England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Central Criminal Court
HHJ Morris QC
T20137100

		201401599 B1 and 201401581 B1 Royal Courts of Justice Strand, London, WC2A 2LL
		07/08/2015

Lord Justice Fulford :

The Background

1. On 27 February 2014 in the Central Criminal Court before Judge Morris QC and a jury, Lunkulu, Barabutu, Makusu and Arslan were convicted of murder. Lunkulu, Makusu and Arslan were convicted unanimously, whereas Barabutu was convicted by a majority (10-2).
2. On 11 April 2014, Lunkulu was sentenced to life imprisonment with a minimum term of 35 years' imprisonment; Barabutu was ordered to be detained at Her Majesty's Pleasure with a minimum term of 18 years' custody; Makusu was sentenced to life imprisonment with a minimum term of 28 years' imprisonment; and Arslan was sentenced to life imprisonment with a minimum term of 33 years' imprisonment.
3. Before this court, Lunkulu applies for an extension of time (17 days) in which to renew his application for leave to appeal against conviction after refusal by the single judge. Barabutu appeals against his sentence by leave of the single judge. He renews his application for leave to appeal conviction after refusal by the single judge. Extensions of time for both the conviction and sentence applications were granted by the single judge. Makusu renews his application for leave to appeal conviction and sentence after refusal by the single judge. Arslan appeals against conviction, leave having been granted on a limited basis (viz. grounds 1 to 6 only), and sentence by leave of the single judge. He also renews his application for leave to appeal against conviction on grounds 7 to 9.

The Facts

The History

4. The case concerned the fatal shooting of Cem Duzgan (aged 21) on 5 October 2009. The murder took place at the Clapton FC Social Club ("the Social Club") on the Upper Clapton Road in Hackney.
5. The prosecution case was that Mr Duzgan's murder took place in the context of a feud between two Turkish drug gangs in North London: the Tottenham Turks and the Hackney Turks. During 2009, a series of tit-for-tat stabbings and shootings were committed by both gangs. There was an agreed schedule before the jury setting out the history of the feud between the Tottenham Turks and the Hackney Turks from January to October 2009. It detailed certain revenge incidents between the two gangs during this period. DC Holt, additionally, gave evidence that the Social Club was controlled by the Hackney Turks, and it was under police surveillance between 29 September 2009 and 12 October 2009. The shooting on 5 October 2009 was described as having been carried out at the behest of the Tottenham Turks as a reprisal for the fatal shooting of a man called Oktay Erbasil three days earlier (2 October 2009). Mr Duzgan was probably not the target of the shooting but happened to be in the wrong place at the wrong time.

The Defendants

6. Lunkulu, Barabutu and Makusu were said to be associates of the Tottenham Turks, and it was alleged they travelled to Hackney to carry out this crime. The prosecution's case was that Lunkulu was the gunman, whilst Barabutu and Makusu accompanied him as "back up". Arslan, who the Crown claimed was a member of the Tottenham Turks, had organised the shooting and assisted in its aftermath. It was not alleged he was present at the time of the murder. Evidence was adduced that Arslan was shot in the knee on 31 July 2009. This was maintained to have occurred in the context of the feud. Evidence was also introduced that Arslan had been convicted of, first, two offences of attempted murder committed on 30 September 2009, in which shots were fired at two Hackney Turks in a car, and, second, one offence of possessing a firearm with intent to endanger life, committed on 5 December 2009.

The Shooting

7. In the minutes before the murder, CCTV of the area just north of the Social Club captured the gunman – the prosecution alleged this was Lunkulu – making his way to that location on foot via Comberton Road and Southwold Road (using an interconnecting alleyway) and Upper Clapton Road. The prosecution suggested he was wearing a distinctive pair of Nike Air Max trainers. Lunkulu was accompanied by three other men, Barabutu, Makusu and an unidentified accomplice; the latter was referred to as the "pathfinder" during the trial. Only the gunman and the pathfinder completed the final leg of the journey to the Social Club.
8. There was a secure entry system to the Social Club, namely two "airlock-type" doors monitored by CCTV. Footage from the camera directed at the exterior of the premises showed the gunman loitering nearby, while the pathfinder gained entry. Inside, the pathfinder bought £10 worth of cannabis. On his way out, he circumvented the security system by holding open the two airlock doors, enabling the gunman to gain entry.
9. Those monitoring the internal CCTV inside the club realised that something unusual was happening at the entrance and Mr Duzgun went to investigate. As he opened the internal door to the entrance lobby, the gunman opened fire with a sub-machine gun (an automatic Mac 11). Eleven bullets were fired, seven of which hit Mr Duzgan at very close range. Two bullets entered the front of his head and passed through his brain and the back of his head. Another bullet entered his chest, went through several internal organs and emerged through the left of his back, before passing through his left arm. Other bullets passed through his limbs.
10. Following the shooting, CCTV of the exterior of the Social Club showed the gunman running north (in the direction of Southwold Road), whilst the pathfinder ran in the opposite direction.

The Prosecution Case

11. The prosecution case was based on circumstantial evidence, which was comprised of numerous elements. These included evidence of association between the accused and evidence of planning; analysis of the final 70 minutes leading up to the shooting; and the circumstances of the shooting, and its aftermath.
12. As to evidence of association between the accused and evidence of planning, CCTV from a Pound Shop controlled by the Tottenham Turks showed that Arslan and Otkay Erbasli (the latter was murdered on 2 October 2009 as part of this feud) were well known to each other and that they knew Lunkulu. The footage also demonstrated that Lunkulu was an associate of Makusu.
13. The Pound Shop CCTV revealed that on 2 October 2009, following the fatal shooting of Otkay Erbasli, the shop was shut and a gathering occurred at which Arslan, Lunkulu and Makusu were present, along with certain "top ranking" Tottenham Turks. It was suggested during the trial that this was a "council of war", when the plan to carry out a retaliatory shooting against the Hackney Turks was conceived. We note that this suggested inference regarding the purpose of the gathering was disputed at trial.
14. Between 2 and 5 October 2014, there was extensive telephone contact between the telephone numbers attributed to the accused i.e. Lunkulu / Makusu; Makusu / Barabutu; and Arslan / Lunkulu, albeit that between 14.42 on 3 October 2009 and 23.02 on 5 October 2009, there was only one call between Arslan / Lunkulu (on 5 October 2009). Furthermore, it is to be observed that Makusu disputed the prosecution's suggestion that he had been using a telephone number ending with 482 at the relevant time.
15. Addressing this discrete issue of the attribution of the 482 number between 1 to 6 October 2009, the prosecution relied on similarities in usage between the 482 number during early October 2009 and other telephone numbers previously used by Makusu (those ending in 495 and 705). There was a telephone call from Lunkulu to the 482 number on 2 October 2009, which when coupled with cell-site analysis and the time that Makusu arrived at the Pound Shop (as recorded on CCTV), tended to suggest that Lunkulu invited Makusu to the gathering at the Pound Shop (this gathering, as set out above, was said to have concerned Otkay Erbasli's murder) and that he made his way there via the Broadwater Farm Estate. The 482 number was in use at the same time as Makusu could be seen using a mobile phone on the Pound Shop CCTV during early October 2009. There was evidence which tended to indicate that a mobile number ending in 860 was at this time being used by Makusu's then girlfriend Jasmine Yemi Shedembe ('Jasmine') and there was contact between the 482 and the 860 numbers during early October 2009. The cell-site analysis of contact between the 482 number and the 860 number revealed that the user of the 482 telephone number was in the vicinity of the Pound Shop, while the user of the 860 number was in the vicinity of Jasmine's address in Romford during early October 2009. Cell-site analysis showed the user of the 482 number in Romford using cell-sites in the vicinity of Jasmine's address and college during early October 2009. Thereafter the calls between the 482 and 860 numbers ceased, revealing, it was suggested, that Makusu was visiting Jasmine Shedembe. There was contact between the 482 number and a mobile number attributed to Makusu's mother (ending 871) during early October 2009. There was also contact between the 482 number and Makusu's friend, Wesley Allen, during the same period when Allen was in prison. On the evening of 5 October 2009, the user of the 482 number ordered a taxi in the name 'Jason', which was an alias of Makusu. Finally, before the 482 SIM card was disposed of on 6 October 2009, it was used in a handset with an IMEI reference ending in the digits 7040. On 29 October 2009, Makusu was searched by police and found to be in possession of the 7040 handset.
16. On 4 October 2014 and during the early evening of 5 October 2014, cell-site analysis put the 482 mobile number attributed to Makusu in the vicinity of the Social Club. It was suggested by the Crown that this was Makusu undertaking reconnaissance in preparation for the shooting.
17. Approximately two hours before the shooting on 5 October 2009, Arslan called a minicab and left the Pound Shop for approximately 20 minutes (i.e. between 20.40 and 21.00). Cell-site analysis suggested he travelled in an anti-clockwise loop. During this period, Lunkulu's mobile telephone was using the same or similar cell sites as Arslan's mobile telephone. The prosecution suggested that Arslan and Lunkulu travelled together in order to make the final arrangements for the shooting. At trial it was disputed that Arslan and Lunkulu were together at this time.
18. Turning next to the evidence of the 70 minutes before the shooting, from 21.38 until after the murder of Mr Duzgan, mobile telephone contact between the four accused ceased. The Crown's case was that this was because Lunkulu, Barabutu and Makusu were together on the Broadwater Farm Estate, putting in place the final preparations for travelling to Hackney. We note that it was disputed that Makusu was on the Broadwater Farm Estate at this stage.
19. At 22.05, Arslan called Okan Erbasli (the brother of the murdered Oktay Erbasli). It was the Crown's case that the purpose of the call was to advise Okan Erbasli that his brother's murder was about to be avenged. This suggested inference was disputed.
20. At 22.09, CCTV on the Broadwater Farm Estate captured Lunkulu and Barabutu, along with Makusu and others leaving Tottenham in a Corsa and Galaxy mini-cab (which Barabutu had ordered at 22.00). The identification of Makusu was the subject of dispute.
21. The Corsa and Galaxy mini-cab were to be seen on CCTV footage travelling in convoy towards Hackney. The cars were last seen on camera on the Upper Clapton Road at 22.16, some distance north of the Social Club.
22. At approximately 22.20, the mobile telephone numbers attributed to Lunkulu, Barabutu and Matusu started using cell sites covering the Social Club. The prosecution's case was that they had been dropped off in the vicinity of the Social Club. To repeat, the inference that Makusu was in the vicinity of the Social Club was disputed at trial.
23. Addressing, next, the evidence relating to the shooting, as set out above the gunman, the pathfinder and two other males were captured on CCTV in Comberton Road and Southwold Road shortly before the murder. Notwithstanding the poor quality of the CCTV footage, a police officer identified three of the males as Lunkulu, Barabutu and Makusu, based on comparisons with CCTV footage of the three men earlier that evening. He relied on features such as their respective heights and the clothes they were wearing. This identification by the officer was the subject of dispute at trial.
24. Although no expert evidence was called, one of the reasons the Crown maintained Lunkulu was the gunman was because of the distinctive pair of trainers referred to above (the Nike Air Max 90s, as seen on the Pound Shop and Broadwater Farm Estate CCTV) which were said to have been worn by Lunkulu and which matched the gunman's footwear as caught by the CCTV in the vicinity of the Social Club.
25. Similarities as found by an expert, Professor Birch, in the gait of Lunkulu and the gunman provided "moderate support" for the contention that Lunkulu was the gunman.
26. Immediately after the shooting, CCTV footage showed the gunman running north along Upper Clapton Road, towards Southwold Road, having left the Social Club. Cihan Ulgar (a witness from inside the Social Club) gave evidence that he saw the murderer running along the Southwold Road and then into the alleyway leading to Comberton Road. This evidence was linked by the prosecution with CCTV footage of three men in Comberton Road 90 seconds after the shooting. The Crown's case that Lunkulu, Barabutu and Makusu regrouped immediately after the incident. These contentions concerning Lunkulu, Barabutu and Makusu were disputed.
27. Turning, finally, to events following the shooting, telephone contact between the mobile telephone numbers attributed to Lunkulu, Barabutu and Makusu resumed shortly after the murder and cell-site analysis showed that the users of the three relevant numbers remained in the vicinity of the Social Club. The Crown's case was that the three men split up following the re-grouping that occurred immediately following the shooting.
28. At 22.53 and 22.57, the mobile telephone attributed to Barabutu made two calls to a mini-cab firm. It was the Crown's contention that this was an attempt to arrange transport out of the area following the shooting.
29. At 23.02, Lunkulu called Arslan in Tottenham. Within five minutes Arslan made a return telephone call. It was suggested that the first call was Lunkulu advising Arslan that the shooting had been carried out.
30. At 23.06, the Corsa was captured on CCTV returning north to Tottenham and cell site analysis showed that the user of the mobile number attributed to Makusu had returned to Tottenham by 23.10. It was the prosecution case, therefore, that Makusu may well have returned to Tottenham in the Corsa.
31. At 23.20, Lunkulu called Arslan, again from the area of the social club. 15 seconds after that call, Arslan called a mini-cab firm. Within eight minutes, a driver from the same mini-cab firm called Lunkulu. It was suggested that the proper inference to be drawn from that sequence of telephone calls was that Arslan was assisting Lunkulu to leave the area following the shooting. At trial, although it was accepted that Arslan assisted Lunkulu in this way, it was disputed that this was connected to the shooting.
32. At 23.38, Arslan called Okan Erbasli. It was said that the purpose of the call was to inform Okan Erbasli that his brother's murder had been avenged.
33. On 6 October 2009, the mobile numbers attributed to Lunkulu, Barabutu, Makusu and Arslan ceased being used. It was said that they discarded their SIM cards in order to destroy any potential evidence linking them to the shooting. Following the shooting Lunkulu, Makusu and Arslan were not seen in the Pound shop between 6 and 9 October 2009.

