England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 26 October 2012

1. LORD JUSTICE PITCHFORD: These are renewed applications for leave to appeal against conviction; in the case of Marcel Mason it would require an extension of time. In the case of Marcel Mason there is also a renewed application for leave to appeal against sentence.
2. At the Central Criminal Court on 8th November 2010 before His Honour Judge Roberts, these four applicants, together with two others, Dwayne Locke and Lavarne Forde-Morgan, faced a trial on indictment containing four counts. In the original indictment Dwayne Locke and Jessica Taylor were also charged in count 4 with conspiracy to pervert the course of justice. That count was severed from the trial of counts 1, 2, 3 and 5.
3. In count 1 the applicants Mason, Williams, Forde-Morgan and Saint were charged with attempted robbery of a person unknown. It was the prosecution case that on the evening of Sunday 21st March 2010 they attacked a man in a 4x4 motorcar, which had stopped at a set of traffic lights, in an attempt to steal his watch. At the close of the prosecution case the judge ruled that Mason had no case to answer on that count and on 2nd February 2011 the jury returned verdicts of not guilty count in the cases of Williams, Forde-Morgan and Saint.
4. In count 2 the applicants Mason, Williams, Forde-Morgan, Saint and Smith were charged that on the same day they had in their possession a firearm, that is to say a pump action shotgun, with intent to endanger life. The prosecution case was that at about 8 pm on the evening of 21st March 2010, the defendants were in possession of the pump action shotgun and ammunition at a house situated at 44 Wychwood Way, in the Central Hill Estate, also known as the Gypsy Hill Estate, in South East London. They left that address armed with the shotgun. Outside Paul's shop, a short distance away (we are told under half a mile), a confrontation took place between Williams and a young man called Stefan Myers from South Norwood, some 20 minutes walk away. He had arranged to meet Ezra Mills at the estate.
5. Just before 9 o'clock Stefan was with his friend Courtney Staples. Courtney was talking to Williams. They were joined by Mason. A couple of other boys were said to be nearby. Mason demanded Stefan's phone and then made a grab for it. After a struggle Stefan ran off. Williams told Courtney, "Stay out of it before we shoot you up." Williams went on to say, "There's going to be a beef. Some men are coming from Brixton." Within minutes two shots were heard in the estate. It was the prosecution case that the intended victims were two young men called Garth and Kareem Ricketts. They were, at trial, extremely reluctant witnesses whom the judge permitted the prosecution to treat as hostile.
6. The principal evidence against the defendants at trial came from witnesses at 44 Wychwood Way: Jade Anderson, Jamie-Lee Madden, Joshua Anderson and Everton Samuels.
7. Jade gave evidence that five young men, those named in count 2 in the indictment, came to her house with a gun. As a matter of fact, the gun used in the shootings on the estate that night was never recovered. Given a selection of photographs she identified a Winchester pump action shotgun. She said that they left the house with the gun in their possession. One of them, Forde-Morgan, was wearing Everton's coat because it was large enough to conceal the gun. Immediately after hearing the two gunshots, they all came back to the house. They were talking about having missed.
8. Jamie-Lee Madden, who also gave evidence at trial, said that she was out of the house when the defendants arrived. She returned at about 8.40. She gave evidence that all six defendants were present. The prosecution accepted that she must be wrong about Dwayne Locke. She too said that she saw the gun. It was a pump action shotgun. They all left, Forde-Morgan wearing Everton's jacket. After the shots they came back. Mason had the gun. He said he thought someone had made a move to pull out a gun. He was going to shoot them but the gun had jammed and he had fired two further shots to unjam it. Next time, he said, he was going to do it properly. They then passed the gun around in the flat.
9. Joshua Anderson's evidence was read. He mentioned four, not five or six, young men present in the house: Mason, Williams, Forde-Morgan and Saint. He did not mention Locke or Smith. In fact Smith accepted that he was there. According to Joshua, Saint received a telephone call to the effect that a black car was driving around the estate looking for them. He said it was Mason who asked Everton for his jacket. The group ran out of the house. Later he heard two loud shots. Those who ran back were Mason, Forde-Morgan and Locke, followed by Williams. They had a gun with them. Williams was complaining that nobody had got hit. The prosecution suggested that he was wrong about Locke, who did not arrive until a little later, and wrong about Smith and Saint, who both returned with Mason, Forde-Morgan and Williams.
