England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Basildon Crown Court
HHJ LODGE
Insert Lower Court NC Number Here

		Royal Courts of Justice Strand, London, WC2A 2LL
		8/6/2016

Lady Justice Hallett :

Introduction

1. The three appellants appeal against conviction on two grounds namely the admissibility of evidence of gang affiliation and the adequacy of the trial judge's directions thereon. All other grounds have been either abandoned or considered and rejected on a previous occasion by the full court. The facts are set out in their judgment at [2015] EWCA Crim 590. We need rehearse just a few.
2. On 12 and 13 March 2014 in the Basildon Crown Court, Awoyemi was convicted of the offence of possessing a firearm with intent to endanger life; Thomas was convicted of the same offence and an offence of attempted murder. Toto was also convicted of attempted murder and two counts of possessing a firearm with intent to endanger life, dangerous driving and possession of a bladed article.

Facts

3. The appellants lived in Dagenham, the home of the 'DAG' gang. On 4 January 2013 two cars, a Ford Puma belonging to Toto's father and a Ford Focus associated with Thomas, were driven in convoy to the territory of another gang, 'the Beckton boys'. Shortly after they arrived, the victim, Mr Ahmed, who was visiting a friend in Tollgate Road, Beckton heard a knock at the door. This was followed by two shots fired through the door; they hit him in the head but miraculously he survived. The Puma and the Focus drove off. The real target of the shooting was said to be Larry Balogun who lived next door to Mr Ahmed's friend. Balogun was thought to be a member of the Beckton Boys.
4. On 19 January 2013, the Crown alleged that Awoyemi, Toto and Raji (a co- accused who pleaded guilty), returned to the area to 'finish the job.' They travelled as a group in the Puma driven by Toto and they were armed with a loaded shotgun.
5. Police attempted to stop the car but Toto drove off. A police chase ensured. Awoyemi and Raji left the Puma and fled on foot. Awoyemi was seen to be carrying a bag which he discarded under a car along the way. It was later recovered and contained a loaded, shortened shotgun, the same gun as used on 4 January.
6. Cell site and photographic evidence placed Thomas and Toto in the vicinity of the shooting on 4 January. A recorded telephone conversation between Toto and another male in January 2103, made whilst Toto was in prison, demonstrated that Toto was aware of the shooting and suggested Balogun was the real target. A call between Thomas and a man called Parker was also recorded in January 2013. In it they discussed how a 'lolly' (firearm) was thrown under a car and found by the police.

Ruling on admissibility of gang affiliation evidence

7. The prosecution, unable to identify with any certainty the intended victim, wished to open the fact that this was a gang related shooting. They sought the leave of the trial judge His Honour Judge Lodge to adduce, as bad character evidence, evidence of the appellants' association with the DAG gang and with firearms. It is that evidence which is at the heart of this appeal. At the time of the ruling the issues as far as each of the appellants were:

Toto

i) Could the convoy of cars in which Toto was travelling on 4 January be linked to the shooting?

ii) If it could, did Toto know that a gun was being carried?

iii) If so, was he (with others) in possession of the gun with intent to endanger life?

iv) If so, was he a party to the attempted murder?

v) On 19 January did Toto know that Awoyemi had the gun with him in Toto's car?

vi) If so, was Toto (with others) in possession of the gun with intent to endanger life?

Awoyemi

i) Could the convoy of cars on 4 January be linked to the shooting?

ii) Was Awoyemi part of the convoy on 4 January?

iii) If he was, did he know that a gun was being carried?

iv) If so, was he (with others) in possession of the gun with intent to endanger life?

v) If so, was he a party to the attempted murder?

vi) On 19 January was Awoyemi in possession of the gun with intent to endanger life?

Thomas

i) Could the convoy of cars on 4 January be linked to the shooting?

ii) Was Thomas in the convoy of two cars?

iii) If he was, did he know that a gun was being carried?

iv) If so, was he (with others) in possession of the gun with intent to endanger life?

v) If so, was he a party to the attempted murder?

