England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3rd August 2010

1. LORD JUSTICE LAWS: In September and October 2008 before Her Honour Judge Karu at the Inner London Crown Court this applicant faced a re-trial on an indictment containing 14 counts. On 8th October 2008 he was convicted by the jury of three offences of making a threat to kill (counts 1-3), two of possessing a firearm with intent to endanger life (counts 4 and 8), one of possessing a prohibited firearm (count 6), one of possessing ammunition without a firearms certificate (Count 7), three of doing acts tending and intended to pervert the course of public justice (counts 10, 11 and 12), one of conspiracy to possess a firearm with intent to endanger life (count 13), and one of conspiracy to pervert the course of public justice (count 14). On 10th December 2008 he was sentenced to concurrent terms of detention for public protection with an overall minimum term of seven years' detention in a young offenders institution less 463 days spent on remand.
2. There were two co-defendants. Nacoli Bravo was acquitted on the counts he faced: they were 6, 7 and 8. Shafan Kerr pleaded guilty to possessing a prohibited firearm, count 5. This was the only count which did not charge the applicant with an offence. As against Kerr it was put as an alternative to count 4.
3. On 13th January 2010 the full court (Maurice Kay LJ, Christopher Clarke and Sharpe JJ) adjourned the applicant's renewed application for leave to appeal against conviction and directed that the appeal should follow if leave were granted. They also directed that the applicant's counsel should re-cast the grounds of appeal and lodge a skeleton argument and that the Crown should lodge a skeleton in response. All those steps have been taken and so the matter comes before us today.
4. The facts may be outlined quite shortly, though it will be necessary to consider in a little more detail certain particular aspects of the evidence in addressing the reformulated grounds of appeal. In November 2006 the applicant had just been released from custody. He got in touch with a young woman called Cardine Wignall, who lived with her father, Leonard Wignall, at 26 Camplin Street in London. He wanted her to hire a car for him. She refused. She stopped replying to his messages and his text messages. Thereafter, referring to himself by the nickname "Killa", he sent a series of abusive and vitriolic text messages, three of which (sent respectively on 10th November 2006, 2nd January and 5th January 2007) formed the subject of the first three counts on the indictment charging offences of making threats to kill. There were quite a number of other messages also, no less nasty. The message of 2nd January 2007, count 2, gives the flavour: "oi you dick head your goner here two bangs and think yourself why did I not take him seriously watch".
5. On the day of the last threat to kill, 5th January 2007, at about 2.45 in the afternoon two gun shots were fired through the front window of the Wignalls' home at 26 Camplin Street. That was represented by count 4 in the indictment. A few minutes later the applicant sent Cardine another text message, "Ring me back if you want". A witness to the shooting, or part of it, was a woman called Asiatu Charm who knew the applicant. She dialled 999 and told the police what she had seen. She made a statement later that day. Another witness was a young woman called Emma Leaburn.
6. On 18th January 2007 a woman called April Maddix, of whom more hereafter, was bought a Ford Focus car by her father. She was a friend or associate of the applicant. On 4th February 2007 the Ford Focus was stopped by armed police near Blackfriars Bridge with the applicant at the wheel. There were three other occupants, including the co-defendant Bravo. The police found a loaded semi-automatic Browning pistol in the glove compartment and a holster which fitted the gun in the driver's side door. These facts gave rise to counts 6, 7 and 8. The applicant gave his address as April Maddix's address.
7. The applicant was charged and remanded in custody on 5th February 2007. Cell site analysis and billing records show that while he was in custody he used a mobile phone to make calls to April Maddix 205 times, Asiatu Charm seven times and Cardine Wignall once. The Crown said that these calls were made in order to intimidate the women so that they would not give evidence for the Crown. They formed the substance of counts 10, 11 and 12.
8. On 12th September 2007, while the applicant was still in custody, there was a second shooting at 26 Camplin Street. Two gun shots were fired through the front window at about 11.30 at night. Leonard Wignall was hit by broken glass. When the police arrived at the scene an unknown female handed one of the officers a piece of paper bearing a vehicle registration number, T921 RJK, and a note which said that the woman had "heard gun shots and saw them getting into this car but I don't want to get involved".
9. On 18th September 2007, six days after the shooting, police came upon a car with the registration plate T921 RJK. The four male occupants were apprehended. Telephone evidence showed that they had been in contact with each other at various times and their mobile phones had been in the vicinity of Camplin Street at about the time of the second shooting. The applicant had made contact with two of them, one called Junior Salokun, on 6th September 2007 and Troy Hudson-Davies on 13th September 2007. Salokun had tried to phone April Maddix, it was said, on 8th September 2007 and had arranged to visit the applicant in custody the following week. The Crown case was that the applicant was the controlling mind behind the second shooting: hence counts 13 and 14.
10. The applicant made no comment in his police interview and did not give evidence at his trial.
11. The reformulated grounds of appeal fall into two parts. It is first said that certain evidence admitted by the judge should have been excluded. It is said secondly that the summing-up was defective in various respects.
12. We turn to the first head of appeal, the evidence which it is said should have been excluded. There are six separate items here. Statements made by April Maddix, Emma Leaburn and Asiatu Charm were read to the jury. These are the first three items involved. The applicant says the judge should not have allowed that course of action to be taken. The fourth item is the anonymous hearsay evidence of the woman who produced the car registration number and the note in the context of the second shooting. The applicant says that should not have been allowed in. The fifth item was the evidence of an officer, PC Crossley, to the effect that on 3rd January 2008 a woman called Tameika Dixon had been stopped and searched, her telephone directory recorded the name "Killa" against a phone number ending 169 which was the number of a phone used by the applicant. The sixth and last item was the evidence relating to the four males in the car T921 RJK. They have been referred to in the proceedings as "the four boys". The evidence in question is the anonymous hearsay note, item 4 above, the number plate and the telephone evidence.
13. When the matter was before the full court on 13th January 2010 the court was most interested, if we may put it that way, in item 4, the anonymous hearsay evidence. This was a new point not pleaded in the original grounds. The court said this:

"6. At its broadest, the point sought to be made by Miss Dunkley in relation to that is that in the light of some observations of this court in the case of R v Mayers and Others [2008] EWCA Crim 2989 at paragraph 113, and in the light of an endorsement of that in the Supreme Court per Lord Judge in R v Horncastle and Another [2009] UKSC 14, paragraph 13 of his contribution, anonymous hearsay is inadmissible in all circumstances."

14. We will deal with item 4 first. The judge let in this evidence by a ruling given on 16th September 2008, in which she set out arguments which had been advanced before her but gave no clear reasons of her own. By section 114(1) of the Criminal Justice Act 2003 hearsay evidence is admissible in criminal proceedings if, but only if, any one or more of four conditions listed at section 114(1)(a) to (d) applies. The Crown relied on section 114(1)(d): "The Court is satisfied that it is in the interests of justice for it to be admissible".
15. The force of the evidence of the anonymous witness from the Crown's point of view is very plain. The registration number and the statement that the woman had seen them "getting into the car" enabled the police, once the car was found, to connect the applicant with the scene of the second shooting. It is true that the four boys were arrested on suspicion of involvement with the shooting but were never charged, and in fact the allegations of conspiracy in counts 13 and 14 were that the applicant had conspired "with others unknown". But whatever the truth about the four boys may be, the evidence of the car number and the note linked the applicant with the 12th September shooting, and the anonymous woman cannot have known on 12th September, when she spoke to the officer, what was to happen six days later when the police came upon the car. That may be thought to be of some importance because it means that the anonymous hearsay evidence is untainted; that is to say it cannot have been motivated by any animus against the applicant, and its accuracy is vouchsafed by the fact that the very number plate turns up six days later on a car containing associates of the applicant.
16. In our judgment if the trial judge had power to let in this evidence there were very strong reasons for her to do so. But the applicant, by Miss Dunkley, who has put forward the point with great economy and clarity, says there is no legal power to admit this piece of evidence. She relies on Mayers [2008] EWCA Crim 2989 and Horncastle in the Court of Appeal EWCA Crim 964, but particularly in the Supreme Court at 2009 UKSC 14. It is most convenient simply to cite a short passage from her skeleton which introduces this material. She quotes paragraph 113 of this court's decision in Mayers:

"... we are being invited to re-write the 2008 Act by extending anonymous witness orders to permit anonymous hearsay evidence to be read to the jury. We cannot do so. Neither the common law, nor the 2003 Act, nor the 2008 Act permits it."

