England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Snaresbrook Crown Court
His Honour Judge Pardoe
T20117679, T20117485, T20117487

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/01/2014

Lord Justice Fulford :

Introduction

1. On 31 May 2012 in the Crown Court at Snaresbrook the four appellants were convicted by a majority (11:1) of a number of offences for which they were sentenced on 19 July 2012 by HHJ Pardoe Q.C. as follows:

Harvey

i) Count 1: aggravated burglary – 12 years' imprisonment.

ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – 7 years' imprisonment on each count.

iii) Counts 7, 8, 9 and 10: possession of ammunition without a certificate – 18 months imprisonment on each count.

All the sentences were to be served concurrently with each other, making a total of 12 years' imprisonment.

Laurencin

i) Count 1: aggravated burglary – imprisonment for public protection with a minimum term of 6 ½ years.

ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – imprisonment for public protection with a minimum term of 6 ½ years.

iii) Counts 7, 8, 9 and 10: possession of ammunition without a certificate – 18 months imprisonment on each count.

All the sentences were to be served concurrently with each other resulting in a sentence of imprisonment for public protection ("IPP") with a minimum term of 6 ½ years.

Defreitas

i) Count 1: aggravated burglary – imprisonment for public protection with a minimum term of 9 ½ years.

ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – imprisonment for public protection with a minimum term of 9 ½ years.

iii) Count 11: intimidating a witness – 4 years' imprisonment.

iv) Count 12: perverting the course of justice – 4 years' imprisonment.

All the sentences were to be served concurrently with each other resulting in an IPP with a minimum term of 9 ½ years.

Tutar

i) Count 1: aggravated burglary – 7 years' imprisonment.

ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – 7 years' imprisonment on each count.

iii) Counts 7, 8, 9 and 10: possession of ammunition without a certificate – 18 months imprisonment on each count.

All the sentences were to be served concurrently with each other, making a total of 7 years' imprisonment.

2. They each appeal against these convictions with the leave of the single judge and Defreitas renews his application for leave to appeal against sentence following refusal by the single judge.

The issues on the appeal against conviction

3. The central issue as regards the appeal against conviction is whether the judge erred in admitting into evidence the signed witness statements from two critical prosecution witnesses, Asha Charles and Marlon David, as hearsay evidence.
4. There are two additional grounds of appeal. It is contended, first, that certain material relevant to the credibility of these two witnesses should have been admitted as a "counterbalancing measure" under section 124 of the Criminal Justice Act 2003, and second – although leave was not granted on this ground – that the summing up was unfair and unbalanced, most particularly on the issues relating to the evidence of Charles and David. Some subsidiary matters, for instance relating to severance, have also been raised, and it is suggested that the judge relied on information relating to gang association and notoriety that the prosecution had decided not to deploy in support of the hearsay application.
5. Therefore, Charles and David did not give evidence during the trial. The judge gave two rulings on whether to allow the prosecution to rely on their written statements: the first on 9/10 January 2012 and the second on 30 April 2012. He decided that they were absent from court through fear. Additionally, David could not be found. The detail of the judge's rulings are considered later in this judgment.

The facts

The aggravated burglary and firearms-related offences

6. It is convenient to deal first with the aggravated burglary and the firearms-related offences (counts 1 – 10).

Asha Charles's account

7. Charles set out in his written account – as read to the jury – that on Saturday 4 June 2011 he was at his home (Flat 4, Marie Lloyd House, Murray Grove, Islington, London) with David, who was a friend. This is a one-bedroom property with a living room that opens onto a balcony.
8. He was involved in a casual sexual relationship at the time with the fourth appellant, Tutar, and they had arranged by telephone to meet at his address that evening. She told him that she would only visit if he was alone, and as a result he did not mention that David was there. She was speaking on her mobile telephone as she arrived; she walked into the bathroom and the bedroom, and then announced she was going to the local shop. Charles asked her why she had not done this beforehand, to which she replied she had forgotten because she had been making a telephone call. He thought she did not see David who was sitting in the living room.
9. Charles heard a knock at the front door when Tutar returned; however, when he opened it, three men confronted him whose faces were covered with bandanas, and who were each holding handguns. One of them ordered him to hand over a valuable chain necklace, but Charles responded that it had been stolen. He told the men he had no money or jewellery and they had made a mistake, he had a 9 to 5 job and he did not have any drugs or money in the flat. He was ordered to sit down. One of the men pointed a firearm at him whilst another rifled through a jewellery box. Charles could hear the sound of doors opening and closing, as other rooms were searched. The men repeated the demand for money and the shortest of them asked one of his companions whether he should shoot Charles. Tutar, who appeared worried – albeit, not excessively – was also restrained.
10. The short gunman suddenly panicked and said that the 'feds' were outside. They were all in the bedroom at this stage and the men removed their bandanas and gloves. They put one of the guns under the mattress. Charles was told to stay calm and he was instructed to inform the police that they were his friends. He nodded his agreement.
11. When police officers entered the flat, Charles initially told them that everything was fine and that there was no disturbance. However, he whispered to one of the policemen to search the bedroom and he was able to indicate the location of one of the guns. Thereafter, the police moved to arrest everyone in the flat including Charles and David, albeit Laurencin and Defreitas escaped.

Marlon David's account

12. David set out in his written account that he had spent the previous night at Charles's flat and he was aware that Charles received a text or a telephone call from Tutar on the Saturday evening. Charles told David to stay in the living room for about 15 minutes while she was at the flat. David heard Tutar arrive and announce that she needed to get something from the shop. He went onto the balcony and then he returned to the living room. Thereafter, he tried to hold the living room door shut when he heard footstep, followed by shouting outside. However, one or more of the men who had entered the flat forced the door open – indeed, it came off its hinges. David fled to the balcony and attempted to gain access to the neighbouring flat via a bedroom window. He told the occupant (Dionne White) that there were men with guns robbing Charles's flat. When she refused to assist, he slid down a drainpipe. He then informed a local shopkeeper, Ali Bilgili, that he had jumped from a flat that was being burgled by some men and he asked if he could use the telephone to call the police. Mr Bilgili refused. Finally, at a nearby kebab shop he was permitted to make a telephone call; however, instead of calling the police he panicked and called a friend, Lemar St. Marthe. David then left the kebab shop and intercepted a passing police car. He told PC McRea that his friend's flat was being burgled. The officers went to the flat and knocked on the door. When they received no reply they forced their way inside, accompanied by David.

