England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
The Hon. Mr. Justice Wilkie

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/01/2007

Lord Justice Hughes :

1. On Friday 3 October 2003 a man called King was gunned down from a passing van in the streets of Hoddesdon soon after nine o'clock in the morning. It was common ground at the trial that this was a planned execution carried out in pursuit of some serious criminal dispute. These two applicants were convicted of the murder. They seek leave to appeal against their convictions. They had been tried together with two other Defendants. One of them, called Attridge, also faced the charge of murder, but was acquitted by the jury. A fourth, Elfes, was convicted of the offence of assisting an offender. The principal proposed grounds of appeal arise from the participation of Attridge in the trial. (1) It is contended by both applicants that the trial should have been severed and these two defendants tried separately from him. (2) Vincent complains that the use made by the Crown of Attridge's police interviews renders the convictions unsafe. (3) The summing up is said by Vincent to have given insufficient warning against the danger of treating those interviews as evidence in the case of the other defendants. (4) Smith contends that he was wrongly prevented from adducing evidence of Attridge's participation in drug dealing. Lastly, Smith wishes to advance the additional ground (5) that the summing up was unfairly unbalanced, and he complains (6) of a comment made by the Judge during his evidence.

2. The victim, King, was an established criminal. No doubt he might have had a number of reasons for dispute with a number of people. One area of likely dispute arose from a drugs prosecution in which he had been accused with a man called Sharma in 2002. That prosecution had been abandoned against King and Sharma had been heard to suggest that that was because King was an informer. By October 2003 Sharma was living in France, no longer at risk from prosecution on those drugs charges but arguably very much still in dispute with King. Vincent was an associate of Sharma and acted in his interests whilst he was away. He, Attridge and Elfes had visited Sharma in France at the beginning of September. Smith and Vincent were close friends and associates. Both Vincent and Smith volunteered that they were career criminals; they said, however, that they were not involved in the killing of King and that this was the kind of case in which their closeness to the elements of the underworld which might have been responsible for the killing did not betoken their complicity in it. Rather, both asserted that Attridge had attempted to exculpate himself with the police by blaming them. Further, Smith asserted positively that where he was shown to be close to the killing, that was because he had been used unwittingly by Attridge, who must have been directly concerned in it. Attridge, for his part, had told the police that he had been used by Vincent, who was a principal in the killing.

3. The killing was carried out by two men in a stolen white van, using an AK47 semi-automatic pistol. 26 shots were fired in a matter of a few seconds as the van was driven past King when he was leaving a gymnasium in Hoddesdon. The van had been left overnight a short distance away in a side street. The gunmen abandoned it back where they had collected it, and transferred to a stolen Mercedes motor car. They set the van on fire as they left it. They drove towards Enfield in the Mercedes and abandoned that car a few miles on, setting fire to it also. Whatever vehicle they went on to as the third phase of the getaway was never traced. They made good their escape. A bungled attempt was made to get rid of the gun the following day many miles away on Breydon Water outside Great Yarmouth, but the holdall in which it was contained, wrapped in bedding and some towels, floated, was noticed by some passing dog-walkers, and was recovered.

4. There was compelling scientific evidence:

   (a) Some plastic gloves found discarded near the van gave a DNA match for Smith (such that the probability of it being anyone else was 1 in 1 billion) and carried his fingerprints.

   (b) The magazine of the gun gave a DNA match with Smith (with the same probability).

   (c) A towel in which the gun was wrapped gave a DNA match with Vincent (with the same probability).

   (d) Gold particles in the debris of the van matched similar ones on the towels in the holdall, including the one mentioned at (c).

   (e) Fibres from the holdall matched a rug of unusual jute composition found at a home sometimes occupied by Vincent and his girlfriend Tiffany Lang.

5. Telephone cell site analysis put Smith, who lived in Elstree, in the area of Stevenage, where King lived, and in Hoddesdon, where King habitually went, on the morning before the murder. Similar analysis put Smith and also Vincent, who lived in Haslemere, in Hoddesdon on the afternoon of that day, when at some point the van was left in the side street and reconnaissance might be expected. The van had been caught on a petrol station CCTV camera that afternoon, and Smith was identifiably with it, wearing a hat with distinctive markings which matched the description of one worn by one of the killers next morning.

6. Vincent and Smith both admitted in evidence that they had placed the van in its side street on the day before the murder. Smith explained his being in Stevenage by saying that he had been asked by Attridge to follow an unidentified man, who turned out to be King, with a view to his being kidnapped in pursuit of a drugs debt; then, he said, Attridge had asked him to put a van in the side street. But, he said, he had had no idea that there would be any question of murder. Both he and Vincent said that he (Smith) had asked Vincent to help put the van in place. Vincent had driven to Enfield from Surrey and done so, moving the van a few miles.

7. The Mercedes had been registered on a traffic camera in Northolt in the late afternoon or evening of that same day before the murder. Cell site analysis placed Attridge in the area an hour later. After insisting throughout several long interviews that he knew nothing about it, he eventually admitted to the police that he had collected the car from Western Avenue; he said in interview that he had done so at Vincent's request and had handed it on to Vincent at the latter's mother's home in Stanmore. He did not, however, give evidence at the trial.

