England and Wales Court of Appeal (Criminal Division) Decisions

		Neutral Citation Number: [2002] EWCA Crim 1697
		Case No: 2001/00326/W3 2001/00739/W3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE ROGERS QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th July 2002

B e f o r e :

LORD JUSTICE PILL
MR JUSTICE NELSON
and
MR JUSTICE McCOMBE
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	R
	- v -
	Brian STEAD And Jason LAWLOR

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(Transcript of the Handed Down Judgment of
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Gary Bell appeared for the appellant Brian Stead
Andrew Campbell-Tiech appeared for the appellant Jason Lawlor
Brian Higgs QC and Simon Denison appeared for the Crown
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Lord Justice Pill:

1. On 18 December 2000 at the Central Criminal Court before His Honour Judge Rogers QC and a jury, Brian Stead was convicted of murder (Count 1) and doing an act intending to pervert the course of public justice (Count 2). He was sentenced to life imprisonment on Count 1 and to 8 years imprisonment on Count 2. Jason Lawlor was convicted on Count 2 and sentenced to 8 years imprisonment. A co-accused James Lawlor, the brother of Jason, was convicted on both counts and sentenced to life imprisonment on Count 1 and 8 years imprisonment on Count 2.
2. Stead renews his application for leave to appeal against conviction on Count 1, leave having been refused by the single judge. Jason Lawlor appeals against conviction on Count 2 by leave of the single judge. James Lawlor has not appealed. The trial lasted three weeks.
3. The evidence was that on the night of 16 December 1999, Roy Brooker was shot and stabbed at a flat at 5 Acanthus Drive, Bermondsey. It was alleged that, having spent the evening drinking with friends in public houses, Brooker returned to the flat with Stead and James Lawlor. The three of them drank and took cocaine. In the early hours of the morning, good relations broke down. According to Stead, Brooker said words to the effect of “Who do he and his brother think they are? I’m going to do them one day”, while James Lawlor was out of earshot. Upon James Lawlor’s return, Stead repeated these words whereupon, according to Stead, Lawlor produced a gun from a holdall and shot Brooker in the leg. Brooker ran to the kitchen and picked up a knife. He returned to the hall and attacked Stead, causing him some stab wounds. Stead was trying to get out of the house. James Lawlor came to the scene of the struggle and using a second handgun shot Brooker twice in the mouth. There was then a scramble between James Lawlor and Brooker for the knife. James Lawlor took hold of it and stabbed Brooker repeatedly. James Lawlor also shot Brooker with a different handgun. Brooker died in the house.
4. It was also alleged by Stead that James Lawlor contacted his brother Jason who arrived in the afternoon of 17 December. The three men cleared up the flat and disposed of the body. According to Stead, Jason Lawlor dismembered the body with a saw, wearing a face mask smeared with Vicks’ vapourub. The flat was repainted white and the carpet and broken furniture removed. Incriminating material was placed in a stolen Astra motorcar which was driven to nearby railway arches in Bermondsey and set alight. On 19 December, the dismembered body was taken by all three men to a landfill site in Essex.
5. Police visited the flat on 20 December. On the same day James Lawlor and Brian Stead travelled to Sunderland where Stead’s family lived. Scientific examination of the flat revealed many blood stains and the blood was shown to have come from Brooker and Stead. Bloodstained clothing and bedclothes were discovered in the partially burnt-out Astra motorcar. Also in the car was a face mask exhibiting Jason Lawlor’s DNA, two hairs which had Jason Lawlor’s DNA on them were also found in the vehicle. Stead’s blood was on clothing found in the Astra.
6. There is evidence that in Sunderland, Stead made admissions to his brother. On New Year’s Eve, Stead and James Lawlor, using false passports, flew to Tenerife. Jason Lawlor was arrested on 27 January 2000 and James Lawlor on 16 February. Stead lived rough for some time before surrendering himself to the police on 31 May 2000.
7. James Lawlor’s defence was by way of alibi. He was at his sister’s home on the night of the death and was also elsewhere at the time when Stead claimed the three men were disposing of the body. Witnesses gave evidence in support of his alibi. Jason Lawlor did not give evidence. As already indicated, Stead’s evidence was that Brooker was killed by James Lawlor. He, Stead, was present but took no part in the killing. As to Count 2, Stead’s defence was that, although he did act with Jason and James Lawlor in disposing of the body, he was acting under duress.
8. The main evidence against Jason Lawlor on Count 2 (until Stead gave evidence in his own defence) was that the face mask was contaminated with blood from the deceased and in addition provided a complete profile of the DNA of Jason Lawlor. In rejecting a submission of no case to answer, the judge stated that the jury were entitled to infer that someone had used the face mask while cutting or assisting in the disposal of Brooker’s body and also that the wearer of the mask at the time was Jason Lawlor. The judge concluded that “the facts as they stand at the moment exclude all other reasonable inference, other than that it was Jason Lawlor who was wearing the mask when the body of the deceased man was being dismembered”. The ground of appeal that the judge ought to have stopped the case against Jason Lawlor at the close of the prosecution is not pursued before this Court.