The Defence Case for Lunkulu

34. Lunkulu did not give an account in interview but he gave evidence; indeed, he was the only accused to take this step. He accepted that he had attended at the Pound Shop in the days before the shooting. He denied involvement in the offence or being the gunman. He accepted the attribution of the mobile telephone number ending 471. He denied meeting with Arslan approximately two hours before the shooting. He accepted travelling from the Broadwater Farm Estate to the Upper Clapton Road at the time of these events. He testified that thereafter he went to the Springfield Estate, approximately half a mile north of the Social Club, in order to buy cannabis from a man called Jeremy Lewis using counterfeit money that he had acquired from Nathanial Scott and a man he referred to as Skelly. He maintained that Scott, Skelly and Barabutu accompanied him on the journey. His evidence was that he went into the estate whilst the others waited in the motorcar. After the cannabis had been purchased, Scott and Skelly returned to Tottenham in the Corsa taking the cannabis with them. Lunkulu and Barabutu were to travel separately in a taxi, but they had considerable difficulties in securing transport, and in the event they remained in the area until 23.30. His defence, therefore, was that of alibi because he was on the Springfield Estate at the time of the shooting. He said that Barabutu, but not Makusu, accompanied him on the journey to the Upper Clapton Road and the 482 mobile telephone number attributed to Makusu was being used by Nathanial Scott (who accompanied him on the journey to the Upper Clapton Road). One of the central points made by Lunkulu at trial was that if he had been the gunman he would not have remained in the area for a significant period of time after the shooting.
35. The drug dealer Jeremy Lewis gave evidence in his defence, confirming that a drug deal took place with Lunkulu on the Springfield Estate at about the time of the shooting.

The Defence Case for Barabutu

36. Barabutu did not testify or give an account in interview. He denied involvement in the shooting. He accepted the attribution of the mobile telephone number ending 711. He also accepted travelling from the Broadwater Farm Estate to the Upper Clapton Road, and being in the vicinity of the Social Club at the time of the shooting. His counsel suggested in cross-examination of Lunkulu that Barabutu went off "to do his own business".

The Defence Case for Makusu

37. Makusu did not testify or give an account in interview. He denied involvement in the shooting. He did not accept the attribution of the mobile telephone number ending in 482 in the days leading up to the shooting. It was disputed, therefore, that he had been in telephone contact with Lunkulu and Barabutu; that he had been in the vicinity of the Social Club carrying out reconnaissance; and that he had been in the vicinity of the Social Club at the time of the shooting. Although he had previously used the 482 number, his case was that it had been in the possession of Nathaniel Scott from 28 September 2009 onwards. Apart from seeking to demonstrate that the 482 mobile number was misattributed to him, he did not advance a positive case.

The Defence Case for Arslan

38. Arslan did not testify or give an account in interview. He denied he had organised or had been involved in the murder. He accepted the attribution of the mobile telephone numbers ending in 093 and 916. He accepted association with the Tottenham Turks, although he did not accept he was a leading member. He denied meeting with Lunkulu approximately 2 hours before the shooting. He accepted he arranged a taxi for Lunkulu after the shooting.

The Grounds of Appeal against Conviction

The Ground of Appeal Common to all Accused

39. It is suggested by the four appellants/applicants that the judge was biased in favour of the prosecution. Leave to appeal on this ground was refused by the single judge.
40. Central to this argument, albeit these submissions are developed in differing ways by the various applicants/appellants, is the criticism of the judge's approach to the summing up because it is contended that he i) focussed almost entirely on the prosecution arguments; ii) presented arguments in favour of the prosecution that had not been part of the prosecution case; iii) advanced arguments in favour of the prosecution that were not supported by the evidence; iv) made insufficient reference to the cases of the individual defendants and failed to refer to critical aspects of the those cases; v) referred to the defence cases using a dismissive ("jackanory") tone and derisory language, combined with facial expressions, that denigrated the defence arguments (it is suggested that what is said to be the biased tone of the summing up is palpable when the audio record is played); vi) invited the jury to speculate in order to undermine defence arguments; and vii) provided a summary of the evidence called or relied on by the defendants that is described by Lunkulu in his submissions as "utterly and repeatedly misleading and factually incorrect".
41. In the event it is suggested that the summing up was biased in favour of the prosecution, and the appellants/applicants were undermined by the judge, to such an extent as to render the conviction unsafe. Furthermore, it is argued that the uncorrected evidential errors on the part of the judge vitiated the conviction. This latter issue is considered in the part of this judgment in which we address the separate submissions by each appellant/applicant.
42. The obligation on the judge to sum up the defence case when the accused has not given or called evidence was explored by this court in R v Singh-Mann and others [2014] EWCA Crim 717, as follows:

90. On the basis of those authorities, it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge's duty is simply to remind the jury of "such assistance, if any, as (defence) counsel had been able to extract from the Crown's witnesses in cross-examination" and any "significant points made in defence counsel's speech". In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury's consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed – indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them – but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused.

91. The timing and the form of this summary will depend on the circumstances of the case – most particularly, whether the relevant evidence needs to be gathered together in one section of the summing up or whether it is preferable to refer to it incrementally as the judge summarises the evidence in the case as a whole – but in either case the judge ought to explain the key submissions of the accused in support of his defence at a convenient juncture during the summing up.

43. In our view, the structure of the summing up in this case was unimpeachable. In a wholly conventional manner the judge gave the jury the directions on the law that had been reduced to writing and discussed with counsel in advance; he summarised the facts in the case at some considerable and appropriate length; and, finally, he summarised the arguments of the parties. The judge emphasised a number of times that the facts were for the jury. He instructed them to ignore any comments on his part if they did not agree with them. He did not refer, and he was not required to refer, to each and every point made by counsel for the prosecution or the accused. We reject the suggestion that the summing up was unbalanced in favour of the prosecution. Save for Lunkulu none of the defendants gave evidence and they did not answer questions in interview. To a very large extent their arguments were dependent on the evidence that had been called by the Crown. It was inevitable in those circumstances that the judge would concentrate on the evidence that the prosecution had introduced, which formed the vast majority of the witnesses, the exhibits and the other documents/schedules in the case. The rehearsal of the defence arguments by the judge in these circumstances did not have to be particularly extensive or detailed; instead he appropriately focussed on the central submissions and he ensured that the jury received a coherent rehearsal of the main arguments that were advanced by the appellants/applicants. The judge interspersed the evidence of Lunkulu (the only defendant to give evidence) into his factual summary. We consider that the summary provided by the judge of the various arguments relied on by the applicants/appellants was entirely sufficient. The central matters relied on by each of them were set out and we stress the judge was not obliged to repeat verbatim the closing speeches of defence counsel.
44. We have listened to the parts of the recording of the summing up to which our attention was directed. Although the speed of delivery varied between various passages, we have been wholly unable to discern any sign that the judge adopted a dismissive tone of voice or choice of language that denigrated the defence arguments. It is useful for a judge to alter his tone, speed and style of delivery during a summing up in order to maintain the jury's attention. There was no identifiable pattern which reveals that the judge used a particular and distinctive tone of voice when addressing issues and evidence raised by the defence. As set out above, it was suggested to us that the biased tone of the summing up would be palpable when the audio record is played. We have not found that to be the case. The judge's facial expressions have also been the subject of a generalised complaint, and in the absence of any credible evidence in this regard (as opposed to unparticularised assertions by counsel in Grounds of Appeal and supporting documents) we consider that this aspect of this ground of appeal is equally unarguable.
45. It would appear that some of the exchanges between defence counsel and the judge in the absence of the jury at about the time of the summing up were somewhat intemperate, and there was a clear measure of disagreement between the judge and the defence bar on certain issues. The judge is alleged to have been short-tempered and dismissive. In a similar vein, he is criticised for having expressed his concern that the prosecution had not placed at the forefront of its case that a man called Warren Leader may have been involved, given the argument on behalf of Arslan to the effect that other individuals were behind this criminal plan. It is submitted, moreover, that the convictions are unsafe because of the manner in which he intervened during the cross examination of two witnesses (Messrs Sexton and Loftus).
46. Although any diminution in the conventional courtesies on the part of either the bench or the bar is to be regretted, the tone of these exchanges in the absence of the jury is essentially beside the point. The judge was entitled to press the prosecution as to why particular tactics had been adopted, particularly if he was concerned that the jury would be left with a distorted picture of the evidence once submissions had been made by counsel. In circumstances such as the present, it is the events in the presence of the jury that are of critical importance, and we have already set out our conclusions on the submissions of the applicants/appellants in this regard. We stress we have not in any sense embarked on an analysis of each of the allegations made against the judge in this context because, as just set out, the determinative issue is whether the trial was fair and the convictions safe.
47. Finally, in the absence of a transcript it is wholly impossible for the court to assess the suggestion that the verdicts are vitiated because of alleged inappropriate judicial intervention during the questioning of witnesses, although we observe that for a successful appeal to be advanced on this basis compelling grounds need to have be established. In Sharp [1994] QB 261 this court put the matter as follows:

In general, when a cross-examination is being conducted by competent counsel a judge should not intervene, save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions, still less can it be said in such cases that there is any irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions, that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge's conduct amounts to a material irregularity.

48. There are no indications in this case that counsel were hampered in the way that they wished to present the cases of their various lay clients because of any intervention by the judge.

Lunkulu

49. The overarching contextual submission made by Mr Kamlish Q.C. is that the case against Lunkulu depended entirely on circumstantial evidence, as summarised above. He submits that the merits of the individual grounds of appeal, addressed below, need to be assessed against this critical background.

Secondary participation

50. During the course of the summing up, submissions were made by Mr Kamlish in which certain complaints were made about the detail of the judge's remarks, and a document was submitted to the court containing suggested corrections, clarifications and additions. One of the issues raised concerned secondary participation. Having heard the submissions, the judge agreed that he would change his directions to the jury to the effect that Lunkulu could only be convicted on the basis that he was the gunman (and not on the basis that he was a secondary party). The judge's original direction was as follows "Lunkulu is the only defendant alleged by the prosecution to have been the gunman. For him to be guilty of murder as the principal party, the prosecution must prove so that you are sure that (a) It was he who unlawfully shot and killed Cem Duzgun on 5 October 2009 and, (b) At the time he did so he intended to kill him or cause him really serious bodily harm [....] If you are not sure he was the gunman, you should consider whether he was guilty of murder as a secondary party under (2) below […]" In due course, and before the jury retired, the judge gave a direction correcting this formulation, in which he stated that if they were not sure that Lunkulu was the gunman, he was entitled to be acquitted.
51. In our judgment this change in the direction to the jury could not have operated materially to the disadvantage of Lunkulu. It restricted the circumstances in which he could be convicted, and it was entirely comprehensible. On this narrowed basis, the jury had to concentrate on whether the evidence demonstrated, so that they were sure, that Lunkulu was the man who fired the fatal shots. We consider it unarguable that the jury might have convicted him on a wider basis following this precise manner in which the case was ultimately left against Lunkulu by the judge.

Cihan Ulgar and the flight of the gunman

52. It was suggested that the judge failed to deal adequately and accurately with the certain inconsistent accounts by Cihan Ulgar, who said that the gunman ran in the direction of Comberton Road (down an alleyway) after entering Southwold Road. This description is linked to the defence argument that the gunman may have escaped from Southwold Road in a silver car. It is contended that the judge neglected sufficiently to reflect the evidence of Ulgar as to where the gunman went having entered Southwold Road, and it is suggested that he "provided a skewed and misleading analysis biased in favour of the Crown". It is particularly argued that the accurate and complete evidential picture was that three witnesses (Bektas Gurgar, Ahmet Demir and PC Fenton) had independently described Ulgar as having given an account of the gunman leaving in a silver car, and that this evidence was supported by the account of another eye-witness (Sahin). Ulgar denied that he had suggested that the gunman left the scene in this way.
53. In our view the difficulty with this submission is that during the summing up the judge rehearsed the interview the police conducted with Ulgar on tape shortly after the incident, the statement that was prepared on the basis of that interview, his participation in an identification procedure, and the accounts from other witnesses as to what Ulgar told them he had seen. The judge set out that "Ahmet Demir gave evidence that Ulgar had told him that the gunman had dived into a silver car and crouched down in the car and was hiding in the back seat, and the car had turned right into Upper Clapton Road towards Stamford Hill". Additionally, he reminded the jury that Gurgar gave evidence that Ulgar might have said that the gunman went off in a silver car. On this basis, the essence of the rival contentions as to how the gunman left the scene were clearly set out, even if the judge did not set out every element of the evidence on this issue. The judge reminded the jury that it was for them to decide whether these witnesses undermined the account given by Ulgar.
54. Turning to the issue of the silver car, it is argued that during the trial Lunkulu had demonstrated that at the relevant time a car could have turned right out of that junction without being captured on film because of the position of the camera. Further, it was highlighted that another car had left Southwold Road only 30 seconds after the shooting: CCTV footage showed only the tyres and a very limited amount of the bodywork of a car as it turned out of the junction. At the time this vehicle pulled out of Southwold Road, a bus with a distinctive roof was passing the junction and it was suggested the car would have pulled out behind it. The next camera, to the north on Upper Clapton Road, showed the same bus and in this footage a silver Mondeo or Astra type car was travelling behind the bus. It is suggested the judge dealt with this point by "effectively telling the jury to discount it".
55. We do not accept this submission. The judge expressly referred in the summing up to the possibility of a car turning right and not being caught by the cameras and he also referred to a silver car travelling behind the bus, albeit the officer's evidence was that he did not know if it had come out of a side road as opposed to Southwold Road. In our view, the judge's summary of the evidence on this point dealt with it entirely accurately. We observe, additionally, that DC Morgan gave evidence that if the silver car had joined the line of traffic at the junction with Southwold Road it would inevitably have caused an accident.

The Gait

56. We note that we have not been provided with a transcript or agreed note of Professor Birch's evidence, or a copy of his report. It is suggested the judge failed to address adequately or accurately the evidence relating to gait analysis and in particular the suggestion that the judge did not summarise "four differences in gait between the gunman and the applicant". Contrary to this submission, the judge rehearsed the evidence of Professor Birch at considerable length. The judge summarised the anomalies of gait that were present in the two samples that had been shown to the jury, albeit they were not evident throughout (such as a marked raising of the right foot before the heel strike). He also summarised certain differences between the samples: i) the gunman rolled his head and torso to the left (sometimes in an exaggerated manner); ii) the S-shape pattern of the hand movement; iii) the gunman's alternate shoulders dipped on each step; and iv) Lunkulu – unlike the gunman – dipped his left shoulder more than the right on some steps. The judge then emphasised that Professor Birch had stated in evidence that this material provided no more than moderate support for the proposition that Lunkulu and the gunman were the same person. He ended this part of the review of the evidence as follows: "This means no more than that there is a level of consistency between the gait of the two men. You may think in the circumstances this evidence takes the case against Mr Lunkulu very little further if it takes it further at all". The summary provided by the judge was balanced and fair, and he ensured that this evidence was only accorded slight, if any, weight.

The Nike Air Max 90s

57. It is suggested that the judge failed accurately to address the issue of the Nike Air Max 90s. The defendant gave evidence that the trainers that he was wearing in the Pound Shop CCTV footage were Nike Air-Max 90s. It was the prosecution case that these trainers resembled those worn by the gunman. The Crown had initially proposed to call expert evidence in relation to the gunman's footwear, but did not do so. There is no complaint that the judge left this issue to the jury on the basis that "the issue for you to determine is whether the gunman on 5 October was also wearing Nike Air-Max 90 trainers and whether this helps you identify him".
58. It is suggested in argument, however, that later in the summing up "the Learned Judge gave his own view in respect of their make". This complaint is inaccurate. The judge rehearsed the evidence of the officer in the case, who carried out an exercise of comparison: "Mr Morgan described him as wearing faded jeans, and those trainers which were similar to those worn by Lunkulu outside the Poundshop which appeared to be Nike Air-Max 90 trainers". This was not the judge's view but a review of the evidence of the officer. By describing the trainers as "similar" to those worn by Lunkulu the judge reflected the fact that it was not suggested that a unique pair of trainers had been identified.

The gunman's appearance

59. The defence argued that various descriptions of the gunman's appearance by eyewitnesses differed from Lunkulu's actual appearance. At the time, Lunkulu was slim and he had a close-cropped hairstyle and a receding hairline. It is particularly suggested that Ulgar in his earlier accounts had given a description of the gunman as having "hair coming down from sides of his forehead" that looked like short black dreadlocks and that he described the gunman has having a distinctive jaw. In summing up the judge referred to Ulgar's earlier accounts as follows: "In his interview with the police he described him as having a wide jaw and 'a bit more chubby than himself', although as Mr Kamlish conceded that might have been to do with the bulky top he was wearing. He also thought he had a bit of hair coming down his face on one side which looked like short black dreadlocks but he could not tell whether it was hair or something else". It is argued that this review was "both inaccurate and designed to minimise the significance of the clear facial differences between the gunman and the applicant".
60. We do not agree with these criticisms. Lunkulu was present throughout the trial - the judge did not need to remind the jury as to his appearance - and the judge had clearly set out that Ulgar had described a man with a notably wide jaw, hair in dreadlocks and (possibly) a chubby build. The summary by the judge was entirely adequate in that it focussed he jury's attention on the central issues in this context. The judge was not obliged to descend into the detail of the competing submissions as to whether the gunman was a man of proportionate build wearing a bulky jacket or he was a stocky man wearing a tight fitting jacket.