The police evidence

13. The officers confirmed in evidence that on 4 June 2011 David approached a police car in Hackney, East London and said his friend's flat was being burgled. When they forced their way inside because no one answered the door, Charles told them that he was with friends and that he did not need their assistance. The three male appellants were sitting on the bed in the bedroom, and when the police took their details only Shelton Harvey gave his correct name.
14. However, shortly afterwards PC Holland took Charles outside. He was shaking and he quietly asked to speak to the officer. Charles then told PC Holland that the men had entered the flat with guns which were hidden under the bed. The bedroom was searched and two handguns were found under the bed, and a third was discovered under the window.
15. Harvey and Tutar were arrested and cautioned, while Defreitas and Laurencin escaped via the balcony. Members of the public told the police the direction in which Laurencin had fled and they detained him. Defreitas was arrested on 7 June 2011 when he attended a probation appointment.
16. Laurencin answered questions in interview the next day, denying there had been a burglary and denying any involvement with, or knowledge of, the guns. He said he was in the area at the time and heard music coming from the flat. He went inside because he assumed there was a party. He fled when the police arrived as he had just bought some cannabis and did not want to risk apprehension, as he feared he would go to prison.
17. Harvey, Defreitas and Tutar did not answer any of the questions put to them interview.

The initial accounts of Charles and David

18. Charles and David were held overnight in custody and were interviewed as suspects on 5 June 2011. Charles gave a full account and was released on bail. On the 24 June 2011 he was interviewed again when he made a statement under section 9 Criminal Justice Act 1967 and he was told that no further action would be taken against him. David gave a prepared statement but otherwise made no comment in interview. In his prepared statement and in his 5 July 2011 section 9 statement he indicated that he had no knowledge that firearms were present until told by the police.

Other evidence

19. The police conducted a video identification procedure on 6 July 2011, and Charles identified Defreitas as one of the men who had entered his flat on 4 June 2011. He described him as the 'loud one'.
20. During the course of the investigation, the police discovered that between 2 and 4 June 2011 a series of text messages has passed between Charles and Tutar. During this exchange, she asked when they were meeting up, and in reply he asked her when she was free. She told him she did not want to come to see him while his friends were at the flat. On the evening of 4 June 2011 Tutar was also in contact via text messages with Defrietas. Defreitas asked 'is he alone?' to which she replied 'on his own'; Defreitas indicated 'we need to get in' and he asked 'has he got his chain on?' to which Tutar replied 'he got his chain on'. These were sent 10 minutes before David approached the passing police car.
21. The firearms included a loaded Russian 9mm short calibre Baikal pistol with a silencer, a loaded German Weihrauch pistol (it had a fault with the trigger mechanism which meant that each shot required the trigger to be pulled several times) and a converted and loaded Russian 9mm short calibre Baikal gas pistol with a silencer.
22. The prosecution relied on the previous convictions of Laurencin and Defreitas.

Intimidating a witness and perverting the course of justice

23. Counts 11 and 12 charged Defreitas with intimidating a witness and perverting the course of justice. Charles stated that on Friday 6 January 2012 he received a telephone call from Defreitas, who was in prison, during which the latter told Charles to draft and deliver a note to the judge explaining that his witness statement was false and had been made as a result of pressure from the police. On 11 January 2011 a mobile telephone was found in Defreitas's laundry bag at Pentonville prison which had been in contact with Charles's mobile telephone. The judge adjourned the trial, on the application of the prosecution, in order for these events to be investigated. The trial resumed on 23 April 2011 with a new jury and an application was granted to join a two-count indictment alleging the counts of witness intimidation and perverting the course of justice against Defreitas. We return to these events later in this judgment.

Defence evidence at trial

24. Defreitas gave evidence during the trial. He said that Tutar had come to his house and told him there was going to be a small party at Charles's flat, where there would be cannabis, drink and other drugs. She was intending to bring some friends, and she indicated she was prepared to have sex with him. He had been to similar parties with her in the past. As a result, he went to the flat with Tutar and Harvey, although Laurencin was not with them at that stage. On arrival they remained downstairs whilst Tutar checked if they could go up. He also wanted her to establish whether people of the "right type" were at the party. He explained that was the reason for the text Tutar sent suggesting Charles was on his own. When he indicated by text they would need to get in he was referring to the security downstairs and the word 'chain' this was a slang word for smoking weed or cannabis. He said that none of the appellants were responsible for the guns and they had not committed burglary.
25. As to counts 11 and 12, Defreitas said that a friend of Charles was in the same prison and lent him a mobile telephone. They spoke on several occasions and Charles offered to tell the truth in return for payment. The sum he mentioned was £10,000. Defreitas agreed to this proposal and they both worked out what he would say.
26. The other appellants did not give evidence; instead, they adopted the account given by Defreitas, and their defence was advanced on the basis that they had no knowledge of, or involvement with, firearms. In addition, reliance was placed on Charles's suggested involvement with a criminal gang called 'The Lordship Boys' which was associated with firearms offences and drug dealing; the fact that cocaine was found in the flat; and his role in rap videos which extolled the virtues of serious crime. Against this background, it was suggested he had a motive to fabricate the account given to the police in order to gain an insurance policy against prosecution.

The judge's rulings on the statements of Charles and David

27. The prosecution applied for the statement of Charles (24 June 2011) and that of David (5 July 2011) to be admitted as hearsay evidence of their contents, under section 116 (1) and 116 (2)(e) of the Criminal Justice Act 2003. Additionally, for David, the prosecution relied on section 114(1)(d) of the 2003 Act. The justification for the application was that on the date originally set for trial, 6 December 2011, Charles and David told the prosecution that they did not wish to give evidence because they were in fear. The case was adjourned to 8^th December 2011. The prosecution application was opposed by all defendants, who alleged the reason for the witness's absence from court was not due to fear but because their witness statements were lies and they feared being exposed in cross-examination.
28. Charles made a further witness statement. He described how he had received indirect threats, suggesting that he should drop the case. In his judgment of 9/10 January 2012 the judge accepted that he was fearful of the consequences of giving evidence. Charles explained that his friends and family all lived in the Hackney area and if he attended court he would be "looking over his shoulder" for the foreseeable future. He indicated that he had had restless nights worrying about giving evidence; he had had to move home; and he covered his head with a hood when in public to avoid being recognised. Although special measures had been offered, his response was that:

"I have considered giving evidence behind a screen, but as they know who I am it won't help me. I am sorry that I can't given evidence, but my life will be in issue if I do, or my family will get hurt, and I can't have that risk … I do not wish to go to court."