8. There had been a previous failed plan to kill King on 22 September by a man called Spencer who admitted it. Vincent, who volunteered that he was in the business of security for criminal associates and enforcement of criminal debts, had returned to the UK from abroad on 30 September. Two days after his return, on the day before the successful killing, he made a telephone call to a friend called Nelson in prison. Both knew that the call would routinely be recorded. He became excited and protested in colourful language that he was 'on something' there and then, that other people (unnamed) had insufficient courage and that he was having to do everything himself. On Vincent's own evidence, that call was made whilst setting about collecting and moving the van which was used next day in the murder.

9. A mobile telephone traceable to Vincent (number 027) was used between 2307 and 0013 on the night of 2^nd October from an address in Pinner where he sometimes stayed with his girlfriend Tiffany, although she was elsewhere and several of the calls were to her; there were more of the same between 0600 and 0630 next morning. That suggested that Vincent stayed the night close to Hoddesdon for the following morning.

10. Within only a minute or two of the murder, calls were made by one of Vincent's mobile telephones (number 027) from Hoddesdon. One call was to an associate called Double and another to a number in France. A little later in the day the French number called another mobile telephone (087) which was brand new and unused before that day. Vincent admittedly used 087 that afternoon. 087 had not called France; since it was new, the inference was that the number must have been provided to the French caller before he rang England, the call made by 027 provided just such an opportunity.

11. Beginning that evening Vincent, together with his girlfriend, stayed at two hotels near to Heathrow for a number of days, under the name either of Attridge or of Elfes. Smith went to Brightlingsea in Essex, where he had a caravan, on the day of the murder. He travelled up to Felixstowe, a couple of hours' drive from Breydon Water, on the day on which the gun was jettisoned. He returned and stayed with Vincent in the second hotel for two nights on Monday and Tuesday 6^th and 7^th October.

12. There was also a great deal of telephone traffic between the various defendants and their associates, which was capable of giving significant circumstantial support to the allegation that Vincent and Smith had carried out the murder, and had hidden afterwards with the help of Elfes and Attridge.

13. Vincent was able to point to the evidence of an eye witness that the gunman used his left hand, whilst he was right handed. Vincent and Smith could point to the unchallenged evidence of a resident in the side street to the effect that the van was not there at 3.15 on the afternoon of the previous day, which was after the time when, at least according to what they said, they put it there, whilst after that time the telephone evidence suggested that both were elsewhere; if the resident was correct as to time that opened up the possibility of someone else being concerned with the van also, as it was likely they had been on days prior to Thursday 2^nd. The applicants could also point to the evidence of King's companion, a man called Crocker, who gave evidence for Vincent to the effect that the men in the van did not include either Smith or Vincent. That latter evidence, however, was very much weakened if not destroyed by the fact that at the time Crocker had firmly told the police that he had not seen the features of anyone in the van, nor indeed had he even seen what kind of vehicle it was. Crocker had also written a letter to Nelson calling for a truce between the underworld factions which were in dispute; he denied however the suggestion that his exoneration of Vincent and Smith was part of the ensuing cessation of hostilities.

14. Vincent advanced a complex alibi. When arrested in August 2004, 10 months after the murder, he had elected to answer no questions and had said nothing about his alibi; it was revealed only about a week before the trial a year later at the end of June 2005.

15. Vincent's case was that on the day before the murder he had been telephoned by Smith and asked to help him to pick up a van. He drove from Surrey to Elstree with a friend called Clark, who just happened to be in his company. As chance would have it, they were on their way to Pinner anyway. They went across North London to Enfield, collected the van, and followed Smith as he drove it to Hoddesdon and left it in the street. It had been a gesture of help to a friend. He did not concern himself with the purpose of the van, although he realised it was something crooked. When Smith left the van he wanted something to wipe any fingerprints from it. Although they were travelling in a courtesy car borrowed for the day by Clark, it so happened that in the boot were some towels and bedding of Vincent's which he had taken the opportunity to collect from the Pinner flat. Those were used. The towel must have been left behind and used by whoever the killers were to wrap up the gun; that was said to explain his DNA on the towel. Smith suggested that it also explained, by secondary transfer, the DNA matching his on the gun's magazine.

16. Although 027 was his telephone, Vincent said that it had not been him who had used it in Hoddesdon at the time of the murder. He had lent it to Clark, whom he had asked on the evening of 2^nd October to collect some papers from an employee called Double who lived a few miles from Hoddesdon; it had not occurred to him to call when in the area that afternoon. He had also let Clark stay the night at the Pinner flat, so that it was Clark, not Vincent, who used number 027 there and made all the calls to Vincent's girlfriend. Clark had then gone off on the 3^rd on his errand to collect papers, but because Vincent had not given more than the vaguest instructions how to find Double's home, he had got lost and found himself in Hoddesdon; that was how 027 came to be used in the area of, and at the time of, the murder.

