England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Cooke QC
T20127207/20127128/T20127140/T20127108

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/03/2016

Lady Justice Rafferty:

1. On 22^nd May 2013 at the Central Criminal Court Nathaniel Solomon (26) was convicted of perverting the course of public justice (count 2). On 23rd May 2013 he was sentenced to 8 years imprisonment. Nathan Deacon (28) and Christopher Gabriel (31) were each convicted of murder (count 1). On 23^rd May 2013 they were sentenced to imprisonment for life, the minimum term 30 years less time on remand.
2. Al Daniels on 22^nd May 2013 was convicted of three counts of possessing a firearm with intent to endanger life, one of possession of a prohibited firearm, two of possessing ammunition without a certificate and one of possessing a firearm without a certificate (counts 3-5, 7, 9, 11, 12). On 28^th June 2013 he was sentenced on Counts 3, 4, 7 possession of a firearm with intent to endanger life contrary to S16 Firearms Act 1968 to imprisonment for life, 14 years specified as the minimum term, on Count 5 possession of a prohibited firearm contrary to S5(1)(aba)Firearms Act 1968, and on Counts 9 11 and 12, to no separate penalty. Counts 6 and 13 (possession of a prohibited firearm), 8 (possession of ammunition without a firearm certificate), 10 (possession of prohibited ammunition) and 14 (possession of a firearm without a firearm certificate) were to lie on the file.
3. Isaac Dawson was acquitted of murder. Tafari Deacon was acquitted of murder following a submission of no case to answer but convicted of count 2, perverting the course of public justice, and sentenced to 8 years imprisonment as was Romario Henry. Christopher Broderick was acquitted of count 2. Sachia Clarke charged with a number of firearms offences was acquitted of some and acquitted at a re-trial of the remaining.
4. Daniels also renews his application for leave to appeal against sentence after refusal by the single judge,
5. At approximately 2300 on Monday 6^th June 2011 18 year old Nana Darko-Frempong ("Nana") as he reached his home in Tulse Hill was passed by a dark grey Ford Focus with per two witnesses, two occupants. At least two guns, a sawn-off shotgun and a self-loading pistol, were fired at him from close range. He died at the scene. Next morning at 0430 a dark grey Ford Focus, stolen months before, was set alight in a car park in Camberwell (count 2). In the area was a black Alfa Romeo Guilietta attributed to Tafari Deacon.
6. The Crown's case was that Christopher Gabriel, Nathan and Tafari Deacon (brothers), and Isaac Dawson were parties to the murder, Nathaniel Solomon, Romario Henry, Christopher Broderick and Tafari Deacon set fire to the Ford Focus, and Al Daniels provided the guns which his girlfriend Sachia Clarke looked after. There was no motive for the killing and eye witness evidence was limited. No evidence of gang rivalry or motive was before the jury. The Crown relied on cell site evidence, CCTV footage, DNA in the cases of Nathan Deacon and Daniels, ballistic/firearms evidence and close association.

Events leading up to the murder: Edwards House ("EH") 1 ("EH1")

7. The Crown led that on the evening of the murder Dawson, the Deacons and Gabriel went twice to EH to collect the guns, first between 21.26 and 21.55. A silver Ford Focus, similar to one hired by Dawson in 2011 and a black BMW series 3 were captured on CCTV entering the car park at the back of Best One Shop, close to EH. The footage was poor quality but two men were seen to emerge from each vehicle and to walk towards EH. A fifth, the driver of the Focus, Isaac Dawson per the Crown, remained in the vehicle.
8. Based on evidence from Dawson who at trial made all the identifications, on the cell site evidence, on fingerprint evidence and on the use by Deacon and Solomon of a black BMW in the two months pre-murder, the Crown led that Deacon and Solomon were in the BMW and Tafari Deacon and Gabriel in the Focus. As they arrived Dawson's phone made contact with Clarke, who rang Daniels, cell-sited in Camberwell. The vehicles left at 2153, the men, the Crown said, empty handed.
9. Edwards House 2 ("EH2") was between 2235 and 2256. The Focus entered the car park, the BMW, per the Crown, having been taken to Battersea by Solomon. The Crown led that the defendants' group also had use of a dark grey Focus stolen months earlier, parked close by. CCTV footage captured five men, all hooded, alighting from it. Based on cell site evidence and inference the Crown led that these were Dawson, the Deacons, Gabriel and Broderick. They walked towards EH. At 2256 the vehicle left with three occupants. A cell serving the general area and the downstairs of EH was activated by Daniels's phone at 2237 and 2240 At 0040 his phone was cell sited by a mast serving EH, consistent, the Crown led, with his returning the guns.
10. At the close of the Crown's case further CCTV footage was found ("Best One Shop footage"), clear film of Daniels with other males leaving EH at about 2230. At trial Dawson identified one as Romario Henry in a "two-tone" top. When the three men left at 2256 one wore a top identical to that worn by Henry. Dawson told the jury this was Broderick

Post-murder: Seizure of weapons

11. On 10^th June 2011 Isaac Dawson told DC Palmer that responsible for the shooting were Gabriel, Nathan Deacon, "Mario" and "Alfred", who lived above the Best One Shop where the guns could be found. A search later that day of Flat 15, EH, Tulse Hill home of Sachia Clarke yielded a sawn-off shotgun, a self-loading pistol and ammunition for both. Both were used in the killing. A bullet at the scene was consistent with having been fired from the pistol. A coat belonging to Daniels bore gunshot residue ("GSR") but of a different type from that associated with the killing, led as relevant to whether he had a connection to firearms.