The failure to answer questions in interview

61. The applicant complains that the judge refused to set out his reasons for not answering questions in interview in the context of the section 34 Criminal Justice and Public Order Act 1994. These were, first, that he had followed legal advice to say nothing. Second, that at the time of the interview, two years after both the shooting and the drug deal, he had not realised that both events had been on the same night. Thirdly, he only realized this when he received the case papers in prison during 2013.
62. This criticism is without foundation. When the judge gave the jury the directions in law on this issue, he reminded them that Lunkulu's evidence was that he followed his solicitor's advice not to answer questions unless he was sure as to what he had been doing that night. Furthermore, at the time of the interview he was unable to recall what he had been doing on the night of the shooting. Later in the summing up, during the general rehearsal of the evidence, the judge reminded the jury that Lunkulu had testified that even though he had only been on the Broadwater Farm Estate on one occasion, 5 October 2009, he had been unable to recall at the time of the interview what he had been doing on the night of the shooting. In other words, he had not realised that his visit to the Broadwater Farm in order to buy drugs had occurred on the same night as the shooting. It follows that contrary to Lunkulu's complaint, the judge provided a full rehearsal of Lunkulu's explanation for his silence in interview.

The "6482" number

63. It is contended that in his summing up, the judge gave undue emphasis to the evidence relating to the attribution of the "482" number, which was said by the Crown to have been used by Makusu; Lunkulu claimed it had been used by Nathaniel Scott. It is argued that the judge focussed disproportionately on eleven separate points that were advanced by the prosecution, and that he only fleetingly addressed the arguments advanced by Mr Lakha Q.C. on behalf of Makusu (as adopted in large measure by Mr Kamlish for Lunkulu). It is convenient to deal with this issue at this juncture, albeit the submissions were principally advanced by Mr Lakha.
64. The use of the 482 provided strong evidence (albeit inferential in nature) for the prosecution as regards Makusu, who did not give or call evidence, and instead made submissions through his counsel that were restricted to this issue alone. In the event, it was inevitable that the judge would concentrate on the evidence called by the prosecution on this point - which was extensive in its reach - and that he simply referred to the submissions made by Makusu. Other points relating to the 482 telephone number are dealt with in the context of Makusu's renewed application.

The Defence Case

65. It is contended that the summing up of Lunkulu's account of his movements and activity at the time of the murder and its aftermath was dismissive and cursory. It is suggested that the judge dealt with critical aspects of the applicant's defence of alibi "at breakneck speed" and that he allotted insufficient time to this part of the case by dealing with it during the afternoon of Friday 21 February 2014 when one juror needed to leave court for an appointment. We do not accept these contentions. In a manner long approved by this court, the judge wove the evidence given by Lunkulu into his narrative summary of the evidence as he went through the key events, stage by stage. Indeed, he summarised the account of Lunkulu in considerable detail, on all issues and including his alibi. He set out all the main elements of the evidence relating to his defence of alibi, including from the witness Jeremy Lewis. Furthermore, the judge repeated, in its entirety, his summary of the part of the defence evidence relating to the applicant's alibi on the Monday 24 February 2014. We have been unable to detect any significant change in the rate of delivery at this stage in the summing up, or that the judge gave insufficient attention to parts of Lunkulu's case.

Adverse judicial remarks

66. Various complaints are made about suggested adverse judicial comment at various stages during the summing up, inaccurate summaries of the evidence and an allegedly dismissive tone that was adopted by the judge. References are made to the evidence given by Lunkulu in this regard, but we have not been provided with a transcript or an agreed note of his evidence. Similarly, reference is made to CCTV footage which purportedly did not show that Lunkulu was present when Izzet Eren pointed out his injuries. This submission has not been advanced in a way that enables the court to decide if the complaint has any merit. It is submitted that the judge should not have commented that the applicant telephoned Arslan because the latter was "known for getting cabs". The complaint is based on a misdescription of this part of the summing up. The judge was summarising Lunkulu's own evidence and he was not, as alleged, making a personal comment:

He said Arslan had previously arranged cabs for him and was known for getting cabs.

67. This simply reflected the evidence that on the undisputed evidence Arslan used cabs with arguably unusual high frequency.
68. As to the other complaints that are made about the detail of the content and structure of the summing up, as set out above we have considered them in their entirety but viewed collectively and separately they do not provide the foundation for the suggestion that the summing up was unfair or that Lunkulu's conviction is unsafe. Lunkulu has similarly made a large number of detailed factual submissions (e.g. whether Ulgar could have seen the gunman running down the alleyway), not all of which have been addressed in this judgment. Addressed alone or together, they do not provide the applicant with sustainable grounds of appeal. These were all matters for the jury, and the judge was not obliged to refer to every point that had been raised during the trial in the course of his summing up.

Makusu

The 482, 495 and 705 telephone numbers

69. In the Perfected Grounds of Appeal on behalf of Makusu (6 March 2015), it is complained that the jury were not reminded of particular salient evidence as regards the use of various telephone numbers. In addition, it is suggested that the judge made errors as to the evidence introduced before the jury. First, it is argued the judge erred by "telling the jury that it was agreed evidence that the applicant had used a telephone number 705 until 27/9/09 – there was strong evidence to suggest that the user of the 705 number had changed in early September 2009". The judge, in fact, indicated to the jury that it was agreed that "[…] Makusu had used a '705' phone up to 27 September, when it ceased to be used. The phone usage indicated that phones were not always used by the same people and you should bear that in mind. And agreed facts 30 - 33 […] sets out the degree of overlap and difference between numbers called by the '495' and '705' phones, which indicated that they might have been used by the defendant sometimes but by others also". The judge, therefore, made it clear that it was not being asserted that Makusu was the only person who used that telephone. Later in the summing up (following submissions by counsel), the judge directed the jury:

The fourth matter that Mr Lakha wished me to correct arose out of my misunderstanding of what Mr Makusu's case was on the use of the 705 phone. I thought it was accepted by the defence that he had used that phone and continued to use it until it ceased to be used on 27 September, then used the 495 phone until he was arrested and the Crown's case is that he then used the 482 after his release.

That, I accept, was a mistake on my part. I now understand that it was Mr Lakha's submission that Makusu had ceased using the 705 phone by early September and had thereafter used the 495 phone and that on 29 September the evidence suggested that three different people were using the different phones, the 705, 495 and 482 phones.

70. Notwithstanding that correction, it is complained that the judge referred to Mr Lakha's submissions as opposed to the evidence in the case. In our view, it would have been abundantly clear that Mr Lakha had based his submissions on Chart 3 and the evidence of Mr Loftus. Given the correction made by the judge, this complaint is without substance.

Nathaniel Scott

71. The assertion is made that the judge incorrectly told "the jury that Nathaniel Scott had no connection with the Broadwater Farm Estate, when he had a close and regular connection". The judge's direction was as follows:

We know that Natty Scott had not been seen there by the police before 10 September 2011, almost a year after the shooting. However, his former girlfriend had lived on the estate in April 2008, 18 months before the shooting. And agreed fact 102 is that Scott was alleged to have assaulted her there. There is however, no evidence that he visited the estate between then and October 2009.

This is argued to be wrong, on the basis of "the evidence of the various stops straddling as they do the period before and after this event".

72. This court has not been provided with the evidence relating to the "the various stops" by the police of Nathaniel Scott. In any event, even if the judge failed to remind the jury of an additional piece of evidence that showed that Scott had been stopped at various times between April 2008 and October 2009 it would not have rendered Makusu's trial unfair: as set out above, a summing up is meant to include a summary of the central evidence in the case, as opposed to a rehearsal of every piece of evidence that has some relevance to the issues under consideration.

Speculation

73. It is argued that the judge invited the jury to speculate as to facts that were not in evidence. In particular, at one stage of the summing up he suggested that a telephone call on 2 October 2009 from the 482 number to a telephone once used by the applicant's girlfriend may have been dialed by the applicant using an old number stored in the telephone's address book. Following submissions, the judge's final direction to the jury on this issue was as follows:

Fifthly, in respect of the calling of the 297 number by the 482 number - that is in your Exhibit 8, members of the jury, if I can ask you to turn to that now, calls 254 and 256 - you will remember this is the call to the 297 number which was no longer on the network and hadn't been on the network since 20 September. The question was why, Mr Lakha asked, would Mr Makusu have called the old number for Yasmine which didn't then appear then still to be in use? One of the possible explanations for that which I raised for you, and it is a question of inference from the evidence, members of the jury, I thought at the time was that if that number had been stored in the old 482 phone when it was still being used by Mr Makusu, it might still have been there if he happened to come across this phone and continued to use it thereafter.

Mr Lakha has submitted that would be speculation and although, as I have indicated, you are entitled to draw inferences from the facts, you must not speculate as to why something happened and as there is no evidence of what was in the address book of the 492 phone which has never been found, I direct you that you should treat this as speculation and you should ignore it for the purpose of your deliberations.

74. That direction was unequivocal. There could have been no adverse effect following the judge's earlier observation. This ground is without substance.
75. In a similar vein, the judge is criticised for inviting the jury to consider that The Pound Shop footage of the applicant using a mobile telephone on 2 October 2009 indicated he was using the 482 telephone number, as he may have made a "missed call" to another telephone number the user of which then rang him back on the 482 telephone number. The judge's final direction was:

The final matter raised by Mr. Lakha on behalf of Mr. Makusu was in respect of that call, apparently made by Mr. Makusu on 2 October, captured on the CCTV footage outside the pound shop at 19.10.57 and the possibility of this being a call made to somebody which didn't get through, you remember, and I raised the possibility as a possible explanation that this was attributable to a call which hadn't got through and therefore might have been shown as a missed call on the intended recipient's phone. I am told that if Mr. Makusu had then made that call which was not answered, there is a possibility at the very least, if not a likelihood, that this would have been shown on the phone data as there are a number of calls of nil duration which might well have gone to voicemail and you should therefore disregard this explanation for the call as speculation in the circumstances.

76. This direction also was unequivocal. There could have been no adverse effect following the judge's earlier direction. Contrary to Makusu's submission, we consider that this would have cured the earlier error on the part of the judge. It follows that we reject the applicant's submission that once the mistake was made it was incapable of remedy at a later stage in the summing up.

Material Issues

77. It is submitted that the trial judge fell into error by commenting a number of times during the summing up that the applicant had not provided an explanation for various "material issues" relating to the use of the 482 telephone and that he had failed to explain whether storing the 482 number under the name "Yes" on the 495 telephone was a reference to Jasmine. It is suggested that these references "gave a strongly misleading impression that there was a duty or burden on the applicant to explain such matters where no such duty existed". This ground is without merit. The judge, having directed the jury entirely appropriately on the burden and the standard of proof, was fully entitled to highlight that the applicant had not provided evidence that was capable of contradicting, undermining or explaining the case and the evidence for the prosecution. Furthermore, any reference to material issues, or similar comment on his part, was no more than a means of highlighting this absence of an explanation in circumstances in which it would have been expected (see section 35 Criminal Justice and Public Order Act 1994).