17. Vincent, supported by Smith, gave evidence that the new telephone 087 had not been acquired by him. It had been given to Smith by a drug customer who owed him money. But in the early part of the evening of 2^nd October, Smith said that he had visited some public houses with Clark. Whilst at one of them, the two men had snorted cocaine in the front seat of Clark's courtesy car and he (Smith) had used the outside of the telephone carton to lay down the line of drug. For reasons which were never explained, he had taken the telephone out of its box in order to do this. That was how he must have left the phone in the car. Accordingly it was Clark, not Vincent, who the following day, the day of the murder, had not only Vincent's 027 phone, but also the new 087 one, which he had found in the car. Vincent gave evidence that he got 087 from Clark, but not until two hours or so after the killing, and only with a view to returning it to Smith. Having it, however, Vincent used it. That was the explanation for how Vincent came to use 087 later in the day, but had not had it at the time of the murder. He denied the suggestion that 087, which was used only on the day of the murder, was a previously unused telephone unconnected with him, specifically acquired by him for use in that way.

18. Vincent gave evidence that he had spent the night of 2^nd/3^rd October miles from Hoddesdon at his home in Haslemere with his wife. He was supported in that by his wife, by a friend called Wilson who said they had been out for a drink together, by a man who said that he had called early on the morning of the 3^rd to return a golf club, by a young man who said that he had seen him at a local garage that morning at a time inconsistent with being in Hoddesdon for the murder, and by Clark, who gave the explanation for the presence in Hoddesdon of the two telephones provably used by Vincent in those two days. Vincent could also point to two telephone calls made just before the murder to the Pinner flat, from the landline of his Haslemere home, which he was able to contend looked as if made by him. If enough of that evidence was truthful and accurate, it provided Vincent with an alibi. The jury had to determine whether it might be true or not. There were, however, many features of it which did not add up. Among other things, Clark failed to remember some very memorable things which Vincent asserted had occurred, Mrs Vincent had previously told the police that she had no idea where her husband was on the night in question, and Clark was wholly unable to explain why he (not Vincent) should have had several long telephone calls with Vincent's girlfriend that night and early next morning from the Pinner flat. A note found much later suggested planning of the alibi. There was ample material on which the jury could reject the alibi, and it must have done so.

19. Vincent's account of the hotel stays was that he was spending covert romantic time with his girlfriend near to Heathrow, and that that was the reason for the use of others' names.

20. Smith's account was that although he had been willing to help Attridge in keeping surveillance on the person who turned out to be King, he had no idea there would be murder involved. He had been in West London with an Uncle on the night of 2^nd/3^rd and next morning went home to Elstree to sleep off a heavy night. He only learned of the murder later that day; he thought it wise to leave immediately for Brightlingsea, having unwittingly involved himself, but that did not mean that he had carried out the murder. This alibi, like Vincent's, was disclosed only a fortnight or so before the trial. Smith was supported in his alibi by his Uncle, who had to admit giving false evidence in his own defence on another occasion, and whom the jury must also have disbelieved.

    Severance

21. Both Vincent and Smith contend that the Judge was wrong to refuse applications for separate trials made at the beginning of the case. Their contention is that Attridge's interviews contained assertions against Vincent, and to a lesser extent against Smith, which the jury would be unable to disregard. Attridge had said, after a good deal of patient questioning, (1) that he had fetched and delivered to Vincent at the latter's request the second-phase getaway car, the Mercedes, borrowing Vincent's Aston Martin to drive home afterwards, (2) that over the few days after the murder he had met Vincent and Smith for lunch at a third hotel and at the second hotel where he stayed and Vincent had spoken of the bullets passing through the body of King, (3) that Vincent had, on that occasion, been wearing a bullet-proof vest for protection, and (4) that after an earlier police interview in the series he had been visited by associates of Vincent, and questioned forcefully about what he had told the police. At the request of counsel for Attridge, the long interviews were not simply placed in the hands of the jury, but the recordings of them were played in open court over a period of about four days.

22. Mr Pownall QC for Vincent and Mr Benson QC for Smith realistically recognise that the ordinary rule is that persons jointly indicted should be tried together. They contend, however, that this was the exceptional case in which the Judge was wrong so to direct. We do not agree. The decision whether to direct separate trials or not is one for the discretion of the trial Judge. This court will interfere only if satisfied that the Judge has erred in principle, or reached a decision which was not open to him. We do not agree that this was not properly described as a cut-throat defence. It may be that as between Vincent and Attridge it was not a case where each said that the other was responsible for the crime. But when the Judge looked at the defence statement of Smith at the outset of the trial he could see that Smith was contending that his surveillance of King, and his movement of the van, both of which he admitted, were said by him to have been done at the request of Attridge and to be attributable not to a plan to kill King but to some kind of drugs dispute which so far as he was concerned went no further than kidnap. The Judge could see that Smith said that he and Vincent had moved the van together. It was at least likely that Vincent would say the same, as in due course he did. In other words, Smith defended himself by blaming Attridge for what were otherwise deeply incriminating actions, and Vincent in due course associated himself with the principal of those actions. Attridge, for his part, said in police interview and in his defence statement, that his apparently incriminating action in providing the Mercedes second-phase getaway car, was something that he had done at the request of Vincent and without knowing that it was anything to do with a murder plot. Thus, the defences of Smith (associated with Vincent) on the one hand, and of Attridge on the other, were close to mirror images of each other. It does not matter that the total court time used might not greatly have been increased by separate trials (though we doubt that proposition), nor that if Vincent and Smith had been tried separately and first their convictions could have been proved in a subsequent trial of Attridge, nor that subsequent trial of the latter might have been unnecessary if the two principal defendants were acquitted. If ever there was a case which called for the truth to be investigated with all three defendants in the same trial, this was one. Without it, either Vincent and Smith on the one hand, or Attridge on the other, would have been free to cast the blame for what they did onto the absent defendant(s) without the jury hearing the other side of the story. Any evidence that each gave needed to be tested by the others, but also, and only marginally less importantly, so did the case advanced by each through cross examination and argument. We do not say merely that the decision not to sever was within the Judge's discretion; we are quite satisfied that none of us would have contemplated severance and that the Judge would have been wrong to do so. If it were to turn out that Attridge did not give evidence, then the jury would be trusted to obey the direction that his interviews were irrelevant to the case of anyone but himself. That is the situation in hundreds of trials up and down the country daily, and this one was no different.

