England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Lewes Crown Court
Mr Recorder Morris-Coole and HHJ Scott-Gall
T20137529

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/10/2015

Lord Justice Fulford:

Introduction

1. On 30 January 2015 in the Crown Court at Lewes (Mr Recorder Morris-Coole and a jury) the appellant was convicted unanimously on count 2 (making a threat to kill Michael Maddock intending that Chelsea Banks would fear that the threat would be carried out), contrary to section 16 of the Offences Against the Person Act 1861) and by a majority (10:2) on count 1 (possessing a firearm with intent to commit an indictable offence, namely murder, contrary to section 18(1) of the Firearms Act 1968).
2. On 29 May 2015 H.H. Judge Scott-Gall sentenced the appellant to 12 years' detention on count 1 and to a concurrent term of 8 years' detention on count 2.
3. Styles appeals against conviction by leave of the single judge. He also applies for leave to appeal against sentence, the Registrar having referred the application to the Full Court.

The Facts

4. In a sentence, the prosecution's primary case was that the appellant, who legitimately owned shotguns, left his home on 5 December 2013 with the intention to murder Michael Maddock, and had it not been for the timely intervention of the police he would have succeeded in his objective. He had previously threatened Chelsea Banks that he intended to kill Mr Maddock.
5. Chelsea Banks began a relationship with the appellant in 2012. They split up in December 2012 but got back together again in May 2013. During their time apart Ms Banks became involved in a relationship with Mr Maddock. She told the appellant that she had been sexually unfaithful with Mr Maddock and the appellant became extremely jealous.
6. At some point during the summer, the appellant, together with a friend, drove from his home in Haywards Heath to Burgess Hill, where Mr Maddock lived, in order to look for him. During his search, he came across some young men (who gave evidence at the trial) in a park near Mr Maddock's home address. He asked where Mr Maddock lived and told them in a threatening manner that he intended to beat him up.
7. Shortly after this last incident, the appellant, having just turned 18, acquired three shotguns. He also traced Mr Maddock on a social network site.
8. Mr Maddock confirmed in evidence that he had been in a relationship with Chelsea Banks for about 4 months. He was aware that the appellant was her ex-boyfriend and he said that he had received messages from him via 'Facebook'.
9. On 22 August 2013 Mr Maddock received a message from the appellant which read "Safe bruv G lol mobhead. Why punch a tiger when you can shoot it. Just think about that (??)". This was sent very shortly before the appellant acquired the shotguns, and the Crown relied on this material as evidence of the appellant's intention at the time of these offences.
10. On Sunday 1 December 2013 Ms Banks and the appellant had an argument and she ended their relationship. In the aftermath of this event, she sent and received texts from the appellant, during which he begged her to resume their relationship. She refused.
11. On the evening of 4 December 2013 the appellant exchanged a lengthy series of texts messages with Ms Banks. Initially, these appeared conciliatory on his part. However, once Ms Banks made it clear that she would not relent, his tone changed, and he started to threaten Mr Maddock:

:He's fucking made me like this. He fucking done this. He's fucking dead not hurt dead';

When Ms Banks said she would call the police, the appellant sent a text in return:

"calling the police is picking him over me. He acts big so let him be big';

'He's done tonight. I love you. I'm sorry xxxxx'.



12. During this exchange of texts the appellant told Ms Banks that he had stopped taking steroids and thrown them away, although in evidence he said he had continued to take them along with other drugs, saying this was part of the reason why he was not in his right state of mind on the night in question. He therefore conceded in evidence that he had lied to her on this issue.
13. On 5 December 2013 at 1.02 am Mr Maddock received a further message from the appellant via Facebook which read "we need a chat U really fucked up this time".
14. Slightly later, at 1.22 am, the appellant sent Ms Banks a text which said "He's done tonight I love you I'm sorry" ...count 2).
15. On 5 December 2013 at 2.45 am police officers, who were on routine patrol in West Sussex, saw the appellant walking along London Road, Burgess Hill carrying a double-barrelled shotgun over his shoulder. They stopped him and he was ordered to put the gun down. He did so and they discovered that the shotgun was loaded and that the appellant had a further 4 cartridges in his pocket. The appellant was several miles from his address in Haywards Heath but only 300 yards away from Michael Maddock's home.
16. He was arrested and made no comment in interview.
17. The appellant gave evidence at trial. He said he had applied for and obtained a licence for a shotgun, predominantly to shoot rabbits. On his eighteenth birthday he collected three shotguns. On the afternoon of 4 December 2013 he went shooting behind his employers' premises. He took potshots at a couple of pigeons
18. On his return home, he placed the shotgun in its case on his bed, rather than in the gun cabinet. He made some telephone calls and, having finished a drink, he put on his jacket, picked up the shotgun and left his house. He was not thinking clearly and he described his mind as "not good". He had considered shooting himself but would not have done this at home. These suicidal thoughts, however, did not last for very long as he realized how stupid they were. He knew there were two live cartridges in the breech of the gun and he also had compatible cartridges in his pocket. He said he did not have any specific intention when he left home and no sense of direction. He just walked in a straight line and followed the path to Burgess Hill. He had his shotgun on his shoulder the entire time. He maintained he did not know where Mr Maddock lived. He had mixed feelings as he was walking along and was thinking about Chelsea. He said he "needed help" and was hoping that he would be arrested. His evidence was that if he not been stopped, he would have kept walking, straight on past Maddock's house. When the police did eventually stop him, his reaction was that he was "scared and slightly relieved".

