England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 2 August 2011

1. LORD JUSTICE LAWS: This appellant faced an indictment containing four counts. Count 1 charged an offence of possessing a firearm with intent to endanger life. Count 2 charged an alternative, simple possession of a firearm. Count 3 was an offence of possessing ammunition with intent to endanger life and count 4, again an alternative, simple possession of ammunition. On 27th January 2011 before His Honour Judge Issard-Davies at the Inner London Crown Court, the appellant was convicted by an 11 to 1 majority of the jury upon counts 1 and 3. The jury was discharged from returning a verdict on counts 2 and 4. The appellant was sentenced to five years' detention in a young offender institution on count 1 and 30 months concurrent on count 3. He now appeals against his conviction by leave of the learned single judge.
2. The firearm in the case was a Walther P99S self-loading pistol modified to allow the discharge of live ammunition. It was found on 26th April 2010 in a plastic bag in an external cupboard at a block of flats in Lyham Road, London, SW2. That is in Brixton, and is perhaps a 10 minute walk from the appellant's home. It was found by a plumber who was carrying out repairs. There were two cartridges in the magazine. They had been cut to fit the pistol. The appellant's fingerprints were found on five areas on the outside of the plastic bag and one area inside. An incomplete DNA profile found on a swab taken from the magazine of the gun matched the appellant's DNA. The chance of it being from someone else was one in a million. Other swabs gave insufficient DNA for a comparison to be made.
3. The appellant was arrested on 15th June 2010 and, according to DC Cotton who said his note was complete, on being told that he was being arrested because he had been linked forensically to a firearm, he responded: "Has anyone else been linked to it?"
4. The appellant gave evidence in his own defence. He claimed to know nothing about the gun. The plastic bag came from JD Sports where he was a frequent shopper. That would explain his prints on the bag. As for the DNA, that might have got onto the magazine by means of a secondary transfer if the bag had come into contact with him. According to the expert evidence, however, the most likely explanation for the presence of the appellant's DNA on the magazine was that he had touched it.
5. The grounds of appeal arise primarily out of the judge's decision to let in two pieces of evidence upon the Crown's application. The first concerned an incident on 28th November 2007 when the appellant was 14. Police went to Clapham Common where there was a fight involving a large number of youths. Five of them fled but were caught. Among them was the appellant. He was seen discarding an object which turned out to be a replica firearm capable of firing ballbearings. He was given a formal warning by the police pursuant to section 16A of the Firearms Act 1968.
6. The second piece of evidence admitted by the judge concerned an incident which had taken place on 29th October 2009. The appellant was shot once in each leg at the top of the thigh. It happened close to the same road where the firearm and magazine with the ammunition giving rise to the present indictment were found. The appellant claimed he did not know who the culprit or culprits were.
7. The judge held that both pieces of evidence were admissible in a ruling given on 24th January 2011. He recorded the Crown's submission as being that they were both admissible:

"... because they tend to rebut the operation of chance in this matter. They become admissible, therefore, under section 101(1)(d) of the Criminal Justice Act 2003, an important matter in issue between the defence and the prosecution."

And so the judge let in the evidence on that basis.

8. Section 101(1)(d) concerns bad character evidence. It provides:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-

...

(d) it is relevant to an important matter in issue between the defendant and the prosecution."

The suggestion that the appellant having been shot in October 2009 was evidence of his bad character was, to say the least, quixotic and the judge gave some reconsideration to his ruling the following day, 25th January 2011. The transcript (volume 2, page 5E) shows that he was prepared to recast his ruling as regards the shooting on the footing that evidence of the incident was admissible at common law as tending to rebut a defence of innocent association.