8. The judge ruled that, in principle, evidence of gang affiliation was admissible against all three on the basis that the shooting and the return to finish the job bore the hallmarks of gang violence. He directed the parties to attempt to agree what evidence should be admitted pursuant to his ruling, and, where agreement was not possible, ruled on specific issues. We have the benefit of a schedule, not before the full court on the last occasion, setting out the categories of bad character evidence and how each item was admitted. We have also been provided with far greater detail of the evidence admitted, including copies of documents and transcripts of recordings. Evidence of bad character admitted because it was 'to do with' the facts of the case has not been the subject of challenge before us. Similarly evidence that could have been admitted 'to do with the facts of the case' but was admitted as important explanatory evidence and evidence of propensity has not been challenged.
9. The challenged evidence came principally from a Detective Sergeant Eastwood, described as an expert on gang affiliation. In summary the evidence included:

i) Handwritten RAP Lyrics found in Thomas' bedroom relating to violence, drugs, guns, using guns to get drugs and the DAG gang. They contained references that established membership (and leadership) of the DAG gang, threatened retribution for murdered members, offered challenges to other local gangs and showed a link with and attitude to firearms, including a clear threat to shoot dead a rival. Further, they demonstrated the use of a gang 'uniform' in the form of a white bandana. The lyrics were adduced as important explanatory evidence and as evidence of propensity.

ii) Part of a "You Tube" video said to feature Thomas and Toto and other DAG members. On the video, both Thomas and Toto make threatening gestures with their fingers to indicate guns. The man thought to be Toto declares "don't fuck with my family. Why? Cos I'll be eager to let slug fly" following by a hand gesture to indicate a shooting. The man thought to be Thomas speaks of someone getting "yacked" or "bodied", ie shot dead. Thomas also refers to having a gun on his waistline and declares himself "from Aggi Dag straps family". The other young men chant "Aggi DAG Mardi gang". This was said to establish the existence of the DAG gang, membership of it, the criminal nature of the gang, their attitude to firearms and serious gang violence. The video was adduced as important explanatory evidence and as evidence of propensity.

iii) Letters sent by Awoyemi and to him said to establish involvement in the DAG gang, identified other gang members, spoke of gang related activity and endorsement of the DAG gang culture, including retribution for murdered members. The letters were adduced as important explanatory evidence and evidence of propensity.

iv) The image of a man known as "Gramz" (the victim of a gang murder) on Toto's phone to establish involvement with DAG gang and endorsement of its gang culture. The image was adduced as important explanatory evidence and evidence of propensity.

v) The discovery of a bullet hole in the side of Toto's Puma adduced as important explanatory evidence and evidence of propensity.

10. The following evidence was admitted by agreement and or at the request of the defence following the judge's ruling:

i) Letters sent to Thomas that indicated he was asked about disputes between the DAG gang and others that established knowledge of the gang's activities.

ii) Use of street names for the defendants.

iii) Contact with individuals named in letters.

iv) The fact that the defendants were in prison on remand.

v) Awoyemi's acquittal on an offence of causing grievous bodily harm (to which reference was made in the letters).

vi) Intelligence that the DAG gang was linked to violent crime.

vii) Evidence that Toto was with Raji in December 2012 when they were stopped by a police officer and Toto told the officer he was going to visit a friend in hospital who had been shot.

viii) The 'Beckton trap video' that showed that Larry Balogun used the street name "Skellie" and proved his membership of the Beckton boys.

Ruling on submission of no case

11. The judge upheld a submission from Awoyemi at the close of the Crown's case, that the counts against him in respect of the shooting on 4 January should be withdrawn from the jury. The issues as far as he was concerned therefore narrowed to one, namely the intent with which he possessed the gun on 19 January.

Defence case

12. All three appellants denied membership of DAG and maintained that affiliation to a gang was far from fixed; some of the proven associations between the appellants and others dated back some time and stemmed from school, youth groups or football friendships. If the intended victim was a Beckton gang member there was no history of or intelligence to show any dispute between the DAG gang and the Beckton Boys.
13. Awoyemi did not give evidence but it was accepted on his behalf he had possession of the gun. It was claimed he never intended to endanger life.
14. Thomas did not give evidence. It was accepted on his behalf that lyrics with references to gangs, drugs, guns and violence were found in his bedroom, but his counsel relied on the fact that there was no evidence that he was the author of those lyrics and that such lyrics are far from uncommon in RAP music. Both Thomas and Toto denied that they were in the video said to depict the DAG gang and relied on a facial mapping expert called by Thomas that questioned the identification of Thomas in the video.
15. Toto gave evidence that he was a friend of Balogun's. He posited the theory that a man named Yusef Ahmed, whose family lived in Tollgate Road, was a convicted drug dealer, who may have attracted enemies of his own and may have been the target. Toto claimed he was in the vicinity of the shooting on 4 January to sell drugs and had simply given Awoyemi a lift on the 19 January.

Grounds of Appeal - Toto

16. On behalf of the appellant Toto, Mr Coffey QC conceded that evidence of gang membership and gang activity may be admissible in evidence, if it has "to do with" the alleged facts, pursuant to section 98 of the Criminal Justice Act 2003 ("CJA") or as "bad character" evidence pursuant to section 101 (1) of the CJA 2003.
17. Section 98 provides a definition of bad character:

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

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

is evidence of misconduct in connection with the investigation or prosecution of that offence?"