DNA

12. DNA from at least three was on the slide grips and hammer spur of the pistol. No match probability was led due to the size (1 nanogram) and quality of the sample. A statistician Prof Balding concluded that the match probability of the profile having come from someone other than, and unrelated to, Nathan Deacon was 1: 19,000. For Daniels it was 1: 1 billion.

Arrest and interviews

13. On 11^th June 2011 Clarke was arrested. Her prepared statement read that Daniels stayed at her flat to which he had the keys and she had not seen the shotgun before. On 25^th August 2011 Dawson was arrested. His prepared statement denied involvement in the murder. In evidence he implicated others. On 5^th January 2012 Daniels was arrested and his prepared statement denied knowledge of the firearms and ammunition at Clarke's flat or discussions with her re firearms.
14. In March 2012 Isaac Dawson's former girlfriend Zainab Ali told police Dawson had told her he had been involved in the murder. The judge permitted counsel for Gabriel to cross-examine her on a letter to her from Dawson from prison and on the contents of a prison call as relevant to Dawson's credibility.
15. On 2^nd March 2012 Gabriel was arrested. His prepared statement denied involvement in the murder, asserted he had never been into 15 EH and knew no one connected to the property. On 29^th August 2012 Solomon was arrested and in interview answered no questions and did not offer a prepared statement. Nathan Deacon was not interviewed.

Christopher Gabriel

16. The Crown's case had four strands: (i) the broad location of his mobile over a short period pre- and post- murder; (ii) his accepted associations with some defendants prior to 6^th June 2011; (iii) his presence at some time in the silver Focus and black Alfa; and (iv) his cessation of use of his phone post-murder.
17. He did not give evidence. His defence was that there was no direct evidence, no evidentially based sightings of him relevant to the killing, no evidence he was with the other defendants on 6^th and 7^th June, no scientific evidence and no motive or evidence of hostility.
18. A submission of no case was made by each defendant save Dawson. The judge said the case was quintessentially about association and the significance of phone and potentially physical contact. Inferred knowledge and participation was central. The cell site evidence potentially placed Gabriel close to the murder and during the relevant time he was in contact with others against whom there was a case to answer and following the killing he abandoned his phone card. The DNA linking Nathan Deacon to the pistol had to be viewed with the cell site evidence placing him in the vicinity at EH2. He was also in contact with others against whom there was a case to answer and following the murder he stopped using his phone.
19. Gabriel, Nathan Deacon and Daniels applied to sever their trial from that of Dawson. The judge rejected the application. Only in exceptional circumstances would severance be justified. A fair trial to all could be ensured with judicial directions.

Nathan Deacon

20. The case against him had three strands: (i) cell site evidence of his movements pre-murder and his association with others post-murder; (ii) his DNA on the pistol; and (iii) his cessation of use of his phone post-murder. He neither gave nor called evidence. His defence was that he was not present. A 22.47 8 second connected call from his telephone to a non-defendant using a site, Piano House, 1.5 /2 km north of EH and about 0.8/1 km north of the murder scene suggested he had returned in the direction of Camberwell. Surveillance officers in the Tulse Hill area looking out for Nathan Deacon or his associates entering EH began observations at 2245. They saw no one arriving at or leaving EH, which Deacon said supported his defence. DS Moralee, the only officer positioned to see the entrance door, said that at some point he moved and lost sight of the front door. Deacon unsuccessfully applied to exclude Dawson's telephone calls to DC Palmer as purely exculpatory of Dawson and prejudicial to Deacon. The judge said their content could not be evidence against Deacon, but was potentially significant evidence against Dawson.

Nathaniel Solomon

21. The Crown's case had two strands: (i) cell site placed him (and others jointly charged on count 2) at the scene of the burning car; and (ii) CCTV footage of a man wearing light coloured clothing similar to those worn by the driver of the BMW at EH1
22. Between 0420 and 0430 on 7^th June the telephones of Tafari Deacon, Henry and Solomon were all picked up for a short time in Camberwell. Those of Henry, Broderick and Solomon then returned to Croydon. The Crown led that Tafari Deacon, Henry, Broderick and Solomon went to Camberwell in a black Alfa and a dark grey Focus.
23. CCTV from a nearby garage A&M Autos whose camera time was 3 hours 10 minutes slow showed material events were between 0424 and 0432 At 0429 two people, said by the Crown to be Henry and Solomon, entered the Lowell House car park with a petrol can. Three minutes later they walked away without it. The first call to the fire brigade was at 0430.
24. The Crown's expert Gary Arkless explained GPRS. Whilst the time of the connection could be accurately taken from the data, it could not be said precisely when the telephone was picked up by the mast. All that could be said was that the telephone was being picked up by a particular mast at some point going back to the time of the most recent use of the telephone (irrespective of whether a call, text or GPRS).
25. Mr Arkless and the expert for the defence Edward Phillips in an agreed document wrote: "By 0431 [Solomon's telephone] is using a cell that provides service at Viking House (Solomon's home was 23 Viking House) and is at least 500 metres from the burn-out scene…" The Crown said "by" was consistent with the "at or before" formula used by Arkless throughout his evidence-in-chief. His evidence showed no more than that at some point between 0421 and 0431 Solomon's phone was used up to several hundred yards from Lowell House. His defence (he did not give evidence) was that he was not at the scene of, and did not participate, in the arson. There was no identification, DNA or other scientific evidence against him. He was likely to have been at home.
26. In a submission of no case to answer he argued that the evidence had to show he was present at the fire at 0430. On an objective assessment he could not be seen within 500 metres of the burning car. The judge said the jury could find him an associate of others against whom there was a case to answer, particularly with reference to telephone evidence. Calls or quasi-calls (GPRS activity) between 0421 and 0432 put him and others within the right general area to be involved in the arson. It was not known exactly when the fire was started. What he could be shown to have been doing, where he was and the extent and pattern of his telephone contact with others was highly important. It would be for the jury, notwithstanding agreement as to times, to consider the whole of the evidence.