    Discharge of the jury

23. When it turned out that Attridge did not give evidence the application for severance was renewed. In reality this was an application for the discharge of the jury with a view to two retrials. Subject to the question of the treatment of Attridge's interviews, which we shall deal with in a moment, we are quite satisfied that the Judge was quite right to reject that application. The application depended on the proposition that the jury could not be relied upon to honour the direction which they would have to be given to put Attridge's interviews on one side except when considering his own case. But juries have habitually to obey this direction in cases where one defendant does not give evidence although he has advanced in interview a version of events which if true would implicate co-defendants. This was, certainly, a case in which there was added to the words of the interviews the extended playing of them to the jury together with Attridge's real or simulated distress and his oft-expressed fear of Vincent. But this also is by no means unique. It happens often in cases where one defendant says that he saw another commit the crime. It happens equally in cases where one defendant asserts that he acted under duress from another. In both examples, and in many others, juries not infrequently have to cope with the assertion by the defendant who does not give evidence that his absence from the witness box is because he is in fear of another defendant. Experience shows that juries are able to understand and apply the simple rule that what defendant A says out of court, but does not support with evidence, is to be taken into account, but only in his own case, because he is otherwise taking advantage of the absence of the other to make allegations which he has chosen not to have tested in cross-examination. In most such cases, and in this, the jury has, by the time it comes to deliberate on verdicts, had the experience of watching witnesses give evidence and being tested by cross-examination. Its members are able to see for themselves that what might at first sight look plausible, is often exposed as false. Their own experience will tell them also the elementary homely truth that those accused of crime may try falsely to blame someone else. If juries are not to be trusted to obey this direction, then our system of jury trial is fundamentally flawed. Happily that is not so.

24. For the same reasons, we reject also the proposition that Attridge's assertions in interview were such that once they were before the jury, the conviction of Vincent and Smith was a near certainty. If their conviction was anything approaching that, it was because of the strength of admissible other evidence against them, because of what they had to admit they had done, and because of the improbability of the convoluted explanations advanced for the unchallengeable evidence.

    Use of Attridge's interviews

25. Where there are interviews of one Defendant which, if true, implicate another, the law that those interviews are not evidence against that other must be observed throughout the trial and not simply by asserting it to the jury. It is accordingly wrong for counsel for the Crown to treat what is said in interview as if it were evidence; this may undermine the direction which the jury is given, and may lead to the jurors becoming unable to apply the legal rule of which they are told; thus it may render the conviction unsafe. That does not mean that Counsel may not ask questions of Defendant A which are suggested by, or arise out of, the interview of Defendant B. That will frequently be necessary and proper. It is perfectly proper to see what A will say which might implicate B. B may yet give evidence and it may thus be necessary to explore the extent to which A's account differs from that of B and the state of relations between A and B. There may be other admissible evidence which A should be asked to explain, which may closely be related to things which B said about the same topic in his interview. And topics for legitimate enquiry of A may in some cases be suggested by something which is in the interviews of B, when they would not otherwise be suggested. Those are but examples of reasons why questioning of A which is in some way related to B's interviews may legitimately arise. The question in each case is whether B's interviews have been treated as if they were evidence against A in such a way as, in effect, to lead the jury to ignore the rule that they are not admissible against him. For such clear law, see among other cases, R v Windass (1989) 89 Cr App Rep 258, R v Gray & Evans (20 February 1998, unreported, 97/4003&4004/X3) and R v Clarke and Hewins (15 February 1999, unreported, 97/4882-3/W3) together with the cases there referred to. In the present case it is submitted that Counsel for the Crown unwittingly crossed the line into implying that Attridge's interviews had the status of evidence against Vincent. It is not suggested that he did so deliberately; rather, that he was nevertheless in error.

26. In opening the case to the jury, Counsel for the Crown advanced the argument, when dealing with Attridge, that Vincent would not have given Attridge a few days after the murder a graphic account of how he had committed it unless Attridge were a party to the killing. Mr Pownall QC submits that that sought to convey that what Attridge had said was evidence against Vincent. We disagree. Counsel had very clearly told the jury that Attridge's interviews were only evidence in his case. But they were evidence against him, and it was the Crown's case against Attridge that the conversation spoken of by him demonstrated that he was a party to the killing, for otherwise it would be too great a risk for Vincent to say it. The proposition advanced was an argument as against Attridge; it was clear that that was how it was put, and whether it was sound or not was for the jury. Similarly aimed at Attridge was a part of the cross-examination of Vincent on this same topic and the same point made against Attridge in the Crown's closing speech. So too was another part of cross-examination of Vincent in which Counsel for the Crown suggested to him that Attridge was a close and trusted associate and not simply (as Attridge's case was) a supplier of a getaway car without knowing why it was needed. The Crown was entitled to develop, as against Attridge, the evidence which Vincent would have to give as to the closeness of their association, including the meetings in the days after the murder and the supply of accommodation at the second hotel in Attridge's name.