29. To begin with, Charles had been seemingly prepared to attend court, but he became ambivalent and by October 2011 fear on his part was markedly increasing. In particular, Charles spoke of his fear of reprisals from the Fellow's Court Gang, of which he believed Laurencin and Harvey were prominent members, and Harvey especially was known as someone who was highly likely to involve himself in gang-related violence. Laurencin has a previous conviction for possession of prohibited weapons and ammunition. The judge concluded that both of these defendants have notoriety for violence such as to cause fear, and that Charles's apprehension of reprisals from the Fellow's Court Gang was objectively justified and well supported by evidence. Furthermore, Defreitas had been convicted of conspiracy to rob on 23 April 2007 and possession of a firearm with intent to endanger life on 25 June 2007, for which he received sentences of 4 and 7 years respectively. The latter offence was reported in the local press. He was released on licence on 25 March 2011.
30. David expressed concern about coming to court at the time he made his witness statement on 5 July 2011, and on 6 December 2012 he told the police that he would not attend court under any circumstances because he was fearful of reprisals. He indicated that if he gave evidence it would be unsafe for him to walk the streets of Hackney in the future. He intended to remain in Southampton until he believed it was safe to return to London. The judge found that he was a close friend of Charles and that the factors that caused Charles apprehension applied equally to David. On this basis, the judge concluded that his fears of reprisals if he gave evidence were objectively justified and were founded on sustainable evidence. That conclusion rendered it unnecessary for the judge to reach separate conclusions on whether David's evidence should be admitted pursuant to section 114(1)(b) of the Criminal Justice Act 2003.
31. Finally in this regard, the judge was unsure whether the fear on the part of Charles and David was attributable to actions of the three male appellants or others acting on their behalf, and his conclusions rested entirely on evidence of their notoriety that he considered, as just set out, was objectively justified and supported by the evidence.
32. Against the background of those conclusions, the judge addressed the provisions of section 116(4) of the Criminal Justice Act 2003 and Article 6(3)(d) of the European Convention on Human Rights, and in particular whether it was in the interests of justice to admit the content of Charles and David's witness statements given both men were prevented by fear from giving evidence from the witness box. The judge engaged in a detailed consideration of the domestic and Strasbourg jurisprudence in this regard, and he focussed particularly on the decision of the Grand Chamber of the European Court of Human Rights in Al-Khawaja & Tahery v United Kingdom [2012] 54 EHRR 23, ECtHR (Grand Chamber) and the decision of the Supreme Court in R v Horncastle [2010] 2 AC 373; [2009] UKSC 14 (to be read with the Court of Appeal decision in the same case [2009] EWCA Crim 964; [2010] 2 AC 373). As the judge rightly acknowledged, he was bound by the decision of the Supreme Court. He concluded that the witness statements of Charles and David were not the sole evidence in the case against the appellants, in that there was other very significant evidence, and in particular he identified:

(1) The res gestae statements of David to Dionne White and Ali Bilghili, made during the events on 4 June 2011.

(2) Charles's statement to PC Holland at the flat before the guns were discovered, when he was visibly shaking. This material, he concluded, was independently admissible under Section 120 of the Criminal Justice Act 2003, and the content was wholly consistent with his witness statement.

(3) The other corroborative evidence, such as the circumstances of Defreitas's flight from the scene, and the CCTV footage showing David's route from Dionne White's balcony, through to the point when he approached PC McRae.

(4) The fact that PC McRae heard the sounds of an argument from within the flat; and

(7) The communication between Charles and Tutar and between Tutar and Defreitas.

33. The judge found that no offers of police protection and no offers of assistance to the witnesses to give evidence by way of special measures would have been effective. He identified a considerable body of material that was potentially admissible relating to the background and associates of the two witnesses, and Charles in particular.
34. In the result, the judge decided that it was consistent with Article 6 of the ECHR and the interests of justice to admit the statements of Charles dated 24 June 2011 and David dated 5 July 2011.
35. On 9 January 2012, while the judge was delivering his first ruling, Charles attended court with a note addressed to the judge in which he stated that the contents of his witness statement were false and that Defreitas was not guilty of any offence. Having completed his ruling on 10 January 2012, the judge adjourned the trial for further enquiries to be made.
36. The police took a statement from Charles in which he set out that Defreitas had made a series of telephone calls to him from prison using a mobile telephone that he should not have had in his possession. He said that Defreitas had told him to draft and deliver the note to the judge. As set out above, on 11 January 2012 a mobile telephone was seized from Defreitas's laundry bag.
37. The trial was relisted on 23 April 2012 when the prosecution applied for leave to join a second indictment against Defreitas containing counts of witness intimidation and perverting the course of public justice. The application was unopposed and leave was granted. These counts became counts 11 and 12. The judge refused applications by Harvey and Laurencin to sever these additional counts.
38. On 30 April 2012 the judge reviewed his original hearsay ruling. A police officer gave oral evidence updating the court as regards the circumstances relating to Charles and David. In brief, the position was unchanged save that security at Charles's home had been significantly increased, and the judge affirmed his original ruling, allowing the prosecution, additionally, to rely on the statement of Charles dated 10 January 2012. On 23 March 2012 Charles had been admitted to hospital with chest pains and breathlessness that was potentially attributable to stress. He remained fearful of giving evidence because of the risk of violence, and his concerns had been heightened because of the events concerning Defreitas. Charles additionally indicated that David did not want the police to have his telephone number because of the threats and the intimidation, and he wanted as few people as possible to know his mobile number. However, officers spoke with David on 28 March 2012 and 25 April 2012, when he said he was "entirely unwilling" to attend court because he was afraid of being shot.
39. Addressing Charles's statement of 10 January 2012 the judge found that it was not the only evidence that Defreitas had been intimidating Charles and perverting the course of public justice. There was, in the view of the judge, ample independent evidence that Defreitas was involved in making illicit telephone calls.

The judge's rulings on the evidence relating to the character of Charles and David

40. On 4 May 2012, the judge ruled on the appellants' application to adduce bad character material relating to Charles and David under sections 98(a), 100 and 124 of the Criminal Justice Act 2003. Broadly, the appellants sought to introduce material that related directly to the two witnesses and, additionally, evidence concerning their associates. The judge acceded to the appellants' submissions as regards a broad range of material that was given in evidence via admissions (exhibit 4). By way of summary, this constituted Charles's criminal convictions and a considerable amount of information concerning his life, including Charles's known lawful sources of income; photographs of large sums of money on his telephone; the details of an anti-social behaviour order imposed on Charles in 2006 that revealed his membership of the Lordship South Gang, his involvement in drug dealing and instances of aggressive, annoying and intimidating behaviour on his part; reports relating to four similar events in 2006 (in relation to two of these events some considerable detail was provided); information about some of his associates, as revealed by the contacts on his telephone (one of whom was Lamar St Marthe who David telephoned when he escaped from the flat) – these included the criminal convictions for 5 of them (or offences with which they were charged) for supplying drugs, murder, possession of a firearm with intent to endanger life, affray, assault and possession of an offensive weapon; the character and background of Gavin Tuitt (linking him to the supply of heroin and gang violence) and further similar material relating to Lamar St Marthe, and David's involvement in a violent gang-related incident in June 2009.
41. We need only focus on one aspect of this ruling, namely the complaint made of the judge's approach in that it is suggested he applied an unduly narrow construction to section 124 Criminal Justice Act 2003 when he decided that bad character evidence in this context was admissible solely via the provisions of section 100 Criminal Justice Act 2003. He said:

"[…] section 124 is not to be taken to be permitting the admission of evidence going to the absent witness' bad character or to the bad character of any other person. […] The absence of a witness does not allow the admission of evidence going to his bad character. "

42. It is contended that as a result of the judge's approach, four particular items of evidence were wrongly excluded:

i) Evidence that on 12 October 2006 Charles had been involved "in a very unpleasant gang street robbery and (he had) then made false allegations against the victim when apprehended". In written submissions, the following facts are set out:

"On 12/10/06 a male in Gosport Road E17 was followed by 3 young males, saying things like "this is our street you shouldn't be here". Three more males joined the group. The victim began to run but they punched and kicked him to ground taking his chain and iPod headphones. One of the attackers was believed to be holding a knife. The victim had grazing along the left side of his body and was still in a lot of pain the next day. Six days later he called the police and identified Asha Charles at a bus stop holding a blue bag as the main suspect. Charles was arrested and found to be in possession of very large knife. He denied the office stating that he had been with Lemar St Marthe the night before but couldn't remember exactly what he was doing or where he was at the time of the robbery. He claimed that he had obtained the knife from a shop because he was in fear of being attacked by the male. Charles was living in the E17 area at the time, about half a mile from Gosport Road and was known to associate with others around the Gosport Road area. The victim later informed the police he did not want to pursue the case having previously stated that he was in fear."