Al Daniels

27. The Crown's case had six strands: (i) his association with Sachia Clarke and her address; (ii) he divided his time between his flat in Streatham and his mother's at 16 EH next door to Clarke; (iii) phone calls/texts between him and Clarke on or about the day of the shooting; (iv) his association with some co-defendants; (v) his presence at crucial times where the firearms were stored and returned; and (vi) telephone calls during the evening from Tafari Deacon, Dawson and Solomon to his and Clarke's telephones to arrange collection of the guns stored in Clarke's flat. He did not give evidence.

Grounds of Appeal

28. Gabriel's primary complaint is that the judge was wrong not to recuse himself and discharge the jury following inappropriate directions about race. He also argues that the judge wrongly rejected a submission of no case to answer and exhibited bias against the applicant. The judge's refusal to direct the jury that any admitted bad character against Dawson could go to the matters in issue between the two defendants or to the guilt of Dawson was wrong. The judge exhibited extreme bias in favour of Isaac Dawson during the summing up.

Our conclusion

29. After the jury was sworn on 1^st February the Judge said inter alia:

"…You are a randomly selected jury…Incidentally it is right I should point this out at the beginning. Random means all sorts of things. In this case it's meant that we have entirely black defendants and I have not got a black person on the jury….I cannot interfere with random selection. If ever there is a point that means I have to stress fairness to you it is exactly like that isn't it? Fairness on the evidence. Nothing to do with stereotypes. Nothing to do with race. You try it fairly on the evidence."

Nothing was said about these comments. It was and remains agreed by all parties that it would have been better had the Judge not made them.

30. Next Monday when the Court sat neither Mr. Kamlish (who told us he was detained in the cells seeing his lay client) nor his junior was in court. We are all familiar with the practical difficulties defence counsel face when their lay clients are not on bail, but we note two things. First, Mr Kamlish did not challenge the Crown's Notice of Objection which read that the court had sat late to accommodate him, and second we are surprised and disappointed to find that his junior, who was not with her leader, was not in court although visible near it. She should have been in court when the judge came in.
31. Mr. Kamlish wished to make submissions about what the Judge had said to the jury. Gabriel was said to consider the remarks racist. The Judge said he was deeply upset. Mr. Kamlish told the court he accepted the Judge had been acting in what he "believed to be the best interests of the defendants" so that at its highest this was a well-intentioned mistake. Before us that concession was even greater, Mr Kamlish accepting that the Judge had only the best interests of the defendants at heart.
32. He applied for discharge of the jury and recusal by the Judge. Mr. Rumfitt Q.C. for Tafari Deacon opposed the discharging of the jury Miss Brimelow Q.C. for Nathan Deacon was neutral as to discharge but opposed the application for recusal. No other defence counsel made submission. The Crown opposed both.
33. The Judge did not accept any legitimate basis for complaint but decided to discharge the jury and empanel a new one quickly. It would have been better had he reflected but he took the decision at the end of a morning during which on any reading his patience had been sorely tried.
34. By two o'clock it was clear it might not be possible to find another panel for perhaps another three weeks. Had the Judge been correct in his original assessment of the risk of a perception of bias he would have been precluded from re-opening his decision. If as the Crown submitted the decision had been made hastily in difficult circumstances and, on reflection, he were satisfied peremptorily, it was open to him to re-consider. He thought it was and he did.
35. After defence counsel had been given time to take instructions he heard further argument. A number of defence counsel sought to persuade him that it had not been necessary to discharge the jury at all. Although the views of the fair-minded interested observer are those contemplated in authority as guiding a decision, the Judge also had an account, on the best evidence, of how his remarks had been taken by other - black - defendants. Dawson had found the Judge's remarks helpful and fair. Tafari Deacon did "not have a problem" with what the Judge had said. Nathan Deacon thought the Judge had been trying to help. Henry could not see any unfairness. Solomon wished to continue with the jury sworn. Daniels' counsel opposed discharge and thought there was no false impression to be corrected. Broderick (acquitted), by counsel thought there was not a problem. Counsel for Miss Clarke considered it safer to start again with a fresh jury.
36. The transcripts nowhere reveal bias, or the suggestion of it. To the contrary, they reveal a judge vigilant in balancing the competing interests of defendants inter se and prepared firmly to restrict the Crown in what it was permitted to lead. For example he did not allow it to assert gang-related activity or lead evidence that some defendants were members of the Roadside Gs [Gangsters.] He also refused to admit evidence that Nana lived on an estate said to be controlled by a rival gang, TN1 [Trust No-One]. At EH1 four people got out of cars, and a police officer identified the Deacons and Gabriel. This was critical to the case against Tafari Deacon and would have strengthened that against Gabriel. The Judge refused to admit it against any Gabriel or either Deacon.
37. We listened to all the submissions Mr Kamlish advanced. We had read both his written arguments and the response of the Crown. We cannot improve upon the views of the Single Judge who wrote:

"Although it would have been better had the Judge not made the remarks without consulting counsel, there was no merit in the application that he should discharge the jury or recuse himself. The remarks were not racist and not reasonably capable of being perceived as racist. The judge initially acceded to the application to discharge the jury, despite the fact that he (correctly) regarded it as unmeritorious, because he erroneously believed a new jury could be empanelled without risk of undue delay. When it became apparent that that was not the case, he was bound to review and reverse his initial decision because of the serious risk of injustice to other defendants and of damage to the administration of justice by the risk of significant delay. The Judge's handling of the applications and of the trial did not involve bias against you, and would not have created an appearance of a risk of bias to any fair minded observer."

