England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WARWICK CROWN COURT
HHJ DE BERTODANO
T20137310, T20137318

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2017

The Vice President :

Introduction

1. On 24 February 2014 Lemar Grant, Kofi Poyser, Anthony McLeod and Lewis Poyser pleaded guilty to an offence of causing grievous bodily harm with intent, ("the nightclub indictment").
2. At pre-trial hearings on 16 May, 21 July and 17 October 2014 at Warwick Crown Court (before Her Honour Judge de Bertodano), Lemar Grant, Kofi Poyser, Anthony McLeod and Ricardo Grant pleaded guilty to five counts of kidnap, possession of firearm with intent, false imprisonment, blackmail, and causing grievous bodily harm with intent (the kidnap indictment").
3. On 8 and 9 December 2014, Lewis Poyser, Ralph McLeod and Yusuf Akbar were convicted on a three count "kidnap" indictment of false imprisonment, blackmail and causing grievous bodily harm with intent.
4. Lemar Grant, Kofi Poyser, and Anthony McLeod were sentenced to a total term of life imprisonment with a specified minimum term of 13 years each. Lewis Poyser and Ralph McLeod were sentenced to life imprisonment with minimum terms of 13½ years and 9 years respectively. Ricardo Grant was sentenced to a determinate term of 15 years and Yusuf Akbar to a determinate term of 12 years' imprisonment.
5. Four other co-accused, who have not applied for leave to appeal, were also charged on the five count kidnap indictment. Jermaine Campbell and Kadeem Poyser pleaded guilty to all counts. Campbell was sentenced to total of 15 years' imprisonment. Kadeem Poyser was sentenced to 13 years' imprisonment. Ismaeel Akbar pleaded guilty to three counts and was sentenced to 14½ years.

Present proceedings

6. Lewis Poyser and Ralph McLeod appeal against sentence with leave. They and Yusuf Akbar renew their applications for leave to appeal against conviction on the offence of causing grievous bodily harm with intent (count 3). Yusuf Akbaf renews his application for leave to appeal against sentence. Anthony McLeod, Kofi Poyser and Lemar Grant appeal against sentence with leave. Ricardo Grant renews his sentence application. We shall refer to them all as appellants for convenience.

The nightclub indictment

7. In the early hours of 30 June 2013, there was an altercation inside the Clique nightclub in Coventry between the appellant Anthony McLeod and the victim Tobias McIntosh. Doormen separated them and restrained brothers Lewis and Kofi Poyser who were also aggressive. Kofi Poyser had armed himself with a bottle. The complainant was escorted out of the club. Anthony McLeod, Lewis and Kofi Poyser and Lemar Grant followed him.
8. They punched and kicked McIntosh to the ground where they kicked and stamped on his head repeatedly. Anthony McLeod returned after the initial attack to kick him in the head several times, notwithstanding that it was apparent that the complainant was now unconscious and badly hurt. Kofi Poyser also returned to deliver a further kick to the head. Tobias McIntosh suffered a severe brain haemorrhage and had multiple facial injuries resulting in permanent scarring. His head was described as misshapen. He declined to assist the prosecution or submit a victim personal statement but there was CCTV footage of the attack. Kofi Poyser, Anthony McLeod and Lewis Poyser were arrested and bailed.