Arguably some of the evidence the subject of challenge might have been admissible because it was "to do with the facts of the offence charged". However, it was admitted under section 101 (1) of the CJA and so it is upon the terms of 101 (1) we shall focus.

18. Section 101 (1) provides:

"(1) in criminal proceedings evidence of the defendant's bad character is admissible if, but only if—"

(a) all parties to the proceedings agree to the evidence being admissible,

(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

(c) it is important explanatory evidence,

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

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

(f) it is evidence to correct a false impression given by the defendant, or

(g) the defendant has made an attack on another person's character.

….

(3) 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.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged."

19. Mr Coffey acknowledged that these provisions led to a dramatic change in the law as to the admissibility of bad character but claimed they are being used with far too much enthusiasm by prosecutors. He invited the court to provide further guidance on the application of the section so as to curb its use.
20. He concentrated on the admissibility of the evidence under section 101(1) (d), this being the provision that appears to have been uppermost in the judge's mind at the time of his rulings.
21. Evidence of gang membership per se is not relevant to an important issue. In this case, Mr Coffey suggested it was not relevant because there was no or insufficient evidence that the shooting and or possession of the gun were gang related, to establish the intended target of the shooting, to establish Balogun was a member of the Beckton boys and to establish hostility between the Beckton boys and DAG. He dismissed the Crown's argument that the events of the 4 and the 19 January bore all the hallmarks of a gang shooting and invited the court to find that the Crown failed to establish that there was evidence of gang activity at the relevant time which was probative of an important issue.
22. On that basis, he attempted to distinguish this case on its facts from other decisions of this court where evidence of gang affiliation has been deemed admissible:

i) In Elliott [2010] EWCA Crim 2378 evidence of gang membership was admitted to assist the jury in deciding whether the defendant's alleged possession of firearms and Class A drugs found at his address was proved or whether, as was his case, they belonged to another.

ii) In Sahid Sule [2012] EWCA 1130, evidence of three incidents of violence in the months preceding a murder was held admissible (to do with the facts of the case) to establish a motive for the murder. The court rejected any temporal requirement.

iii) Lunkulu and Others [2015] EWCA Crim 1350 was another case of alleged gangland reprisals. Thomas LJ (as he then was) giving the judgment of the court endorsed the Sule approach and upheld the admissibility of evidence of bad character on the basis it was 'to do with the facts of the case'. As in Sule, the evidence of misconduct relied upon was directly relevant to the facts of the offence charged.

iv) In Lewis and Others [2014] EWCA Crim. 2014 48 evidence of gang affiliation was held to be admissible under section 101 (1) to assist the jury in deciding whether an accused was present at the scene of a riot involving possession of firearms and arson (with intent to lure police officers into an ambush) and if so whether his presence was innocent.

v) The Privy Council in Myers, Brangman and Cox v The Queen (Bermuda) [2015] UKPC 40 considered the admissibility and proper ambit of evidence of gang affiliation, in the context of a jurisdiction where there is no statutory modification of the common law to allow the admission of propensity evidence. Lord Hughes giving the judgment of the Board provided helpful guidance on the approach to gang affiliation evidence generally, and the need to focus on the issue to which the evidence is said to be relevant. On the facts of the three individual cases and without a statutory provision of the kind with which we are concerned, some of the gang affiliation evidence was declared admissible to show motive.

vi) Stewart [2016] EWCA Crim 447 is the most recent example of evidence of gang affiliation being held admissible by this court. Stewart was caught in possession of a double barrelled shotgun. He was convicted of possession of a firearm with intent to endanger life. The prosecution relied on evidence of the appellant's involvement with a violent gang, evidence he had been the victim of gang violence, and images from his phone showing an interest in guns, beyond a mere courier, to prove intent. The trial judge declared herself satisfied that the evidence was admissible on the basis it was 'to do with' the facts of the case and as evidence of bad character going to an important issue pursuant to section 101 (1) (d), namely intention and motive. Thereafter she did not give the directions the court considered would be necessary had the evidence been admitted under section 101 (1), but the court was satisfied that the directions she did give as to the use that could be made of the evidence were properly tailored to the facts of the case and did not affect the fairness of the trial.