Gabriel Ground 5 the Judge should have withdrawn the case from the jury

38. Gabriel's telephone on 6^th June made or received calls infrequently, in contact with Tafari Deacon Broderick and Nathan Deacon. It was picked up in Camberwell at 2109 and within a few minutes of the murder at 2312. Between those two hours it had not remained in Camberwell.
39. At EH1 as at least five men in two cars arrived and four headed for the entrance, Dawson's telephone rang Sachia Clarke who rang Daniels. At EH2 five men from one car went towards the entrance. Within minutes Miss Clarke telephoned Daniels. Minutes later Nana was shot dead with the two guns found in her flat.
40. Cell-site evidence linked Gabriel to all the above. At EH1 his telephone was picked up by masts in the area. At 2235 his phone made a GPRS connection picked up by a mast covering EH. The murder was at 2300 when his telephone made a GPRS connection picked up by a mast covering the Estate.
41. Gary Arkless explained that the GPRS at 2300 put the telephone at or near the Estate between 2235 and 2300. Cross-examined at length on whether a GPRS entry preceding another GPRS meant nothing could be deduced on the locus in relation to those two entries and in Gabriel's case nothing could really be deduced as to the whereabouts of his telephone. Mr. Arkless did not alter his expert opinion. Mr. Kamlish called no expert evidence.
42. The Judge took account of these GPRS calls being less time-specific than an ordinary call. Nonetheless the jury could find it too much of a coincidence for Gabriel's telephone to have picked up cell-sites consistent with his having been on EH1 and 2 as well as at the scene of the murder.
43. There was also telephone contact pre-murder with those said to have been involved in it (Nathan Deacon) or in the arson (Tafari Deacon and Broderick). Gabriel's telephone had been in Camberwell either side of the murder as had those of a number of the others; post-murder it and those of a number of the others moved to near Gabriel's home. Within just over 24 hours of the murder, Gabriel had stopped using it.
44. There was plainly a case to be left to the jury.

Gabriel Ground 6, Tafari Deacon's Submission

45. Gabriel submits there was no difference between his position and that of Tafari Deacon, whose submission succeeded, further evidence of the Judge's bias against either Mr. Kamlish or his lay client.
46. We do not agree. There was a clear difference. At EH1 and 2, Tafari Deacon had not used his telephone. The Crown's case against him was less strong than that against Gabriel. The evidence of the police officer who claimed to recognise Deacon from the CCTV film of EH1 had been excluded as we set out above. While one of the group was similar in stature to Deacon there was no clear evidence it was Deacon. The only evidence of the use of Tafari Deacon's telephone between 2100 and 2300 was consistent with his having remained in Camberwell. While the gaps did not preclude his presence at EH1 and 2, no telephone evidence established it. His telephone was picked up nearby and at the time of the murder but stayed nearby post-murder, linking to Tafari Deacon's drugs trade. He could hardly have been running his drugs business and joining in the murder. When Deacon from Streatham rang Gabriel's telephone at 2313 the latter was in Camberwell. Deacon did not dump his telephone. Gabriel dumped his.
47. The single judge wrote:

"Grounds (5) and (6): No case. There was a sufficient circumstantial case to be left based on the cell-site evidence. The evidence was different in the case of Tafari Deacon. The acceptance of the submission in his case is entirely consistent with the rejection of yours, and not indicative of bias."

We agree.

Gabriel Ground 7

48. Judge misdirected the jury on the significance of bad character against Dawson. It will be convenient to consider this complaint with Ground 8, bias in favour of Dawson.
49. Zainab Ali ex-girlfriend of Dawson was led by the Crown. She said he told her he had killed someone, part of a group which committed a murder. He was said repeatedly to have assaulted her, shaken their ten month old and raped her. Dawson had pleaded guilty to a number of assaults including one on the child, the rape was not proceeded with. He went to prison. It was agreed that the jury could not understand the relationship without knowing he had behaved violently. The Crown did not rely on the assault on the child or the alleged rape. Miss Ali in cross-examination by Dawson mentioned both.
50. Mr Kamlish successfully applied to cross-examine Miss Ali on a letter Dawson wrote from prison and on the contents of a prison call, relevant to his credibility but not to propensity to act violently The transcript reveals that he then began to cross-examine Miss Ali about her (truthful) claim that Dawson had assaulted her when she was pregnant and on the suggestion that Dawson offered her money to withdraw her allegations.
51. Nobody sought to cross-examine about the rape. Any issue of propensity to act violently was limited to his conviction for assaulting Miss Ali.
52. The Judge told the jury Dawson had assaulted Miss Ali but that did not mean that he was a murderer. He directed it to apply the same fair standards across the board adding:

"If an allegation is made of rape, for example, and you cannot come to the conclusion whether or not it is made out because you have not seen all of the evidence in relation to that and all the rest of it, you have to put it to one side."

