England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		20th June 2007

1. LORD JUSTICE HOOPER: At the conclusion of yesterday's hearing we announced that the appeal against conviction would be dismissed. We now give our reasons.
2. On 15 February 2006, in the Crown Court at Birmingham before Mackay J and the jury, the appellant was convicted of murder: count 1. Dale Campbell was convicted on count 2 of doing an act tending and intended to pervert the course of justice and possessing a prohibited weapon, namely a firearm. Shervaun Whitehouse, the appellant's then girlfriend, was also convicted of count 2. The appellant appeals his conviction by leave of the full court.
3. Niall Sharpe was murdered at about 4.34am on 4 September 2004 in the West Cross Shopping Centre, Oldbury Road, Smethwick. He was killed by a single shot from a Beretta automatic pistol. That night a party was being held in the house of Rashida Bogle in Drake Road on the Galton Village housing estate. That estate is known as, and was called during the trial, "the concrete jungle". It was on the opposite side of Oldbury Road from the shopping centre.
4. There was evidence that the appellant had entered the house where the party was taking place about five minutes after the murder. About one-and-three-and-a-quarter hours later a taxi was called. In the period before the calling of the taxi there was evidence that the appellant and his two co-defendants were in the kitchen talking.
5. The taxi having been called, Josiah Bogle got into the taxi with Campbell. According to Josiah Bogle, Campbell during the journey put a bag on the seat between them. It was Bogle's evidence that Campbell had said words to the effect, "Your cousin said hold this and he'll collect it in the morning." In his statement he had said words to a similar effect, "Take this and Creeper [the appellant] will come for it in the morning."
6. He looked in the bag and saw the gun, a magazine and a gold chain. There was no doubt that the gun had been used in the murder and the gold chain stolen during the course of the murder. Bogle said he was frightened when he realised there was a gun in the bag and took the gun to a friend called Daniel Marsh and asked him to look after the gun. According to Bogle he took the chain to the appellant's girlfriend, Shervaun Whitehouse, and told her to give it to the appellant. According to Bogle he saw the appellant during the following day, but did not ask him about the bag.
7. Marsh made a statement which was read to the jury, albeit that its contents were not agreed. Marsh was unavailable to give evidence. He said that Bogle came to see him on the morning of 5 September and gave him a gun to look after. He said that the next day he took it back to Bogle and that they decided to get rid of it. They gave it, according to Marsh, to Curtis Bailey. The police tracked down Curtis Bailey and eventually found the gun which had been used in the murder and which, on the evidence of Bogle, was in the bag. The necklace was also located via a circuitous route. The evidence that the necklace had been given to Whitehouse by Bogle came only from Bogle. None of the defendants gave evidence.
8. We turn to the summing-up to see how the prosecution put their case:

"Step one: opportunity. They say Levi Walker had the opportunity to commit murder in that he was dropped off in the area of Kwik Save by Moses Bogle and Dean Smith shortly before the shooting, and he was on his own, they say, when he was dropped off, and this step, step one, it has to be said, is wholly dependent on the evidence of Moses Bogle and we'll have to spend some time looking at him.

Step two: the crime. A much simpler, shorter step to consider. Niall Sharpe was shot dead, it did happen, and about pretty well exactly 04.34 -- we'll see how that works out - by a single gunman who fired a single shot and who stole his yellow gold chain, and really there's no controversy about any of that. The gunman then made his way off at around (inaudible), variously described, towards the concrete jungle. The gunman was a black male wearing either a white or light coloured top. That's step two.

Step three is within the concrete jungle. The prosecution say Levi Walker was recognised running up Talbot Way in the direction of Frobishire Way and Drake Road very shortly after the time when this shooting must have occurred, minutes after. This step depends on the evidence of Richard Morgan and depends entirely on it.

Fourthly, Levi Walker was in the kitchen. So the fourth step can be called the aftermath, if you like. The cover-up, the prosecution call it. Levi Walker has his meeting in the kitchen at 8 Drake Road, attended by Dale Campbell and Shervaun Whitehouse. This is within an hour and a half now of the shooting, soon after which Campbell asks Josiah Bogle to take the gun away, and the prosecution say these circumstances must show that this was being done for Levi Walker, who must have told Campbell that he'd used the gun in the murder and he wanted it got rid of or removed from the area."

