England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHELMSFORD CROWN COURT
HH JUDGE BALL QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2009

Lord Justice Leveson:

1. Between 18^th May and 10^th June 2009, Kenny Cornwall, then 17 years of age, stood trial in the Crown Court at Chelmsford before his Honour Judge Ball QC and a jury for the murder of Alan Reilly. Following deliberations lasting some 7¼ hours, he was convicted of murder and subsequently sentenced to detention for life with a minimum term of 15 years less time served. Having been referred to this court by the Registrar, he now seeks leave to appeal against conviction and sentence.
2. No complaint is made of the way in which the learned judge conducted the trial, nor of the clarity and accuracy of the directions which he gave to the jury. In relation to conviction, the sole concern revolves around the fact that it has now been discovered that a juror, who became the foreman, was and is a columnist for The Sun newspaper. He is described by Mr Sallon QC for the applicant, as an outspoken polemicist who holds strong and well publicised views on issues such as law and order, soft judges, knife crime, drugs and immigration which could be characterised as populist and tendentious. Thus, it is alleged that his service on this jury gave rise to the real possibility or danger of bias against the applicant so as to render the trial unfair and the conviction unsafe.

The Facts

3. The prosecution case was that the applicant inflicted multiple stab wounds to Alan Reilly, killing him and intending either to kill him or to cause him really serious injury. The background was that the applicant was a dealer in drugs, living and working for a man called Dwayne in East London. In April 2008, he was supplying crack cocaine and heroin in the Braintree area of Essex and spent the day of 22^nd April supplying drugs in and around Wingate Close, Braintree. In the course of the evening, whilst at the flat of a young woman, he telephoned his associates and arranged to meet them at a bus stop, allegedly to deal in drugs. He then left the flat accompanied by three other young men.
4. The applicant, who is black, encountered Alan Reilly ("the deceased"), who was 25 years of age and white, whilst walking down Lancaster Way. They had not met before. The deceased was angry because he had been kept waiting for a supply of crack cocaine which he wanted to purchase, and wrongly assumed that the applicant was his supplier. The applicant denied playing any part in this particular deal, claiming he was 'Dwayne's man', whereupon the deceased became verbally and physically aggressive. Once at the bus stop, it was common ground that he attacked the applicant using violence which involved at least one head-butt.
5. After the assault, the applicant ran away, but, so it was alleged, decided to seek revenge with the result that he returned to the scene a short while later. Encouraged by the presence of his associates (who had now arrived from London), he confronted the deceased who by this time was armed with a piece of wooden fencing. When the applicant produced a sheath knife, the deceased tried unsuccessfully to avoid him. At this point, the Crown's case was that the applicant deliberately and with great force, stabbed the deceased nine times to the front and back of the chest, two of which penetrated bone said by the pathologist to have required severe force; the deepest penetrated the body by 16 cm. Further, some of these injuries occurred whilst the deceased was lying prone on the ground. There were no defensive injuries such as might have been caused by the deceased trying to ward off blows.
6. The knife was found with the applicant's blood and fingerprints by the police and four witnesses later identified him as the man who killed the deceased. He was arrested on 23^rd May, when he provided a false name and made no comment when interviewed over some three days.
7. The case for the defence can also be summarised shortly. It was that, at all times, the applicant was acting in lawful self defence or, in the alternative, he lost his self control as a consequence of the provocation that he had received arising from the previous attack and racist taunts.
8. The applicant admitted in evidence that he had been selling crack cocaine and heroin on the streets for some 2 years and was doing so in Braintree on 22^nd April. Earlier that day, he had been robbed of money at knifepoint. He claimed that once he had arranged a lift back to London, he left the flat in which he kept his supply of drugs to meet his associates at a bus stop in Coldnailhurst Avenue. He was armed with a knife because the area around the bus-stop was notoriously dangerous.
9. The applicant had not met the deceased before, and was not part of any arrangement to supply the deceased with drugs. The attack on him by the deceased at the bus-stop was unprovoked. He was head-butted several times and his face was covered in blood. He was also subject to racist taunts. He ran away because he was scared, and (as the prosecution accepted) he did not strike or attempt to use the knife on the deceased at this stage.
10. The applicant returned to the bus-stop in order to meet his associates and travel back with them to London, He saw them standing in Lancaster Way together with two others that he was working with, but could not reach any of them because his way was barred by the deceased (now armed with what he described as a pole) and others he associated with the deceased. He claimed that he produced the knife to ward off an attack by the deceased's friends, and as the deceased ran towards him waving the pole, used the knife in self-defence to stab the deceased. He had made no comment in interview as a result of legal advice because of what was said to be inadequate disclosure and also because he thought he would give his answers in court.