Mr Kamlish complained that the Judge was inviting the jury to disbelieve Miss Ali. We disagree. The Judge was plainly anxious to redress the balance in favour of Dawson after Miss Ali volunteered he had raped her.

53. As the single judge wrote:

"The bad character evidence of Dawson's assaults on Zainab Ali was admitted as important explanatory evidence. It was relevant and admissible for that and for the jury to assess the credibility of Ms Ali and Dawson. The Judge correctly directed the jury. It was not admitted, and was not admissible, as showing a propensity to murder, and the Judge was correct to make that clear to the jury on a number of occasions to avoid risk of serious prejudice to Dawson. The allegations of rape and assault on the child were volunteered by Ms Ali but the Judge correctly ruled that they should not be explored in cross examination and correctly warned the jury to ignore them so as to avoid potential prejudice to Dawson where they had not been explored in evidence. The Judge's careful balancing of the competing interests of the Defendants provides no evidence of bias, nor does his temperate explanation of why he (correctly) dealt with bad character in this way."

We agree.

Gabriel: Summing-Up (8) unduly favourable to Dawson and insufficiently to Gabriel.

54. This is a renewed complaint about the treatment of the evidence of Zainab Ali.
55. The Judge is said to have made reference, in Dawson's favour, to Dawson volunteering the information about the murder.
56. Consideration of the transcript repays attention, revealing that the judge said simply:

"…I should remind you of a point made on behalf of Mr. Dawson and it amounts to this – my words, not Mr. Dean's – but [which] I think encapsulates the point: you would have to be stark staring mad if you were involved in the murder yourself to give your name in circumstances like that. That just does not make any sense, is Mr. Dein's point…The counterpoint is that [Dawson] is stark staring mad through the abuse of drugs"

The Judge was doing no more than putting both sides of the argument.

57. He described Dawson as:

"the absolute opposite of an independent witness, is he not? He has an axe of his own to grind."

58. Gabriel had neither answered questions nor given evidence but the Judge scrupulously summarized the principal points made in his defence.
59. The single judge wrote:

"There is no merit in any criticisms. The Judge adequately summarised the evidence for and against Dawson, and the evidence for and against you. Despite the fact that you neither answered questions nor gave evidence, he fairly summarised your case, as well as that of Dawson. He did not go beyond the bounds of permissible comment. The allegations that the Judge was "rude, offensive, biased and unjudicial" and that he "whipped himself up into almost a frenzy" are not borne out by the transcripts. He was defending the terms of his summing up against criticisms from your counsel which were themselves partial, selective and unjustified. He was entitled to feel and express displeasure at the way in which producing the unforeshadowed document on the morning of 15^th May disrupted the trial process."

We agree.

60. There is nothing in any of the Grounds, the oral hearing before us added nothing to the material before the single judge and we reject the renewed applications. In due course we shall invite submissions on why time spent on remand should not be deducted.

Nathan Deacon

61. Grounds: The judge wrongly admitted DNA evidence, wrongly ruled there was a case to answer, failed adequately to sum up the applicant's defence, summed up Dawson's case in such a favourable way that the effect was detrimental to the applicant's case, there is a "lurking doubt" about the safety of the conviction, and the judge was wrong to admit the evidence of DC Palmer.

DNA

62. Sensibly - and helpfully - Miss Brimelow QC conceded before us that the DNA evidence was properly before the jury, abandoning an argument upon the validity of statistical analysis.
63. A mixed profile from at least three was recovered from the slide grips and hammer spur of the pistol. All components of Deacon were present and it was more likely than not that it came from him. Using algorithms he had developed Prof Balding put the match probability of that prominent profile having come from someone other than, and unrelated to, Nathan Deacon at 1:19,000. He excluded Tafari Deacon as the source.
64. Miss Brimelow complains that electronic data wrongly thought destroyed and required by the defence was provided on 4^th February. It is unnecessary to set out what it represented. Professor Krane, upon whom she was in a position to rely but whom she did not call, reported on 5^th March. She could not when invited identify to us any consequential prejudice arising from the misapprehension and late provision.
65. The Judge heard evidence on the voir dire from Professors Balding and Krane and dealt with each of the complaints. The amount of DNA was very small. 1,000 picograms form a nanogram The stochastic threshold is between 100 and 200 picograms. The sample contained 1.4 nanograms of DNA, 1 said to match Deacon's profile. Miss Brimelow was obliged to concede that the available DNA was four and a half to five times the minimum amount.
66. She complained that the controls for obtaining results (reliability of the equipment) were no longer available but once again could identify no consequential prejudice.
67. Refusing leave the single judge wrote:

"Despite justifiable complaints about the late service of the material, you and your legal team had an adequate opportunity to address it with the assistance of Prof Krane. After hearing the evidence of Profs Krane and Balding on the voir dire, the Judge was entitled to treat the evidence as admissible in accordance with R v Reid & Reid [2010/11 Cr. App. R. 310 and R v Dlugosz, Pickering, MDS [2013] 1 Cr App R 32, for the reasons he gave in his detailed and carefully reasoned judgment."

We agree.