9. This appeal concerns a ruling made by the trial judge in relation to the evidence of Josiah Bogle of what Campbell had said in the car when handing over the bag. See paragraph 5 above.
10. The evidence was undoubtedly admissible against Campbell. Bogle therefore gave the evidence to the jury in the course of the trial. It was submitted, on behalf of Walker, that although the evidence was admissible against Campbell it was not admissible against him. The judge ruled that it was, and that is the ruling which is under challenge in this appeal. The judge, of course, had had the benefit of hearing Bogle give his account of what Campbell had said in front of the jury.
11. There was, and is, no dispute that Bogle, in stating what Campbell had told him, was giving hearsay evidence, the admissibility of which depended on sections 114 of the Criminal Justice Act 2003 and following. Section 114(1) provides that a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if, any of the following four lettered subparagraphs are satisfied. The relevant subparagraph, with which we are concerned, is (d). That provides:

"the court is satisfied that it is in the interests of justice for it to be admissible".

12. Bogle was giving evidence of a statement made by Campbell, which was not made in oral evidence by Campbell. Campbell was the defendant and, of course, the prosecution could not call him as a witness and, as we have noted, Campbell himself never gave evidence.
13. Section 115 provides:

(1) In this Chapter references to a statement or to a matter stated are to be read as follows.

(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been-

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated."

Applying subsection (3), in telling Bogle what he did, Campbell's purpose was to cause Bogle to act, namely take the bag and temporarily look after it for the appellant.

14. There was likewise no dispute in the court below, nor before us, that Campbell's account of what Walker had said to him was similarly hearsay evidence. Walker's statement to Campbell was not made in oral evidence and Walker's purpose, if he made the statement, was to cause Campbell to act, namely take the bag and give it to Bogle for temporary safekeeping.
15. The prosecution argued that section 118(7) applied. That states:

"Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated."

The judge agreed with that submission. We come back to that conclusion later in our judgment.

16. There is no dispute that the judge had to apply section 114 to both Campbell's statement to Bogle and Walker's statement to Campbell. Unfortunately the judge did not do that, but jumped straight to section 121. The judge also concentrated in his ruling on the reliability of Bogle's evidence. Mr Imman attacks his conclusion about Bogle's reliability. Section 114(2) provides:

"(2) In deciding whether a statement not made in oral evidence should be admitted under section (1(d), the court must have regard to the following factors (and to any others it considers relevant) -

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it."

Section 121 provides:

"(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless-

(a) either of the statements is admissible under section 117,119 or 120,

(b) all parties to the proceedings so agree, or

(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

(2) In this section 'hearsay statement' means a statement, mot made in oral evidence, that is relied on as evidence of a matter stated in it."

17. As far as section 114(2) is concerned, the only subsections of real importance in this appeal are subsections (e) and (f). We should say in passing that as far as subsection (g) is concerned Walker could have given evidence that he never gave the bag to Campbell. True it is, as Mr Imman QC submits, that Mr Walker could not directly challenge Campbell's conversation with Bogle. However, if he had denied giving the bag to Campbell and if the jury had found Walker's evidence credible, that would have been sufficient to render Bogle's evidence about what Campbell said to him of no evidential value.
18. As far as section 121 is concerned, it is the reliability of the statements of Campbell and Walker which need to be considered. The judge never addressed the issues of the reliability of Campbell and Walker as makers of the statements, the reliability of the evidence of the making of the statement by Walker to Campebell and the reliability of the statement themselves. (See Maher 2006 EWHC 1271 (Admin)).
19. However, the judge was never asked to carry out this exercise. It was the full court in giving leave which noted that the judge had not apparently carried out the necessary exercise. It is accepted by Mr Inman that we should now carry out that part of the task not carried out by the judge. Only if we reach the conclusion that the judge would necessarily have decided the issue adverse to the appellant, should we dismiss the appeal.
20. We start with section 114(f), namely the reliability, as it appeared to be, of the evidence of the making of the statement by Campbell to Bogle. The judge did deal with this issue in his ruling, although he concentrated on Bogle's reliability generally. He said:

"So Mr Inman's main attack and main fire is directed on the question of reliability, which is something I have to 'take into account" before expressing satisfaction. I'm in a good position to judge that because I've heard the whole of Josiah Bogle's evidence. He's been cross-examined extensively before a jury which as an exercise is, if anything, even better and more intense than the equivalent testing in a voir dire.

