaded gun into the nightclub was sufficient to permit a jury properly to conclude that the intention of those two at least was that it be used to injure a rival gang member whom they knew or suspected would be there, either when they got there or later when they were present; and that Mr Pottinger, by his actions in smuggling in the gun at that time, shared the intention of Mr Bell and Mr Kaba. The conviction on count 4 confirms that the jury were sure that Mr Pottinger knew at that stage that the bag contained a gun, which was a conclusion which was open to them (there is no appeal on count 4); the evidence was sufficient for them to conclude that it was at that time loaded; and the jury could properly have concluded that Mr Pottinger knew that it was not just a gun in the bag but a loaded gun.[34]Mr George pointed out that counts 3 and 4 were limited to possession of the gun and that there was no separate charge of possession of ammunition. But in our view that would form no bar to the jury concluding that Mr Pottinger knew that the bag contained a loaded gun when he smuggled it into the club. The jury would then have quite properly asked themselves what he intended when he smuggled a loaded gun into a nightclub and could properly have concluded that it was the furtherance of Mr Bell and Mr Kaba's plan. This view is supported by how the Judge described the evidence when sentencing as establishing that the defendants who were convicted on count 2 could be treated in the following way:
"My interpretation of the jury's verdicts is that at the time the gun was smuggled into the club they were sure that you had all agreed to assist or encourage that, knowing that the gun would be used if the need arose in any confrontation which may arise inside the nightclub."
[35]We reject the submission that the acquittal on count 3 (possession with intent to endanger life) is in any way inconsistent with such a conclusion or with the conviction on count 2. One can intend really serious harm without intending to endanger life. That is what Mr Kaba intended in this case in shooting Mr Malutshi twice in the leg, as the jury must have concluded by their acquittal of Mr Bell and Mr Pottinger of attempted murder on count 1. The jury's acquittal of attempted murder in count 1 but conviction of the section 18 offence in count 2 shows that they concluded that the intention of Mr Kaba was an intention to cause serious injury but not to endanger life. That could quite properly support a conviction on count 4 of an intention to cause fear of violence but an acquittal on count 3 because they were not satisfied of an intention to endanger life.[36]Nor is a conviction on this basis in any way inconsistent with the acquittals of some of the co-defendants on counts 1 and 2. Although it was indeed the Crown case that they all shared in the relevant intention, the jury were directed in standard directions to consider the case for and against each defendant separately, that the evidence for and against them was different on the counts which they faced together, and that the jury need not reach the same verdicts for all of the defendants on any given count.[37]Mr Bell and Mr Kaba were acknowledged gang members, and the jury could properly have concluded from the footage outside the club, and their interactions with the bag and with the gun in it both outside and inside the club, that the two of them were knowingly involved in smuggling the loaded gun into the club with the state of mind we have identified; the jury could properly have concluded that they could not be sure of that so far as the others were concerned. That would support the verdicts which the jury reached.[38]Mr George's submissions also included an argument that the conditional intent in the jury reasoning in this way would not properly have been open to it because of the legal directions which the Judge gave on joint participation. They did not refer, at least expressly, to conditional intent, but when dealing with the question of intent, spoke of an intention that Mr Kaba would shoot Mr Malutshi . However, we are satisfied that the directions were sufficient to enable the jury to understand this aspect of the case. Paragraph 62 of the directions specifically identified this conditional intent as part of the Crown's case and directed the jury that it could enable them to convict on all four of counts 1-4. There was, as we have indicated, no objection to the legal directions being in this form after a specific enquiry from the Judge.[39]That is sufficient to dispose of the appeal, but we are also satisfied that the jury's conviction can properly be explained and supported on the third basis we have identified, namely that the jury were sure that Mr Pottinger's relevant act was of encouragement of Mr Kaba in the group after Mr Malutshi had been spotted inside the club. The passages in the closing speech which we have identified and to which we have added our emphasis above make clear that that was a case which the prosecution was also advancing. The focus on what Mr Pottinger said to Mr Kaba at that stage of the incident and the express statement that at that stage all five defendants including Mr Pottinger were encouraging Mr Kaba to shoot Mr Malutshi in our view make that clear. The summing-up, which deals very fully with that part of Mr Pottinger's evidence, suggests that the Judge too thought that that was one way in which the prosecution were putting their case; and that is confirmed by his interpretation of the verdict as being supported in that way when it came to sentencing; indeed, the defence sentencing note for Mr Pottinger suggests that that was the defence's understanding at the time. That was a conclusion which in our view the jury were entitled to reach on the evidence, given the nature of the CCTV footage and what they could properly conclude it showed including what Mr Pottinger did at that stage and what Mr Pottinger saw at that stage. It was common ground that at that stage he spoke to Mr Kaba, and the jury were entitled to reject his account of the conversation as being untrue and to draw an adverse inference from him having told lies about it. Mr Pottinger’s willingness to smuggle the loaded gun into the club “knowing that the gun would be used, if the need arose, in any confrontation which may arise inside the nightclub" could properly have been thought by the jury to make it more likely that he would be prepared to encourage the use of it when the moment came. That would not have been a matter of impermissible speculation but a permissible inference drawn by the jury from the totality of the evidence before them.[40]The suggestion made again in this context that that would be inconsistent with acquittals of the three co-conspirators, in particular because Mr Tagoe, for example, was part of the conversation which Mr Pottinger had with Mr Kaba, is again in our view unsound. The mere fact that Mr Tagoe heard what Mr Pottinger said would not of itself necessarily involve encouragement on his part. The jury needed to take a separate view for each of the defendants present at that stage, and notwithstanding the prosecution case that they were all involved and acting together at that stage, the jury might properly have been unsure in the case of one or more of them that their involvement was anything more than mere presence which did not go so far as encouragement, by contrast with what they could see Mr Pottinger looking at and doing, and the fact that it was common ground that he had had a conversation with Mr Kaba which they could properly have concluded was one that he had lied about.[41]For all these reasons, we see no merit in the grounds, and we are satisfied that the conviction is safe.[42]Accordingly the appeal is dismissed. 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