23. We return to the judgment in Lewis and paragraph 82 thereof in which Sir Brian Leveson, President of the Queen's Bench Division, set out the four questions to be considered when analysing the issue of gang evidence in a case such as that then before the court:

i) "Is the evidence relevant to an important matter in issue between a defendant and the prosecution?

ii) Is there proper evidence of the existence and nature of the gang or gangs?

iii) Does the evidence, if accepted, go to show that the defendant was a member of or associated with a gang or gangs which exhibited violence or hostility to the police or links with firearms?

iv) If the evidence is admitted, will it have such an adverse effect on the fairness of the proceedings that it ought to be excluded?"

24. Mr Coffey had intended to argue that the evidence here failed all four hurdles by challenging the expertise of the officer and the relevance of the evidence he gave. In preparing for the hearing the members of the court spent some time, therefore, considering the expertise of DS Eastwood. However, Mr Coffey (who was not trial counsel) was unaware that the defence at trial accepted DS Eastwood's status as an expert on the issue of gangs. It is far too late to take the point now. The proper forum for resolving issues of this kind is the Crown Court where, if necessary, evidence can be heard and tested. This is exactly the kind of situation the observations of the court in McCook 2014 EWCA 734 were designed to prevent. In any event, we are satisfied the Crown sufficiently established DS Eastwood's expertise on gang membership.
25. As to Sir Brian's first and third questions, Mr Coffey pointed to the fact that the evidence here did not reveal any rivalry between DAG and Beckton boys. He maintained that in cases where there is no history of inter gang hostility or 'tit for tat' violence, the fact of gang membership or affiliation is likely to be irrelevant. The evidence therefore failed to produce a positive answer to the first and third questions.
26. Even if the evidence was admissible, he criticised the judge for failing sufficiently to address the adverse impact of the evidence upon the fairness of the proceedings as he was required to do by subsection (3). Evidence of gang affiliation is by its very nature highly prejudicial and great care should be taken before a trial judge allows it into evidence. In that event the evidence failed to answer the fourth question satisfactorily. The effect of admitting this evidence was that a substantial amount of bad character evidence had to be admitted by way of explanation (for example the appellants' remand in custody). In itself, that was highly prejudicial and of questionable relevance.
27. Mr Coffey's final complaint was directed at the judge's directions. The judge did not give the jury a standard Judicial College direction on bad character evidence. Mr Coffey maintained that absent such a direction, the summing up was flawed and the convictions are unsafe.

Grounds of Appeal –Awoyemi

28. On behalf of the appellant Awoyemi, Mr Jackson similarly took exception to the evidence of bad character being admitted in his case, in principle, and because, in practice, it led to a considerable amount of prejudicial material being put before the jury by way of explanation. Thus, the jury learned that Awoyemi had been charged and acquitted of causing grievous bodily harm and that he and others had been remanded in prison.
29. He too criticised the judge for allowing the Crown to adduce evidence to establish that Awoyemi was a member of the DAG Gang at the relevant time and that Larry Balogun was a member of the Beckton Boys Gang where the evidence did not establish that the DAG gang was a violent gang or a rival to the Beckton Boys. In any event, Mr Jackson described the evidence that Awoyemi was a member of the DAG gang at the relevant time as weak (in contrast to the evidence of gang membership in Myers) and emphasised that there was no evidence that Awoyemi, personally, associated with any gang violence.
30. He reminded the court of the basis upon which the court in Lewis would have been prepared to admit a video in which reference was made to gang culture. At paragraph 98 of the judgment, the court explained that "for the video material to be relevant evidence as to gang membership, there must be something more than an appearance on a video". Awoyemi did not even feature in the video admitted in this case. Accordingly, Mr Jackson rejected the assertion that the Crown could establish that Awoyemi is "a man closely associated with gang culture and wholly sympathetic to it".

Grounds of Appeal – Thomas

31. On behalf of the appellant Thomas, Ms Power adopted the submissions of her colleagues on the principles to be applied. She reminded the court that the primary issues in Thomas' case were whether he was present in Tollgate Road and whether he participated in the shooting. Any use of gang affiliation evidence to assist in establishing his presence at the time of the shooting could only, therefore, be relevant and admissible, if, first, the shooting could be shown to be gang related and, second, Thomas could be shown to be a member of the DAG gang who participated in gang violence, thus giving him a motive. She too contended there was no proven gang related background to the shooting so as to make the evidence relevant and probative. The effect of admitting the evidence was simply to prejudice the jury against the accused.