Relevant events during the trial

19. During the trial, the judge permitted the prosecution to add counts 3 and 4, namely possession of firearm with intent to cause fear of violence and possession of a loaded shotgun in a public place without reasonable excuse or lawful authority. In essence, the prosecution argued that there was evidence which a jury could properly accept in order to convict of these lesser, alternative verdicts. In the event, as set out above the jury convicted on counts 1 and 2.
20. When giving evidence, the appellant told the jury that he did not have a driving licence, and admitted that he had driven when unsupervised. This particular piece of evidence emerged by happenstance during his testimony, in that counsel did not deliberately elicit it.
21. The appellant's counsel submitted that the judge should include a good character direction in the summing up, on the basis that he only had a minor and irrelevant conviction (he was convicted at the Sussex Magistrates' Court on 19 February 2014 for possessing a controlled drug of class C, for which he was fined £40), along with a police reprimand for common assault in 2007 and a warning in 2008 for theft. The judge refused the application.
22. After the jury retired, they sent the judge the following question (there were two other questions that are irrelevant for these purposes):

Would you please let us know whether, in English law, the intent to murder, though it may be present in a person's mind for a fleeting second or more, if that person has a change of mind or begin to cool off during the course of their actions, does the intent become cancelled?

23. The answer provided by the judge is set out below.

Grounds of Appeal against Conviction

24. The appellant advances three grounds of appeal.

Ground 1: "Intention"

25. It is submitted that – particularly following the jury note on the issue of intention (see above) – the judge improperly directed the jury that they could convict the appellant on count 1 if they concluded his intention lasted no longer than a "fleeting second", before he cooled off. The court is reminded that this was not the Crown's case, and therefore a conviction on such a technical and transitory basis, that did not reflect the Crown's case, was unsafe and unfair.
26. The judge originally directed the jury on the issue of intention at the beginning of the summing up in the following way:

When I come to look at the indictment I will be particularly drawing your attention to the offences which require intent. Intent in this case is the whole crux of the case, and it is the intent of the defendant that matters.

Intention bears its ordinary sense and its ordinary usage, it does not require any further definition than that. The intention which is referred to in these counts is his intention at the time of committing the act. It may be that when you come to consider intention you will find that what has happened in the past is relevant. You may find that certain things that have been said or done, certain acts or behaviour leading up even over a period of quite some time assists you in forming a view of this defendant's intention at the particular time.

What is the particular time? It is when he is walking down the London Road with the gun over his shoulder and he is stopped by the police. That intention may have been formed within a very short time of that moment I have just described, or it is an intention that may have built up over time, and the way you approach this, members of the jury, is in various ways. You have the evidence in this case and you look at it in the context of all of the evidence. Do not cherry-pick, you will find some parts are more useful to you than others, but look at it in the context of the whole.

27. Later in the summing up, after the judge invited the jury to consider the appellant's account as to how he happened to be arrested in the vicinity of Mr Maddock's home, he continued as follows:

Well, was it coincidence? These are matters that you have to consider, and you may be assisted by looking at any sort of exchanges there had been recently by text or otherwise, between Maddock and the defendant or the defendant and Chelsea. That is the way you approach intention, members of the jury, but also you look at it in a common sense light. Here is a young man who had got a gun licence, been trained in it and everything of that nature, and can you in some way find assistance from that and the circumstances to indicate what his intention was at the time when he walked along that road? He said his intention, he gave thought to it briefly, was to commit suicide. Well, it is something for you to consider as part of his case, but whether it tallies with his behaviour is another matter you may find all together.

28. When dealing with the counts on the indictment, the judge gave the following direction as regards count 1:

When you go to count 1, the sole issue is that of the intent of the defendant at the particular time, and this is on 5th December.