27. Counsel for the Crown also cross-examined Vincent on the topic of bullet-proof vests. One such had been found at the home of Tiffany Lang, and Vincent could be heard telling Nelson, in prison, about an occasion when he might have been embarrassed by one being visible on the back seat of his car. Vincent had given evidence in chief about such vests. He had not only advanced his explanation that they were tools of his trade in the enforcement of criminal debts and doorkeeping, but had also gone out of his way to assert that Attridge had known of the finding at Tiffany's home, and that in this respect as in others he had made up in his interviews an entirely false story about Vincent, tailored to known facts.

28. When Counsel for the Crown cross-examined on this topic he did so in the context of the suggestion (which was plainly part of the Crown case independently of anything Attridge had said) that Vincent was lying low in the days after the murder, not only because of possible police interest but also, and perhaps more, because of the risk of underworld reprisals. We do not doubt that the questions were informed by knowledge of what Attridge had said in interview, and might yet say in evidence. We have considered carefully whether they amounted to an invitation to the jury to treat the interviews as the equivalent of evidence, but on inspection we do not think that they did. Counsel did not refer to the interviews, or to Attridge's assertion, nor did he make any direct suggestion to Vincent that he had worn a vest when in Attridge's company. Later, Counsel specifically asked questions directed to whether Attridge would, at the time of interview, have known of the recovery of the vest from Miss Lang; this, however, was directly prompted by Vincent's allegation in chief that he did know. That upon further exploration the point proved, so far as we can see, not to have been the Crown's strongest, does not mean that it was wrong to put it. Moreover, as we have said, Attridge might yet give evidence; it may well have been obvious to any seasoned criminal practitioner that he did not want to do so and was conducting the trial so as to set himself up to avoid it, but the same practitioner would know that a trial can easily take a turn which causes such a defendant to step nevertheless into the witness box.

29. In the course of cross-examination, Counsel asked Vincent this:

    "Well, I was going to ask you what had happened between you to cause Mr Attridge to tell such terrible lies about you. And that is the position, you have told us."

    We think that it would have been better if that question had not been framed in that way. Counsel was quite entitled to cross-examine with some force upon the relationship between Attridge and Vincent - that would become particularly relevant if the former did give evidence in accordance with his interviews – but the questions would have been better framed without the reference to the interviews and to the proposition that they were either true or false. But this question followed several long passages in Vincent's evidence in chief in which he had directly addressed what Attridge said in interview and had rebutted it point by point. Moreover, the last point he had made in chief was to give evidence that Attridge had made up a false story about him, and he had suggested that that was probably because (a) Attridge owed him £42,000 and (b) Attridge's brother had had an affair with Tiffany, with the result that Attridge wanted to keep Vincent in prison and unable to recover the money or take revenge for the affair. In the end, the question which we have set out received a robust answer from Vincent, who also took repeated opportunity in the course of his evidence to denounce (with reasons) what he said was play-acting by Attridge when in interview he had asserted fear of Vincent. If anyone emphasised Attridge's interviews in Vincent's case, it was Vincent. In the context of an extremely strong case against Vincent, we are quite satisfied that the manner in which this question was framed does not render his conviction unsafe.

30. Questions to Vincent about the visit of Elfes and others to Attridge after he had been seen by the police were properly founded on CCTV evidence which showed it happening. Vincent admitted that he had asked them to go, and advanced reasons for doing so.

31. Mr Pownall submits that questions of Vincent in cross-examination as to his assertion that his Aston Martin was unavailable in a garage on 2-3 October could only be understood by the jury as predicated on the basis that Attridge was truthful in saying that the car had been available, and used, on 2^nd. The questions did not refer back to this part of Attridge's interviews and arose in any event because the Crown was suggesting that Vincent's admitted use, on 3 October, of an anonymous small car was in deliberate preference to his more conspicuous Aston Martin. We see no danger that these questions amounted to treating the interviews as if evidence against Vincent.

32. The same applies to Mr Pownall's submission that the cross examination of one of the alibi witnesses (Wilson) could only be predicated on the basis that Attridge's interviews put Vincent elsewhere on the evening of 2 October. The Crown case was that the alibi was fabricated; it was entitled, if not bound, to put that case to the witnesses. Moreover, the telephone calls to Tiffany from Pinner appeared to put Vincent well away from Haslemere at the time spoken of by Wilson. That in the end the Crown advanced the alternative theory that Wilson might innocently be mistaking the date does not mean that when his evidence was challenged as false the jury was being asked to rely on Attridge's interviews as if they were evidence.