It is to be noted that the complainant told the police he was worried for his life although he had not received any threats. He failed to attend at an identification procedure and he then made a withdrawal statement.

The judge ruled that whether Charles was violent or was prone to violence was not an issue that arose in the case and the facts of this incident did not have any relevance to whether he had firearms in his possession. The judge then indicated:

"There remains the issue of Asha Charles' credibility, which is undoubtedly of substantial importance in this case. Whether this material potentially goes to Asha Charles's credibility depends on whether this material is of substantial probative value in relation to that issue. To be that, it would have to, in my judgment, constitute evidence that Asha Charles had done was he is alleged to have done in (this) report. […] the complaint was made by someone who was not prepared to support it, and for the same reason given by Hughes LJ in Braithwaite at paragraph 20, I conclude that […] none of the material […] was any evidence that Asha Charles had committed the offences in question. I further conclude, therefore, that none of it is of substantial probative value as to Asha Charles' character, and that […] this evidence is inadmissible."

ii) Evidence that the Lordship Gang, of which Charles was said to be a leading member, "was linked to 5 firearms incidents over an 18 month period in 2005-6". In written submissions, the following facts are set out:

"The police intelligence report attached to the ASBO, links crime reports on the South Lordship estate to the Lordship South gang. It is noted that in 2005 there were 2 firearms incidents on the estate and that up to May 2006 there had been a further 3 firearms incidents. 26 "potential offenders" are listed, including: Chad Osbourne, Charles Leon St Marthe, Asher Adams (an alias of Asha Charles), Leonard Saunders, Dean Smith and Leon Hunt. Of these Dean Smith, Asher Adams, Leon St Marthe and Leonard Saunders are identified as "ASBO targets"."

The judge ruled:

"[This] material […] is in the nature of bad character evidence, but cannot, in my judgment, be evidence of substantial importance in the context of the case as a whole because, again, it has the status of unproven and generalised allegation. The mere fact that it comes from a police intelligence report attached to the ASBO does not confer on it the status of reliable evidence against Asha Charles. In particular, the reference to guns […] appears to be a general observation as to the conditions on the estate. The expression 'potential offenders' speaks for itself. None of that material is admissible bad character evidence under section 100(1)(b). It is not admissible in evidence in this trial."

iii) "Evidence from which it could properly and reasonably be inferred that Dean Smith, a close associate of Asha Charles, had been in possession of a firearm and ammunition in 2006". In written submissions, the following facts are set out:

"On 7^th October 2006 the police executed a firearms search warrant on 14 Ormond House, Hackney London N16 – the family home brothers Dean and Leon Smith. A loaded handgun was found in a closed basket outside the front door. In addition £760 cash, a bullet proof vest, digital scales and 13.8g heroin and a rock of crack cocaine were found in the flat. Leon Smith was not arrested till 22/3/07 at an airport after being refused entry to the USA. He was charged with possession of class A drug with intent to supply. Despite repeated attempts to arrest Dean Smith this was not possible until 17/7/07. He made no comment in interview but in a prepared statement denied living at the address. Neither brother was charged with possession of the firearm. The only other occupant was their mother Annette Smith."

Although we do not have a transcript of his ruling, it appears that the judge ruled in similar terms to the issues above, on the basis that R v Braithwaite [2010] EWCA Crim 1082; [2010] 2 Cr App R 18 applied, and in particular paragraphs 17 and 22.

iv) Evidence that Charles and St Marthe were stopped by the police on 17 June 2011 in a car hired under a false name, with masking tape around parts of the registration number in circumstances (given the character and background of both) from which it is suggested it could properly and reasonably be inferred that they were engaged in serious criminality. In written submissions, the following facts are set out:

"On 17/6/11 a silver Ford Mondeo LR09 LCP hired under pseudonym was stopped on Forest Road, Waltham Forest at 0550. There was masking tape around the last three digits of the number plates and a strong smell of cannabis in the car. The three males in the car were Asha Charles (then on bail for the firearms offence in this case), "Lemar Peart" (an alias for St Marthe) and another. The three told the police they were on their way for a morning run."

The judge simply said:

"This discloses no material evidence at all. It is inadmissible."