10. Everton Samuels' evidence was also read. He said five or six young men forced their way into the house behaving aggressively. He was in Jamie-Lee's room while the group was on the stairs. They were talking about another gang. One came in carrying a gun, saying he needed Everton's coat. He handed it over. He said that about five minutes after they left he heard two gunshots. Straight afterwards the group returned. There was still a lot of arguing going on. They were saying they could not believe that no one got touched. They were playing with the gun.
11. Subsequently, Everton's coat, which was recovered by the police that night, was examined. A high level of firearms discharge was found on the outside of the jacket and a low level in the lower left pocket. Lying on the pavement in the vicinity of the area where the shots had been fired was found the following morning a spent shotgun cartridge. On examination it was found to have been fired by the same weapon which was used to commit the murder alleged in count 3 and possession of a firearm with intent to endanger life in count 5.
12. The issue for the jury was whether they could accept the evidence of Jade Anderson and Jamie-Lee Madden that the five named defendants comprised the group who went out with the gun and returned with it immediately after the shooting. If the jury could be sure of those facts, they were invited to infer joint possession with intent to endanger life.
13. As to count 3, the victim of the murder was Ezra Mills. He was a friend of Dwayne Locke and Trevelle Williams. He was dropped off at the estate by his aunt at about 9.30 pm, half an hour after the first shots were fired. By that time Stefan had made himself scarce. At about 9.45 pm, Ezra called at Dwayne Locke's home on the estate. Locke was not there. He was in number 44. While at number 44, Locke received a call from his mother who said that someone had called for him at the house but had not given his name. At the time that call was received, 10 pm, Jade and Jamie-Lee had left number 44 to go to Paul's shop. Jade said that before she left with Jamie-Lee, Mason had gone out of the house and returned with Dwayne Locke. All of the defendants had left by the time she and Jamie-Lee had returned from the shop. Jamie-Lee agreed that only Joshua and Everton were present when they returned.
14. Joshua Anderson said in his witness statement that immediately after Dwayne had received the call from his mother, the group left. Mason shouted to load the gun. Forde-Morgan was holding it. Mason told him and Everton that if anyone got caught they would get their faces shot. Everton said they left a second time but not before his coat had been returned. He heard a shot and they never came back.
15. Within moments of the group leaving number 44, Ezra Mills was shot in the chest at point blank range with a shotgun. Analysis of a spent cartridge found at the scene showed that the same weapon had been used as that earlier used to fire the shots near Paul's shop. A group of five or six males were seen by witnesses to scatter after the shooting of Ezra Mills.
16. The prosecution invited the jury to infer that the visit by Ezra, a person unknown to Dwayne Locke's mother, was treated by the group as suspicious. The defendants left the house, it was argued, thinking that they were going to shoot a member of the opposition. In fact they shot a friend.
17. To summarise the applicants' cases as to their movements on 21st March 2010. Trevelle Williams said he was at Lavarne Forde-Morgan's home in the early evening. He remained there until about 8 o'clock. He met Lavarne on the estate near Paul's shop. He also met Robert Saint and David Smith. All four went to 44 Wychwood Way. Mr Williams said that he was there for ten minutes or so only. Smith and Saint had already left. He was with Lavarne Forde-Morgan outside Paul's shop when Marcel Mason turned up. After the confrontation with Stefan, he went to his cousin Che's house. Later he visited another friend called Banji in South Norwood. Finally he went to Lavarne's house. He did not go back to Wychwood Way and was not there during either shooting.
18. Marcel Mason said he went to 44 Wychwood Way at about 7.30 pm when he was alone. He left shortly afterwards. That evening he was selling cannabis on the estate. He did see Trevelle Williams and Lavarne Forde-Morgan outside Paul's. There was a scuffle between him and Stefan but that was as a result of a misunderstanding. There were no threats. He met up with Dwayne Locke and they got a lift to Wychwood Way. They saw Ezra Mills. Dwayne said that he was going to 44. Marcel Mason then went to his grandmother's house. He did not go to 44 and knew nothing about the shooting.