The 2008 Act is of course the Criminal Evidence (Witness Anonymity) Act 2008, which governs the admissibility of anonymous witness evidence for the purposes of a trial. Miss Dunkley's skeleton continues:

"The Court of Appeal in R v Horncastle and Others [2009] EWCA Crim 964, para 48 upheld this decision: 'The CJA 2003 is concerned with identified but absent witnesses. It does not permit the admission of the evidence of anonymous witnesses'.

Then she says this:

"The United Kingdom Supreme Court upheld this position in its judgment in R v Horncastle [2009] UKSC 14. Annexe 4 prepared by Lord Judge specifically approved the decision in Mayers and stated at paragraph 13 'the relaxation of some of the rules against the use of anonymous witnesses under the Criminal Evidence (Witness Anonymity) Act 2008 does not extend to witnesses who are not only anonymous but also absent ... In short, such evidence is inadmissible."

That reasoning is relied on in a series of different contexts to be found in Lord Judge's Annexe 4 at paragraphs 16, 24, 38, 46, 54, 73, 80, 89 and 96.

17. On the face of it these materials appear to demonstrate that it is inescapable that anonymous hearsay evidence cannot be admitted under the present statutory regime. Hearsay evidence of course is admissible under the 2003 Act, but if anonymous evidence, whether hearsay or not, is to be admitted that can only be done by reference to the provisions of the Act of 2008. Quite plainly the statement of the unknown woman giving the car registration number is or would be anonymous hearsay evidence.
18. We have considered whether the reasoning of this court and that of Lord Judge necessarily applies in a case where the statement is made not by a known witness whose identity is sought to be withheld, but by a person whose identity is not known at all. In those circumstances it might be said that the 2008 Act is simply not in the picture. That being so the reasoning in Mayers at paragraph 113, cited by Lord Judge at paragraph 13 of Annexe 4 in Horncastle, may be said not to apply. But we cannot see that such an argument could prevail. As we have already indicated, and we repeat it for convenience, the Court of Appeal in Mayers at paragraph 113 said:

"No surviving common law power to allow for witness anonymity survives the 2008 Act. The 2008 Act addresses and allows for the anonymity of witnesses who testify in court. This jurisdiction is governed by statute, and any steps to extend it must be taken by Parliament."