The judge then set out a summary of the history, focussing particularly on the communications set out above and the events leading up to the appellant's arrest. He directed them:

The way you look at intention I have already directed you. I reiterate, do not in any way bring speculation into your considerations, but intention is largely the product of inference. Inference is not speculation, because it is based upon evidence in the case and your findings of fact, and it must have that basic route before you are entitled to draw any reasonable inference. When you are looking at intent it is not the same way as I was directing you to a date in count 2, you are looking at effectively the history of the evidence that has been placed before you, whether the altercations, things said in the heat of the moment in the past had really died away and lost their significance, or whether possibly there was this deep-seated emotion and feeling as far as the defendant was concerned, and that through the course of various events it flared up.

You may think the incident at the skate park, for instance, trying to find out where Michael Maddock lived, indicating that he was going to be hurt possibly that had passed into history, because months then passed before any sort of communications on that; or whether it was like a lingering cancer in the mind of this defendant, it was something that hadn't gone away or left him. These are matters that you have to assess on the basis of the evidence.

29. Having reminded the jury of parts of the evidence of the appellant, the judge concluded his directions on intention as regards count 1 as follows:

You may think that there are other passages which help you with this question of intention, but in count 1 the intention has to be that of murder, unlawful killing of another. If you are not satisfied so you are sure on that there must be a verdict of not guilty, and then you pass to count 3.

30. After he received the note from the jury on the question of intention set out above, the judge gave the following direction (after he had discussed the matter with counsel):

The starting point is count 1 in the indictment, and likewise this also applies if you are actually considering count 3, because both are offences of specific intent. I will take count 1 as an example of the two, that on this particular day, 5th December 2013, "the defendant had with him a firearm, namely a shotgun, with intent to commit an indictable offence, namely, murder." What that means in relation to your question is that if on this day at a time when the defendant had the shotgun in his possession he had the intent to commit murder then that constitutes the offence. I have already directed you that the word "intent" should bear its ordinary everyday meaning and I would not propose to define it further; that remains so. But, I think it is right that I should remind you that the prosecution puts its case here that this defendant set out from home with his loaded shotgun and walked that distance until he was stopped by the police and he had that intent to murder throughout up until the time that he was stopped. That is the prosecution case. When you look at count 3, the intent to cause fear of violence has to be approached in the same way as I have just directed you, because that is a different form of specific intent that in all other respects the same considerations apply.

There we are, members of the jury, I am going to ask you to retire again and continue your deliberations.

31. The short point taken on this ground of appeal, we repeat, is that the judge, in the final direction he gave to the jury, left open the possibility that the defendant could be convicted on the basis of a "fleeting intention", which did not reflect the prosecution's case. It is submitted that the conviction is unsafe as a result.
32. We disagree. The direction the judge gave to the jury was correct in law. The offence was committed if the appellant, with the gun in his possession, intended to commit murder within the timeframe of the indictment (viz. at any stage on 5 December 2013). Having provided the jury, in that sense, with the legally correct definition of intent, the judge immediately put the direction into its true context, namely that the Crown alleged that he had the gun with him in order to commit murder throughout the journey from Haywards Heath to Burgess Hill. The jury were, accordingly, asked to apply the correct definition of the offence as regards intention against the background of the true issues in the case. In our judgment this was a wholly correct approach. It would have been wrong for the judge to limit the circumstances in which the jury could convict by requiring them to be sure that the appellant had held the requisite intention for the entirety of the walk between the two locations. They were instead entitled to convict on a lesser basis, namely if they were sure he possessed the gun with murderous intent on 5 December 2013, albeit they needed to assess this issue against the backdrop of the respective cases of the prosecution and the defence.

Ground 2: "Bad Character"

33. It is submitted that the judge erroneously permitted the jury to use the appellant's conviction at the Sussex Magistrates' Court on 19 February 2014 for possessing a controlled drug of class C, the police reprimand for common assault in 2007 and a warning in 2008 for theft as bad character evidence which potentially provided support for the prosecution case. The appellant's counsel introduced this material in order to demonstrate that Styles had no relevant previous convictions and the Crown had unsurprisingly not applied under the provisions of the Criminal Justice Act 2003 to introduce bad character evidence, for example on the basis of propensity.
34. The judge's direction was as follows:

You have heard in the course of this case that this defendant, Mr. Styles, has previous matters recorded against him. This constitutes what lawyers often term bad character. Well now let me remind you. Back when he was thirteen he was reprimanded for a common assault. Although the word has not been used, what it might boil down to was a bit of bullying against another school child, and it caused that child to report it to his mother, and so the process was set in train. He also received a caution when he was fourteen years old. It seems that it was opportunist and he was trying to steal some lead from what he said was a derelict building. These accounts of the facts have not been challenged, members of the jury, and you may feel confident in accepting that that is what these amount to. They are not convictions, they are a form that the law enforcement agencies use for dealing with matters at a lesser level than involves the courts or the juvenile court.