The grounds of appeal against conviction

43. Mr Mostyn, for Laurencin, led the arguments for the appellants. He suggested, first, that the case depended overwhelmingly on the hearsay evidence from the two witnesses, which was "very important" and "can properly be described as decisive" in the sense that without it the Crown would not have had a case. He suggested that Charles and David could not be described as "demonstrably reliable". They were not innocent bystanders, but instead had "a decisive interest in the issue at the heart of the case – were the guns under Charles's bed in his possession or had they been brought in by the defendants?". As Ms Gow for the appellant Harvey stressed, these two witnesses were potential offenders. It is contended that both men had been arrested as suspects and their history, background and associates made them witnesses who were both likely to be in possession of guns and to lie. The appellants observe that at least three demonstrable untruths have been established on the part of David: first, he misled Ali Bilgili and the kebab shop owner in his request to use a telephone to contact the police because he rang a "criminal confederate St Marthe and (brought) him to the scene in breach of his bail conditions with £572"; second, he deliberately misled PC McCrae when he told him that a burglary was occurring and failed to mention that three guns were involved; and, third, he lied in his interview and witness statement when he denied knowledge of the guns.
44. The appellants accept that even if the hearsay statements are the "sole or decisive" evidence in the case that does not lead to its automatic exclusion, but it is noted that the importance of the hearsay evidence is a vital consideration when ruling on its admissibility and how it is treated. It is emphasised that the evidence must either be demonstrably reliable or its reliability needs to be capable of proper testing and assessment. The judge is required to consider the strengths and the weaknesses of the evidence against the background of its importance to the case as a whole, along with the tools available to the jury to test it.
45. Mr Mostyn submits that the judge erred when he observed "the more cogent the evidence of the absent witness, the less likely it is to be treated as decisive within the meaning of the rule, and therefore the more likely it is to be admitted into evidence at trial". It is argued that instead the proper approach is to assess the importance of the evidence, and the greater its decisiveness "the more reliable (or capable of being properly tested as such) it must be shown to be if it is admitted". Overall, it is argued that the judge focussed unduly and to the exclusion of other relevant considerations on whether the evidence of Charles and David was decisive.
46. It is suggested that the judge overstated the quality and extent of the independent evidence that supported the hearsay accounts. It is contended that the res gestae evidence was not free from the risk of concoction, distortion and fabrication, given particularly "the apparent untruths uttered by David during and after the episode in question". It is argued that the early accounts from Charles should not have been viewed as providing independent support for the hearsay evidence because they came from the same impugned source. Mr Mostyn contends that the accounts of Charles and David could not be viewed as mutually corroborative because they shared a common motive or interest in lying. Indeed, the judge is criticised for his failure to address the issue of collusion in the summing up. It is suggested that the judge reached impermissible conclusions regarding the credibility, character and associations of Charles and David, and that improper reliance was placed on the gang membership of Laurencin and Harvey.
47. As regards the four items of evidence that were excluded, as set out above it is argued that the judge applied an excessively narrow approach. In essence, it is suggested that the introduction of bad character evidence relating to hearsay witnesses in this context is not dependent on satisfying the section 100 criteria, and that "s.124 and the judgement in R v Horncastle clearly envisage a framework for the admission of material relevant to credibility that goes beyond the statutory bad character provisions and are explicitly intended event to place the defence in a better position than if the witness had been present." It is contended that the judge wrongly interpreted Braithwaite as curtailing the introduction of material of the kind excluded in this case. Furthermore, it is said that the judge wrongly focussed on the need for the evidence to have "substantial probative value". The appellants' contention is that there is greater scope for deploying material in these circumstances than if the witness had been present.
48. Turning to the criticisms of the summing up, it is suggested that the judge failed to provide the jury with a sufficiently robust caution as to the dangers of hearsay evidence of this kind and the extent of the disadvantages to the appellants in meeting evidence from witnesses who could not be questioned. It is contended that there was inadequate reference to the evidence that was to the discredit of the witnesses, to the fact that the evidence was not agreed and the need for the jury to take particular care with evidence of this kind. Mr Mostyn, for Laurencin, argues that this appellant's case was inadequately summarised and there was improper focus on a suggested need for oral evidence when the jury were considering whether the prosecution case had been materially undermined.

Discussion

Admitting the hearsay evidence from Charles and David

49. The relevant statutory provisions are set out below.

Section 116 Criminal Justice Act 2003 deals with cases where a witness is unavailable:

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are—

[…]

(e) that through fear the relevant person is does not give (does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—

(a) to the statement's contents,

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and

(d) to any other relevant circumstances.

[…]

Section 114 concerns the admissibility of hearsay evidence:

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it.

(2) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.

Section 124 deals with credibility:

(1) This section applies if in criminal proceedings—

(a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and

(b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement.

(2) In such a case—

(a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;

(b) evidence may with the court's leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party;

(c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself.

Section 126(1) addresses the court's general discretion to exclude evidence:

(1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if—

(a) the statement was made otherwise than in oral evidence in the proceedings, and

(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.

Section 78(1) and (2) Police and Criminal Evidence Act 1984 deals with the exclusion of unfair evidence

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence."

Section 125(1) enables the judge to stop the case where the evidence is unconvincing:

(1) If on a defendant's trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that—

(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and

(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

50. There are five central propositions, identified by Hughes LJ in R v Riat [2012] EWCA Crim 1509; [2013] 1 Cr App R 2 at [2], that need to be addressed by judges when dealing with applications of this kind:

a) the law is, and must be accepted to be, as stated in UK statute, viz the Criminal Justice Act 2003 ('CJA 03');

b) if there be any difference, on close analysis, between the judgment of the Supreme Court in Horncastle and that of the ECtHR in Al-Khawaja …the obligation of a domestic court is to follow the former …;

c) there are indeed differences in the way in which principle is stated, but these may well be more of form than of substance; in particular, the importance of the hearsay evidence to the case is undoubtedly a vital consideration when deciding upon its admissibility and treatment, but there is no over-arching rule, either in the ECtHR or in English law, that a piece of hearsay evidence which is 'sole or decisive' is for that reason automatically inadmissible;

d) therefore, both because of point ii. and because of point iii., the Crown Court judge need not ordinarily concern himself any further with close analysis of the relationship between the two strands of jurisprudence and need generally look no further than the statute and Horncastle ; we endeavour to set out below the principal questions which must be addressed;

e) however, neither under the statute, nor under Horncastle , can hearsay simply be treated as if it were first hand evidence and automatically admissible."

51. The legal principles, reflected in 12 identified steps, that are generally to be applied in this context were summarised helpfully by Aikens LJ in R v Shabir [2012] EWCA Crim 2564, as follows:

64.     As a result of the decision of this court and the Supreme Court in R v Horncastle, and the decisions of this court in R v Ibrahim and R v Riat, the framework to be considered to decide whether hearsay evidence should be admitted pursuant to the statutory framework set out in Chapter 2 of Part 11 of the CJA 2003 is clear. When it is sought to admit the hearsay statement because it is said that the witness will not give oral evidence at the trial "through fear", so admission through the "gateway" of section 116(2)(e) is sought, the framework is, broadly, as follows: (1) The "default" position is that hearsay evidence is not admissible. (2) It is a pre-condition to the admission of a hearsay statement that the witness concerned is identified: section 116(1)(b) of the CJA. (3) The necessity to resort to second-hand evidence must be clearly demonstrated. The more central the evidence that is sought to be admitted as hearsay evidence is to the case, the greater the scrutiny that has to be undertaken to see whether or not it should be admitted as hearsay. (4) Although "fear" is to be widely construed in accordance with section 116(3) and, specifically, the fear of a witness does not have to be attributed to the defendant, a court has to be satisfied, to the criminal standard, that the proposed witness will not give evidence (either at all or in connection with the subject matter of the relevant statement) "through fear". Thus a causative link between the fear and the failure or refusal to give evidence must be proved. (5) How it is proved that a witness will not give evidence "through fear" depends upon the background together with the history and circumstances of the particular case. Every effort must be made to get the witness to court to test the issue of his "fear". The witness alleging "fear" may be cross-examined by the defence (if needs be in a voir dire), if necessary using "special measures" to assist the witness. That procedure may be possible but, in certain cases, may not be appropriate. (We interpolate to note that in R v Davies [2007] 2 All ER 1070 it was suggested that the courts are ill-advised to seek to test the basis of fear by calling witnesses before them, since that may undermine the very thing that section 116 was designed to avoid.) (6) If testing by the defence is properly refused (after consideration) then "it is incumbent on the judge to take responsibility rigorously to test the evidence of fear and to investigate all the possibilities of the witness giving oral evidence in the proceedings". The manner in which that should be done will depend on the circumstances of the case and upon the witness and will necessarily involve discussions with counsel as to approach and questions to be asked. For example, if a court cannot hear from a witness a tape recording or video of an interview on the question of his "fear" should, if possible, be made available. The critical thing is that "every effort is made to get the witness to court". This issue is also linked to (7) and (8) below.