Stead

9. On behalf of Stead, Mr Bell submits that the jury must have accepted Stead’s evidence because they convicted James Lawlor. Stead gave an explanation of how Brooker had died which was consistent with the scientific evidence. In those circumstances, it was not logical to reject that part of this evidence dealing with his own lack of participation. Alternatively, a most careful direction was required as to the drawing of inferences and as to joint enterprise.
10. We cannot accept those submissions. The jury were entitled to disbelieve, if they saw fit, a part of Stead’s evidence while accepting that in relation to the presence and participation in the killing by James Lawlor. There was evidence from which the jury were entitled to infer that Stead was a participant in the killing. As Mr Bell accepted, the use of three separate weapons in the attack was evidence from which the jury were entitled to infer that there was more than one attacker. The medical evidence did not support the claim that Stead was stabbed by Brooker during the incident (Brooker mistakenly believing that Stead was James Lawlor). There was lengthy association between Stead and James Lawlor after the murder, though Stead claimed that he was acting under duress when assisting with the disposal of the body and clothing. Stead accepted that he told his brother that “we killed somebody”. His claim was that the “we” was merely a figure of speech.
11. This was not a case in which a specific direction as to circumstantial evidence and the drawing of inferences was required.
12. As to the direction of joint enterprise, it is submitted that a fuller direction should have been given especially having regard to Stead’s telling James Lawlor of Brooker having told him that he’d “do him [that is James Lawlor] and his brother”.
13. The judge’s direction on joint enterprise and Stead’s defence of mere presence was:

“ Let us look at joint responsibility. Where a criminal offence is committed by two or more persons each of them may play a different part, but if they are in it together as part of an agreement or a joint plan to commit the offence, then they are jointly guilty.

The word ‘plan’ or ‘agreement’ does not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all and an agreement can be implied, can it not, from the behaviour of the parties to it.

The essence of joint responsibility is that each defendant shared the intention to commit the offence and took some part in it so as to achieve that aim. Your approach ought, therefore to be as follows: Look at the case against James Lawlor and the case against Brian Stead quite separately. If you are sure that with the intention to kill or cause really serious injury, then the defendant you are considering committed the offence of murder with that same intention took part in committing it with his co-accused, then he is guilty. It comes to this quite simply: You consider each quite separately. Are you sure either that he was the one that was responsible for killing Roy Brooker with the intention I have indicated or alternatively if he did not actually do it was he with that intention to kill or cause serious injury taking some part in the offence?

Now I want to say something quite separate, but associated with that. Brian Stead’s case is I was there, but I played no part. Mere presence at the commission of an offence does not amount to guilt. However, if you find that Brian Stead was not only present at the scene of the killing, but intended by his presence alone encourage James Lawlor to carry out the offence, then he could be guilty of murder. What it comes to in this case is this, is it not, if you think it possible that Brian Stead was simply there and was not intending to be involved and was not involved, then he is not guilty. He is only guilty if he was there, because, as I have already indicated with the intention I have set out, he did the killing or played some part in it with that same intention or alternatively was there present at the scene intending by his presence to encourage James Lawlor.”