9. The common law has long accepted that evidence may be admitted at the behest of the Crown to rebut a defence of mistake, accident or innocent association. The relevant line of authority includes such well-known cases as Makin v Attorney General for New South Wales [1894] AC 57 and DPP v Boardman [1975] AC 421. It is clear moreover that bad character evidence may be admitted under section 101(1)(d) for a similar purpose. In Jordan [2009] EWCA Crim. 953, Hallett LJ said this at paragraphs 20 and 21:

"20. In general terms, to our mind, Mr Fell's arguments overlooked one very significant matter. Section 103(1) states that 'matters in issue' between the defendant and the prosecution for the purposes of section 101 include the question whether the defendant has a propensity. 'Matters in issue' are not limited to questions of propensity. One important matter in issue here was whether or not the appellant knew there was a firearm in the car. It was to rebut his claim that he just happened to find himself sitting above the firearm, in other words to rebut his claim of innocent association or coincidence, that the Crown in reality sought to adduce evidence of his previous convictions. The admissibility of evidence to rebut coincidence or innocent association was recognised by this court in Groves [1998] Crim LR 2000, but also more recently in R v Chopra [2007] 1 Cr App R 16, whereby this court acknowledged that coincidence or unlikelihood of coincidence continued to be relevant under the provisions of the Criminal Justice Act 2003.

21. Further, we note that the possession of firearms in this country to commit an armed robbery, although by no means unique, is still mercifully a comparatively rare offence, certainly when compared to the huge number of offences of street robberies. It was therefore a perfectly legitimate argument, in our judgment, that the appellant, who claimed to be sitting in a car which was going to be used in an armed robbery as a result of unhappy chance, had previously committed an offence of possessing a gun and had previously committed an offence of robbery. We take Mr Fell's point that the [relevant] convictions were relatively old, but we also note that in the meantime he had spent some years in prison. Far from turning over a new leaf, as he claimed he had continued to commit offences."

10. The appellant in the present case says that there were no identifiable common features between the incidents the subject of the disputed evidence and the indictment offences. He cites Laurusevicius [2008] EWCA Crim. 3020. It is said that the evidence of the shooting had no probative value, and there were a large number of distinct differences between the other incident when the 14-year-old appellant was warned for carrying a pellet gun and the indictment offences.
11. It is to be noted that the discussion in Laurusevicius largely went off on the issue of propensity to untruthfulness. That is not how the Crown's case is put here. The Crown say that the appellant's case necessarily relied on a string of striking coincidences. Carrying a pellet gun is not a common occurrence. Being shot in the street is not a common occurrence. On the appellant's case however the appellant was involved in both these occurrences but also turns out to have disposed of a bag with his fingerprints found upon it at a nearby location and containing a loaded gun with his DNA on the magazine.
12. In our judgment, the two pieces of evidence were rightly admitted by the judge. As a matter of logic and commonsense, they reduce the chance that the appellant's fingerprints and DNA found their way onto the bag and gun without his having touched the latter. They were therefore properly capable of being regarded by the jury as tending to rebut his defence of innocent association. The first, the Clapham Common incident, shows a preparedness at least to carry a gun. The second, the shooting, discloses a possible motive for possessing one.
13. The appellant also says that the judge at least should have not let in disputed evidence that he had been uncooperative with the police over the shooting incident. That is reflected in the summing-up at transcript volume 3, 24B to C. But we see nothing wrong with the course taken by the judge. The jury were plainly entitled, once the evidence as to the shooting was in, to know that there was also evidence that the appellant had been reluctant to give an account of the matter.
14. There remains a further complaint about the summing-up. It is said first that it was unfair of the judge to tell the jury (summing-up 20B) that the two matters of which he had admitted evidence were "relevant because of the nature of the defence case" when it was the appellant's express argument that they were irrelevant. But the judge's comments merely reflected his admissibility ruling in any event, as my Lord, Openshaw J pointed out in the course of argument this morning, the defence submissions as to the irrelevance of these events were canvassed by the judge (see 22G, also 24G to 25E).
15. Lastly, it is said that the judge misstated the defence case as being to the effect that the appellant had been shot by accident - an expression used by the judge in the summing-up at 23D. The defence case was in fact, it is said, that he was shot for no reason and did not know the culprit. However, the judge set out the appellant's case in some detail at 36A and D (as it had been given to DS Mitchell), 37A to D (the appellant's witness statement) and 43F to 44A (his evidence to the jury). The jury were entitled to have regard to the fact that the appellant was shot in the top of each leg and that hardly suggested a mistaken victim. Indeed it must have been obvious that the appellant had been deliberately targeted. Though there are passages in the summing-up where the judge's language is loose, there is nothing here that begins to assault the safety of the conviction.
16. For all these reasons, this appeal is without merit and will be dismissed.