19. Robert Saint said he met Trevelle Williams outside Paul's shop at about 8 pm and then went to 44 with Trevelle Williams, Lavarne Forde-Morgan and David Smith. He was there for about half an hour. There was no shotgun, nor was there any ammunition at the house. He met David Smith again by the police station. At about 9.40 they separated. Later he went looking for David at his uncle's house. He did not go back to Wychwood Way. He later went to Lavarne's house in Tudor Road.
20. David Smith agreed that he had gone to 44 with Robert Saint, Trevelle Williams and Lavarne Forde-Morgan. He too said there was no gun and no one was hyped up. He said he left after about 45 minutes to an hour, certainly before 9 pm. He went to his uncle's house, realised there was no one in and decided to visit his friend Warren instead. He was probably at Warren's when the killing took place.
21. Count 5 concerned an incident which occurred three months earlier on 3rd January 2010. Shortly before 6 pm two shots were fired with the murder weapon through the front door of a house in West Norwood where lived a man called Nayman McKenzie. He and Forde-Morgan had earlier fallen out over a bicycle. Forde-Morgan made a threat to kill McKenzie on Facebook. At 5.31 pm the applicant Williams telephoned Mackenzie's friend, Kahmal Williams, who passed the phone to McKenzie. Williams asked McKenzie whether he wanted his bicycle back. Williams asked if he was at home. McKenzie said that he was. In fact he was five minutes away at a barber's shop. Shortly afterwards, the shots were discharged at Mackenzie's front door.
22. The defendants were convicted as charged save, as earlier mentioned, for count 1. The first of the applicants to make oral submissions is Trevelle Williams, represented for the purpose of this application by Mr Bostwick who was not counsel at the original trial. He has adopted two of the grounds which were submitted to the single judge on Mr Williams' behalf. Mr Williams complains that the judge permitted the prosecution to adduce evidence of telephone conversations covertly recorded between himself and a young man called Joel Thomas, while Williams was on remand awaiting trial. There is no doubt that it was Thomas who prompted the conversation about firearms and Mr Williams who responded. Mr Bostwick argues that the words used as recorded in the transcript were so unclear in their meaning that they should not have been admitted. There was no explicit admission by Williams of the possession or use of firearms. It was therefore unfair to the applicant who otherwise was a man of good character.
23. Evidence of familiarity of the applicant with the use of firearms was admissible if it was relevant to an important matter in issue between the defendant and the prosecution - see section 101(1)(d) of the Criminal Justice Act 20003. If the evidence was unfairly prejudicial to the applicant, it should have been excluded under section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984. Mr Bostwick recognises, of course, the gateway to admission and he prays in aid the discretion of the judge to refuse to admit evidence if it would be unfair to admit it. We have therefore had to consider, with the assistance of Mr Aylett for the respondent, those passages of the transcript of the conversations on which reliance was placed at trial. We do not accept that they were not properly capable of leading to the inference that Mr Williams was well used to handling firearms. That fact, if proved by the prosecution, was a matter of some importance to the prosecution case. It was important for the prosecution, if it could, to prove an association between any one of the defendants and the weapon fired on 21st March 2010; indeed, in Williams' case, the weapon fired on 3rd January also. A familiarity with such weapons was capable, depending upon the jury's view, of making that association more likely. Furthermore, upon one reading of the transcript it is possible to discern that each of these two men was speaking upon an unspoken assumption, namely that Williams had somehow been involved in shooting on 21st March 2010. Provided that the jury received the appropriate warning, which they did, no unfairness would in our view result.
24. However, Mr Bostwick criticises the judge's good character direction since the admission of this evidence resulted in a qualification. Mr Williams was the only one of the defendants who could be said to have had a clean character in the sense that there were no previous convictions. As the judge put it, having given the conventional good character direction:

"The only defendant in this case whose counsel has sought to make a positive point out of his previous good character is Trevelle Williams who, as you know, has a completely unblemished record in terms of convictions for offences of violence or dishonesty. That is something on which he is entitled to rely in the two ways I have mentioned. That point in his favour may of course be weakened to some extent if you take the view, which the prosecution invite you to take, that his telephone conversations from Feltham with his friend Joel Thomas, Units.

Of course it is entirely a matter for you to decide what interpretation you place on those conversations. You have got the transcripts of them ... you will want to study them for yourselves but if you take the view, as the prosecution invite you to, that despite Trevelle's lack of previous convictions he and Units were clearly both well into the gun scene, that would obviously weaken the point in his favour based on his previous good character."

25. It is not uncommon for trial judges to be faced with a defendant who has a clean record but in respect of whom the evidence in the case has revealed reprehensible behaviour. Sometimes it relates specifically to the alleged offence, sometimes it concerns bad behaviour in the past. It is well recognised that in such cases it is necessary for the trial judge to decide whether to give a good character direction at all and, if so, whether to qualify it and in what terms in fairness to the defendant. The conventional approach is that where there is doubt the trial judge should lean in favour of giving a qualified good character direction. That is what the judge did here. He did it in moderate terms, favourable to the defendant and in our view he dealt properly and accurately with the issue. We reject the assertion of unfairness either in the admission of the evidence or the way in which it was dealt with by the judge having been admitted.
26. Mr Bostwick, thirdly argues that the judge effectively withdrew an issue relating to CCTV evidence which positively assisted the applicant Williams' case. In evidence, Williams said that he was outside Paul's shop with Forde-Morgan at 8.25 pm. He met up with Smith, Saint and others at Joshua Everton's place. He then returned to the shop with Forde-Morgan and met Mason. After the incident involving Stefan and Courtney, he went to the other side of the estate. By the time of the shooting, he was on his way to South Norwood to visit a friend.
27. The prosecution relied upon CCTV footage in the vicinity of 3 Wychwood Way which, it was suggested, depicted a figure who was Williams walking alone at 10.04 to 10.05 pm. That was a significant time, being a minute or two before the fatal shooting. It was suggested by the prosecution that Williams was looking for an intruder on the estate. It was Williams' case that he was not even on the estate at that stage. It was the prosecution case in any event that the defendants were acting as a group.
28. In his summing-up, the judge pointed out to the jury that the quality of the image was admittedly poor and that having regard to the respective cases it was highly unlikely that the person in the CCTV clip was Williams. Complaint is now made that that invitation to the jury to conclude that the figure in the CCTV clip was not Williams, may have deprived the applicant of a defence that he had disassociated himself from the others in the group. If that was so, it went to the issue of joint enterprise which was the foundation of the prosecution case against each of the defendants.
29. In our view, on examination this argument is without merit. Counsel for the applicant at trial cross-examined the prosecution's expert at some length. He took Mr Burchett, the expert, to task for making any attempt to compare Williams with the person in the photograph. It was in other words no part of the applicant's case that the person in the CCTV film was or could have been the applicant. Mr Bostwick, understandably in response to questions from the Court, observed that he was advancing a ground of appeal which had been submitted in writing by the legal team then representing the applicant Williams. It does not seem to us that the applicant can now seek to run in this court a completely different defence from that which he ran at trial. If there had been a reasonable prospect of the judge directing the jury in the alternative, then we would have expected counsel who was then representing the applicant Williams to make that submission to the judge before speeches. No suggestion is made in the written material before us that that prospect was ever advanced to the judge.
30. We therefore reject the grounds advanced today on Williams' behalf.
31. We turn to the application made by Marcel Mason. He is not represented by counsel but it is submitted in writing, as it had been in the case of Mr Williams, that the judge was wrong to admit the hearsay evidence of Joshua Anderson and Everton Samuels to be read to the jury. Notwithstanding the absence of oral submissions on Mason's behalf, we must deal with that ground of appeal.
32. The judge concluded that the evidence should be admitted under section 116(2)(e) of the Criminal Justice Act 2003 on the ground that those witnesses were in fear for their safety. The proper application of section 116 was recently considered by this court in Riat and others [2012] EWCA Crim 1509 (Hughes LJ, VP, Dobbs and Globe JJ). The court gave guidance on the application of section 116 to which we have paid close regard.
33. First, we consider events at trial. Joshua Anderson made a statement on 16th April 2010 in these terms:

"I am known to the defendants and I have had to move from the area that I lived in due to that fact. I believe that if I were to stay in the area I would be subject to violence or to threat or fear of violence by their friends and/or associates of those charged. I would also like to request screens when I give evidence. As I have stated, I am known to the defendants. However, if I am to give evidence without being intimidated then to give 'best evidence' I will need the protection of screens from the defendants and the public gallery so those that do not know me will not know what I look like."