19. The reality is then that a statement which is sought to be adduced in evidence in circumstances where the anonymity of its maker is sought to be preserved can only be so adduced if it falls within any of the provisions of the Act of 2008 which permit that to be done. The statement of this unknown lady does not fall within any such provision and it has not been contended that it does. In those circumstances it seems to us inescapable that the evidence was not admissible, the judge should not have let it in. Miss Dunkley's argument is correct. On this ground of appeal we grant leave. We will consider shortly what the consequences of this position may be for the full appeal.
20. It is right we should deal with Miss Dunkley's other points and we turn to the first three items, the statements of April Maddix, Emma Leaburn and Asiatu Charm. First, Asiatu Charm. She had been walking towards Camplin Street at about 2.30 pm on 5th January 2007, the day of the first shooting. She had seen the applicant, who was known to her, and attempted to engage him in conversation. He was with another man. She continued walking with her back to the two of them. She heard two shots. She turned and saw the two men running from the scene. As we have said, she made a 999 call and later a statement. On 17th September 2008 (transcript volume IV) the judge admitted Miss Charm's witness statement, an edited version of her 999 call and evidence from DC Hunter reporting a much later conversation in which she had corrected certain details in the statement. The evidence was admitted under section 116(2)(d) of the Criminal Justice Act 2003 on the footing that the witness cannot be found and (2)(e), the witness does not give oral evidence through fear.
21. The applicant concedes that these two gateways were open on the facts relating to Miss Charm's statement, but it is submitted that the statement was not demonstrably reliable having regard to discrepancies about the name of the road, the route she took, the circumstances in which she had come to know the applicant, a want of detail about the applicant, a question whether on her statement the applicant could have been the shooter and alleged inconsistencies with the statement of Emma Leaburn.
22. Now, there was a wealth of evidence that Asiatu Charm was terrified to testify. She had been served with a witness summons for the first trial and vomited when she received it. However after her statement was read at the second trial she attended court voluntarily and was examined and cross-examined. There was no unfairness to the applicant here. His objections to the admission of her statement are entirely insubstantial.
23. Emma Leaburn. On 24th September 2008 the judge expressed herself as satisfied that Emma Leaburn would not give evidence out of fear for her safety. In fact she attended court and testified on a voir dire from behind a screen. She begged not to have to give evidence before the jury given the threats, that she or a member of her family would be shot, which she had received. In her statement she gave an eye witness account of the first shooting. Her account differed in some ways, it is true, from that of Asiatu Charm. She failed to pick out the applicant at an identification procedure. Asiatu Charm, we should say, did not attend such a procedure. She, Emma Leaburn, had given a description of the shooter. She also had some information about the second shooting. Such differences and discrepancies as there were here, given that there was an identification issue, can presumably only have assisted the applicant. The judge's decision to let in Emma Leaburn's witness statement cannot be faulted.
24. April Maddix. On 17th September 2008 the judge admitted her statement under section 116(2)(d) of the 2003 Act. She made herself unavailable during the trial despite the Crown's reasonable efforts to find her. Her evidence was important from the Crown's point of view because the applicant claimed that when the Ford Focus was stopped by the police on 4th February 2007 with himself in the driver's seat he had only just got into the car. Maddix's statement of 19th February 2007 showed, however, that he had been in possession of it for a number of weeks. In fact she wrote a retraction of her statement and the judge allowed that in along with the original statement. Again, the applicant says there are inconsistencies in her account: thus belongings of hers were found in the car which seemingly had been put there after she said she was last in the vehicle, and reliance is placed on the fact that there was a suggestion at trial of a phone call between Miss Maddix and some of the four boys could be evidence that Miss Maddix was a co-conspirator for the purpose of counts 13 and 14. Miss Dunkley submits that that circumstance is to be taken into account in considering overall whether her evidence should have been admitted in the form in which it was. The applicant says that Miss Maddix's statement must be shown to be demonstrably reliable before it could be admitted. Miss Dunkley refers to the decision of this court in the Horncastle case [2009] EWCA Crim 964. But Horncastle does not decide that a witness statement must be demonstrably reliable in every case before it can be admitted. Thomas LJ said this at paragraph 57:

"Where the evidence before the court is that of an identified but absent witness, we can see no reason for a further absolute rule that no counterbalancing measures can be sufficient where the statement of the absent witness is the sole or decisive evidence against the defendant. That would include cases where the hearsay evidence was demonstrably reliable, or its reliability was capable of proper testing and assessment, thus protecting the rights of the defence and providing sufficient counterbalancing measures."

It is evident to our mind that decisions as to the admissibility of hearsay evidence under the Act of 2003 are always going to be case sensitive and nothing, with respect, in Horncastle contradicts that. Miss Maddix's statements were, in our judgment, rightly admitted.

25. In relation to these three witnesses we would add this. Where application is made in evidence to adduce a statement because its author has been frightened or intimidated so that he is unwilling to give oral evidence, and that has been done by or on behalf of the defendant in the case, the defendant in opposing the statement's admission should not generally be allowed to rely on weaknesses or inconsistencies in the statement to show that it would be unfair to admit the statement. To accede to arguments of that kind would allow the defendant the benefit of his own wrongdoing or that of his associates in having intimidated the witness. It is his fault, not the witness's, that the weaknesses in the statement cannot be explored in cross-examination. Such weaknesses accordingly cannot be said to give rise to a want of fair procedures for the purposes of Article 6 of the European Convention on Human Rights. At paragraph 41 in Horncastle in this court this was said:

"... what is important for the present case is a further proposition adopted in Al-Khawaja that if the evidence is the sole or decisive evidence there will necessarily be a breach of Article 6 and Article 6(3)(d) if the defendant is denied the right to confront the witness, at least unless the case is one of fear."

We understand that the Strasbourg court also has acknowledged such a position.