65.     We continue with the framework. (7) In relation to the "gateway" of section 116(2)(e), leave to admit the statement will only be given if the conditions for passing through a specific "secondary gateway" are satisfied. They are set out in section 116(4). Overall a court will only admit a statement under section 116(2)(e) if it considers that it is "in the interests of justice" to do so. In that respect, the court has to have specific regard to the matters set out in section 116(4)(a) to (c). (8) When a court considers section 116(4)(c), the court should take all possible steps to enable a fearful witness to give evidence notwithstanding his apprehension. "A degree of (properly supported) fortitude can legitimately be expected in the fight against crime". A court must therefore have regard to whether (in an appropriate case), a witness would give evidence if a direction for "special measures" were to be made under section 19 of the Youth and Criminal Justice Act 1999. (9) In this regard it is particularly important that, before the court has ruled on the application to admit under section 116(2)(e), no indication, let alone assurance, is given to a potential witness that his evidence will or may be read if he says he is afraid, because that can only give rise to an expectation that this will, indeed, happen. If it does then the statement will have been admitted on an improper basis; the impact of the evidence will be diminished and that may have further consequences, e.g. an application to the judge under section 125 at the end of the prosecution case to stop the case. (10) When a judge considers the "interests of justice" under section 116(4), although he is not obliged to consider all the factors set out in section 114(2)(a) to (i) of the CJA, those factors may be a convenient checklist for him to consider. (11) Once the judge has concluded that the specific gateways in section 116(4) have been satisfied, the court must consider the vital linked questions of (a) the apparent reliability of the evidence sought to be adduced as hearsay and (b) the practicality of the jury testing and assessing its reliability. In this regard section 124 (which permits a wide range of material going to credibility of the witness to be adduced as evidence) is vital. (12) In many cases a judge will not be able to make a decision as to whether to admit an item of hearsay evidence unless he has considered not only the importance of that evidence and its apparent strengths and weaknesses, but also what material is available to help test and assess it, in particular what evidence could be admitted as to the credibility of the witness and the hearsay evidence under section 124. The judge is entitled to expect that "very full" enquires as to witness credibility will have been made if it is the prosecution that wishes to put in the hearsay evidence and if it is the defence, they too must undertake proper checks.

52. In R v Friel [2012] EWCA Crim 2871, Gross LJ observed:

29. It is plain to us, therefore, that hearsay of any description is not to be nodded through or adduced as a matter of routine. There is no inflexible rule against admissibility of central (or sole and decisive) hearsay evidence, but, on a spectrum, the more central the hearsay evidence is, the greater the care required. Sometimes hearsay will be inadmissible or even if admissible the trial may need to be halted. But it is also necessary to keep in mind the public interest in securing the conviction of the guilty, as indeed it is always imperative to have regard to the acquittal of the innocent and the avoidance of miscarriages of justice.

53. Against that background, we note that the evidence that the two witnesses were in fear was of significant strength, and there was abundant material on which the judge could conclude that Harvey, Defreitas and Laurencin were all involved in, or connected with, violent gangs. Although it is suggested that the judge should not have relied on some of this material (because of the stance of the prosecution, as informally communicated to defence counsel), no submissions have been advanced to the effect that the information before the judge (which was extensive), and which he set out in his ruling on 9/10 January 2011, was inadmissible (as hearsay or otherwise), incorrect or misleading. Furthermore, when the judge revisited this issue in April 2012, the appellants then had the opportunity of reopening the basis on which the he reached his conclusions as to fear. Although the earlier stance of the prosecution was brought to the attention of the judge in a short written submission, seemingly there was no substantive attempt to persuade the court that the evidence in relation to gang membership and notoriety was unreliable. Furthermore, as Ms Gow for the appellant Harvey concedes, by that stage the telephone calls from prison by Defreitas were before the court.
54. We are unable to accept Ms Gow's submission that the judge should have held a voir dire to establish whether responsibility for the existence of fear was restricted to only one of the appellants, because the judge would have been fully entitled to conclude that an important aspect of the underpinnings as regards the existence of fear had been established even if only a sole accused was responsible. In the context of alleged joint enterprise crimes of this kind, it is unrealistic to contend that the judge should have severed the case of the defendant in relation to whom there was credible evidence that he had been involved in recent and serious attempts to prevent a witness from giving evidence. The arguments in favour of a joint trial were strong – in all probability overwhelming – and an accused should not be able to secure a separate trial by perverting the course of justice and intimidating a witness.
55. Additionally, the police were regularly in contact with Charles (and less frequently with David who, for a period, was unavailable) and, contrary to Mr Smith's submission on behalf of Defreitas, every reasonable effort was made to get them to court. The witnesses were unequivocal in their refusal to attend to give evidence, and given the precise nature of the fear they expressed – the straightforward and potentially dire consequences of testifying – the range of "special measures" that were available would not have alleviated their concerns, as the judge made clear in his ruling of 30 April 2012. The evidence before the judge as regards fear extended considerably beyond the issue of gang membership. There was a considerable body of relevant and admissible material that was directly relevant to the issue of the absence of the witnesses. We add there is a critical difference between taking all reasonable steps to secure the presence of the witness during the trial and not requiring him to given evidence during a voir dire for the purposes of investigating the suggestion of fear (see R v Davies, above).
56. As regards the significance of the evidence of these two witnesses, the judge clearly accepted the accounts from Charles and David constituted very important evidence in the case, and he concluded, in our view wholly correctly, that there was other, highly significant material in the case that corroborated the contents of their statements, which in turn were mutually supportive. Both witnesses had provided accounts of these events on 4 June 2011, in advance of making their statements on 24 June and 5 July 2011. David had spoken with Dionne White, the occupant of the adjoining flat. In her statement she set out the following:

He was pacing and said 'They're robbing the house and they have got guns'.

57. Very shortly afterwards, David spoke with Ali Bilgili, who put the matter thus:

[…] (the) male came in and said 'Please help me'. He was saying there men in the house with guns and were going to shoot him. He looked very scared and was in a panic. He said that he jumped down from the second floor. He asked to use my phone to call police.

58. PC McCrae was on duty in a police car in Murray Grove when:

"A man I now know to be Marlon David approached and tapped on the window of the marked police car I was driving. He looked very upset and out of breath. I asked David was wrong. He stated that his friend's address was being burgled by a group of males who had forced their way in and he had jumped the balcony to escape and get help. David directed us to Flat 4, Marie Lloyd House.

59. The CCTV footage shows David descending a drainpipe from the upper floor of Marie Lloyd House and running into Mr Belgili's shop, then going to the kebab shop and ultimately stopping Mr McCrae's motorcar.
60. The judge bore in mind that in his prepared statement of 5 June and his witness statement of 5 July 2011, David denied knowledge of the guns. The judge concluded that this contradiction with his statements to Ms White and Mr Belgili did not diminish the reliability of the res gestae evidence because the original accounts were given before any possibility of distortion had arisen. The likelihood was that the falsehood came into the later statement, after David had spoken with Lemar St Marthe.
61. After the police entered the flat, two officers took Charles outside. PC Holland stated:

Once outside, I could see that he was visibly shaking. He said 'Can I talk to you?' in a very quiet voice. I said 'Yes, tell me what's going on'. He replied (again, in a very hushed voice), 'Those boys in there came in with guns. They've hid three under my bed'.