33. In his closing speech to the jury, Counsel for the Crown:

    (a) suggested to the jury that although Attridge had lied and lied for days on end in his interviews, the police had eventually got the truth, namely that he had supplied the Mercedes;

    and

    (b) suggested that the cell-site evidence put Attridge in the vicinity of the home of Vincent's mother at the time Attridge had said he delivered the Mercedes to Vincent there, thus tending to confirm what Attridge had said; this submission concluded with the words "you will have to make what you will of that."

34. Taken out of context it could be the case that these arguments amounted to treating the assertions of Attridge that the Mercedes had been supplied to Vincent as evidence against him that it had. But on inspection this is clearly not so. Counsel resumed his speech after a break overnight. He expressly moved on from the case against Vincent and Smith to the case against Attridge. The passages complained of are legitimate submissions in relation to Attridge. The observation that the jury could make of the evidence what it might is a conventional piece of padding. If it had not been preceded just half a minute or so before by a reminder that the interviews were evidence to be considered only in the case of Attridge, it might have carried a risk that the jury might treat them impermissibly; but it was, and we see no danger that the jury would be led by the remark to misunderstand the oft-stated rule.

35. The few questions of Vincent which we have been asked to consider came in the course of evidence which runs to over 500 pages of transcript, approximately half of which was cross-examination. The close textual analysis to which Counsel's questions and speeches have been perfectly properly subjected do not suggest to us that this jury was being invited to treat the interviews of Attridge as if they were evidence against Vincent. They are wholly unlike the cross-examination castigated in Clarke and Hewins, in which the witness had the interviews of a co-defendant (as well as letters of which she was neither the writer nor the recipient) put into her hands for day after day so that the assertion could be made time without number that the assertions in those inadmissible documents were true, and the defendant's evidence to the contrary was false. We respectfully entirely agree with the decision in that case, to which we were helpfully referred after we had announced our decision in this case, but there is no new proposition of principle in it, and its facts are in no sense analogous to the present case.

    Evidence of Attridge's drug dealing

36. At the commencement of his case, Mr Benson QC for Smith applied to the judge for leave to adduce evidence that Attridge was a drug dealer. The case had been conducted on the basis that Smith was himself a regular dealer in drugs. The potential relevance of Attridge's drug dealing was that Smith asserted in his defence statement, and was to say in evidence, that the surveillance which he had conducted upon King, and the provision of the van, had been at the request of Attridge and that he had believed it to be in pursuit of some drug dispute. Mr Benson was on notice from counsel for Attridge that both the requests and the allegation of drug dealing were disputed. He contended, as we understand it, that he was entitled to adduce evidence of Attridge dealing in drugs in order to support Smith's assertion. In the language of the bad character provisions of the Criminal Justice Act 2003, evidence of Attridge's drug dealing had substantial probative value upon an issue which was going to be joined between these two co-Defendants, and was thus admissible under s 101(1)(e). Although the principal issue in Smith's case was whether his handling of the van was done in the anticipation of murder or of mere kidnap, to which any drug dealing by Attridge was a side-issue, we can see that if there was evidence available to the effect that Attridge was, in the late Summer or Autumn of 2003, dealing in drugs, that might be capable of supporting that part of Smith's story and was thus admissible under s 101(1)(e).

37. What Mr Benson actually applied to the Judge to admit was (1) that Smith thought, on 2 October, when he kept watch on King and supplied the van, that it was in pursuit of a drug dispute, (2) that 14 months later in December 2004, when Attridge was arrested, that was in pursuance of information given to the police that he was dealing in large quantities of cocaine, and they suspected him of doing so, and (3) whatever information it was that the police possessed in December 2004 to support that suspicion.

38. It is clear that (1) was not evidence of bad character at all; it was merely evidence of what Smith thought at the time he did something alleged to be part of the commission of the offence. It fell within section 98 of the Act. Smith was entitled to say it. The Judge so ruled and Smith did say it.

39. As to (2) and (3), any belief of the police about whether Attridge was or was not dealing in drugs, whether that belief was held at the material time in October 2003 or 14 months later, was irrelevant, unless it was soundly based in fact. Mere belief was thus not admissible. The only evidence which would be admissible was evidence that Attridge actually was dealing in drugs at a time when his dealing might generate a dispute with King in October 2003. It was, we think, inherently rather unlikely that any information given to the police in December 2004 would go to provide such evidence; the Judge was rightly alert to the lapse of time between October 2003 and December 2004. But in any event, that question was investigated. Mr Benson tells us, and of course we accept, that although he made no application to the Judge under section 8 Criminal Procedure and Investigations Act 1996 he made informal application to the Crown for disclosure of any material in its possession which might show that Attridge was dealing in drugs in such a way as to have the potential for generating a drug-related dispute with King in October 2003. Mr Bright QC tells us for the Crown, and we similarly unhesitatingly accept, that if the Crown had had any such material, whether derived from information given in December 2004 or otherwise, he would have regarded it as his duty to disclose it, but there was none. He also tells us, and we accept, that (a) the Crown had a specialist disclosure junior, so that what material existed was a topic on which he was fully instructed and (b) unusually, but out of excess of caution, he checked his decision as to disclosure by ex parte application to the trial Judge. There was no such material.

