England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		23 July 2010

Friday 23 July 2010

LORD JUSTICE LAWS:

1. In October and November 2008 before Treacy J at the Birmingham Crown Court these five applicants faced their trial with two co-defendants on an indictment containing three counts. Count 1 charged all five together with Dane Garside and Malcolm Bull (the co-defendants) with an offence of murder. Count 2 charged Creighton, Turner and Dane Garside with possession of a firearm with intent to endanger life. Count 3 charged all five and the co-defendants with possessing shotguns without a certificate. On 2 October 2008 Creighton pleaded guilty to all three counts. On 24 November 2008 Turner was convicted on all counts. On 26 November 2008 Taylor was convicted on counts 1 and 3. On 27 November 2008 Karl Garside and Cameron were convicted on count 1 by a majority of 10:2. Karl Garside and Cameron were acquitted on count 3. The co-defendants, Dane Garside and Bull, were convicted on all charges they faced. On 28 November 2008 Treacy J passed sentence as follows: Turner, on count 1, life imprisonment with a minimum period of thirty years (less 460 days spent in custody on remand), eleven years' imprisonment concurrent on count 2, and four-and-a-half years' imprisonment on count 3; Taylor, on count 1, life imprisonment with a minimum of thirty years (less 458 days spent in custody on remand), four-and-a-half years' imprisonment concurrent on count 3; Karl Garside, on count 1, life imprisonment with a minimum term of 26 years (less 418 days spent in custody on remand); Creighton, on count 1, life imprisonment with a minimum term of twenty-eight-and-a-half years (less 462 days spent in custody on remand), and concurrent terms of ten years' imprisonment on count 4 and four years' imprisonment on count 3; Cameron, on count 1, life imprisonment with a minimum term of twenty-five years (less 418 days spent in custody on remand). Of the co-defendants, Dane Garside was sentenced to life imprisonment on count 1 with a minimum term of twenty-seven years (less 456 days spent in custody on remand), and concurrent terms of ten years and four-and-a-half years' imprisonment on counts 2 and 3 respectively. Bull, on count 1, was sentenced to life imprisonment with a minimum term of twenty-five years (less 417 days spent in custody on remand), and four-and-a-half years' imprisonment concurrent on count 3.
2. Applications for leave to appeal having been refused by the single judge, Turner and Karl Garside now renew their applications for leave to appeal against conviction. Taylor renews his applications for leave to appeal against conviction and sentence. Creighton renews his application for leave to appeal against sentence only. Cameron applies for an extension of time in which to renew his application for leave to appeal against conviction.
3. The victim of the murder was 35 year old Gerard Tobin, to whom we will refer as the deceased. He was a member of a bikers' group called "Hell's Angels". On 12 August 2007 he had attended a motorcycle event called the "Bulldog Bash" which had taken place at Long Marston Airfield in Warwickshire. It was traditionally frequented by Hell's Angels. On the afternoon of 12 August 2007 he was riding his motorcycle homewards towards London on the M40. At about 2.30pm, just south of junction 15, a green Rover motorcar pulled out of a lay-by. One of its occupants fired a single shot from a revolver at the deceased. He was killed instantly. Another shot from the car was fired at the rear wheel of his motorcycle. The car was later torched. It was found by emergency services in a remote part of Coventry engulfed in flames.
4. The Crown's case was that the five applicants were members of a rival bikers' gang, the "Outlaws". They planned the murder. They carried out recognisance or "scouting" over three or four days before the killing. Creighton, Turner and Dane Garside were in the green Rover. Dane Garside was the driver. Creighton fired the fatal shot. The other applicants, Cameron, Karl Garside and Taylor lay in wait in a white Range Rover further along the motorway at junction 11 in case the first attempt failed. The last man, the co-defendant Bull, was in another vehicle alone. He was co-ordinating the attack and relaying information to the others. In short, the deceased was chosen at random as a representative of the Hell's Angels and summarily executed on a public road in broad daylight.
5. Much telling evidence was provided by vehicle index recognition technology, CCTV footage and mobile telephone cell site records into which, however, it is unnecessary to go, given the nature of the grounds of appeal against conviction which, save for one matter, are entirely concerned with the admission of previous convictions of two of the applicants, Turner and Taylor.
6. We should, however, refer to one other aspect of the evidence. This is the existence of premises in Coventry called "Supreme Harley Supplies". Taylor resided there. It was used as a meeting place for the chapter of the Outlaws to which the applicants belong. Two shotguns and live cartridges were found hidden there wrapped in bin liners in or on which a number of Turner's fingerprints were found. These facts gave rise to count 3 in the indictment. There was also found at these premises a live bullet capable of being fired by a weapon used in the killing. That was found in a desk drawer in Taylor's living accommodation. Count 2 was directed at possession of the firearm used to fire the fatal shot from the green Rover.
7. Of the defendants who contested the case (that is all save Creighton), all gave evidence, save for Karl Garside. One way or another they all denied participation in the killing or any firearms offences.
8. The grounds of appeal as originally drawn concerned the decisions of the trial judge to admit evidence of previous convictions recorded against Turner and Taylor. The other applicants who complain of their convictions -- that is Karl Garside and Cameron -- do so on the basis that the admission of Taylor's previous conviction prejudiced them. Their cases accordingly stand or fall with that of Taylor.
9. This morning, however, Mr McDonald, representing Turner, Karl Garside and Taylor, seeks to take a new point. He submitted that the judge's summing-up was defective because the directions on joint enterprise were incomplete. He says that the judge should have given a direction to the jury as follows:

"If you consider there was a non-innocent explanation for what any one of the alleged secondary parties did, then you must be sure that that party foresaw the intention on the part of the killer to kill the deceased with a firearm."

This, it is said, was required in order to recognise the possibility of a particular scenario, namely that there may on the facts here have been what Mr McDonald referred to as "non-innocent scouting" -- that is to say, activity designed not to find a victim for a killing, but to find a Hell's Angel who would then be frightened or intimidated, but not shot dead. Mr McDonald says that this was in the nature of Dane Garside's case. Reference was made to the judge's summing-up (Volume V, 14A-C) as follows:

"Dane Garside's case requires separate analysis. He was the driver of the Rover, of course, as you recall. He says that the scouting was pure scouting throughout. That he pursued Mr Tobin on 12 August because he had been told to by Creighton, but he manoeuvred the car for the purpose of enabling Creighton to get a better look at Mr Tobin's patches, so in other words, he was manoeuvring the car still as part of the scouting exercise and he goes on to say that even after the shots, he did not think that any shots had been aimed at Mr Tobin. That at the worst it was something just to scare him. He says that he had no prior knowledge of carrying or use of firearms until after they had been discharged."

10. We have found it difficult to understand Mr McDonald's submission. First, as regards Dane Garside (who is not one of the applicants), the passage we have just read is immediately followed by these words:

"Now if any of those defence cases is, or may be true, and you should consider each one separately, then the defendant concerned would not be guilty of murder ...."

This supposed third scenario was expressly dealt with in the case of the one defendant who appears to have raised it.

11. Mr McDonald submits that he is supported in his fresh argument by a decision of this court in a judgment delivered yesterday in R v A and Others [2010] EWCA Crim 1622. We do not consider that the court's judgment in that case assists on the facts here.
12. In short, in the present case, as we see the matter, the judge said all that had to be said at page 12F-H as follows:

"So in this case, in considering the position of a defendant who did not fire the fatal shot, you would have to be sure that (a) he played a part in the commission of the offence of murder and (b) knew that there was an intention to kill the victim by use of a firearm. Those are the two essential ingredients of which you would have to be sure before you could convict a defendant in this case. If you are sure of those two elements (a) and (b) in the case of a particular defendant, then he is guilty of murder."

So far as it may have been desirable or even necessary to indicate to the jury that a defendant must be shown to have foreseen that a co-defendant might intend or did intend to kill the victim, such a requirement is plainly embraced within the trial judge's head (b), that is to say that it must be shown that the defendant knew that there was an intention to kill the victim by use of a firearm. There is nothing in this new point and we refuse leave to appeal in relation to it.