Submission of no case to answer

68. Miss Brimelow described as crucial what she suggested was the alibi afforded Deacon in reliance on the evidence of police officers conducting surveillance, an alibi she argued was supported by cellsite evidence. The Crown she suggested could prove no more than that he had had the handgun with intent to endanger life so that his position was akin to that of Daniels.
69. On 6^th June Nathan Deacon and Solomon had driven to Oxfordshire in a black BMW 3 Series and were back in Central London mid-evening. Deacon accepted this was a drug selling expedition. Telephone contact between Gabriel and Deacon was throughout the day. By their return to Camberwell there too was Solomon.
70. At EH1 was a black BMW 3 Series. Two men got out. The movements of Solomon's telephone were consistent with his having been at EH1. Nathan Deacon's telephone was not used during this period. The vehicles left the car park at 2155. Within minutes, the telephones of Solomon, Gabriel and Nathan Deacon all picked up the same mast consistent with the three being on their way from EH to Camberwell, where minutes later their telephones were picked up. The Crown invited the inference that Deacon and Solomon had stayed together and had been at EH1
71. It similarly suggested, in reliance on cellsite evidence, that Deacon had been one of the five alighting the silver Focus at EH2.
72. Surveillance officers in Tulse Hill were told to look for Nathan Deacon or his associates entering EH. Between 2245 and 2345 they had seen none. It is this distillation of the evidence upon which Miss Brimelow relied as providing an alibi.
73. There are difficulties in her way. Those from the silver Focus walked towards EH pre-surveillance. Only DS Moralee could see the entrance and after ten or fifteen minutes he changed his position losiug sight of the door. In any event, those involved would have gone not to the car park but to the dark grey Focus of whose locus there was no evidence.
74. Deacon's telephone was not used for a further hour by which time it was back in Camberwell. Later, it was picked up in Thornton Heath. He was in contact with his brother Tafari after the latter set off for Camberwell so as to set the car alight. Nathan Deacon's efforts to contact Broderick were the last outgoing calls or messages from the telephone. At 1055 on 7^th June Nathan Deacon answered an incoming call before the telephone was dumped.
75. Refusing leave the single judge wrote:

"Ground 2 Against the background of the evidence summarised in the Prosecution Note opposing the submission, there was a case to leave based on (i) your DNA on the side grips and hammer spur of the handgun; (ii) the cell-site evidence in relation to your participation in the Edwards House 2 visit; and (iii) the cell-site evidence of your association with other defendants after the murder. The Piano House cell and surveillance points you make merely go to the weight of the evidence as a whole which the jury had to consider."

We agree.

76. Miss Brimelow helpfully addressed Grounds 3, 4 and 5 together and we shall adopt her approach.

Inadequate summing-up of the defence

77. The complaint begins that when dealing with the importance of two-tone jacket(s) the Judge should have told the jury that Henry might have been one of the five arriving in the Ford Focus and of the three who got back into it.
78. Deacon was not interviewed and neither called nor gave evidence.
79. There are difficulties in the way of this submission. Henry certainly did wear a two-tone jacket and a man in a two-tone jacket alighted the Focus at EH2. So far so good. CCTV footage on the other hand shows the man in the two-tone jacket was about the same height as Dawson, 5'8. Henry is 6'2". Dawson told the jury the man in the two-tone jacket was Broderick who did not challenge that evidence. On the evidence therefore both Broderick and Henry must have been in two-tone jackets. The suggestion that the man in the two-tone jacket in the car park might have been Henry, not Deacon, is undermined by the uncontradicted evidence.
80. The next area of complaint is as to the mast referred to as Piano House ("Piano House"). The Judge is said inadequately to have dealt with the relevant Agreed Facts. Mr. Arkless, and Mr. Cairns for the defence were ad idem.
81. Piano House was perhaps a mile from EH. The jury had a list in descending order of signal strength of the cells covering EH. Piano House was eleventh or twelfth. That said, the telephone of Miss Clarke, an EH resident, regularly picked up the mast at EH. The vast majority of those calls was GPRS. Nathan Deacon suggested to Mr. Arkless that the Piano House signal was too weak to provide coverage for voice calls from EH. Mr. Arkless did not agree and, as Miss Brimelow asked, the jury had a survey by Mr. Cairns on coverage of particular cells in Tulse Hill. It also had Agreed Facts dealing with telephone evidence.
82. Nathan Deacon's telephone on some occasions picked up the masts at Park View, EH, and Thornton Heath, where Dawson and Gabriel lived, supporting his case that the cell-site evidence proved nothing out of the ordinary.
83. Despite Miss Brimelow's efforts, during substantial cross-examination of the unmoved and unmoving Mr Arkless, cross-examination of Dawson, and a lengthy closing address to the jury, she could not and cannot compensate for the deficiencies in her argument. There was no evidence from her lay client of his whereabouts when Piano House picked up his telephone. Dawson told the jury that at about 2230 Nathan Deacon had not been outside a hostel in Tulse Hill but with him.
84. The Judge made general observations about cell-site evidence, repeatedly warned the jury to be careful on this aspect, and reminded it of the Arkless Cairns agreed document. Miss Brimelow invited him to add to his remarks about Piano House. He did. Invited to explain to us, this being so, how the complaint bites, she suggested the Judge's remedial remarks might have been lost in the whole of the summing-up.
85. Miss Brimelow was also concerned about how the Judge approached any importance to the BMW 3 Series. What had happened to it after the times upon which the jury was concentrating was not in evidence and it had not been found. The Judge in an appropriately understated reference which damaged neither the defendant nor the Crown described what had happened to it variously as a mystery and as a dead end. We see no deficiency in his approach.
86. Refusing leave the single judge wrote:

"It was not necessary for the Judge to remind the jury of every point made on your behalf in final speeches, nor of every aspect of the Agreed Facts. None of your criticisms is well founded or capable of affecting the safety of the conviction. The points articulated in ….the Respondent's Notice are well made."

We agree.