Mr Inman makes obvious points about the difficulties inherent in his account. Without listing them all the main ones are these. In fact Walker never did make any attempt to collect the gun either in the morning or at any time; in fact Bogle never did try to contact Walker about it to say "When are you gonna take this gun off my hands?"; and that is the case even though he had ample opportunities to do so, two of them at least on the same day, the Saturday, and there is evidence that he spent substantial time with Walker in the following week at Nottingham, both at Nottingham and driving to and from it, where one would have thought this topic would have been raised, and then when his own brother Moses was arrested and gives a false alibi, it is only after all this that this account of the conversation emerges. There are other points. It is not to be dismissive of them to describe them as jury points, but that is what they are.

Mr Barker urges me to approach this case, as I believe I will have to tell the jury to approach it, on this basis: that the actions and reactions and responses of some of the witnesses in this case, and the Bogle brothers in particular, shouldn't be judged by the kinds (?) of behaviour of probably most of the members of this jury. It's not to say that they don't live under the same laws, they do, but the points Mr Inman is making is 'Well why didn't you do this, that, or the other?' This is a different culture that these young men live in. The world they live in has strong but unorthodox loyalties, attitudes to authority, responses to criminal situations. Over it hangs a duty to keep quiet, particularly about crime, a fear of others, a need not to stand out from the crowd or fall out, to rock the boat, to put one's head above the parapet, whatever phrase one chooses.

At the core of Josiah Bogle's evidence, as it Seems to me - and it will be for the jury to decide whether it seems to them as well - is the fact that he has eventually broken all or some of these rules. Anyone can see what a difficult time he had in the witness box. It is for the jury to decide whether he had that difficult time because he is a liar or because he is putting his neck on the line. For my part, I cannot say that he is a witness who was incapable of being believed; it's a case eminently suited to decision by a jury. It is perfectly possible that they could on a reasonable basis come to the conclusion that the core of his evidence, which must have cost him a high price in terms of his anxiety and which may yet in the future cost him in other ways, is true. I'm not saying that it was; it is not for me to pass that judgment.

Therefore, if I have to apply Section 121 I rule that the interests of justice, which include justice to the defendant and justice to the prosecution, require this statement to be admitted as evidence against both Walker and Whitehouse."

21. Mr Inman accepted before us that the judge encapsulated in the ruling his principal arguments about the reliability of Bogle. Mr Inman attacks the test applied by the judge in the penultimate sentence of the passage which we have quoted. He particularly attacks the use of the expression "incapable of being believed". In our view the judge was saying in this passage no more than, "A reasonable jury could properly rely on the evidence of Bogle in the process of reaching the conclusion that 'A' was guilty". Mr Inman, and indeed Mr Barker QC, accepted that if this is a proper interpretation of what the judge was actually saying, then the judge was applying the correct principle. It was agreed that it was not for the judge to decide whether he found Josiah Bogle reliable, but whether a reasonable jury could find him reliable.
22. We add a further point in commenting on the judge's reasoning. Although in section 114 the reliability of the maker of the statement is a factor, the reliability of the evidence of the making of the statement seems to us the more important. Assessing the reliability of the evidence of the making of the statement permits the judge to examine not just the evidence of the person making the statement and his reliability, but other evidence which may well touch on the issue. That said, we take the view that the judge did reach a decision as to Bogle's reliability, which he was entitled to reach.
23. In passing, we should note that we heard no argument on the meaning or effect of the words "appears to be" in subsection 114(e) and (f).
24. We now turn to subsections (e) and (f) and start with Campbell. Subsection (e) "requires" the judge to assess how reliable the maker of the statement, Campbell, appears to be. Subsection (f) "requires" him to assess how reliable the evidence of the making of the statement to Campbell by Walker appears to be. There is, in our view, considerable overlap between these two subsections and it is subsection (f) which is of particular importance, at least in this case. In deciding the issue raised by subsection (f) the reliability of the maker of the statement may be of importance in deciding the issue of admissibility, but not necessarily so.
25. We have no doubt that if the judge had made these assessments he would have ruled the evidence of what Campbell said to Bogle admissible under section 114 for at least the following reasons. There was no doubt that Campbell was not the murderer. The evidence of Bogle that Campbell had handed him the bag containing the gun and necklace was evidence upon which a reasonable jury could properly rely in reaching the conclusion that the appellant was guilty. The murder had only very recently taken place and there was considerable other evidence that the appellant was the murderer. There was evidence that the appellant was in the house within minutes of the murder and was talking to Campbell in the kitchen in the period before the taxi was called and the hand-over took place.
26. Section 114(e) also "required" the judge to assess the reliability of Walker as the maker of the statement to Campbell. In his summing-up, as we have seen, the judge said that the prosecution's case was that, given what Campbell said to Bogle, Walker must have told Campbell that he had used the gun in the murder and wanted it removed from the area. Mr Inman did not argue that the application of subsection (e) would render Walker's statement to Campbell inadmissible, so we do not need to trouble ourselves further about this.
27. Before passing on to section 121 we make two points: first, this is an alternative possible argument that the prosecution might have put forward, that is an argument that relies upon section 118(5), which refers:

"Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings."