Arslan

78. The appellant Arslan has advanced 10 grounds of appeal. The single judge only granted leave on the first 6 grounds. We have addressed the merits of the first four grounds of appeal collectively.

Ground 1

79. It is suggested the judge erred in law by admitting evidence of the occasion on which Arslan was shot (31 July 2009) and his convictions for the attempted murder of Nasir Demir and Hamit Coban on 30 September 2009 as being relevant to the facts of the case, and his conviction for possession of a firearm with intent to endanger life on 5 December 2009 as constituting evidence of bad character under gateway D (section 101(1)(d) Criminal Justice Act 2003) on the basis of propensity.

Ground 2

80. The learned Judge erred in ruling that if he were wrong as regards the matters that were relevant to the facts of the case, they were admissible in any event as bad character evidence under gateway D.

Ground 3

81. The learned Judge erred in directing the Jury to enter in the column entitled "Persons responsible" to enter the name of Arslan next to entry 20 of a schedule that summarised events relating to the feud his convictions for attempted murder on 30 September 2009.

Ground 4

82. The learned Judge erred in directing the jury to create a new entry 12A into the schedule that Arslan was shot on 31 July 2009.
83. As set out above, the Crown had a credible case to present that the present murder was not a random shooting but formed part an ongoing violent feud between two rival gangs: the Tottenham Turks and the Hackney Turks. It was agreed by the bar that evidence was admissible on this issue, and the jury were provided - without defence objection - with a schedule setting out the key incidents relating to that feud during the build up to the events on 5 October 2009 (beginning with violence on 24 January 2009 with an incident involving Eren Izzet). Evidence was given during the trial, again without objection, which was relevant to the contents of the schedule.
84. The schedule was circulated in advance of it being provided to the jury. It was agreed to remove reference to the shooting of Arslan on 31 July 2009 and his convictions for the attempted murder of Nasir Demir and Hamit Coban on 30 September 2009, pending legal argument on the admissibility of this material. However, there remained on the schedule for 30 September 2009 an entry that read "Hamit Coban and Nasir Demir were driving when the road was blocked by another car. A gunman came from the passenger seat of this car and opened fire on them, shooting Demir in the arm".
85. Advance notice by way of an application (served on 14 November 2013) had been served to the effect that the prosecution sought to rely on these incidents, together with the appellant's conviction for possession of a firearm with intent to endanger life on 5 December 2009.
86. Some weeks before the start of the trial, the prosecution served a skeleton argument in which it set out that it intended to argue that the incidents on 31 July 2009 and 30 September 2009 were "to do with the facts of the offence" (see section 98 Criminal Justice Act 2003). It was expressly stipulated that the bad character notice that had been served in advance was intended to cater for the possibility that the court took the view that this material was insufficiently connected with the facts of the present offence. This foreshadowed the possible alternative submission by the prosecution that the evidence was admissible as bad character evidence under section 101(1)(d) Criminal Justice Act 2003 (" it is relevant to an important matter in issue between the defendant and the prosecution"), on the basis that it was relevant to propensity. By section 103 Criminal Justice Act 2003 "the matters in issue between the defendant and the prosecution include […] the question whether the defendant has a propensity to commit offences of the kind with which he is charged […]". Accordingly, the Crown's primary position was that this material was simply part of the facts of the offence, and, as an alternative, it was bad character evidence that was relevant to a material issue in the case.
87. The prosecution argued that there was a clear sequence to the incidents: the occasion on which Arslan was shot by a Baikal pistol in Cedar Road close to the Pound Shop on 31 July 2009; the attempt to kill Izzet Eren on 28 September 2009 with the same gun used to shoot Yusuf Arslan on 31 July 2009; the attempt on the lives of Demir and Coban on 30 September 2009 (Arslan was convicted of these offences on 28 September 2010); the murder of Oktay Erbasil on 2 October 2009; and the murder of Cem Duzgan on 5 October 2009.
88. It is relevant in this context to identify Arslan's case as regards this material. He averred that any role he had concerning the Tottenham Turks (he agreed he was "connected" to them) and those who frequented the Pound Shop was as someone who sold cannabis, ran errands and secured taxis. He suggested, therefore, that it would have been easy for others to organise this killing without his involvement.
89. As set out above, the prosecution gave notice well in advance of the commencement of the trial that it intended to rely on this evidence on two possible bases. The defence objected to its admission. It was suggested that it should be excluded under section 101(3) Criminal Justice Act 2003:

The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that 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.

90. Mr Bromley-Martin QC objected to the introduction of the conviction of Arslan on 28 September for possession of a firearm with intent to endanger life on 9 December 2009 as bad character, inter alia, on the basis that it was not the prosecution's case as regards the instant allegation that Arslan had been present at the scene or had been involved in securing the weapon.
91. It was suggested that the occasion on which Arslan was shot (31 July 2009) and his convictions for the attempted murder of Nasir Demir and Hamit Coban on 30 September 2009 were unconnected with the facts of the offence, and that the prosecution was instead attempting to prove evidence of bad character. It was contended, furthermore, that Arslan disputed that he was guilty of the two offence of attempted murder of Coban and Demir, and if the prosecution was seeking to rely on the facts underlying these two offences, it would need to call evidence in support (which in turn would lead to lengthy satellite litigation). In the alternative, it was argued that even if the prosecution was not seeking to rely on the facts underlying the convictions, the Crown was obliged to call the evidence to prove these facts. It was emphasised that the firearm in the appellant's possession on 9 December 2009 was of a different kind to the one used in the instant case. Finally, it was contended that the entirety of this evidence, if admissible, ought to be excluded under section 78 Police and Criminal Evidence Act 1984 or section 103(3) Criminal Justice Act 2003.
92. The judge ruled that the evidence of i) the shooting of Arslan on 31 July 2009 and ii) the evidence of the conviction of Arslan on 28 September 2010 for the attempted murders of Coban and Demir on 30 September 2009 was admissible as being relevant to the facts of the case in relation to which the Arslan had been charged. He ruled, additionally, that the conviction of Arslan on 28 September for possession of a firearm with intent to endanger life on 9 December 2009 was admissible as bad character evidence because it made it more likely that Arslan had access to, and involvement with, guns in October 2009, and that this was relevant to the issue of whether he was involved in the planning and organisation of the present murder. The judge noted that in his defence statement Arslan had set out that although he was a member of the Tottenham Turks, he was employed by them in a relatively lowly capacity and was not involved in the planning or organisation of the present offences and that his contact with his co-accused on the evening and during the night of 5 October 2009 was unconnected with the murder.
93. The judge's direction to the jury was as follows:

Evidence of Arslan's Previous Convictions

We have heard evidence that on 28 September 2010 the defendant (Arslan) was convicted of attempting to murder Hamit Koban and Nasir Demir on 30 September 2009. The offence is set out in paragraph 20 of the schedule, behind tab 2 of your jury bundle.

His conviction of those offences is evidence that he committed them, unless he proves that he did not do so. He has not sought to prove that. You are entitled to take these offences into account as I set out below. It is for you to deicide whether these offences were to do with the facts of the present offence, as showing his involvement in the feud between the two gangs in general and in this offence in particular. If they were, the prosecution submit that his commission of these offences shows that he had a leading position within the Tottenham Turks and makes it more likely that he was a party to the commission of this murder. If they were not to do with the facts of this offence, they amount to evidence of his bad character, which you are entitled to take into account as I set out below.

On 28 September 2010 Arslan was also convicted of possession on 9 December 2009 of a firearm and ammunition with intent to endanger life. This is also evidence of his bad character which you are entitled to take into account as I set out below.

In the old days juries were usually not told about a defendant's bad character. This was because of the fear that such information would prejudice the jury against him and that they would give it more weight than it deserved. Today such evidence is often admitted, because a jury understandably want to know whether what the defendant is alleged to have done is out of character or whether he has behaved in a similar way on another occasion.

Of course, a defendant's bad character is only background; you must not automatically assume he is guilty just because he has a bad character. It does not tell you whether he has committed the offences with which he is charged in this case, what really matters is the evidence you have heard in relation to that offence. So be careful not to be unfairly prejudiced by what you have heard about his bad character.

How may you use this evidence of bad character?

You are entitled to take it into account if you are sure that it shows that on 5 October 2009 he had access to loaded firearms and/or makes it more likely that he was a party to the commission of this murder.

94. The first issue that this court must consider is the approach to be taken to evidence which "has to do with the alleged facts" under section 98 Criminal Justice Act 2003, which provides:

References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a) has to do with the alleged facts of the offence with which the defendant is charged, or

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

95. The ambit of this provision - in particular the nature of the link between the evidence and the alleged facts - is not immediately obvious from the words of the section. In R. v. McNeill [2007] EWCA Crim 2927; 172 J.P. 50, Rix LJ addressed this issue as follows:

14. In our judgment, however, the words of the statute "has to deal with" are words of prima facie broad application, albeit constituting a phrase that has to be construed in the overall context of the bad character provisions of the 2003 Act. Thus the breadth of the words are clearly limited by the context for instance of section 101(1)(c) 's reference to important explanatory evidence, and gateway (d)'s more general reference to important matter in issue, which taken together with section 103 relates to propensity and previous convictions. In our judgment, it would be a sufficient working model of these words if one said that they either clearly encompass evidence relating to the alleged facts of an offence which would have been admissible under the common law outside the context of bad character or propensity, even before the Act, or alternatively as embracing anything directly relevant to the offence charged, provided at any rate they were reasonably contemporaneous with and closely associated with its alleged facts (see for instance the reference to R v Machado noted towards the end of Archbold 13–6).

96. In R. v. Tirnaveanu [2007] EWCA Crim 1239; [2007] 2 Cr App R 23 Thomas LJ gave the following analysis of this section:

(iii) Was the evidence "to do with the alleged facts of the offence"?

21.  Section 98 of the CJA 2003 excludes from the definition of bad character, misconduct on the part of a defendant which has "to do with the alleged facts of the offence with which the defendant is charged". The contention of the prosecution was that the evidence was "to do" with the offences with which the appellant was charged. The consequence of that argument was that, if the evidence was within the exclusion, then it was not for the purposes of the statutory provisions evidence of bad character and, as this court said in Edwards and Rowlands (at [1(i)]) (as qualified in R. v Watson [2006] EWCA Crim 2308 at [19]), the evidence "may be admissible without more ado".