40. In the event, the Judge permitted Smith to adduce the evidence that in December 2004 the police had information that Attridge was dealing in cocaine. He did so on the basis that this evidence was within section 98. He declined to allow Smith to adduce evidence in category (3), saying that it did not go to an issue in the case. Whilst we are in those two respects unable to endorse the reasons given by the Judge, the fact remains that Smith was thereby enabled to adduce something which was not admissible, and there was nothing more admissible to be given to him by way of disclosure for him to adduce. Accordingly, there is no basis for saying that his conviction is rendered unsafe by anything relating to the question of any drug dealing by Attridge.

    The summing up

41. Mr Pownall makes two complaints about the summing up. First, he says that the Judge omitted to warn the jury that care must be taken not to take as evidence anything which the police officers said by way of questioning during Attridge's interviews. It is correct that the Judge did not mention this topic. Some very limited editing of these questions had been made at the request of counsel then appearing for Vincent, but broadly he had concluded, we are told, that any application to remove from them expressions of the interviewers' opinion as to what Vincent had done would not be successful, and it is certain that no application for any modification of the questions was made to the Judge. Insofar as they contained expressions of the opinion of the officers, those questions could only be admissible if relevant to explain Attridge's answers. Whilst we are not to be taken as agreeing that all of them fall into that category, we accept that some at least probably did. But however many were necessarily in evidence, we do not think that the Judge fell into error as alleged. When dealing with the case of Attridge and thus with his interviews, he said this to the jury:

    "Of course, what the police put to Mr Attridge is not evidence of what happened. The evidence in the case of Mr Attridge is what he responds to those questions. It is the answers that he gives……"

    When dealing, earlier in his summing up, with the status of Attridge's interviews in relation to other defendants, the judge gave the jury a careful warning in conventional terms that they were not evidence except in the case of Attridge (see paragraph 41, below). He explained why. He subsequently repeated it several times, and whenever dealing with them. It might perhaps have been possible to frame a direction which added that still less were the opinions of the officers evidence against other defendants, but any such warning would carry the risk that the jury might misunderstand it, and believe that Attridge's answers did, despite the direction given, have some status different to the questions of the officers. The Judge was quite entitled to take the simple uncomplicated course which he did. Moreover, what the judge said in his summing up about the status of the interviews will inevitably have come after the same proposition will have been repeated many times during the trial. The transcript clearly shows that that process began with the Crown's opening.

42. Secondly, Mr Pownall points to a part of the direction which the Judge gave when he came to deal with the case against Attridge. The interviews were mixed admissions and exculpations. The Judge gave the conventional direction that the jury was entitled, if it thought right, to approach those two features of the interviews by considering whether admissions were likely to be true (for else why would they be made ?), whilst the same could not be said of exculpations and they had not been tested by examination. Says Mr Pownall, here was the jury at one moment being told that part of what Attridge said was likely to be true, and at another being told that what he said was to be disregarded in the case of Vincent. He accepts that the Judge was entitled, if not bound, to give the direction which he did, but that, he says, highlights the impossibility for the jury of disregarding in the case of Vincent material which it had been invited to consider likely to be true, and thus demonstrates that the trial was unfair to Vincent. This long summing up was carefully structured, and its component parts were identified for the jury. The direction in question came firmly during the general directions of law but in a part which dealt with the case of Attridge. It followed not long after this clear direction as to the status of the interviews:

    "There is a particularly important feature of this need to consider each defendant separately upon which I must direct you at the outset, and I will remind you of this in the course of the summing up. It is important that you understand that the evidence of what Mr Attridge said in interview to the police, though evidence in the trial in his case, is not evidence in the cases of any of the other defendants. The reason for this is not a matter of legal technicality, but is a matter of fundamental fairness. None of the other defendants were present when he was being interviewed. They had no opportunity to respond or to contradict what he was saying. He has not given evidence in this trial and so he has not been exposed to cross-examination for any of the other defendants on his account [as he would] had he been in the position of adopting his interview as part of his evidence. It is therefore a matter of fundamental fairness that you should not have regard to what Attridge said in his interview when you are considering the cases of the other three. It is evidence you should consider only when you are dealing with his case – the case of Mr Attridge."

    We see no reason why the jury should misunderstand the simple rule that these interviews were to be disregarded except when thinking about Attridge's case. It would understand clearly that it was only when it was applying itself to his case that the jury was entitled to consider that admissions were likely to be true. Nor, although of course to do so requires careful thought, do we think that this jury would be unable to apply that rule, any more than countless juries are required to do, and succeed in doing.

43. Mr Benson complains that during the summing up the Judge referred to two possible explanations for events for which there was no real evidence. Smith had been not all that far from Breydon Water on the day after the murder, and had visited his associate Ricky Double; it would have been possible, observed the Judge, for the latter, or anyone else asked by Smith to do so, to have taken the gun for disposal. That was a permissible observation. The Judge also observed that Double lived not far from Hoddesdon and if there was doubt whether the van had been moved after being left in the side street on the afternoon of 2 October, he might have been one of the people who could have done so. That, we think, was an unwise complication to introduce, and was little more than speculation. It seems to us that the Judge would have been better to have reminded the jury that the evidence of unchallenged witnesses may or may not be accurate, and that cases usually have some loose ends.