13. We turn to the grounds as drawn first in Turner's application. It will be recalled that he was said to have been in the murder vehicle. His case was alibi. It was apparently during the course of his cross-examination on behalf of a co-defendant that the Crown applied, without earlier notice, to adduce evidence of a previous conviction recorded against him for an offence contrary to section 18 of the Offences against the Person Act 1861. The offence had been committed in 1993. The victim, who was a stranger to Turner, owed money to a third party belonging to the same biker organisation as Turner. Turner and the third party went to demand payment from the man. He declined to pay. Turner proceeded to throw petrol over him and stab him twice. He was sentenced to ten years' imprisonment for that offence.
14. The Crown's case was that evidence of this previous conviction was admissible against Turner as demonstrating a propensity to commit offences of ruthless violence on strangers, and thus tending to support his alleged role as one of the three in the murder vehicle. The defence relied in particular on R v Murphy [2006] EWCA Crim 3408, in which Keene LJ said this:

"16. There may be cases where the factual circumstances of just one conviction might be relevant to showing propensity, but we would expect such cases to be rare and to be ones where the earlier conviction showed some very special and distinctive feature such as a predilection on the part of the defendant for a highly unusual form of sexual activity or some arcane or highly specialised knowledge relevant to the present offence. In cases with less distinctive features in common, one would require some evidence of the propensity manifesting itself during the intervening period in order to render the earlier evidence admissible as evidence of continuing propensity."

The trial judge referred specifically to this at 4H of the transcript of his ruling. He concluded that ruling as follow:

"Having considered those materials I consider that the 1993 conviction for the offence contrary to section 18 reveals a case of violence of greater than normal gravity, as the facts outlined and the sentence imposed show. It seems to me that on analysis the following features are significant: the 1993 offence was premeditated rather than being a sudden outburst of violence. Secondly, to my mind it showed a very considerable degree of ruthlessness. The throwing of petrol over the victim followed by the use of a substantial knife to vulnerable parts of the body by Mr Turner amply demonstrate that. Thirdly, it showed a preparedness to use extreme violence. Fourthly, this violence was used in a situation where there had been no provocation or other activity emanating from the victim which could in any way have contributed to what had taken place. Next, the victim was not known to Turner. In addition, it is significant that there was no element of personal affront to Turner underlying the violence which took place. What did underlie the violence was a type of enforcement which has some resonance with what is said to underlie the shooting of Mr Tobin.

....

To my mind the features which I have identified, and excluding the feature in relation to the shooting, have a strong resonance with the allegations in the current case. They provide evidence which a jury could properly say makes it more likely that the Crown's case is correct and that Turner's case is untrue in relation to his involvement in the present matter. The evidence tends to show that Mr Turner has a tendency or propensity to use extreme violence in a premeditated way in circumstances which do not personally impinge upon him. The evidence is capable of showing also that his role in this matter was as one of those who either fired shots from the Rover or was present in the Rover vehicle from which shots were fired."

The conviction was therefore admitted under the section 101(1)(d) gateway.

15. Refusing leave to appeal the single judge said this:

"Treacy J was entitled to admit the evidence and his reasoning is unimpeachable. What was necessary for the 1984 conviction to satisfy the R v M [2006] EWCA Crim 3408 [that is Murphy] test was a very special and distinctive feature or some arcane or highly specialised knowledge relevant to the present offence. Identified as within one of those categories were very considerable ruthlessness, a preparedness to use, and the infliction of, extreme violence of greater than normal gravity, without provocation, on a victim unknown to you and without an element of personal affront to you, and with an underlying motif of enforcement. These are not, in combination, features commonly seen in murder cases, and they are so powerful as to defeat your argument that effluxion of time should have made the evidence inadmissible. ...."

We entirely agree with that reasoning. There is no merit in that point on behalf of Turner. We refuse him leave to appeal.