22. There is very little authority on the extent of this exclusion. In R. v Machado [2006] EWCA Crim 837, the defendant charged with robbing a victim wished to use evidence that the victim had taken an ecstasy tablet shortly before the attack and immediately before the attack had offered to supply him drugs. This court held that the matters were in effect contemporaneous and so closely connected with the alleged facts of the offence, and so were "to do" with the facts of the offence. In Edwards and Rowlands, this court observed at [23] that the term was widely drawn and wide enough to cover the finding of a pistol cartridge at the home of one of the defendants when it was searched in connection with the drugs offences with which the defendants were charged. In R. v McKintosh [2006] EWCA Crim 193, this court held that a matter immediately following the commission of the offence was "to do with the offence". In Watson, an assault committed was held to do with the charge of rape committed upon the same person later in the day. Professor J.R. Spencer, Q.C. in his useful monograph, Evidence of Bad Character at para.2.23 suggested that it clearly covered acts which the defendant committed at the same time and place as the main offence and presumably covered acts by way of preparation for the main offence and an earlier criminal act which was the reason for the main crime.

23 The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was "to do" with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce. In the commentary in the Criminal Law Review to R. v T [2006] EWCA Crim 2006; [2007] 1 Cr. App. R. 4 (p.43); [2007] Crim. L.R. 165, it was argued that the court in Machado and McKintosh had taken too narrow a view of s.98 thereby permitting prejudicial evidence to be admitted on the threshold test of relevance alone with no gateway having to be satisfied. We do not agree—the application of s.98 is a fact-specific exercise involving the interpretation of ordinary words.

24. We respectfully agree with Professor J.R. Spencer, Q.C. Evidence of Bad Character at para.2.23, where he suggests that there is a potential overlap between evidence that has to do with the alleged facts of the offence and evidence that might be admitted through one of the gateways in s.101(1) . As he observes in relation to the example he took of prior misconduct being the reason for the commission of the offence, such evidence could be admitted either as "to do" with the offence or as important explanatory evidence under s.101(1)(c) :

"In practice nothing of any legal significance depends on which of these two routes it is by which the evidence comes in."

97. Of particular relevance to the present case, in R. v. Sule [2012] EWCA Crim 1130; [2013] 1 Cr. App. R. 3, this court was considering a case in which the defendant, together with four others, was charged with murder. As summarised in the headnote, the victim was shot in circumstances that were said to have been, in effect, an execution, albeit the deceased was not the intended victim but had been mistakenly identified. In support of its case, the Crown introduced evidence of three incidents involving shootings that had occurred during a three-month period prior to the relevant shooting. It was submitted that these incidents demonstrated a feud for which the murder was intended to be a reprisal. Against that background, the judge held that the evidence of the three incidents was highly relevant to, and had to do with, the alleged facts of the offence with which the defendants were charged within the meaning of s.98 of the 2003 Act. On the application for permission to appeal, it was submitted that evidence of the three earlier incidents ought not to have been admitted pursuant to this provision because the inference to be drawn was that the defendant was involved in a violent gang, probably dealing in prohibited drugs. It was additionally argued that the evidence was not "to do with the alleged facts of the offence" because the incidents were too distant in time from the murder that was the subject of the indictment. It was submitted the evidence concerning these incidents amounted instead to evidence of either the defendant's or another individual's bad character and that the requirements of the various statutory gateways to the admission of bad character evidence were not met.
98. Stanley Burnton LJ set out the court's conclusions on this as follows:

12. In our judgment, the evidence of the three incidents was evidence that was alleged to do with the evidence of the murder in question. The words of the statute are straightforward, and clearly apply to evidence of incidents alleged to have created the motive for the index offence. Indeed, where the evidence is reasonably relied upon for motive, it would be irrational to introduce a temporal requirement. Take these examples. A man is wounded in a shooting. He is hospitalised for six months. On discharge, he is alleged to have shot the man who is alleged to have been his attacker. In another case, the reprisal is the day after the first attack. In the second case, the evidence of the first attack is not bad character for the purposes of s.98, in the first it is.

13. In our judgment, the judge's decision was clearly right, and we pay tribute to his clear and cogent ruling. Incidents (1) and (3) gave rise to the alleged motive for the murder that was the subject of the indictment. Incident [(2)] […] was part of the pattern: as was put by Mr Price, part of a series of "tit for tat" incidents. Each of them had to do with the others, as had the index offence. They were not merely relevant: they were intrinsic to the prosecution's case.

14 We add that, given these four incidents took place within a period of three months, if there were a temporal requirement in s.98(a), we would have held it to be satisfied.

99. The circumstances described in Sule are markedly similar to the present case, and the reasoning in our view is entirely apposite. We consider that the shooting of Arslan on 31 July 2009 and the evidence of the attempted murders of Coban and Demir on 30 September 2009 was admissible because it was relevant to the facts of the present case. Although the prosecution could prove the charges without introducing this material, it fell within paragraph 98 (a) because this evidence of misconduct was directly relevant to it. These events were closely, indeed inextricably, linked to the facts of the present murder. As described above, what otherwise might have been viewed as a random or inexplicable shooting, was on the prosecution case a vital part of the ongoing feud between two Turkish drug gangs in North London – the Tottenham Turks and the Hackney Turks – and most particularly the series of tit-for-tat stabbings and shootings in the Autumn of 2009. We agree with Stanley Burnton LJ that section 98(a) includes no necessary temporal qualification, and it applies to evidence of incidents whenever they occurred so long as they are to do with the alleged facts of the offence with which the defendant is charged. That will involve a highly fact-specific question.
100. Addressing the conviction of Arslan on 28 September 2010 for possession of a firearm with intent to endanger life on 9 December 2009, in our judgment irrespective of the fact that Arslan was not alleged to have been present at the time of the shooting, it was admissible as bad character evidence because it made it more likely that Arslan had access to, and involvement with, guns in October 2009. The case against him was that as a fully participating member of the Tottenham Turks, he had organised the shooting and assisted in its aftermath. This was self-evidently relevant to the issue of whether he was involved in the planning and organisation of the present murder. As set out above, the judge noted that in his defence statement, Arslan had set out that although he was a member of the Tottenham Turks, he was employed by them in a relatively lowly capacity and was not involved in the planning or organisation of the present offences and that his contact with his co-accused on the evening and during the night of 5 October 2009 was unconnected with the murder. Therefore, there was a clear matter in issue between the prosecution and the defence, namely whether his conviction demonstrated he had access to loaded firearms and whether this meant it was more likely to have been a party to the commission of this murder.
101. We turn next to the complaint that the prosecution should not have been allowed to rely on the two offences of attempted murder of Coban and Demir without calling evidence relating to that incident, because Arslan disputed that he was guilty (although it was also contended by Mr Bromley Martin that this would inevitably have led to lengthy satellite litigation that should not have been permitted). On this secondary basis, therefore, it was suggested that the prosecution should not have been permitted to rely on this material (Mr Bromley Martin relied on R v Humphris [2005] EWCA Crim 2030; 169 JP 441). In the alternative, it was argued that even if the prosecution was not seeking to rely on the facts underlying the convictions, the Crown was nonetheless obliged to call the evidence to prove these facts, and in this regard the court was taken to R v C [2010] EWCA Crim 2971; [2011] 1 Cr App R 17.
102. The history is critical in the assessment of this aspect of this ground of appeal. The schedule of relevant events was agreed at the bar and it was distributed to the jury. To summarise, as set out above, at item 20 it was recorded against the date 30 September 2009 that:

Hamit Coban and Nasir Demir were driving when the road was blocked by another car. A gunman came from the passenger seat of this car and opened fire on them, shooting Demir in the arm.

103. In its original form the schedule included an entry for the shooting of Arslan on 31 July 2009, and his conviction for the attempted murders of Demir and Coban against item 20. By agreement between the prosecution and Arslan's counsel this additional information was removed, pending a decision by the judge as to its admissibility. Arslan agreed, therefore, that a schedule containing 22 items, entitled "Other incidents in the feud between the Tottenham Turks and the Hackney Turks" should go before the jury as an agreed history of the feud between the Tottenham Turks led by the Erens and the Hackney Turks led by the Armagan family. Arslan knew that the judge in due course would decide whether his convictions for these attempted murders were admissible. Once he had resolved this issue, the judge invited the jury to annotate the schedule to reflect the fact that Arslan was responsible for the attempted murders at entry 20. Similarly, the judge suggested to the jury that they add an entry for the occasion when Arslan was shot on 31 July 2009. Mr Bromley Martin submits that Humphris is authority for the proposition that although the fact of the conviction can be proved under section 117 Criminal Justice Act 2003 without calling any witness, that section cannot be used to adduce details of what the appellant was alleged to have done when committing the crimes leading to the convictions, given that information will be dependent on the evidence in the case. It is unnecessary to resolve that submission, because it is unarguable this conviction is unsafe because material that Arslan had agreed should go before the jury in edited form was later linked two of Arslan's previous convictions that were properly admitted under sections 101 (1) (d) and 117 Criminal Justice Act 2003 and section 74 Police and Criminal Evidence Act 1984, when counsel was aware that this was an issue on which the judge was to rule. Put otherwise, the schedule went before the jury as an agreed document when it was known that the judge's ruling might lead to the introduction of Arslan's convictions for the events reflected at item 20.
104. In our judgement, the circumstances in which the schedule went before the jury brought it within section 10 Criminal Justice Act 1967:

Proof by formal admission.

(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.

(2)An admission under this section—

(a)may be made before or at the proceedings;

(b)if made otherwise than in court, shall be in writing;

(c)if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;

(d)if made on behalf of a defendant who is an individual, shall be made by his counsel or solicitor;

(3)An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).

(4)An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.

105. These matters had been reduced to writing in this way in order to avoid calling a considerable body of evidence, and the contents of the schedule were clearly designed to be treated as, and therefore amounted to, an admission of facts by the parties in the case. It constituted conclusive evidence in the trial of the facts admitted. There is no evidence that these admissions had been made by mistake or as a result of a misunderstanding, and there was no basis before the court to justify what constituted an attempt to resile from them (see section 10 (4) above).
106. Similarly, the decision in R v C does not assist the appellant. As Lord Judge observed in giving the judgment of the court:

9.  Section 74(3) [Police and Criminal Evidence Act 1984] is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and, therefore, that the jury in the current trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial.