26. We turn to item 6, Tameika Dixon's telephone directory. On 17th September 2008 (transcript volume II) the judge admitted PC Crossley's evidence that on 3rd January 2008 Tameika Dixon had been stopped and searched and her phone book had the name "Killa" against a phone number ending 169. This evidence was admitted under section 114(1)(d). The witness could not be found. The applicant's use of the nickname "Killa" was obviously important for the Crown's case. The applicant was associated with a phone number 169. This evidence was rightly admitted as giving material objective support to a part of the Crown's case.
27. Lastly item 6, the four boys. Given that the evidence of the unknown lady who produced the car registration number should, in our judgment, not have been admitted for the reasons we have given, the other evidence relating to the four boys likewise should have been excluded because without the anonymous lady's evidence there is nothing to connect them or the motorcar with the scene of the shooting on 12th September.
28. That leaves the second area in which Miss Dunkley seeks leave to appeal, her criticisms of the summing-up. We have considered these with some care. We do not think it necessary to go through each and every one of them. We do not consider that what is said in relation to the summing-up affects the fairness of the trial.
29. The result of our judgment is that leave to appeal will be given on the one ground relating to the anonymous unknown lady. Leave to appeal will be refused on all other grounds. We will hear counsel briefly as to where that leaves the substantive appeal, by which I mean, Miss Dunkley, Mr Dawes, whether our ruling in relation to the note and the car registration number is fatal to the conviction on every count or not. It is clearly fatal to the conviction on the last two counts relating to the shooting on 12th September.
(Submissions followed)
30. LORD JUSTICE LAWS: We have given very anxious consideration to the question what is the consequence of our having allowed this appeal on the ground only that the unknown witness's evidence should not have been admitted. It is, in our judgment, first clear that the convictions on the last two counts (which were counts 13 and 14 in the indictment as originally drawn but may have been re-numbered 12 and 13) cannot stand. Those were the counts of conspiracy and they related only to the second shooting on 12th September to which the anonymous witness's evidence was directly related.
31. We have considered very carefully, however, what is the effect on the balance of the case. In the end we have concluded that the convictions on the remaining counts are safe. First, it is clear that there was extremely powerful evidence to support each and every one of those counts. Secondly, if one asks, so to speak, the notional question, what would have been the jury's thought process if they were going to acquit on those counts not having heard the evidence of the anonymous witness, it is very difficult to see how they could have set aside the obvious force of the many matters relied on by the Crown on those earlier counts. Having looked at the evidence and the facts of the case very carefully, and of course considered the judge's summing-up, we consider that the convictions on those counts are safe. Accordingly, this appeal will be allowed only to the extent that the convictions on the last two counts, originally 13 and 14, are quashed.
32. LORD JUSTICE LAWS: Miss Dunkley, it occurs to us that in the light of that decision you may wish to say something about sentence. I am not necessarily encouraging you to, but this was an IPP with a fixed term of seven years. I am not suggesting it is realistic that that could come down, but as he is no longer to be held guilty of the last two counts I think we probably should give you an opportunity, however briefly, by way of a late application for leave to appeal against sentence to say anything if you want to. I am not particularly encouraging you to.
(Submissions regarding sentence followed)
33. LORD JUSTICE LAWS: In light of our judgment on conviction we have permitted Miss Dunkley to make short submissions on sentence by way of a late application for leave to appeal against sentence. We do not repeat the facts of the case which are described in our judgment on conviction. We are grateful to Miss Dunkley for her short submissions and, as we should have said earlier, especially so for her treatment of the point on which she has been successful in this court, a point which, so far as we can see, occurred to her before it occurred to anyone else.
34. In light of the fact that the appellant, as he now is, no longer stands convicted of the two conspiracy counts, it seems to us that some alteration to the minimum term of seven years' detention in a young offenders institution imposed on counts 4 and 7 on the indictment should be made. Such a minimum term was also fixed for count 12, conspiracy to possess a firearm, and it is reasonably clear that the judge considered that the notional determinate sentence represented by that minimum term, namely a sentence of 14 years, was the total sentence justified given all the offences of which this appellant has been convicted, and it may be said not least the two conspiracy offences. In the circumstances we propose to quash the minimum term of seven years fixed on counts 4 and 7 and in each case substitute a minimum term of six years' detention in a young offenders institution. All other sentences remain untouched. The sentences run concurrent with each other, as the judge ordered them to do.
35. We grant leave to appeal against sentence, treat this hearing as the hearing of the appeal and allow it to that extent.