The Trial

11. It is common ground that before the start of the trial, the learned judge gave standard directions about trying the case only on the evidence heard in court repeating the requirement to make a decision on the material in the case during the course of his summing up. He said that the jury's task consisted of:

"…making decisions about the evidence, drawing conclusions from it, drawing inferences from it that can safely and sensibly be drawn. That is why you are here. You are twelve ordinary people with a great collective common sense which you will bring to bear on the case."

12. Mr Sallon observes that Judge Ball did not specifically direct the jury (as many judges do) on the need for impartiality or dispassionate consideration of the evidence but it was not suggested that his directions were deficient in that regard and the tenor of his directions both as to the law and the facts, together with his written route to verdict, dealing with self defence, intention and provocation are demonstrably analytical and entirely devoid of any comment or trigger that could generate the slightest concern as to the approach that the jury would adopt. The contrary is not suggested.

The Primary Challenge

13. Mr Sallon has placed a bundle of articles written by the journalist juror, Mr Fergus Shanahan, before the court. They cover a period of 3½ years and a large number have absolutely no bearing on issues of the type that arose in this case although we have considered them all. He is certainly critical of judges whom he describes as liberal but expresses himself on topics as diverse as Osama bin Laden, the death of the Princess of Wales, secret identities for those convicted of crime, the Metropolitan Police Commissioner, politicians, the human rights legislation, capital punishment and the slaughter of a ship's cat.
14. Mr Sallon particularly points to certain topics which regularly feature. Thus, over the period, Mr Shanahan frequently speaks of the abuse of drugs (particularly by celebrities), the danger of knives and knife related murders ("gang of knife thugs carried out around 150 robberies on the tube", "mobs armed to the teeth with guns and knives", "we can turn the tide on knife crime ... Having a knife is a serious crime deserving mandatory jail", "gold medal for stabbings is awarded to ...London"). He also makes plain his view that there is a pressing need to build more prisons.
15. Although we have reviewed all the material, in oral argument, Mr Sallon focussed on four articles. The first, dated 2^nd December 2005, refers to Lord Woolf CJ as "the burglar's buddy" and his successor, Lord Phillips CJ (as he then was) as "the mugger's mate", observing that "if jail doesn't work, what does" and going on to explain that "the best example of cleaning up cities remains New York, where zero tolerance cut crime". This article is thus about the approach to policing and, additionally, the penalty for those convicted of crime presumably following this approach.
16. The second article, dated 16^th December 2005, also 3½ years before this trial, deals with the killing, by his father, of a ten year old child with a wasting disease that meant that he would never reach adulthood. He was convicted of manslaughter on the grounds that the jury "bought [his] story that … he was driven by appalling stress to kill him". The trial judge apparently observed that it was "understandable that [the boy's] father should buckle under the stress and kill him". Mr Shanahan observes:

"I find that terrifying. Surely the job of the courts is to make it clear that there is always a line over which we cannot cross, whatever the pressures and special circumstances. And barely has the trial ended but we have the Lord Chancellor … saying the law on so called 'mercy killings; should be downgraded. Should it? Again, we seem to be sending out a message that there can be some special category of killing."

Although the context is very different, Mr Sallon suggests that the thrust of this article is to challenge the view of the law that certain killings are not to be characterised as murder, irrespective of the circumstances because "there is a line over which we cannot cross". Mr Sallon submitted that this article provides a possible indicator to a fair minded and impartial observer that Mr Shanahan would not approach his task in accordance with the judge's directions.