107. The defendant did not call evidence in this regard. There was no obligation on the prosecution to call any evidence on this issue in these circumstances.
108. It is suggested that the judge went too far by putting the gun into Arslan's hands. This is not accurate. When the admissions were read out which included the offences of attempted murder, the judge invited the jury to write in against item 20 in the schedule "Yusef Arslan" as the person who was "responsible". During the summing up, the judge said:

The facts of that matter are set out in your schedule. Koban and Demir were driving when the road was blocked by another car, a gunman came from the passenger seat of his car and opened fire on them, shooting Demir in the arm and, as you know on 28 September 2010 Yusuf Arslan was convicted of those attempted murders.

As I told you in my legal directions, the prosecution are entitled to rely on the convictions for these offences, which in this case is agreed and is in your agreed facts No. 94, as evidence that Arslan committed them, that he was party to those offences. It is not necessary in order to prove the convictions for the prosecution to call either Koban or Demir, the two victims. If Mr. Arslan had wished to tell you anything further about these offences, he was entitled to do so in evidence. As you know he has chosen not to do so.

109. The judge, therefore, did not go further than indicate that the conviction meant that the appellant was a party to the offences.
110. Finally, in our view this was, irrespective of the evidence relating to firearms being used on other occasions, a strong prosecution case against Arslan: the circumstantial evidence was compelling as regards his movements and the circumstances in which he was apparently in contact with others involved in this incident at the relevant time (including assisting Lunkulu in leaving the scene).
111. There was no unfairness in the trial or lack of safety in the appellant's conviction as regards this ground of appeal in these circumstances.

Ground 5

112. The prosecution served the initial case against Arslan on 20 May 2013, and this was the case that was later transferred to the Crown Court. Within the papers the Crown included the statement of Okan Erbasli (statements page19), the brother of Oktay Erbasli. By way of letter of 20 December 2013 the Crown re-categorised this statement as unused material and it declined to introduce this material as part of the prosecution case. The statement was in the following terms:

On 5^th October 2009 I received a lot of calls as far as I remember as it was a few days after my brother Oktay was killed. I have been asked if I know a male by the name of Yusuf Arslan and DC Setter has shown me his photograph. I can confirm that I do know this man as he was a friend of my brothers. I don't know him very well but I have spoken to him on the phone previously.

I don't remember whether he called me on that day, but of the phone records say he did than he must have done. I don't remember what our conversation would have been about though. I am told that the calls were made in the evening around 10pm and then again at just after 11.35pm- this does not help jog my memory however.

I have been asked if I knew a male called Cem Duzgun I did not know him but I became aware of him after he had been shot and it was all over the news.

I have been running my cab firm Ambassador Cars in Holloway Road for about the last eight years-from about 2005, I didn't have any involvement in the running of the Pound Shop that used to be at 645 High Road, Tottenham but I did go there to see my brother Oktay as he was there most of the time. My appearance then would have been similar to the way I look now-i.e my hair would have been shaved.

I have been asked if Yusuf Arslan made any mention of Cem Duzgun or a shooting at the Clapton FC Social Club- I don't remember any mention of these things.

113. The appellant submits that this statement demonstrates that the prosecution incorrectly interpreted two of the telephone calls that were made during these events (at 22.05 and 23.38). Put generally, as set out above, it was the case for the Crown that it was to be inferred that these calls from Arslan were to the effect that "your brother's death is about to be avenged" and "your brother's death has been avenged". It is suggested that the statement of Okan Erbasli demonstrated that this was an unjustified inference, given the witness indicated that although he spoke to Arslan on the day of the shooting nothing was said, as he recalled the matter, as regards the shooting of Cem Duzgan.
114. The judge was invited to order the prosecution to introduce this evidence and it is submitted that the learned Judge erred when he refused to accede to this request.
115. The applicant relied on R v Russell-Jones [1995] 1 Cr. App. R. 538 in which case this court set out the principles to be applied in this context. These have been helpfully set out in Archbold 2015 at paragraph 4-347 as follows:

i. Generally speaking the prosecution must have at court all the witnesses whose statements have been served as witnesses on whom the prosecution intend to rely, if the defence want those witnesses to attend. In deciding which statements to serve, the prosecution have an unfettered discretion, but must normally disclose material statements not served.

ii. The prosecution enjoy a discretion whether to call, or tender, any witness they require to attend, but the discretion is not unfettered.

iii. The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. The dictum of Lord Thankerton in Adel Muhammed El Dabbah v. Att.-Gen. for Palestine [1944] AC 156, PC (court will only interfere if prosecutor has been influenced by some oblique motive), does not mean that the court will only interfere if the prosecutor has acted out of malice; it means that the prosecutor must direct his mind to his overall duty of fairness, as a minister of justice. Were he not to do so, he would have been moved by a consideration not relevant to his proper task—in that sense, an oblique motive.

iv. The prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, they regard the witness's evidence as unworthy of belief. In most cases, the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution have discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say "incredible", then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called.

v. It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a witness has to say is at best marginal.

vi. The prosecutor is also the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one that is less favourable to the prosecution case than that of the others.

vii. A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the prosecution rely. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in their endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken.

The court added that these principles should not be regarded as a lexicon or rule book to cover all cases. There may be special situations that have not been adverted to, and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general, the court will only interfere with it if he has gone wrong in principle.

116. The judge ruled that the statement contained nothing of relevance to the prosecution's case and he noted that it had mistakenly been included in the papers served when the case was transferred. He decided that in the circumstances the prosecution were not under a duty to call the witness or read his statement and he noted that the appellant was entitled to introduce this evidence.
117. In our judgment, the statement of this witness was notably vague and uncertain. He was unable to throw any light on what had been discussed (indeed, he was dependent on the records in order to say that one or more telephone calls had occurred, albeit the records did not improve his memory) and at best he could not recall if any mention had been made of Cem Duzgun. Although this witness was able to give some slight evidence concerning the primary facts, it was clearly of low value. Okan Erbasli would therefore have been able to provide only slight assistance to the jury and the prosecution was not under a duty to call him solely "to assist the defence in its endeavour to destroy the Crown's own case". We do not consider that in those circumstances the approach of the prosecution or the judge is to be faulted. The witness was available to be called by the appellant.

Ground 6

118. The appellant submits the judge erred in failing to direct the jury as to their power to return an alternative verdict of assisting an offender contrary to section 4(2) of the Criminal Law Act 1967.
119. It is highlighted by the defence that the prosecution case against Arslan, in relation to participation in the murder, included the contention that the appellant had been on a round trip in the company of Lunkulu two hours before the shooting and that he had organised a taxi for Lunkulu about 45 minutes after the shooting. It is suggested that the prosecution's evidence of participation before the shooting was weak, whilst the evidence of assisting after the shooting was relatively strong. In those circumstances it is argued there was accordingly a strong factual basis for the alternative verdict of assisting an offender.
120. Mr Bromley Martin relies on the House of Lords decision in R. v. Coutts [2006] UKHL 39; [2007] 1 Cr App R 6 in which it was held that the public interest in the administration of justice will be best served if a judge leaves to the jury any obvious alternative offence to the offence charged if there is evidence to support it. An "obvious alternative" in this context means such alternatives as suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge. But there are cases where an alternative verdict would distract the jury by forcing them to consider something which was remote from the real point of the case.
121. This in our judgment was such a case. As we have already observed this was a strong case against Arslan on the charge of murder. Although assisting an offender is not a trivial offence, the central allegation against Arslan was extremely grave – that he had orchestrated this revenge murder – and the suggestion that he had merely organised a taxi with knowledge after the event was wholly remote from the real point of the case. Arslan accepted he had taken this step but he did not admit to having committed the offence of assisting an offender. If follows that neither the prosecution nor the defence suggested that the true position was that Arslan had committed this lesser offence. As Sir Igor Judge (as he then was) in R v Foster [2007] EWCA Crim 2869; [2008] 1 Cr App R 38 observed, a judge does not have to leave an alternative verdict if a "possible compromise verdict would not reflect the real issues in the case" [61]. In these circumstances there was no prejudice to the appellant that this option was not left to the jury, and instead they were left with the straightforward choice of guilty of murder or not guilty.

Ground 7

122. It is contended the judge erred in setting out certain areas in relation to which Arslan had failed to provide an explanation as a result of his decision not to give evidence. It is argued, for instance, that the judge ought not to have referred to his failure to give evidence about the gathering at the Pound Shop on 2 October 2009 (said to be a council of war by the prosecution); his failure to give evidence about what he was doing between 20.20 and 21.00 on 5 October 2009 (when the prosecution said that he was with Lunkulu); and his failure to give evidence about the reason for his call at 23.03 on 5 October 2009 (when the prosecution said he was making a call about the shooting).
123. The judge directed the jury that they were not to draw any inference from the failure by Barabutu, Makusu and Arslan to answer questions in interview. He gave an entirely conventional direction as regards their silence at trial, and in particular that their silence may count against them if the jury concluded it was because the defendant in question had no answer to the prosecution's case or none that would bear examination. The judge directed the jury that they should only consider reaching this conclusion if the prosecution's case was sufficiently strong to call for an answer. Although at various stages in the summing up the judge pointed out areas in relation to which Arslan had not given evidence, the judge stressed that this did not place an obligation on him to give evidence. Instead, the judge highlighted that if the case was sufficiently strong, the jury would be entitled to draw an adverse inference. It is correct that the judge removed comments of this kind from the section of the summing up in which he dealt with issues of law, but he was not bound thereafter to remain silent on this matter. It is not unusual for judge's to make comments on issues such as this when reviewing the evidence. The judge's approach was wholly unexceptional and this complaint is without foundation.

Ground 8

124. It is submitted summing up favoured the prosecution case and that it was unbalanced. For the reasons set out in the review of the Ground of Appeal that is common to all the appellants/applicants, this complaint is without foundation. The judge's summary of the evidence was thorough and comprehensive, in a case in which only one defendant gave evidence.

Ground 9

125. It is argued that the judge made materially misdirected the jury in the summing up as to the facts of the case. It is submitted that these errors were significant and were capable of misleading the jury. During the course of the summing up, submissions were made on behalf of Arslan complaining about the summing up. A document was submitted containing suggested corrections, clarifications and additions. It was asserted, for instance, that the judge should remind the jury of DC Holt's evidence that Arslan could be seen running errands on the Pound Shop CCTV (supporting the defence argument that he was not a leading member of the Tottenham Turks but an errand boy); it was asserted that the judge should remind the jury that there was no evidence of any phone contact between Arslan and Kemal Eren (a leading member of the Tottenham Turks); and it was asserted that judge should remind the jury of the evidence suggesting that Arslan's call at 23.03 on 5 October 2009 could have been to someone closing the Pound Shop.
126. Having heard the submissions, the judge did not make any corrections, clarifications or additions. In the summing up the judge reminded the jury that the CCTV footage appeared to indicate that Arslan ran errands. The judge was not obliged to remind the jury of every point made by defence counsel in his closing speech. The conviction of Arslan is not unsafe because the judge did not refer to all of the contentions of the appellant.