62. Laurencin and Defreitas then escaped via the balcony.
63. As set out above, the prosecution relied on the text messages between Tutar and Defreitas, set out above [20]. The cell site evidence places the four appellants "together" shortly before these events.
64. In his interview on 5 June 2011, Charles described how one of the men was wearing a black and white bandana and a hoodie, and there is DNA evidence that a bandana linked to Defreitas was found under the bed.
65. As regards the threats by Defreitas, there was strong supporting evidence that this appellant was in possession of an illegitimate telephone and that he had been in contact with Charles (the telephone records and CCTV evidence). The fact that by 9 January 2011 Charles was aware that his statement of 24 June 2011 was to be read does not affect the admissibility of his statement of 10 January 2011 in which he set out the recent intimidation and contact by Defreitas. Although the fact that the witness has been informed that his statement may be read is a relevant – indeed, frequently a determinative – consideration (see Horncastle [87]), it does not result in an automatic ban to introducing the hearsay statement. It is not suggested in this case that the police improperly informed Charles that his evidence was to be read, given Defreitas's telephone calls – which prompted Charles's second statement – occurred shortly before the commencement of the trial. Therefore, the need for an additional statement was the direct result of the actions of one of the appellants and the caution expressed by Hughes LJ does not apply on these facts:

87. […] it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the CJA 2003 based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all.

66. In all the circumstances, there was strong additional evidence that would have provided the jury with a proper basis for concluding that the accounts of Charles and David were reliable. It would have been open to the jury to decide that there had been no opportunity for the two men to construct a false account in advance of the statements they each made, and whilst these events were unfolding, because they did not have an opportunity to speak with each other. Therefore, although it was clear the res gestae evidence was to a significant extent dependent on what they each said – as the jury were wholly aware – this was of only slight, or indeed no, significance given the primary question the judge needed to ask when considering the admissibility of this res gestae evidence was whether the possibility of concoction or distortion could be disregarded (R v Andrews (D.) [1987] A.C. 281). This was the judge's entirely sustainable conclusion for if the risk of invention can properly be discounted, then the identity of the author of the statement is essentially unimportant.
67. The judge admitted a considerable body of material as regards Charles's background and a more limited piece of evidence concerning David (as described above [40]) which would have assisted the jury in assessing important issues such as credibility and reliability. The jury would have been in no doubt that Charles, in particular, had links to individuals who had been involved in serious criminal offences, and this would have afforded the jury the opportunity of weighing the possibility that the guns had been brought to the flat by someone other than the three male appellants. The judge, by enabling the defence to establish this credible scenario, provided a critical protection for the appellants.
68. The judge gave all of these matters the most anxious and meticulous consideration. Although we agree with Mr Mostyn that decisiveness of hearsay evidence in this context does not diminish as its cogency increases (indeed, the opposite is likely to be the case), the judge clearly did not misdirect or mislead himself on this issue because he stated "[…] it is clear that decisive evidence does not as a matter of fact become less decisive because it is corroborated; it in fact becomes more decisive". In all the circumstances – notwithstanding the allegation that Charles or David (or both) had been storing the firearms at the flat – he was entirely justified in deciding that it was in the interests of justice for the jury to receive this hearsay evidence: it was, prima facie, reliable and its strengths and weaknesses could be readily assessed.
69. As regards the four pieces of evidence that were excluded, the incident on 12 October 2006 in the Gosport Road area had no probative value, given the complainant had withdrawn his original allegation. There was no basis on which the jury could have concluded that his earlier (and discarded) account was to be preferred over his later withdrawal statement. The suggested link to five firearms incidents over an 18 month period in 2005-6 was equally lacking in any material substance: Charles's was simply mentioned as a potential suspect without any evidence being provided to support the contention. This would have led to speculation on the part of the jury, and there was no proper basis on which they could have concluded that the police conjecture was properly founded. As regards the gun found outside 14 Ormond House on 7 October 2006, the Smith brothers were not charged with this offence and there was insufficient evidence for the jury to determine that either of them was responsible for this weapon: whether or not the gun was linked to the brothers was simply unknown. Finally, the fact that three men were in a car, hired under an alias, that smelt of cannabis on 17 June 2011 had no probative value as regards the issues in this case, and the known facts concerning that incident could not have led to the conclusion – as it is contended – that they were involved in serious criminality.
70. Mr Mostyn relies on the following part of the judgment of the Lord Phillips (with which all the members of the Supreme Court agreed) in R v Horncastle and Blackmore [2010] 1 Cr App R 17; [2009] UKSC 14:

36. […] (i) Section 124 makes special provision for the admissibility of any material which it is contended challenges the credibility of an absent witness. The opposing party is enabled to put in evidence anything that which he could have put in if the witness had been present, but he may also put in material which, if the witness had been present, could only have been asked of him in cross-examination in circumstances where his answers would have been final; this puts the challenger to that extent in a better position than if the witness is present and is designed to help counterbalance the absence of cross-examination of the witness in person.

71. Counsel submits on the basis of this passage that anything that it can be contended tends to challenge the credibility of the witness is admissible.
72. Section 124 of the Criminal Justice Act 2003 is entirely clear on this issue: the accused is entitled to introduce "[…] any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings" and "evidence may with the court's leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party". If the witness is present, the position is governed by section 100 (1)(b) of the Criminal Justice Act 2003, the effect of which was explained by Pitchford LJ in R v Brewster and Cromwell [2010] 2 Cr App R 20; [2010] EWCA Crim 1194:

21 […] the purpose of s.100 was to remove from the criminal trial the right to introduce by cross-examination old or irrelevant or trivial behaviour in an attempt unfairly to diminish in the eyes of the tribunal of fact the standing of the witness, or to permit unsubstantiated attacks on credit. […]

22. It seems to us that the trial judge's task will be evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair-minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief. Only then can it properly be said that the evidence is of substantial probative value on the issue of creditworthiness. […] The question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair-minded tribunal upon the issue of the witness's creditworthiness. […] It does not seem to us that the words "substantial probative value", in their section 100(1)(b) context require the applicant to establish that the bad character relied on amounts to proof of a lack of credibility of the witness when credibility is an issue of substantial importance, or that the convictions demonstrate a tendency towards untruthfulness. The question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of the witness's creditworthiness. When the evidence is reasonably capable of giving assistance to the jury in the way we have described, it should not be assumed that the jury is not capable of forming an intelligent judgement whether it in fact bears on the present credibility of the witness and, therefore, upon the decision whether the witness is telling the truth. Jurors can, with suitable assistance from the judge, safely be left to make a proper evaluation of such evidence just as they are when considering issues of credibility and propensity arising from a defendant's bad character.