17. The third specific article to which our attention was drawn was one month later, on 13^th January 2006. This again concerned sentence rather than conviction and asserted "neighbours from hell can and should be jailed", "street robbers can and should be jailed" and went on that "some magistrates and judges are so drippingly liberal that they can hardly bring themselves to jail murderers let alone muggers" and should be sacked and replaced with those "in tune with public opinion". However inaccurate – not least because no judge would have the slightest difficulty imposing the mandatory life sentence for murder – this article, again, is solely concerned with sentence.
18. The final article to which our attention was specifically drawn is a comment published 28^th January 2008 to the effect that "we have been betrayed by the police and the courts … [t]he thugs are winning" and "[t]he cops have given up" although he goes on "we cannot have vigilantes" and suggests locally elected police chiefs. This also is an article about policing. It is not suggested that those who are not guilty of crime should be convicted but, rather, that those who are guilty of crime should be caught, convicted and sentenced appropriately.
19. Mr Sallon does not suggest that Mr Shanahan is not entitled to his views nor does he suggest that he is not entitled to express them. He accepts that there can be no objection to a juror simply by reason of his occupation. Rather, he submits that it was not appropriate for this particular journalist to sit in this case and that, by reason of his publicly expressed views, he had or may have had a predisposition to convict the defendant. Applying the test in R. v Gough [1993] AC 646, he argues that a fair minded and reasonable observer would conclude that there was a real possibility or danger, the two being the same, that the juror was or would be biased. Adopting the approach in Findlay v UK (1997) 24 EHRR 221 at para 73, from an objective point of view, he was not impartial: given the strength of his views about social issues, many of which arose in this case, Mr Shanahan was or might reasonably be thought to have been biased towards the prosecution case.
20. In R v Abdroikov and others [2007] UKHL 37, the House of Lords considered whether, having regard to the change in the law, a fair minded and informed observer would conclude that there was a real possibility that a jury which included a serving police officer or a lawyer who worked for the CPS was biased. In Adroikov itself, it was held that as the case did not turn on a contest between the evidence of the police and that of the defendant, it would have been hard to suggest that it was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the defendant. It was not considered that a police officer, by the very fact of his presence on a jury, would automatically generate a real possibility or risk of bias simply because, as a police officer, he might have certain views about crime and justice.
21. As to the general question of personal views and prejudices on issues (which might include those involved with criminal justice), Lord Bingham observed (at para 23):

"It must in my view be accepted that most adult human beings, as a result of their background, education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also, for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone."

22. Issues raised by workers within the criminal justice system such as police officers, prison officers (including those at prisons at which defendants had been held) and members of the Crown Prosecution Service were further considered in R. v. Khan [2008] EWCA Crim 531 when this Court (Lord Phillips CJ, Sir Igor Judge P and Silber J) considered five appeals arising in different circumstances. The critical distinction to which the Lord Chief Justice referred was between partiality towards the case of one of the parties and partiality towards a witness. As to the latter, this will only result in a conviction being quashed if this has rendered the trial unfair or given it an appearance of unfairness which requires consideration of the questions whether a fair minded observer would consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness and, if so, whether a fair minded observer would consider that this may have affected the outcome of the trial. That is not, of course, the situation here.
23. The alternative (for which Mr Sallon contends) is of partiality towards the case of one of the parties. Lord Phillips said (at para. 8):

"The requirement of both impartiality and the appearance of impartiality applies to every juror – see the comment of the Commission in Gregory v. UK [(1998) 25 EHRR 577] at paragraph 42. At the stage of jury selection precautions must be taken in order to ensure that each juror is impartial. If, in the course of the trial it becomes apparent that a juror is partial to the case of one of the parties, that juror must be discharged and consideration given as to whether the trial can fairly proceed with the remaining jurors. If, after verdict, it is established that a juror was, or has the appearance of having been partial to the case of one of the parties the conviction must be quashed. "Even a guilty defendant is entitled to be tried by an impartial tribunal and the consequence is inescapable" per Lord Bingham of Cornhill in R v. Abdroikof … at paragraph 27."

24. It is important to provide the context for this case. The right of peremptory challenge has long since been lost and this country has not adopted the practice of permitting a voire dire of all potential jurors in order to determine their views prior to selection for jury service: in specific cases, judges might direct specific questions to potential jurors to avoid particular potential problems but such a course is exceptional and case specific rather than general and unfocussed. Further, since s 321 of the Criminal Justice Act 2003 repealed the provisions rendering ineligible from jury service many categories of persons, particularly those involved in the criminal justice system, it is inevitable that juries will comprise a number with considerable background knowledge of the way in which the criminal justice system operates and doubtless with informed views, perhaps strong views, about such issues.
25. The difference between Mr Shanahan and the juror about whom nothing is known is not that Mr Shanahan has views which others do not necessarily have. It is that he has expressed those views publicly. Few would disagree with the proposition that knife related killings and the sale of Class A drugs are of serious social concern; many are critical of the process of criminal justice and the sentences imposed by the court. None of that disqualifies or necessarily gives rise to a possibility or risk of bias in relation to the determination of the facts in a knife related killing in which the sale of drugs plays a part. The question for the jury was not what should happen to a knife related murderer or anyone concerned in dealing or using drugs: it was whether in this case, this defendant was proved beyond reasonable doubt not to have been acting in self defence or, alternatively, not to have been provoked. The judge gave the jury entirely proper directions and there is nothing, save for Mr Sallon's speculative assertion, to suggest that this particular juror was not entirely faithful to the oath that he swore. As to sentence, that was simply not in Mr Shanahan's hands. In our judgment, there is nothing in the general series of articles that justifies the conclusion that Mr Shanahan has shown partiality to the case or that, in his determination of the facts, a fair minded observer, aware of all the circumstances and the context to which we have referred, would conclude that there was a real possibility or danger of his showing lack of impartiality or bias.
26. The only article which falls into a slightly different category is that concerning the concept of what he describes as "so called 'mercy killings'" for Mr Shanahan has gone beyond expressing his views about detection, prosecution and sentence but may be thought to have challenged the present state of the law – the "line over which we cannot cross whatever the pressures and special circumstances". This article does not affect our view in this case, because Mr Shanahan was not embarked upon a trial that involved such circumstances. We specifically do not address the question whether, if he had been called upon to try such a case, his presence would have rendered the conviction unsafe for it does not fall for decision. We only observe that a journalist or other writer, if called to serve on a jury which will have to examine issues upon which he or she has expressed strong opinions about the state of the law (rather than detection, sentence or the system generally) will be well advised to alert the judge of that fact so that an informed decision can be taken about the juror's ability faithfully to apply the judge's directions as to the approach to be adopted to the case being tried. We emphasise that this observation is not an implied determination of the issue: it is simply a question of pragmatic good sense and permits a sensible analysis at the earliest opportunity.