34. He attended trial on 22nd November 2010. He was then aged 17 years. To each question asked by Mr Aylett QC for the prosecution he replied "No comment". When the judge instructed him as to his duty, no positive response was forthcoming. He was told that he was liable to be committed for contempt. That advice was correctly withdrawn by the judge when it was appreciated that the power did not exist in the case of a witness of his age. He then left the witness box in order to make a statement, explaining his refusal to answer questions. He made two statements that day. In the first he said this:

"At the time I provided police with a statement that was taken during taped interview, from the outset of the incident my primary aim was to move away from the immediate area of south London because as I had assisted police I was fearful for my safety. I have been born and raised in South London all my life and know that people who talk to or assist the police often face problems from either suspects or friends of suspects. Therefore in giving evidence I wanted to move from the area. Initially I was moved to a separate part of London but eventually I was rehoused in an area not too far from where the murder took place. At present I am still in the process of getting accommodation in an area that I would feel comfortable in. I believe this will be possible in the new year. My decision not to answer questions today is based on my current situation. I am still fearful that based on my location and situation I would be putting myself and my family in danger. Therefore at this stage I will not answer questions from the court as I genuinely fear for my safety. I do not know what the friends of the people arrested could or would do if they found out my location, but I cannot take this risk.

Prior to attending court I can confirm that I have not been approached by any person in relation to my giving of evidence."

In the second statement he explained:

"I have stated that I would not give evidence based on my fears for the safety of myself and my family. This situation is not going to change unfortunately due to my circumstances. My family are not going to move or be rehoused based on the fact that their roots are in South London and based on work/school commitments. I could not ask my family to move based on my earlier decision. However, it does not change the fact that I would be worried for them as well as myself if I gave evidence. This is to clarify my earlier statement which may not have made this clear."

35. We have already referred to the explicit threat which in his witness statement of 19th May 2010 Joshua Anderson said Mason had delivered. His words in that statement were:

"Femz was trying to decide whether to take his bag but he left without it saying he would come back for it. He threatened Everton, Jamie-Lee and me saying that we were the only ones who knew that they had discharged the shotgun, so if any of them got caught then someone was going to get their face shot. He was about 20 to 25 seconds behind the other males as he left the flat."

36. On 23rd November, the following day, Everton Samuels, also aged 17, was called to give evidence. He too responded to all Mr Aylett's questions "No comment". On 23rd November 2010 he too made an explanatory statement. In it he said this:

"At the time of the incident I gave the police a full account as to what had happened during a taped interview. I gave the statement because I felt it was the right thing to do. However, afterwards the reality of having to give evidence at court kicked in and now I do not wish to answer questions in court. The reason is for two reasons. One is that I fear for my safety. Even with the distance given it is unlikely that I would ever move away from my immediate family and [I am] still close with them. Therefore, I would always have a fear that I could be approached or hurt when I was around their area. The second reason is my family. They live very close to the area where this murder took place. Again, taking into account the assistance given, there is no way my family would consider moving any considerable distance due to work, community ties, family friends etcetera. Therefore, I would always fear that somehow they could get dragged into this if I were to give evidence. I am sorry that this decision has caused trouble but this is the reality of my situation. I can confirm that prior to this trial I have not been approached or threatened by any person in relation to my giving of evidence. Therefore I must state that I am not prepared to answer any questions put to me by the court."