73. In our judgment, that approach applies when an absent witness's credibility is in issue and for the reasons set out above, the evidence relating to the four items of excluded evidence was not reasonably capable of providing any substantive assistance to the jury: it was not sufficiently persuasive to be worthy of consideration on the issue of Charles's credit. Evidence which, at best, can only provide a basis for speculation and which is incapable of leading to reliable conclusions will not materially contribute to the jury's deliberations and should not be admitted. The judge's approach was therefore, unimpeachable.
74. On the sufficiency of the summing up, it is argued that:

i) the judge failed to indicate how the appellants were placed at disadvantage as a result of the absence of the witnesses;

ii) there was inadequate reference to the material that discredited Charles and David;

iii) the judge failed adequately to distinguish between the evidence that was agreed and the evidence about which there was dispute; and

iv) the jury were not sufficiently instructed as to the care they should take over this evidence.

75. Additionally, it is argued that Laurencin's case was inadequately summarised and there was an impermissible suggestion that only oral evidence was capable of undermining the impugned hearsay evidence.
76. We unhesitatingly reject these complaints. The judge made it clear that the appellants all challenged the statements provided by Charles and David, suggesting that they were untruthful accounts. He reminded the jury that their evidence had not been taken under oath in court, and it had not been tested by way of cross-examination. As a result he instructed the jury to examine their accounts with "particular care". He set out at considerable length the contents of the material that undermined the hearsay testimony (exhibit 4, as summarised above [40], and other related material contained in exhibits 12 and 13) and he described this material as being "terribly important" because "the credibility of the evidence of […] Charles and […] David in this trial is, I repeat, of the greatest importance and you will wish, as I have already said, to consider that question carefully". Having read out the contents of much of this material to the jury (which formed part of their documents), he observed "It is for you, looking at the evidence in exhibit 4 and exhibits 12 and 13, to assess whether and to what extent the previous behaviour of […] Charles and […] David may assist you in assessing their evidence. That, of course, is fundamental in resolving […] the fundamental issue in this case; whether the three male defendants before you did enter flat 4 as trespassers, having guns with them, as […] Charles says they did, having been let in by the fourth defendant Yasemin Tutar, or whether the defendants did not do that or may not have done that. The defendant's case is that they had nothing to do with the firearms found in the flat by the police". Later in the summing up, the judge, having reminded the jury of Ms White, said:

"The other matter that I wish to draw your attention to is this. I addressed you, when I was considering the evidence of […] Charles and […] David, witnesses for the prosecution. I addressed you as to the care that you must take in relation to their evidence as prosecution witnesses who you have not heard giving evidence from the witness box".

77. The judge at various junctures during the summing up reminded the jury that the defence of the accused was that they had not gone to the flat with guns and there was no attempt or intention to rob. It was suggested the guns were already in the flat before they arrived. The judge set out the appellant's contention that David knew the guns were in the premises and that his account to Ms White and Mr Bilgili was designed to lay a false trail of lies to protect himself and Charles from any difficulty that may arise if the guns were later found at the flat. The weaknesses in the accounts of White and David, as identified by the appellants in argument, were rehearsed at length, and the judge highlighted the inconsistencies and the suggested deficiencies in their evidence, including in relation to other evidence in the case.
78. Finally, the observation by the judge that "[…] the only oral evidence before you capable of contradicting, undermining or explaining the case for the prosecution on Mr Laurencin's part came from Mr Defreitas […]" was accurate: as set out above, Defreitas was the only appellant to give evidence, and it came immediately before a long section of the summing up in which the judge reminded the jury of Laurencin's account to the police in interview; indeed, Mr Mostyn candidly made clear in his grounds of appeal that "the defence case for Laurencin was in line with his interview". As we have just observed, the judge extensively rehearsed the potential weaknesses in the accounts of Charles and David, and in our view it is unsustainable to suggest that the jury may have been misled into considering that the prosecution case could only be undermined by oral evidence. The judge had made it entirely clear that the jury would need to look at the evidence of Charles and David with particular care in order to assess whether it was to be relied on. This was a careful and well-structured summing up, in which the judge reminded the jury of all the important matters of fact, and the law was set out with clarity.
79. In all the circumstances, these appeals against conviction are dismissed.

Defreitas's renewed application for leave to appeal against sentence

80. In passing sentence, the judge indicated that burglary by a group of four acting in this planned way with three of the offenders carrying loaded firearms, two of which had silencers and intending to rob the flat's occupant, was an offence involving considerable violence. Bearing in mind the Sentencing Council's guideline on sentencing for aggravated burglary, the judge concluded that there were two factors which indicated greater harm. The victim was at home at the time and violence was threatened by way of the three loaded firearms and the threats that were issued. As to culpability, four factors indicating higher culpability were present: the victim and his flat were deliberately targeted; there was a significant degree of planning; they acted as a group; and all three males carried a weapon, a fact of which Tutar was aware. The case fell into category 1 and it merited an upward adjustment from the starting point to twelve years.
81. Defreitas had relevant previous convictions and he had only recently been released from prison. Defreitas (and Laurencin) satisfied the criteria of dangerousness. Following his arrest for these serious offences Defreitas had deliberately sought to intimidate Charles and interfere with justice so as to abort the trial and avoid any risk of conviction. The judge concluded the offences were not sufficient to qualify for a life sentence, and an extended sentence would not adequately protect the public. Therefore the only sentence he could pass was imprisonment for public protection. Harvey and Tutar were given determinate sentences since they did not satisfy the criteria for dangerousness.
82. In summary, Defreitas submits that the increase applied in his case from 12 years to 15 years as a result of his previous convictions was excessive. Furthermore, it is highlighted that because the appellant was recalled to prison on licence for an earlier offence (see below) when he was arrested for the instant crimes, the period between 4 June 2011 and 19 July 2012 (when he was sentenced), to his detriment did not count towards the sentence that was passed. In the result, he received, it is suggested, a disproportionately longer sentence than his co-accused. Finally, it is contended on the basis of the principle of totality that the four-year sentence for counts 11 and 12 was excessive.
83. Defreitas had been convicted on 13 April 2007 at Harrow Crown Court of an offence of conspiracy to rob for which he was sentenced to four years' imprisonment and on 25 June 2007 he was convicted of possessing a firearm with intent to endanger life, resulting in a sentence of 7 years' imprisonment (and, as just set out, he was on licence from that sentence at the time of the present offences). This led to the three-year increase in his sentence. We agree with the single judge that the uplift imposed by the judge for his previous convictions and the breach of licence was entirely justified. His previous offending was relevant to the issue of determining the appropriate determinate term and in order to assess dangerousness for the purposes of an IPP. The type of sentence was entirely appropriate, as was the minimum term of 9 ½ years for the purposes of the IPP and the consecutive determinate terms of 4 years for intimidating a witness and perverting the course of public justice.
84. We refuse Defreitas's renewed application for leave to appeal his sentence.