The events which you are concerned with are when the defendant was aged eighteen, so time has moved on. But there are other factors of his character which fall into the categorisation of bad character, or misconduct is probably a better expression. He is a man who has admitted to cannabis use, cannabis of course, an illegal substance. He has admitted to driving without a licence when he was unsupervised. On that occasion he went off down to the skate park with his relative, and unbeknown to him with mother in pursuit. He has admitted that he has contravened the conditions of his gun licence. Well you may, from common sense if not from particular knowledge, be perfectly prepared to conclude that the conditions of a gun licence are serious matters. A person is not given a licence until they are deemed a fit and proper person to hold a firearm which is described in that licence. The fact that there was a mix up over names or there had to be a clarification of names you may think has an innocent explanation to it and is no more sinister than that, not sinister in the least, in other words. What this is is part of the evidence in this case. It does not of itself prove guilt at all and you must never take it out of proportion. It is part of, if you like, the character of this young man, because on the counter side you have heard much of good character about him, references, both oral in this court and written have been read to you, where people, not just family members but social members and people that he has worked with speak highly of him. So in the same way that all the good references are not just one side of the total picture of this man, there are the other matters which I have mentioned which are the other side. But, it is not for you to conduct a balancing exercise. You must be careful not to place too much emphasis on these instances of misconduct, you have got to set them in their context, and his age and matters of that nature. You must not allow the defendant to be unfairly prejudiced by this, and the only way that this bad character or this misconduct evidence can be used is as providing support for the prosecution case. At the end of the day, members of the jury, it is entirely a matter for you. You may find that it does not help you either way, it is simply a more complete picture of this young man, and that is relevant when you come to look at what is called the specific intent that is required of these offences. It may assist you amongst the other evidence in forming your view on this question of intention.

And later in the summing up:

You have heard character references. I do not just brush over them, they are evidence in this case. I have mentioned them previously, and so I am not going to go over them again, except to say all the persons who came forward in various respects spoke highly of the defendant.

35. We consider that the judge erred in his approach to the appellant's character, given his previous offending was not before the jury as bad character evidence. It was not suggested that it was admissible against him under one of the seven gateways set out in section 101 (1) Criminal Justice Act 2003 or under section 98 Criminal Justice Act 2003. The judge was simply wrong to direct the jury that the "only way that this bad character or this misconduct evidence can be used is as providing support for the prosecution case": it had not been introduced for this purpose and it did not have that effect.
36. Furthermore, on the particular facts of this case, given the conviction and the other evidence detracting from the appellant's good character were relatively insignificant – indeed, arguably essentially irrelevant in relation to the offences charged – in our judgment he was entitled, at the very least, to a modified good character direction (as regards credibility and propensity). The earlier acts of criminality were essentially minor in nature and they were of a wholly different kind to the grave allegations he faced in the present trial. The direction would no doubt have included a reference to the appellant's admitted wrongdoing, but then the judge would have contrasted it with the serious charges he faced. In summary, he was not entitled to be treated as of good character, but the judge should not have entirely withheld the good character direction. Instead, he should either have been treated as being as of effective good character or he should have received a qualified direction as regards credibility and propensity (see R v Gray [2004] EWCA Crim 1074; [2004] 2 Cr App R 30).
37. We consider the impact of this misdirection later in this judgment.

Ground 3: "Pressure of time"

38. It is submitted that the judge was aware that a juror had a pre-booked holiday starting on Monday 2 February 2015 and that another juror had an important commitment on the same day, meaning that he or she could not attend court. The jury was at the end of their second week of jury service. It is argued that it was incumbent on the judge to reassure the jury that they were not under any pressure of time, and that the court would take appropriate steps accommodate the commitments of the two jurors (e.g. by discharging one of them and not sitting on the Monday as regards the other).
39. At 15.11 the jury convicted the appellant unanimously on count 2. Immediately thereafter the jury was given the majority direction. They retired at 15.17 and they convicted by a majority of 10:2 on count 1 at 15.52.
40. Although the judge had not given the proposed reassurance to the jury, on these facts there is no basis for suggesting that the appellant was convicted on either count because any of the jury reached a decision as a result of undue pressure of time. The verdicts were delivered well within the normal court day, and there were no indications that either juror was labouring under any anxiety in this regard. In our view, it would have been a sensible precaution for the judge to have provided the suggested reassurance, but his failure to do so does not render these verdicts unsafe. As we have just indicated, there is simply no evidence that either juror felt under undue pressure, and the circumstances in which the verdicts were delivered do not lead this court to that conclusion.