44. Secondly, Mr Benson complains that when near the end of the summing up the Judge summarised the headline points of each side, he coupled with those made by the defence the counterpoint evidence which might be taken to weaken it, whereas he made no such qualification of the headline points made by the Crown. It is nearly always possible to dissect a summing up and to suggest ways in which it could be improved. We are inclined to agree that if the Judge were to re-read the passage, he might prefer to go further out of his way to avoid any hint of the criticism made by Mr Benson. But this was overall an extremely carefully crafted summing up. The counterpoint to the Crown's headlines was, in one sense, those of the Defendant, which the Judge itemised. If there was not perfect balance of strength between the arguments thus summarised on either side, this was because the balance of evidence was, as it seems to us, powerfully in favour of the Crown. A fair summing up is one which reflects the balance of the evidence. This was in the end a very strong case against both these applicants. We are satisfied that the few criticisms of the summing up which can be made are not such as to cause us to entertain any doubt about the safety of the convictions.

45. Mr Benson complains, lastly, that at one point during the cross-examination of Smith by counsel for the Crown, the Judge remarked:

    "I am sure that we're all being run rings round by Mr Smith who is obviously extremely tee'd up, and if I have got it wrong I'm sorry and no doubt Mr Bright will apologise too."

    Mr Benson complains that the remark was such as might be taken as a disparaging judicial view about the evidence of Smith, and particularly about his credibility. The remark came during questions about Smith's disposal of his mobile telephone. Mr Benson had intervened to suggest that Mr Bright had misunderstood what Smith's evidence on the subject had been. The Judge had attempted to state it accurately, but in doing so had inadvertently got the lake into which Smith said he had thrown the telephone in the wrong place. Smith, who had been engaged in a certain amount of sparring with his cross-examiner, not entirely without encouragement, was quick to assert himself and put everybody right. That produced the Judge's remark. It was immediately followed by counsel for the Crown telling the witness that he accepted that Mr Benson would not have interrupted him unless he was making a bad point. All this happened in the course of a very long stay in the witness box for Smith. It was, quite clearly, just one of those brief asides or exchanges from which everyone moves on in the cut and thrust of a trial. Even read in isolation, we are quite unable to interpret this as any kind of comment on the veracity of Smith's evidence. It may have been the kind of mild defusing of tension which Judges occasionally have to undertake; more likely it was simply a way of acknowledging with a modicum of humour that the witness had bested the Judge on his understanding of the evidence. At all events, in the context of the case as a whole, and of the time for which Smith was giving evidence, there is no possibility that it can affect the safety of the verdict.

    In those circumstances, having in effect treated the applications for leave as the hearing of the substantive appeals, we are satisfied that the convictions are safe. We refuse the applications for leave to appeal against conviction.

    Sentence

46. In passing life sentences, the Judge fixed the specified period (sometimes known as the minimum term) at 30 years for Vincent and 25 for Smith.

47. This was a transitional case for the purposes of the Criminal Justice Act 2003; the offence had been committed on 3 October 2003, before the provisions of the new Act were brought into force on 18 December 2003. Accordingly, paragraph 10(a) of Schedule 22 applied and the court could not specify any period greater than the Home Secretary would have been likely to fix had he done so under the practice followed by him before December 2002. For an offence committed in October 2003, the best guide to the Home Secretary's practice is to be found in the Practice Statement handed down by Lord Woolf CJ on 31 May 2002, to be found at [2002] 2 Cr App Rep 287: for this proposition, see R v Sullivan [2004] EWCA Crim 1762; [2005] 1 Cr App Rep 1 at paragraph 42. All this was fully appreciated at the time of sentence.

48. Judges sentencing in transitional cases therefore have to put their minds back to the recommendations which they would have made, following the Practice Statement of May 2002, had the conviction occurred before the enactment of the 2003 Act, with its very significantly increased specified periods as set out in Schedule 21. Under Lord Woolf's Practice Statement, the starting points were 12 years for normal cases of murder and 15/16 for especially serious cases, either because of the culpability of the killer or because of the vulnerability of the victim. There can be no doubt that this was in the latter category, nor that the right specified period would have been significantly above what was a mere starting point.

49. This was a very serious killing. It was a ruthless professional contract execution, carefully planned as an act of retribution amongst professional criminals, and it was carried out with a fearsome weapon which created enormous risk to any member of the public who might have been on the street at the time. It was not, however, a serial killing, a killing of a police officer or of a child, and it was not a sadistic killing. In our experience this kind of killing would have carried at the relevant time a recommendation of something between 20 and 25 years, but would not have reached 30. That is confirmed by Lord Woolf's Practice Statement, which referred (at paragraph IV 49.32) to a term of 30 years as, in effect, a maximum unless a whole life term were specified, and did so in the context of a reference to multiple killings by way of example. It seems to us that in arriving at 30 years it is likely that the Judge was influenced, however much he sought not to be, by the new and significantly increased starting points created by the new Act.

50. In Vincent's case we grant leave to appeal against sentence and allow the appeal. We quash the specified period of 30 years less time in custody and substitute the period of 25 years less 386 days.

51. In Smith's case, we think it clear that we should make a clear distinction as the Judge did; he had presided over the trial and was in much the best position to assess the respective responsibilities of the defendants. We grant leave to appeal against sentence and allow the appeal. We quash the specified period of 25 years less time in custody and substitute the period of 22 years less 386 days.