14. The submission is that there is a real danger that, on the basis of that direction, the jury may have convicted Stead solely for having repeated the words of Brooker to James Lawlor. Having rejected other evidence (or had doubts about it) the jury might have regarded that as “encouragement” which was itself sufficient to justify a conviction, when it was not. Uttering the words which led to the violence does not itself justify conviction for murder. A fuller direction should have been given to avoid that possibility.
15. In our judgment the direction was sufficient in the circumstances. The last two sentences cited from the summing-up put the matter accurately. Repeating the words of Brooker to James Lawlor was not an encouragement to murder and it is inconceivable that the jury regarded it as such. The jury were reminded of the evidence in relation to Stead’s involvement in the killing and as to his denial. We do not consider it a real possibility that he was convicted only on the basis of his repetition to James Lawlor of the words of Brooker.
16. Stead does not seek to appeal against his conviction on Count 2. His renewed application for permission to appeal against conviction on Count 1 is refused.

Lawlor

17. James Lawlor and Stead were charged with the murder of Brooker and all three defendants were charged with doing an act intending to pervert the course of public justice (Count 2), the act being the disposal of Brooker’s body. Stead’s defence on Count 2 was that he acted under duress. He was frightened of Jason Lawlor (the appellant) and James Lawlor.
18. Stead’s account of events emerged only when he asked to be re-interviewed on 4 October 2000, not long before the trial. His statement fully implicated the appellant in the dismemberment and disposal of the body. However, amongst other things, he said, in the course of a long interview, that the appellant was furious with his brother because one of the weapons James had used in the murder of Brooker had been discharged by the appellant in the course of a shooting at a public house some weeks earlier and would be traceable to the appellant. (The police denied knowledge of the incident.)The vehicle used to dispose of incriminating evidence had been stolen for a contract killing which was to happen on 18 December. Stead was required to drive the appellant and James Lawlor to the place where the victim was to be shot. The appellant was wearing bullet-proof body armour under his coat and both brothers were armed with guns. Stead claimed that a ruse of his prevented the killing, which was rescheduled for Christmas Eve. As part of the payment for the killing, the appellant was to be lent an industrial mincing machine. When he arrived in the North East on 21 December, the appellant was wearing body armour and carrying two handguns. Stead had feared for his life at the landfill site if he did not co-operate. His attack on the character and behaviour of the appellant was a serious one, as it almost inevitably will be when the defence is one of duress.
19. An application that the indictment be severed and the appellant tried separately from both his co-defendants was made at the beginning of the trial on 27 November 2000. The application was refused. It is claimed that there was confusion as to what evidence was before the judge and what evidence was to be called by the prosecution. The application was renewed on 29 November and was again refused. The basis of the application was that the evidence about the appellant which Stead was likely to give in the course of the trial, in furtherance of his defence of duress, was so prejudicial to the appellant that a fair trial was impossible. (The judge did not admit in evidence an unsigned witness statement based on Stead’s interviews.)
20. In the course of his evidence in chief, Stead was asked how well he knew the co-defendants. He replied:

“I never knew Jason at all. I met him once in a pub. He was serving a nine year sentence so I never met him.”

21. No further mention was made of the sentence in the course of the trial. The judge refused an application on behalf of Jason Lawlor to discharge the jury.
22. On behalf of Lawlor, Mr Campbell-Tiech submits that the accumulation of prejudice was such that the appellant should not have continued to be tried with Stead. The grounds of appeal in relation to severance and Stead’s statement effectively melt into one, it is submitted. The murder and subsequent dismemberment and disposal of the body were particularly shocking and likely in themselves to arouse prejudice. Counsel accepts that the judge did his best to limit the prejudice arising from evidence given by Stead in support of his defence of duress (or necessity as counsel prefers to categorise it) but submits that the weight of prejudice arising from it in this case was incurable. The jury could not reasonably be expected to ignore it in its entirety. The weight of evidence they heard from Stead was too great.
23. For the prosecution, Mr Higgs QC accepts that Stead gave, and was entitled to give, evidence in support of his defence of duress which he would not have been entitled to give as a prosecution witness in a case against the appellant. While evidence about the mincing machine was relevant to the case against the appellant, the fact that Stead alleged that he was a contract killer, wore body armour and possessed and used firearms was not. Mr Higgs submits that it was in the interests of justice that the three defendants be tried together and that, in his discretion, the judge was entitled to give the rulings he did.
24. Counsel referred to the judgment of this Court delivered by Lord Widgery CJ in Lake (1977) 64 Cr App R 172. The Lord Chief Justice stated, at p 175:

“It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise. Accordingly it is accepted practice, from which we certainly should not depart in this Court today, that a joint offence can properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that. Of course the practice requires that the trial judge in such a case should warn the jury that the evidence is not admissible, ....