Ground 10

127. Finally, Arslan adopts the points on appeal advanced by Lunkulu. These have been addressed earlier in this judgment.

Barabutu

128. Mr Blunt Q.C. has not advanced any separate grounds of appeal against conviction outside the ground common to all the accused, addressed above. He has invited the court to consider whether Barabutu's conviction should survive a successful appeal by Lunkulu.

Conclusion

129. For the reasons set out above, these convictions are safe and Arslan's appeal against conviction is dismissed and the renewed applications for leave to appeal the convictions of the other applicants are refused.

The Grounds of Appeal against Sentence

The Sentences

130. As set out above, Barabutu (17 at the time of the offence) was ordered to be detained at Her Majesty's Pleasure with a minimum term of 18 years' custody; Makusu (22 at the time of the offence) was sentenced to life imprisonment with a minimum term of 28 years' imprisonment; and Arslan (19 at the time of the offence) was sentenced to life imprisonment with a minimum term of 33 years' imprisonment. Albeit there is no application by Lunkulu (24 at the time of the offence) in this regard, it is of note that he was sentenced to life imprisonment with a minimum term of 35 years' imprisonment.

The Sentencing Provisions

131. Paragraph 5 of Schedule 21 to the Criminal Justice Act 2003 applied in this case as regards Lunkulu, Makusu and Arslan: given this was a murder involving the use of a firearm the starting point for the minimum term was 30 years' custody. Barabutu was under 18 at the time of the offence. Paragraph 5 did not apply in his case; instead, paragraph 7 provided a starting point of 12 years' custody.
132. In Attorney General's References (Nos 143 and 144) (R V Brown and Carty) [2007] EWCA Crim 1245; [2008] 1 Cr App R (S) 28 it was decided that it would be wrong for a sentencer to determine the sentences for each offender of equal culpability independently of each other when the accused are just over and just over 18 years of age. The proper approach would be to move from each staring point to a position where any disparity was no more than a fair reflection of the age difference.

The Sentencing Remarks

133. In passing sentence the judge observed that the murder was committed in the context of a bloodthirsty feud between two North London drug gangs. The murder required planning, including recruitment and reconnaissance, and the accused obtained a firearm. The accused all knew that the plan was to shoot a member of the Hackney Turks with a sub-machine gun, although the victim, who was only 21, had no apparent involvement with the Hackney Turks. He was shot several times.
134. The judge determined that the particular aggravating features relevant to this offence were the significant degree of planning; the element of gang warfare; the killing of an innocent individual who had no involvement in the conflict; and the discharge of a powerful automatic gun, in a public place.
135. Lunkulu was 24 at the time of the murder and he was sentenced as the gunman. The judge found that it was an aggravating feature that he had committed the offences of manslaughter, kidnapping and perverting the course a month before the murder. Makusu was 22 at the time of the murder. He was a close associate of Lunkulu and other members of the Tottenham Turks. He carried out two reconnaissance trips in advance to the Social Club. He also accompanied Lunkulu to the scene, in order to provide assistance if required. In 2012, he committed three robberies and he was convicted of conspiracy to blackmail, albeit the judge (at the prosecution's invitation) did not treat these convictions as an aggravating feature in respect of the murder. Barabutu was 17 at the time of the murder. His only connection with his co-accused was through his Makusu who was his cousin. He organised transport from Tottenham to the vicinity of the Social Club, and the judged decided that he was one of the group on the Comberton Road CCTV shortly before the murder. Accordingly, he was nearby and ready to help in respect of the shooting. In 2007, he was sentenced to 4 ½ years' detention for various offences but the judge did not treat these as an aggravating feature in respect of this murder. Arslan was 19 at the time of the murder and he was a leading member of the Tottenham Turks. He was present at the meeting (the "council of war") when the murder was planned and was one of the group who organised the shooting. Although it was not known who recruited Lunkulu and Makusu, Arslan knew them both. When he and Lunkulu went on the trip approximately two hours before the murder, it was likely that they were collecting the gun. Although he remained at the Pound Shop whilst the murder was committed, he subsequently arranged a minicab for Lunkulu and Barabutu in order to assist them in departing from Hackney. It was a further aggravating feature that following this offence Arslan had been convicted of attempting to murder two Hackney Turks, these offences having been committed one week before the present murder. In addition, since this offence he had been convicted of possessing a firearm with intent to endanger life, the offence having been committed a couple of months after the murder.
136. In each of their cases the judge took into account their ages at the time and the delay in this case coming to trial.

The Single Judge

137. The single judge granted leave to appeal in the case of Arslan and Barabutu.
138. In refusing leave to appeal in the case of Makusu, the single judge observed:

You accept that the starting point in this case (which involved the use of a firearm) was 30 years. I do not accept that the Judge was not entitled to take the view that there was a significant degree of planning or premeditation: that was accordingly an express aggravating factor under para.10(a) of Sch. 21. The Judge was well aware of the other circumstances, including your relatively young age. In my view it is not arguable that the minimum term of 28 years was either wrong in principle or manifestly excessive.

Arslan

139. On behalf of Arslan it was submitted, first, that the judge failed to reflect sufficiently this appellant's youth and immaturity. It is highlighted that Arslan was 19 at the time of the murder and received a minimum term of 33, whereas Barabutu was 17 at the time of the murder and received a minimum term of 18 years. Second, it was submitted the judge sentenced Arslan on a basis that was not supported by the evidence. In particular, it was suggested that there was no evidential basis for the finding i) that Arslan was a leading member of the Tottenham Turks; ii) that Arslan recruited Lunkulu and Makusu to commit the murder; and iii) that Arslan collected the gun used to commit the murder, approximately two hours beforehand.
140. Against that background, it is argued the judge failed to reflect sufficiently that Arslan was not present at the murder.

Barabutu

141. On behalf of Barabutu it is similarly submitted the judge passed sentence on a basis that was not supported by the evidence: i) that the murder involved a significant degree of planning; ii) that it was committed in the context of gang warfare; and iii) it involved the discharge of a powerful gun. Mr Blunt QC contends that the evidence suggested that Barabutu had some limited involvement in planning the murder and there was a complete absence of evidence that he had been involved in this gang warfare. It is emphasised that he had no telephone contact with Lunkulu or Arslan, and he did not frequent the Pound Shop. He had not participated in the reconnaissance of the site of the murder. In addition, by virtue of his dark clothing, it is submitted Barabutu could not have been one of the "shooting party" seen on the Comberton Road as caught by CCTV. In the result it is submitted the discharge of a powerful gun was not a relevant consideration in his case.

Makusu

142. It is submitted that in sentencing Makusu, the judge erred i) in finding that the murder was aggravated by a 'significant degree of planning' and ii) in failing to take into account several mitigating factors. It is argued that the murder was planned over only three days and the shooting lacked organisation. In addition, it is contended that the evidence of Makusu's involvement in the planning was limited two reconnaissance trips. As a result, the degree of planning could not properly be characterised as significant.
143. It is emphasised that the judge failed to take various mitigating factors into account, which included Makusu's youth and good character at the time of the murder; the time-lapse between the incident and conviction; and the fact there was no evidence that Makusu was present at the Social Club when the shooting occurred. Finally, there was no evidence that he was remunerated.

Decision

144. In our judgment, the judge was entitled to conclude that this murder was a planned revenge attack, which formed part of a campaign of violence in which tit-for-tat acts of extreme violence had become a routine feature. The context of this murder was, therefore, a highly aggravating factor. It was carefully planned (there had been two reconnaissance trips); there was an undoubted intention to kill; a seemingly innocent victim was selected; and a powerful firearm was used.
145. Arslan's sentence of life imprisonment with a minimum term of 33 years' imprisonment was entirely justified, given his extensive involvement in this continuing violence; indeed, he was seemingly wholly undeterred by his grave injury three months earlier. He was, furthermore, sentenced appropriately on the basis that he was significantly involved in the organisation of this murder, including collecting the firearm and facilitating the escape of the gunman from Hackney. The fact that he was not present at the scene was at best a neutral factor, and more probably revealed his organisational role. Although he was young (as noted by the single judge in granting leave), given his commitment to, and high level of involvement in, this criminality as demonstrated by his other convictions, a tariff of 33 years' was within the judge's discretion.
146. Mr Bromley Martin relied on the authorities of Attorney General's References (Nos 143 and 144) (R V Brown and Carty) (see above) and R v Taylor [2007] EWCA Crim 803; [2008] 1 Cr App R (S) 4. In Taylor it was indicated that the starting points under schedule 21 Criminal Justice Act 2003 should not be approached in a mechanistic way. In the context of sentencing for murders arising out of a robbery for defendants who are under 18, the starting point is 12 years and for those who are 18 years or above the starting point is 30 years. the court observed: "[…] if two offenders of equal culpability kill in the course of a robbery and one was aged 17 and a half and the other 18 and a quarter, the statutory starting points would be 12 years and 30 years but significantly divergent minimum terms for the two offenders would be neither just nor rational. The question we have had to consider is the same as in any appeal against sentence, namely whether the sentence imposed was wrong in principle or manifestly excessive". (our emphasis)
147. In our judgment the considerable difference in the sentence between Arslan and Barabutu is not vitiated because insufficient attention was paid to this principle. They were not defendants of equal or similar culpability. The distinction between the sentences imposed on these accused was justified by the difference in their antecedents and the different level of involvement in these events – Arslan was implicated in this overall criminality in a far more substantive way.
148. Barabutu was correctly sentenced on the basis that he was involved in planning this murder and it was open to the judge to conclude that he was one of the "shooting party" seen on the Comberton Road, notwithstanding the points that could be made as to the clothing of the men as seen on the CCTV. The judge was entitled to take into account in his case that a powerful firearm was used in this murder. Even allowing for a lack of evidence indicating involvement on his part in other aspects of this long-running feud, a minimum term of 18 years' for this particular offence was entirely justified.
149. Makusu was 22 at the time of the murder. On the basis that he was a close associate of Lunkulu and other members of the Tottenham Turks; he carried out two reconnaissance trips in advance to the Social Club; and he accompanied Lunkulu to the scene, in order to provide assistance, if required, justified the significant tariff imposed in his case. His renewed application is unarguable.

Conclusion

150. The application for leave to appeal by Makusu is refused and the appeals against sentence by Arslan and Barabutu are dismissed.