The summing-up was unduly favourable to Dawson

87. Miss Brimelow adopted submissions advanced by Mr Kamlish.
88. Dawson's case was that he had been at or around EH. The evidence was that Moralee had not seen him. Miss Brimelow contends that the absence of sighting by Moralee was capable of undermining the case for Dawson but the Judge did not point it out.
89. The difficulty she faces is that the evidence of Dawson was that he was near EH but away from its entrance. DS Moralee, in a car, would have faced the opposite direction. The simple outcome could have been that Dawson was there but unseen by the officer.
90. Miss Brimelow's closing speech was uncompromising on the matter and we can be confident that the jury had her argument. No scholarship is necessary to understand that a judge is not obliged to recite in his summing-up every point upon which a party seeks to rely. The exercise is one of assessing the whole picture presented by the evidence, understanding the arguments, and offering a digest or distillation or analysis designed to help the jury by introducing some element of weighting whilst underlining that its approach to what matters and what does not, or matters less, is exclusively for the jury.
91. Complaint is also made about how the Judge dealt with the circumstances in which Dawson contacted the police on 10^th June when, said the Judge, "the wheels of justice had started to turn." Miss Brimelow argued that Dawson's name had already come to the attention of the police. He returned the silver Focus to Avis and the police seized it on 8^th June. Miss Brimelow submitted this was a very strong point in Deacon's favour.
92. Her difficulty is that no evidence established Dawson knew the police had the Focus when he first contacted them on 10^th June. He could thus rely on it to counter any suggestion that his contact had been an exercise in shrewdness born of a guilty conscience plus knowledge that the net was closing.
93. Refusing leave the single judge wrote:

"There is no merit in any of your criticisms. The Judge adequately summed up the evidence and the case for and against Dawson in a way which does not arguably put in doubt the safety of your conviction."

Ex parte applications

94. This Court is urged to examine the material withheld which it is said appears to have influenced the Judge against Nathan Deacon. What are described as repeated PII applications are said to raise a lurking doubt.
95. We were puzzled by the reference to lurking doubt as a ground of appeal but it is unnecessary to pursue the point.
96. We can take this ground briskly since it is hopeless. Nothing was advanced before us other than the assertion that the number of applications is suspicious. This is not the test, and there were in a four month trial three such. For completeness we add the conclusion of the single judge who wrote:

"It is not appropriate to require the court at the permissions stage to review the PII material* unless there is good reason to believe that it has led to bias or of significant material having been wrongly withheld. There is no justifiable ground for alleging either. I have nevertheless reviewed the PII hearings and they cast no doubt on the safety of your conviction, either on their own or in conjunction with the delayed disclosure of the surveillance evidence and the Best One Shop footage."

DC Palmer

97. The Judge was wrong to allow the Crown to lead evidence of what Dawson said to DC Palmer about Nathan Deacon having been involved in the murder. Alternatively, he should have severed the trial of Dawson from that of the others in the dock.
98. What Dawson told DC Palmer about Deacon was inadmissible hearsay as against Nathan Deacon but admissible against Dawson. That is an end to the first complaint.
99. The Judge was also justified in declining to sever. He was right when he described a very strong advantage in holding one trial of those jointly charged. We add for completeness that albeit not the test applicable at the time he made the Judge made his decision, Dawson went into the witness box, repeated his comments to DC Palmer, they became evidence and were admissible.
100. Refusing leave the single judge wrote:

"The evidence of DC Palmer was correctly admitted as evidence against Dawson. It was not wholly exculpatory of Dawson; the detailed knowledge of the circumstances of the killing, taken together with Dawson's inconsistencies as to his sources of information, were capable of incriminating him in the murder. The Judge was right to refuse severance for the reasons he gave. The directions given to the jury ensured a fair trial."

We agree.

101. For Nathaniel Solomon Mr Ian Bourne QC in model submissions and exemplary advocacy skills advanced three Grounds. The judge erred in law in failing to accede to a submission of no case to answer, in not acceding to an application for severance, and in failing adequately to sum up the applicant's case.
102. The first complaint is that the Judge ought to have acceded to a submission that there was no case to answer.
103. Post-murder the telephones of a number of the defendants were picked up in Camberwell, then from midnight to about 0400 on 7^th June by masts covering the Thornton Heath home of Dawson and Gabriel.
104. Between 0400 and 0430 telephones of Tafari Deacon, Henry, Broderick and Solomon, in different trios moved to and or were picked up in Camberwell. Soon afterwards, Tafari Deacon was picked up by a CCTV camera in Streatham.
105. The Crown led that Tafari Deacon, Henry, Broderick and Solomon went to Camberwell in the Alfa and the grey Focus then all returned to Croydon in the Alfa before Tafari Deacon drove onto Streatham. CCTV footage from A&M Autos showed the Alfa and the Focus and related human activity near the car park. Two people, the Crown suggested Henry and Solomon, had set fire to the Focus. There was some interest in whether the interpretation of a true reading of the clock, which all agreed recorded times incorrectly, was strictly accurate. It need not detain us.
106. Solomon submits that the agreed expert evidence was that he could not have been within 500 metres of the car when it was set alight. Solomon and Henry each cross-examined Mr Arkless using "at" rather than "by" or "at or before". They sought to establish that if Henry's telephone were picked up (by another mast) at 04.31 he could not have been one of the two men near the car and Solomon could not have been the other.
107. The Crown submits that" "by" was consistent with the Arkless syntax "at or before" used in the help he had already offered the jury in the Agreed Document. "At", without the qualifying "or before" it suggests does not give an accurate account of what Arkless sought consistently to convey.
108. There was no clear evidence of precisely when the fire was set. It was for the jury if it could to reconcile inconsistent but reconcilable pieces of evidence, as the Judge told it. He did not find it necessary to deal with the "at or before" point.
109. Mr Bourne did not challenge Mr Arkless that his interpretation of GPRS was flawed. Rather, he confirmed that the agreed Arkless Philips document was correct.
110. Counsel for the Crown did not notice the use of the syntax. Had he done, we are told and accept, one question in re-examination "In agreeing with the use of 'at', rather than 'at or before', have you changed the position you have repeatedly advanced over the past few days?" would have admitted of only one answer, "No".
111. In our view the evidence of Arkless showed that at some point between 0421 and 0431 Solomon's telephone had been up to several hundred yards from where the Focus was set alight.
112. Refusing leave the single judge wrote:

"Submission of no case to answer. There was cell-site evidence from which the jury could properly conclude that you travelled from the residence of Dawson (against whom there was a case to answer for murder) with Broderick, Solomon and Tafari Deacon (against whom there was a case to answer for arson) to the vicinity of where the car used in the murder was burnt out; and that you were present there with the others minutes before the car was set alight. Against the background of the evidence summarised in the Prosecution Note opposing the submission of no case to answer, that was sufficient to leave the case to the jury. The agreed note between the experts that your phone was using the Camberwell Bus Garage cell at least 500m away "by 04.31" reflected Mr Arkless's evidence that because it was a GPRS connection it indicated that the phone had connected to the mast at or before that time. The answers given by Mr Arkless in cross-examination (assuming the accuracy of defence counsel's note paragraph 10 of the submission of no case to answer) could properly have been interpreted by the jury as being to the same effect. In any event the jury could properly have concluded that the timing for the setting alight of the car derived from the M&A Autos footage was not secure."

We agree.

Severance

113. Solomon faced a future trial for supply of cocaine. On 6^th June he and Nathan Deacon had driven to Banbury and on 3^rd June had been in Bicester. By the end of cross-examination the case, as the Crown put it, was awash with drugs. Summing-up, the Judge said it was screamingly obvious that the jury could not understand the case without knowing of Dawson's dealing.
114. Broderick and Solomon applied unsuccessfully for their cases to be severed as a result of the prejudice arising from Dawson's accusations of their being involved in drug-dealing. The evidence of involvement was inextricably linked to the rest of the evidence.
115. Refusing leave the single judge wrote:

"Severance The judge was right to refuse for the reasons he gave. The evidence of involvement in the supply of drugs was inextricably linked to other aspects of the evidence, and any potential prejudice avoided by a suitable direction."

We agree.

116. The Judge failed to direct the jury adequately as to the "unchallenged evidence…[that] the telephone was at least 500 metres away" at the time that the Ford Focus had been set alight.
117. The complaint is a repetition of that that the Judge should have withdrawn the case from the jury. The Judge had rejected the submission on the basis that it would be open to the jury to find that Solomon had been involved in the setting alight of the car. Had he taken a different view, he would have allowed the submission.
118. Refusing leave the single judge wrote:

"Failure adequately to sum up your case. This is no more than a repetition of Ground (1), based on the erroneous assertion that the unchallenged evidence was that your telephone was at least 500m away when the car had been set alight. The evidence, and the point, were adequately referred to in the summing up on 15 May 78 D-F and 16 May 32F-36G."

We agree.

119. As to the non-counsel renewal by Al Daniels of his applications for leave to appeal against conviction and sentence after refusal by the single judge, the facts insofar as they are not apparent from this judgement are adequately set out in the work of the Criminal Appeal Office. They do not require recitation here.
120. Refusing leave on conviction the single judge wrote:

"DNA After hearing the evidence of Profs Krane and Balding on the voir dire, the Judge was entitled to treat the evidence as admissible in accordance with R v Reid & Reid [2010/11 Cr. App. R. 310 and R v Dlugosz, Pickering, MDS [2013] 1 Cr App R 32, for the reasons he gave in his detailed and carefully reasoned judgment.

GSR The judge was right to treat the evidence as admissible under s.101(d). The jury would have been entitled to treat it as establishing previous possession of a shotgun and thus to make it more likely that it was you, rather than Sachia Clarke, who had custody of the guns in the cupboard at her flat, an important issue between you and the Crown as well as between you and her. It was not "propensity" evidence as envisaged in s. 103 or the authorities thereon. Its admission was not unduly prejudicial, and in any event it would have been admissible and admitted upon application by Sachia Clarke."

121. Refusing leave on sentence he wrote:

"On 28^th June 2013, after the preparation of a pre-sentence report on the issue of dangerousness, Daniels was sentenced to life imprisonment (as a dangerous offender) with a minimum term of 14 years. The Judge described the defendant's offending as being "extremely close to the murder and, in my judgment, as bad a case of possession of firearms…as it is possible to imagine." The Applicant had acted as "a street gang armourer"

R v Avis [1998] 1 Cr App R 420, Lord Bingham referred to the "conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoking an escalating spiral of violence." For offences (as here) contrary to section 16 of the Firearms Act, "terms at or approaching the maximum may in a contested case be appropriate." The sentence was entirely justified."

We agree.

122. All these applications, which we reject, should never have been renewed.  Precious resources have been used, with an inevitable impact on the administration of justice in this court generally.
123. In each case 28 days spent on remand is not to be deducted from the loss of liberty imposed.