By virtue of section 114(1)(b) that would be a rule of law preserved by section 118 which could make the statement admissible. Mr Barker did not rely on section 118(5) and we say no more about it.

28. Secondly, there was no dispute that if Campbell had said no more to Bogle than, "'A' gave me the bag" Campbell would not, in this respect, have been giving hearsay evidence. In fact, that is all that the prosecution really needed. If Campbell had said this and no more to Bogle, and assuming that Bogle's account of what Campbell had said to him was admissible evidence against Walker, the prosecution would have proved through Bogle that the gun was in the hands of the appellant within a short time of the murder, and this would be very strong support for the other evidence that the Appellant was the murderer. Even if we were wrong about our conclusion on section 121, to which we now turn, this will be enough, in our view, to say that the conviction was safe. In reality, although Campbell gave further evidence about what Walker had asked him to do, what really mattered, in our view, was that Campbell had received the gun from Walker on the account given by Bogle.
29. We turn to section 121. It imposes a higher threshold, so it appears to us, than section 114. Section 114(1)(d) says:

"the court is satisfied that it is in the interests of justice for it to be admissible."

30. Section 121 refers to the value of the evidence being so high that the interests of justice require the earlier hearsay statement (in this case Walker's statement to Campbell) to be admissible. Value, it seems to us, although we heard no detailed argument on the point, to mean probably probative value, that is, for example, the word used in section 114(2)(a). Section 121 requires the judge to consider the issue of how reliable the statements appear to be. In this case the statement of Campbell to Bogle and of Walker to Campbell. The judge, having concluded that the statements were admissible under section 114, having applied subsections (e) and (f), is unlikely, so it seems to us, to reach the conclusion, applying section 121, that the statements are not reliable. Applying what we have said in relation to section 114, we take the view that if the judge had asked the right questions in relation to section 121 he would not have ruled the statements of Walker to Campbell inadmissible under section 121.
31. We say something briefly about common enterprise: section 118(7). We did not ask Mr Barker for any detailed argument and we therefore give only our tentative views. In his ruling the judge said:

"Mr Barker puts it forward on two bases; first, under Section 118 preserved common law categories of admissible hearsay, number 7 is common enterprise.

'Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.'

There is other evidence that shortly before this gun was passed to Bogle he, Levi Walker and Shervaun Whitehouse had been together. I'm sorry, Dale Campbell, Levi Walker and Shervaun Whitehouse had been together just the three of them in the kitchen of Rashida's house, and there is other evidence, if the jury accept it, capable of amounting to circumstantial evidence consistent with Walker having come to that meeting hot-foot from shooting Niall Sharpe just off the Oldbury Road minutes before. So the prosecution say the jury could infer, if they think it safe to do so, that a joint enterprise or conspiracy was hatched in that kitchen there between the three to take all necessary steps to conceal this crime and including the step of removing the gun as far away from the scene as they could.

Mr Inman objects that the sayings of one party to a joint enterprise cannot be used to establish the existence of the common enterprise and the prosecution of course accept that proposition as being correct, which it is, but that isn't the case here, they say. The existence of that joint enterprise depends on inferences to be drawn from other evidence, but, once established, what any one member of the conspiracy says is the conspiracy in action and becomes evidence against the others. So Mr Barker argues that the words said by Campbell are the common enterprise in action -- seen in action in disposing of the gun and is admissible as such against all three. I accept Mr Barker's arguments in this respect."

32. The rule, to which section 118(7) refers, is very helpfully discussed in Cross and Tapper on evidence, 10th Edition, page 610. The justification for the rule is that a party to a common enterprise can be treated as an agent of another party to a common enterprise: see also section 118(6). The existence of the common enterprise (in this case getting rid of the murder weapon) cannot be proved, as the judge said, by what was said by Campbell to Bogle. Mr Barker agreed that without Bogle's evidence of what Campbell said to him there would be insufficient evidence of any common enterprise. Our tentative view is that section 118(7) was not satisfied and we do not need to decide the issue in the light of our other conclusions.
33. For the reasons, which we have now given, this appeal is dismissed.