Secondary Challenge

27. Mr Sallon also refers to the articles that Mr Shanahan wrote during the course of and subsequent to the case. Most are entirely unrelated to the themes to which we have referred. One criticises police pay when dealing with "knife maniacs"; one is critical of the failure of the law in relation to Baby P and the question of parole; one challenges the grant of legal aid in civil actions based upon alleged human rights violations; one deals with fraudulent parking; one deals with supervision in the community of those whom it is said should be in custody. None demonstrate a risk that the writer was unable to apply his mind faithfully to the issues of fact which he had to decide in accordance with the directions of the judge.
28. As for the article subsequent to the trial which deals with his service as a juror, under the headline "My juror's glimpse of gangsta Britain" (sic), Mr Shanahan describes the experience as "eye opening" and reports what could have been reported during the trial itself, describing the applicant as a teenage drug dealer and the victim as a local crack addict. He then expresses his view about the penalty for murder and, in particular, the sentence for carrying a knife. On the face of it, nothing in the article demonstrates or even implies that he applied his mind to the case other than entirely appropriately.
29. Mr Sallon argues that Mr Shanahan had or may have had a commercial interest in the outcome of the case and thus a motive for convicting the applicant on the basis that a conviction made for a much better story. In fact, the story could be told either way and, in our judgment, a compelling account could also have been given of the devastating impact of drugs on the young in our society which is also a theme of earlier stories. It is not for us to decide whether one or the other makes a 'better' or more commercially saleable story. Mr Shanahan is not the only journalist who has written of his experiences on jury service and we note the temperate account given of the circumstances compared to some of his earlier pieces. We reject the submission that in writing in this way, he demonstrated actual bias or that these pieces give rise to the possibility or risk of bias.
30. Although we accept that the information which came to the defence team justified review by this court and thus grant the application for leave to appeal against conviction, the appeal is dismissed.

Sentence

31. We now turn to the sentence for which, again, leave is required. On the basis that the applicant was 16 years and 3 months at the time of the offence, the operation of Section 269(5) and Schedule 21 para 7 of the Criminal Justice Act 2003 is such that the starting point for the minimum term of the sentence of detention for life is 12 years. The judge had, of course, heard the trial and was both able and bound to form his own view of the facts. He did so, expressing his conclusions in a detailed analysis of the facts. He said:

"The murder of Alan Reilly occurred against the background of a very significant episode of drugs dealing and the development of a drug-using culture in the area of Braintree where the attack took place. Kenny Cornwall was a young man from London, part of a group who were coming out from London to supply the local users; and in his evidence to the jury, he indicated that he had been supplying in Braintree for some few months, but that was just one of a number of areas in which he and his friends had plied their trade. It was lucrative, but it was dangerous; and in order to carry out his trade – and he had been trading on the day of the murder – he would regularly, the court has no difficulty in concluding, arm himself with a knife to protect himself, to protect the precious load of drugs that he would be carrying and to protect the cash that he held.

Drug dealing is a dangerous business and he had been doing it very successfully for some time. But to do it successfully, you have to be hard, you have to be tough and you have to be prepared in extreme circumstances to use violence."