37. The judge did not treat these explanations as the last word. Indeed, the court in Riat and others emphasised the importance of ensuring that if this was a gateway relied upon by the prosecution it should be established and not, as it were, nodded through. The prosecution owes obligations to its witnesses to support them during the period between the giving of their statements and their appearance in court. If there has been an inadequate effort to make the task of giving evidence, which is the witness's primary responsibility, reasonably possible, then it may be that the court will refuse to admit the evidence on the ground of fear.
38. Here, however, the witnesses were recalled to the witness box to be questioned by both the prosecution and the defence as to the reasons for their refusal to give evidence. This procedure of course took place in the absence of the jury. They both insisted that they were in fear of the consequences of giving evidence and for that reason would not give evidence.
39. Following receipt of the evidence of Jade Anderson, the prosecution made an application to read the statements of the two males witnesses. That application was resisted by counsel for Mason, Williams, Locke and Forde-Morgan. These were the four defendants whom Joshua Anderson said in his statement left the house with the gun just before the fatal shooting. Counsel for Robert Saint argued that while Anderson's statements should not be read, his position should be protected by a formal admission from the prosecution as to Anderson's statement that Saint had not returned following the gunshots near Paul's shop. The only other alternative, it was suggested, was the discharge of the jury from reaching a verdict in Saint's case and a separate trial. These submissions were supported and adopted for their equivalent effect by counsel for David Smith, Mr Lambert QC.
40. The learned judge gave his ruling on 7th December 2010. We have no need now to refer to it. It supports the judge's conclusion that, first, he was satisfied to the criminal standard that these witnesses would not give evidence through fear; secondly, that having considered the essential requirements of section 116, the provenance of the evidence and its reliability, he had come to the conclusion that it was in the interests of justice for the evidence to be admitted.
41. We have examined the judge's words, both at the time he gave his ruling and secondly when addressing the jury as to the limitations of that evidence as soon as he had made the decision to admit it. In the circumstances with which the judge was faced, it seems to us that there was material upon which he could properly be satisfied of the witnesses' fear to the criminal standard. In particular he had the advantage of observing the witnesses' demeanour while giving evidence both in the presence and in the absence of the jury. We would note that the reference in Anderson's statement to the explicit threat issued to him at the time of the incident itself would have been a matter of strong import to that issue.
42. As to the credibility of the evidence, the surrounding circumstances were such that the judge was right to conclude the jury should assess the weight to be given to it. It is not suggested on behalf of Mason that the defence had been deprived of any material relevant to the witnesses' character or antecedents, and the written evidence was important in the jury's consideration particularly of count 3. The two young women were not in the house when the group remaining there left. That evidence could only be given by Joshua Anderson and Everton Samuels. However their written evidence did not stand alone. On the prosecution case the event which prompted the defendants to leave the house for the last time was the phone call to Dwayne Locke from his mother. Dwayne's mother gave evidence as to that call, as did Dwayne Locke himself. It was admitted. Dwayne Locke conceded that he would have regarded as suspicious a man who visited without giving his name. The issue at trial was whether the person who called did leave his name with Dwayne Locke's mother. The live witnesses, Jade and Jamie-Lee, did give evidence that on their return all had left the house except for the two hearsay witnesses. The time of the telephone call from Locke's mother was recorded at 10 pm and the time of the girls' return could be fixed with reasonable accuracy at about 10.05 pm. The first call to the ambulance operator by an unknown caller was 10.08 pm. Also at 10.08 Dwayne Locke made a call to his girlfriend to come and pick him up in order to drive him away from the area. The time of the shooting of Ezra Mills could reasonably be assessed at 10.06 pm. There was, as we have said, eyewitness evidence of the group which dispersed after the shooting and an abundance of cell site evidence which demonstrated the approximate movements of the defendants away from the area. In other words, the written evidence did not stand alone. It was in most respects circumstantially supported and it was not suggested that there was any specific motive for lying about one person rather than another. As to the witness's attribution of presence to particular individuals, it was accepted that they had not been accurate in some respects when tested against other evidence and emphasis upon the room for error was required in the judge's directions to the jury. The judge gave those directions not just when admitting the evidence, but also as a direction of law in his summing-up, and finally when reminding the jury of the evidence.
43. In conclusion therefore, our judgment is that the decision to admit this evidence was soundly based on the considerations required under section 116 and section 114(1) of the 2003 Act. The judge was explicit in his resolution of the interests of justice test. He was in our view entitled to conclude that the jury should hear the evidence of all four occupants of 44 Wychwood Way. In some respects it was helpful to two of the defendants. The others were well able to challenge the evidence and they did so by cross-examination of the other two witnesses in the house and by giving evidence in their own defence.
44. The applicant Mason also argues that the evidence of the two male witnesses was unsupported, unreliable and critical to his case. For the reasons we have given, we cannot accept this assertion. Mason, whose street name was Femz, was identified by both female occupants of 44 Wychwood Way as one of those in the group and was identified as handling the gun. It is further argued that the judge's summing-up of the evidence had the effect of supporting the reliability of the two male occupants of the house. We shall deal with this criticism in conjunction with that of Mr Wood on behalf of the applicant Saint.
45. It is submitted on behalf of Saint that the admission of the evidence of the two male occupants from 44 Wychwood Way had the effect of presenting a dilemma to the trial judge in his summing-up. While the judge was required to give stern warnings about relying upon the evidence of hearsay, the prosecution was nevertheless required to prove its case against a defendant who, in the case of Saint, positively relied upon that witness's evidence to the extent that it exculpated him.
46. At the time when the judge informed the jury of his decision to admit this evidence, he gave to them a warning about the caution which was required. Nevertheless, he pointed out that when the hearsay evidence supported a defendant "then of course you may want to look at it rather differently".
47. The judge returned to this subject in his summing-up at page 42 of the transcript for Monday 24th January 2011. He said this:

"The next one is statements read where they are not agreed. I think the only statements which were read to us other than on the basis that they were agreed were those of Joshua Anderson and Everton Samuels. As I said at the time, and for the reasons that we have just been through, you will want to treat their statements with considerable caution before you rely on them as supporting the prosecution's case.