Conclusions

32. We are entirely satisfied the evidence of gang affiliation was relevant and admissible on the facts of this case. The shooting, and the return visit to finish the job, bore all the hallmarks of gang related violence. On the first occasion two cars travelled in convoy to an address considered home territory by another gang. Someone fired through a door, reckless as to who might be the other side, no doubt in an attempt both to kill and to terrify. On the second occasion, one of the same cars with three occupants equipped with balaclavas, a bandana and a loaded shotgun (the same gun available for use by members of a gang) headed towards the same scene.
33. Toto and Thomas denied that their presence in area of the shooting on the 4 January had anything to do with the shooting, and Toto claimed that he just happened to give Awoyemi a lift on the 19 January unaware of the gun. Awoyemi denied possessing the gun with intent to endanger life, despite the fact it was loaded and had been used on a previous occasion in an attempted murder. In each case, the gang affiliation evidence provided a link between them and a gang that gloried in violence and the use of firearms, mourned murdered friends and threatened violent retribution for those who crossed them. The Crown could thereby establish a possible motive for the shooting, an association with firearms and lethal violence and could negative innocent presence and association. The evidence was prejudicial but inevitably so and not unduly so. It went far beyond simple membership of a gang, the love of RAP music, hyperbole or appearance on a video. It indicated the extent to which the individuals concerned had signed up to gang and gun culture.
34. We reject the suggestion that the evidence was inadmissible because the Crown could not prove hostility between the DAG gang and the occupants of Tollgate Road. Gangs will not necessarily commit their specific feuds to writing or to camera and declare their intent to seek revenge in a way that can be proved directly; that does not mean evidence of a gang's culture, membership and attitude towards violence will be irrelevant. It may provide an important link or part of an important link between an accused and the crime.
35. With respect to Mr Coffey, he has fallen into the same error as others have done, which is to assume that Sir Brian Leveson in Lewis intended to lay down four questions that must be asked in every case. He did not. He took the principles from the statute and applied them to the facts of the case then before the court. He did not purport to establish a rule that gang affiliation could only be admitted if it goes 'to show that the defendant was a member of or associated with a gang or gangs which exhibited violence or hostility to the police or links with firearms'. If he had intended to lay down a rule to that effect, the evidence in this case would still be admissible as establishing a "link with firearms".
36. If, as Mr Coffey suggested, applications to adduce evidence of gang membership by the Crown are becoming more common, this may be explained by the simple fact that so many offences are now gang related. It does not indicate that trial judges are too indulgent of the Crown. It is our experience that, as a general rule, trial judges are acutely conscious of the dangers of admitting gang affiliation evidence and take great care to ensure that bad character evidence is admitted through the appropriate gateway.
37. Accordingly we reject the assertion that the judge fell into error in allowing evidence of gang affiliation to be admitted against each of the accused. We do, however, share the concerns of the Full Court, in giving leave, as to the manner in which the bad character evidence was put before the jury pursuant to that ruling, particularly where Awoyemi was concerned. In our view, documents could have been edited or admissions made so that the jury did not need to learn, for example, that Awoyemi faced an unrelated allegation of causing grievous bodily harm.
38. Yet, the parties agreed to admit the evidence in this way. It was open to the defence to object or to seek another ruling from the judge. They chose not to. In any event, the most prejudicial 'explanatory' evidence that Awoyemi was in custody facing trial on another serious offence of violence was counterbalanced by the fact the jury were told he was acquitted. The explanatory evidence in relation to the other two was far less significant. Accordingly, we were not persuaded the safety of the convictions was thereby undermined.
39. Finally, we turn to the judge's directions to the jury. We are satisfied the judge very carefully tailored the summing up to the facts of the case and the issues to be considered. In relation to the gang affiliation evidence he made abundantly clear the basis upon which the evidence was admitted, he directed the jury on how to use the evidence and he repeatedly warned the jury that, even if they found the individuals were members of the DAG gang, they should not assume they were guilty of an offence. To our mind that is sufficient and in accordance with the guidance on this issue in Campbell [2007] EWCA Crim 1472. At paragraph 24 Lord Phillips CJ gave this warning against slavish adherence to specimen directions:

"When evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with it."

40. At paragraphs 38 and 43 he continued:

"If the jury is told in simple language and with reference, where appropriate, to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted. ….

It is of course highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character."

41. This was exactly the approach adopted by HHJ Lodge; it was not necessary for him to follow the rather more prescriptive approach suggested in Lowe [2007] EWCA Crim 3047 of identifying each and every item of bad character evidence admitted and giving specific directions in relation to each. HHJ Lodge gave the jury ample assistance on what use they could make of the gang affiliation evidence in general, warned them as to its limitations and not to attach too much weight to it. It was not clear to us what more he could have done on the facts of this case. When we pressed Mr Coffey, he was unable to identify any specific direction or warning that was not given or should have been given in a different form.
42. Accordingly we reject the one remaining ground of appeal and the three appeals against conviction are dismissed.