However the question of severance is primarily one for the trial judge. The discretion was properly exercised in the present instance, and notwithstanding the fact that there must have been some risk of prejudice the decision of the judge, we think, was right. Of course if a case is strong enough, if the prejudice is dangerous enough, if the circumstances are particular enough, all rules of this kind must go in the interests of justice, but this is not the sort of case in which the ordinary rule of practice in our judgment will operate unduly to the detriment of the accused and therefore it is a case in which we should apply the ordinary rule.”

25. Mr Campbell-Tiech also referred to the case of O’Boyle (1991) 92 Cr App R 202. Lord Lane CJ referred to the statement of Devlin J in the case of Miller (1952) 36 Cr App R 169 where defendants were charged with conspiracy and one defendant attacked the character of another. Devlin J stated, at p 175:

“I think that in charges of this sort justice ordinarily requires that the whole matter should be tried as one case, and that it needs a very strong and exceptional case before it is split up into two separate trials. If separate trials were to be ordered as a matter of course simply because one prisoner proposed to attack the character of another, then a separate trial, and the possible advantages in the case of the guilty prisoner, could always be obtained simply by the threat that one prisoner proposed to attack the character of his fellow-prisoner.”

26. However, the Lord Chief Justice also stated, at p 207:

“We are also conscious of the necessity to maintain intact so far as possible the discretion of the judge in this and in other cases (see Salmon LJ in Flack (1969) 53 Cr App R 16, 171. However, we have come to the conclusion that this was a wholly exceptional, if not unique, case and that the judge gave insufficient weight to the fact that separate trials would do little, if any, harm to co-defendant or prosecution, whilst a joint trial would almost guarantee that the appellant would be convicted whatever direction was eventually given to the jury as to how they should approach the difficulty.”

27. Mr Campbell-Tiech submits that while the line in Lake is difficult to draw, it was crossed in this case by the admission of evidence that the appellant was a contract killer.
28. In his summing-up, the judge dealt with the question in this way:

“Also bear this in mind and it is associated with it, Brian Stead has had a lot to say about the Lawlors and in particular about Jason who is not charged with murder. I give you this warning. The only reason that he has been permitted to make those allegations is because the defence of duress requires you to consider the state of mind, does it not, because you have to determine whether or not he might have been frightened in the way he says and, therefore, he is entitled to say to you I was frightened because. Do not take into account against the two co-defendants his allegations of what he says he knows about them. We have not even attempted to find out whether those allegations are true or false and it does not matter. All that is important is that he says they had an effect upon his mind, so their evidence that you take into account in determining his assertion of duress, but ignore all of them as far as his co-defendants are concerned. Let me put it to you quite simply. In the end, in count 1, you really have to determine whether James Lawlor was there in 5 Acanthas Drive playing the part he is said to have played. Concentrate on that. You are not helped by all sorts of allegations about other things. Put those out of your mind; similarly with Jason.”

We consider that to be a clear and accurate statement of the position. The judge was also correct to make no reference to Stead’s statement that the appellant had served a long prison sentence.

29. In our judgment, there were powerful public reasons in this case for trying the defendants together. There was strong evidence of a sequence of grim events which, in the interests of justice, the jury should consider at a single trial involving all three defendants and the entire narrative. It was not a case in which, by reason of the allegations to be made by Stead against the appellant, the judge was required to order severance. The appellant was alleged by the prosecution to have taken part in dismembering and disposing of Brooker’s body. A co-defendant, charged with the same offence, made a serious attack upon his character in order to further his own defence of duress. In the circumstances of this case, that did not entitle the appellant to be tried separately from his co-defendants, given the public interest in the whole matter being tried as one case. Moreover, in the context of the case as a whole, Stead’s reference to the appellant having served a prison sentence did not require the discharge of the jury and the judge was entitled to make the ruling he did
30. For the reasons given, this appeal is dismissed.