In so far as there is anything in their statements on which any of the defence counsel rely, different considerations apply and the warning I have just given you does not apply. Mr Wood of course, on behalf of Robert Saint, relies on Joshua's statement in support of his contention that Robert Saint was not at number 44 after 9.00 pm. In that respect of course Joshua's evidence is in conflict with Jade's and Jamie-Lee's and you will need to decide who is right but Mr Wood is certainly entitled to rely on what Joshua said in his statement."

In our judgment, contrary to Mr Wood's argument, this is a direction which the jury would have been well able to follow and apply. We agree that the judge could have explained that the foundation for that direction was the burden upon the prosecution to prove its case against Saint so that they were sure. But provided he made the distinction between reliance upon parts of that statement by the prosecution on the one hand and by the defence on the other, it does not seem to us that it was necessary for the judge to descend to explain the rationale for the direction. In our judgment, the judge could not have been more explicit. It did not need stating that if Joshua Anderson was right, Robert Saint was not at 44 Wychwood Way, in which case he could not be convicted. It was perfectly obvious from the way in which the summing-up was structured that nobody could be convicted unless he formed part of the group which left the house at 44 Wychwood Way that night. Secondly, Mr Wood submits that in the particular circumstances of his client's case, it should have been emphasised by the judge to the jury on more than one occasion that since Saint was saying he was not present at 44 Wychwood Way, the burden was on the prosecution to prove so that the jury were sure that he was and that that entailed disproving any alibi put forward by Saint.

48. We have had our attention drawn by Mr Wood to the commencement of the judge's summing-up, barely 30 pages before the passage to which we have just referred, in which he made reference to the golden rule in words which again could not have been the subject of mistake by the jury, namely that any part of the ingredients of the offence which the prosecution was required to prove must be proved so that the jury was sure.
49. Mr Wood complains that more than once the jury were reminded of the conflict between the evidence of Anderson on the one hand and Jade Anderson and Jamie-Lee Madden on the other. He also pointed out the mistake which Joshua had made about the absence of David Smith. That was a mistake, the judge suggested to the jury, because David Smith himself admitted being present. In our judgment, these were legitimate directions to the jury in which the judge was doing no more than identifying issues about the reliability of the hearsay evidence which it was for the jury to resolve. We would draw attention to the distinction between a direction requiring caution when the evidence was relied upon by the prosecution and the issue of reliability which applied to the evidence of Anderson generally.
50. Lastly, Saint gave evidence that after 9.00 pm he saw a person he knew as Gimmetts in Valley Prospect. If that was true it placed him away from Wychwood Way at a relevant time. In his final speech to the jury, Mr Aylett QC commented that the jury had not heard from Gimmetts and other witnesses who may have given evidence on behalf of other defendants had they been called. The judge directed the jury that they could not draw adverse inferences unless they were sure that the only sensible explanation from the witness's absence was that the witness would not support the defendant's case. Mr Wood submits that the judge should here have emphasised the burden and standard of proof in the context of setting up an alibi. In our view, that submission does not do justice to the totality of the judge's directions. He told the jury to "exercise very considerable caution before you go down that road and start drawing inferences of that kind." Second, he concluded his direction with the words, "What I would advise you to do is concentrate on the evidence which has been given and not on worrying about why other witnesses have not been called or what they might have said if they had been called." True to his word, the judge did not thereafter remind the jury of the suggestion that other witnesses could have supported the alibis put forward by any of the defendants. We do not consider that in the circumstances a reminder was required of the clearest possible direction as to the obligations of the prosecution to prove its case and all elements of it.
51. Mr Lambert QC on behalf of David Smith also submits that the judge's decision to admit the evidence of Joshua Anderson and Everton Samuels created a dilemma for the judge in formulating his directions as to reliability, since on one view of Anderson's evidence Mr Smith's case was assisted. Secondly, it is submitted that the effect of the judge's reminder of the evidence was to bolster Anderson's credibility. Mr Lambert relied, for example, upon the judge's reference to Anderson's mistake concerning David Smith to which we have already referred. The words used by the judge were these:

"Joshua only mentioned four youths being present at Jamie-Lee's address before the 9.00 pm shooting, not five as described by Jade, or six as described by Jamie-Lee. I made the point yesterday that David agrees that he actually arrived at number 44 with Trevelle, Lavarne and Robert, but Joshua does not mention him. Perhaps he did not see him or did not notice him."