32. He went on to describe the chance meeting between the applicant and the deceased and acknowledged that the deceased had been the aggressor, head-butting on one or more occasion and giving the applicant a bloody nose, before the applicant left the scene without retaliation and without pulling the knife. He went on:

"I do not sentence [the applicant] upon the premise that he returned to the scene to confront Reilly with the knife … But as he turned that corner and saw Reilly present, he reacted in what turned out to be a fatal and lethal way. He went for Reilly. He pulled his knife. He would not be diverted from attacking Reilly by Mills. The evidence suggests that Mills tried to deflect him but he was determined to attack Alan Reilly. The evidence shows that although Reilly had a stick and at one point may have stood to face and confront the [applicant] he ultimately chose to try and run from him. He did not get away. He was caught and stabbed repeatedly. The repetition and savagery of those blows makes it plain to me that his intention during the instant of that attack – and I accept that it was over quite quickly – … was an intention to kill and he succeeded."

33. The judge later asked the question whether this was a case of excessive self defence. He answered in this way:

"No. My clear view from the facts is that at the instant when the attack occurred, there was not the slightest reason for [the applicant] to have pulled the knife and for him to have conducted himself in the way that he did and what triggered the attack was not any sense of a necessity to defend himself, but the seizing of an opportunity to make a point against a man who had earlier assaulted him. To that extent, it was a revenge attack, albeit one arising opportunistically."

34. Judge Ball observed that he fled the scene and that only "very effective police work" led to his arrest but noted that he had recently expressed remorse and that he was "older, more mature, and is capable of and does regret what happened". Having been told that he had been reprimanded, in June 2006, as a young man of good character, for possession of a sharply pointed blade and convicted on no fewer than three subsequent occasions for a similar offence or possession of an offensive weapon (for the last of which he was sentenced to a detention and training order for 4 months only 4½ months before the killing) he said that he could not ignore "the persistent carrying of knives, against his drug dealing background" or "a general attitude of disregarding the law and choosing the life of a gangster, in his drugs gang".
35. As for mitigation, the learned judge accepted that the principal element was his youth (which was reflected in the lower starting point) but he did attach significance to his general immaturity and the element of provocative conduct on the part of the victim (which he considered fell "substantially short of raising any defence"). He said that he took into account the mental issues raised in the psychiatric report and accepted the proposition that people as young as the applicant could mature and their personalities develop quickly in the years that follow incarceration. Balancing all those factors he reached the minimum term of 15 years less time spent on remand.
36. Mr Sallon submits that the verdict of the jury did not eliminate the real possibility that the applicant was provoked by the deceased before and at the time of the attack albeit not amounting to provocation; neither was it appropriate to exclude the possibility that the applicant's actions were initially triggered by self defence albeit in a way which greatly exceeded what was necessary or proportionate. He also relied on lack of premeditation, the evidence of Professor Coid that the applicant was suffering from conduct disorder and was emotionally immature (although the Professor also noted that there was a high risk of his committing acts of violence against others) and the fact that although the applicant had convictions for possession of knives, he had never been charged or convicted of using a knife. Finally, he challenged the judge's conclusion as to intent.
37. We repeat that the learned judge was in the best position to determine the facts in this case and, for our part, we are not prepared to dissent from his very carefully expressed conclusions: the task of determining the facts for the purpose of sentence is his and it is neither necessary nor appropriate for him to seek to divine whether the jury might have concluded that this was excess of self defence or just short of provocation: they were asked to decide guilt and no more.
38. Similarly, we reject the submission that the judge paid too much attention to the aggravating features of this case, the most important of which was the willingness of the applicant to carry a knife on his criminal activities and then to use it in the way in which he did. Every time he went about dealing in drugs there was the risk that he might use it; the fact that he had not previously done so, albeit relevant, does not negate that serious element of the case.
39. Further, as this court has recently made clear in the collected cases of R. v. Maina, R. v Kika and R. v. Saddique [2009] EWCA Crim, the structural framework in section 269 of and Sch. 21 to the Criminal Justice Act 2003, did not diminish the principle that the seriousness of each crime had to be reflected and that the use of a knife was an aggravating feature; all must expect that anyone who went into a public place armed with a knife and used it to kill or injure had to expect condign punishment.
40. That principle applies whether the starting point is 15 years for an adult or 12 years for a young person under the age of 18. It does not need repetition that the reduced starting point is intended to cater for a wide variety of circumstances and a wide range of ages of offenders covering an 8 year age span: mitigating features surrounding maturity and age are, as the learned judge reflected, built in.
41. The circumstances of this murder revealed a number of substantial and seriously aggravating features. The learned judge identified them and carefully set out the mitigation (particularly in relation to the psychiatric evidence) to which Mr Sallon has referred us. We have no doubt that the judge was entitled to reach the conclusion that he did; this application for leave to appeal against sentence is refused.
42. In the event, although we grant leave to appeal against conviction, the appeal is dismissed and the application for leave to appeal against sentence is refused.