16. We have a footnote to add in relation to the admission of previous convictions both in his case and in Taylor's to which we will come after dealing with Taylor's application to which we turn now.
17. In Taylor's case the Crown applied under section 101(1)(d) of the 2003 Act for leave to adduce evidence of a conviction in December 1984 on Taylor's plea of guilty to three counts of aggravated burglary, one of criminal damage and an offence of possessing a loaded shotgun or shotguns. Taylor and seven others, all members of the same motor-cycle group, broke into a house with three loaded shotguns to retrieve a motorcycle insignia that had been taken. In giving his ruling allowing in the convictions under section 101(1)(d) the trial judge said this:

"There appear to me to be relevant features of this offence. They represent a violent attack, one which was premeditated and planned, one which involved a sizeable group of bikers, including Mr Taylor. The underlying trigger for their actions was a biker-related dispute. As already stated, loaded firearms, such as shotguns, were taken. These factual matters were not in issue between the Crown and those representing Mr Taylor.

....

The Crown says that despite the passage of time the 1984 episode sheds important light on central issues in relation to these counts. There is emphasis placed on the factual circumstances of the 1984 episode (I have summarised those) that they are emphasised as showing close similarity and therefore relevance to the issues before the court in this trial. Mr Berry on behalf of Taylor, in resisting the Crown's application, emphasises the passage of time which has elapsed since that single conviction. He also submits that the circumstances of the two separate sets of offences differ sufficiently to enable it to be said that the 1984 convictions are not relevant."

After citing authority, including R v Hanson [2005] EWCA Crim 824 and Murphy, the trial judge concluded:

".... I am acutely aware that the episode took place in 1984, and was a single episode. However, in my judgment, there are significant features of that episode which rise far above the routine, and in truth show special and distinctive features which have a strong relevance and resonance in this case. I have identified those features earlier in this ruling. This, in my judgment, is one of those relatively rare cases where a single old conviction can demonstrate propensity."

He then proceeded to consider section 101(3) and (4) of the Criminal Justice Act 2003, which we do not need to read.

18. Refusing leave the single judge considered this reasoning to be impeccable essentially on the same basis as the view he had taken in the case of Turner. Again, we agree.
19. The footnote to which we referred is as follows. Mr McDonald this morning submitted that the trial judge should have gone further than he did in dealing with these previous convictions when he came to sum the case up to the jury. In short, it is said that the judge should have taken care to explain the differences between the facts of the previous convictions and this case; and that he should have placed emphasis on the limited use the jury might make of the previous convictions and the dangers and shortcomings which the admission of such material could possibly generate.
20. Those criticisms are all entirely misplaced. We have read and re-read the summing-up. We will not lengthen this judgment by citing further passages. The judge gave proper warnings to the jury upon all relevant matters and at all relevant points. There is nothing in that submission.
21. It follows that Turner's and Taylor's renewed applications for leave to appeal against conviction must be refused. The other applicants who seek to challenge their convictions, Karl Garside and Cameron, were, as we have said, on the Crown's case lying in wait in the white Range Rover with Taylor. They assert that insofar as the admission of Taylor's previous conviction strengthens the case that the Range Rover was being deployed for a second attempt on the deceased's life if the first attempt failed, then it went also to strengthen the case against them. So their grounds of appeal merely rest on Taylor's assertion that his 1984 conviction should not have been admitted. Since we have rejected that assertion, Cameron's and Karl Garside's renewed applications for leave to appeal against conviction must also be refused.
22. We turn to the renewed applications for leave to appeal against sentence. It is accepted on all hands that thirty years was the correct starting point under Schedule 21 to the 2003 Act. Only Taylor and Creighton seek leave to appeal against their sentences. Taylor is 49 years old. He has an extremely bad criminal record. Creighton is 46 and also has a very bad record. There is nothing to say in support of these applications. We see no reason to distinguish between Creighton and Taylor, notwithstanding that Creighton appears to have been the gunman in the green Rover. The judge might properly have specified longer minimum terms. These renewed applications should not have been brought and they are refused.