Mr Lambert argues that these observations had the effect of undermining the evidence of Anderson as it concerned Smith and by implication supporting the live evidence of Jade Anderson and Jamie-Lee Madden as it concerned Smith. The judge made a similar reference in the transcript of 31st January 2011 in these terms:

"As regards Robert, you will want to consider carefully Mr Wood's point based on the fact that Joshua mentions him as being present before the 9.00 pm shooting, but unlike Jade and Jamie-Lee does not mention him as one of those who came back after that. Was that because Robert was not there then or was it a mistake by Joshua just as he was mistaken about Dwayne being one of those who came back? Could it be that Robert was there but Joshua did not notice him or did not remember him being there at that stage? As regards David, Joshua did not mention him or anyone who could have been him as having been there at any stage that evening. We know from David's own evidence that he was there for something like three quarters of an hour before the 9 o'clock shooting and indeed that he had arrived with Trevelle, Lavarne and Robert, but Joshua seems to have missed him out of his account. Has he missed him out as being present later? If Jade and Jamie are right, if he must have done."

52. We have already said that in our judgment the judge dealt with the position of the applicants Saint and Smith as it was affected by the written evidence in the only way that he rationally could, namely to point out where it assisted them and to exclude that part of the evidence from the warning as to the caution otherwise required. When, however, it came to summarising the written evidence, the judge was bound to assist the jury as to how it was either inconsistent or consistent with the other evidence in the case. That was part of the process of assessing the reliability of Anderson's evidence, which was an essential element in the judge permitting the hearsay to go before the jury in the first place. They could only assess the reliability of Anderson by making that comparison and by examining how, if it did, it fitted with the other evidence in the case. It seems to us that what the judge was doing in these various passages was to highlight issues which it was for the jury and not for him to resolve. We detect no unfairness in that process and we regard the criticism of the judge as unjustified.
53. We are not persuaded that the verdicts in any of these four cases were arguably unsafe for any of the reasons which have been advanced. For that reason the applications as to conviction are refused on their merits.
54. We secondly have to consider the application by Marcel Mason for leave to appeal against sentence. Marcel Mason was sentenced to a period of life imprisonment, he being over the age of 21, the minimum period specified was 25½ years less a period of three days which he had spent on remand in custody in relation to this matter. The other applicants were sentenced as follows: Williams to custody for life, the minimum period being 24 years. He was at the material time aged 18. Robert Saint was sentenced to custody for life, the minimum period being 23 years. He was at the material time aged 20. David Smith was sentenced to life imprisonment with a minimum period of 24 years.
55. It is argued that the sentence in the case of Mason was more severe than in respect of the other applicants and it is submitted that there was no good reason why there should have been a disparity.
56. In his reasons for refusing leave on this issue, Holroyde J said this:

"The starting point for the minimum term in your case was 30 years. The judge substantially reduced that starting point to reflect your age, and the absence of a proven intent to kill (see volume 8 page 4B). He then made a further reduction (see page 8C) which he could not have been criticised for refusing. It is impossible to argue that there was no justifiable reason for the difference between your minimum term and the minimum terms imposed on other defendants: as the judge made clear at page 7E-G, you were the oldest defendant; you have significant previous convictions; you were on licence at the time of the murder; and you were convicted of involvement in both the murder and the earlier shooting incident. The judge again emphasised the of age when he sentenced Trevelle Williams: see page 9F. There is no basis on which it could be argued that the minimum term in your case was manifestly excessive."

We agree with the single judge and we cannot improve upon his expression of reasons. Accordingly, the application in Mason's case for leave to appeal against sentence is also refused.

57. Gentlemen, we are very conscious you have appeared pro bono for the defendants and we are very grateful to you.