Conclusions as to the appeal against conviction

41. Assessing the overall fairness of the trial, although we have no doubt that the judge misdirected the jury on the issue of character, the overall effect of his directions do not undermine the safety of the convictions. The judge, having given incorrect guidance as to the use the jury could make of the bad character evidence, thereafter put at least some of the incidents in their true context by reminding the jury that the assault was no more than "a bit of bullying" and that the offence of theft involved an opportunistic attempt to steal lead from a derelict building. He directed the jury that these matters, along with the other incidents demonstrating bad character, should be kept in proportion and that the jury needed to consider the significant body of evidence going to his good character. In the event, the jury were directed not to place too much emphasis on the detrimental matters, and to set them in what was otherwise a rather more favourable context, not least his age at the time and the strong body of support from friends and family. This was a very strong case against the appellant, given the extreme nature of the threats that he made against Mr Maddock and the circumstances in which he was arrested. For these reasons, notwithstanding the misdirection as to bad character and the lack of an effective or qualified direction as to good character, we are of the view that the convictions are safe, and we dismiss the appeal against conviction.

Grounds of Appeal against Sentence

42. The appellant admitted to the probation officer that he had been using anabolic steroids for years, and that after the end of his relationship with Chelsea Banks he had been on a "bender" using a mix of cocaine, steroids, speed and alcohol. He was spending £1,000 a month on drugs.
43. He was not assessed as posing a risk of self-harm or harm to others that required further assessment. The writer of the pre-sentence report noted that although he was compliant on arrest, there was a clear risk of harm to the arresting officers. The probation officer felt unable to comment upon whether there was a significant risk of serious harm to members of the public in the future without information on his mental health.
44. The appellant, in the view of the psychiatrist, satisfied the criteria for a diagnosis of a mental and behavioural disorder due to his use of multiple drugs (the steroids, cocaine, alcohol and cannabis). However, there were no physical or mental health grounds to suggest that the usual sentencing options were inapplicable; indeed, a psychiatric disposal was inappropriate.
45. The judge observed that the facts in this case were bleak and the consequences could have been catastrophic. It was a difficult sentencing exercise in view of the applicant's youth, the circumstances of the offence and the fact that he had a slight criminal record. The judge referred to the numerous character references which painted a picture of a law-abiding, friendly, caring and hard-working young man. His former employers indicated they would be willing to re-employ him.
46. The judge determined that the appellant did not meet the dangerousness criteria. He was unimpressed by the suggested analogy that the prosecution sought to draw with the Sentencing Guidelines Council's Definitive Guideline on Attempted Murder. He concluded that a lengthy determinate sentence, as opposed to an indeterminate disposal, was appropriate bearing mind the appellant's emotional state, which was fuelled by drink and drugs.
47. This application for leave to appeal against the sentence of 12 years' custody is argued on the basis it was manifestly excessive, in that it failed to take proper account of the mitigation available to the appellant. It is argued, furthermore, that the jury might well have convicted him on the basis of a "fleeting intent".
48. The appellant is 20 years old (date of birth 24 August 1995). He was 18 years of age at the date of this offence, and 19 years old at the date of sentence.
49. Notwithstanding the views of the sentencing judge on this issue, in our view this offending bears some considerable similarity to a level-2 attempted murder (an "other planned attempt to kill") with little or no physical and psychological harm having been inflicted. The relevant range is 7 – 15 years' custody with a 10 year' starting point. This appellant is very young and although the end of his relationship with Ms Banks cannot in any sense be described as constituting "provocation", it undoubtedly created a heightened and exceptional state of emotional turmoil for him. The loaded firearm was a significant aggravating factor.
50. In our view these serious offences were substantially mitigated by the age of the appellant, his lack of any serious previous offending and the particular circumstances of these crimes. The offences were undoubtedly aggravated by the use of a loaded firearm and the appellant's proximity to Mr Maddock's home address when he was arrested. Notwithstanding these worrying aggravating factors, this sentence failed to give sufficient weight to the very considerable mitigation that was available to this young offender, set out above. In the event, we consider the term of 12 years' in his particular case was manifestly excessive, and we substitute a sentence of 10 years' custody on count 1. Otherwise, the sentence is undisturbed.