The kidnap of Damien Lowe

Prosecution case

9. The ten accused were all friends or related to each other. There was a history of animosity between the kidnappers and the family of the victim, Daniel Lowe, linked in some way to drugs. They planned to kidnap, imprison and seriously injure him, if necessary, to enforce their blackmail demands for money and drugs from his family.
10. At about 14.20 on 30 September 2013, Ricardo Grant, Lemar Grant, Jermaine Campbell, Kofi Poyser and Kadeem Poyser set off in a van to kidnap Damian Lowe. Three of them, wearing balaclavas, bundled him into the van, a bag was put over his head and he was beaten with an iron bar. He was taken to a garage at 9 Dovedale Avenue Coventry, the home address of Lewis and Kofi Poyser. He was bound and gagged and blindfolded. He was held inside the van in the garage for the next thirty or more hours with no food, water or lavatory facilities. He was threatened that he would be killed if he did not do as he was told. All five who pleaded guilty to count 1 participated directly in the kidnapping, although it was unclear the role each offender played, other than that Ricardo Grant was the gunman with an imitation gun. Mr Lowe recognised the voice of Lemar Grant as one of the men who struck him and heard the name Ralph mentioned. Meanwhile, Lewis Poyser drove to Northampton to collect Anthony McLeod. Lewis Poyser and Anthony McLeod were in close contact with the kidnappers and Ismaeel Akbar. All three went to 9 Dovedale Avenue.
11. On the evening of 30 September, Damian Lowe's family, the Bournes, received telephone calls from Ismaeel Akbar demanding money and drugs in exchange for his release. The family refused to co-operate. By 21.37 hours Ismaeel Akbar and his brother Yusuf were together in Birmingham and the others still in Coventry. Ismaeel Akbar telephoned Michael Bourne and threatened to cut off the Mr Lowe's finger if the money was not paid. After the call, two of Mr Lowe's captors held him down in the van while a third cut off the little finger of his left hand. The finger did not come off cleanly and had to be pulled off. The blood loss was extensive. The stump of his finger was burned with a lighter. He was left unattended in the van until the next morning. The act of mutilation had the desired effect: the family decided to pay the ransom which was increased from £13,000 (in the 21.37 call) to at least £20,000.
12. That evening Michael Bourne drove to Birmingham and left a package containing the ransom money and drugs in a spot near the Colwyn public house and then drove away. The Colwyn was near the home of Yusuf Akbar, who was watching as the package was delivered. The ten men had spilt into two groups; some had gone to join Yusuf Akbar to deal with the handover of the money, and the others stayed at 9 Dovedale Avenue to supervise Damien Lowe. The package was retrieved and taken to 9 Dovedale Avenue.
13. The complainant was transferred from the van to the boot of a vehicle owned by Kadeem Poyser and driven to a quiet location where he was abandoned on the verge. He was soon found by police officers, who had been conducting a surveillance operation. Armed police then raided 9 Dovedale Avenue where they found Ricardo and Lemar Grant, Jermaine Campbell, Ralph and Anthony McLeod, Ismael Akbar, and Kofi and Kadeem Poyser. Among items recovered were £19,960 in cash, telephones used to make the ransom demand calls, and bloodstained clothing.
14. Damien Lowe's injuries were extensive, he was dehydrated, and acutely distressed. He had thought he was going to die. His finger could not be re-attached. He continued to feel pain at the site of the amputation by the time of the trial. The psychological effect on him has been profound. He lives in constant fear and suffers nightmares. He is terrified of leaving home alone.

Cases for and against each appellant

Lewis Poyser

15. The key prosecution evidence against him was as follows:

(i) His extensive telephone contact with the co-defendants and their guilty pleas.

(ii) His journey from Coventry to Northampton shortly before the kidnap to pick up Anthony McLeod (who played a central role) and take him to 9 Dovedale Avenue.

(iii) During the relevant period, his presence at 9 Dovedale Ave on a number of occasions and his association with the co-accused in the Coventry area.

16. The defence case was that he was not involved: there was no forensic evidence against him, no evidence that he was present at the scene of any of the relevant events, no mention of him by the complainant or any witness, and no known motive.

Ralph McLeod

17. The key prosecution evidence against him was:

(i) His association and telephone contact with his co-defendants on 29 and 30 September.

(ii) His fingerprint inside a plastic bag containing money found in the kitchen at 9 Dovedale Ave.

(iii) His presence at the address on the afternoon of 1 October and again when the police raided it just before midnight.

(iv) The complainant's report that he heard one of the captors say, "Ralph said…".

(v) The complainant's blood on his jeans and trainer.

18. The defence case was that he knew nothing of the kidnap before it happened; he had an alibi for the time of the kidnap; after the kidnap, he did not associate with the offenders and he was not at 9 Dovedale Ave before midday on 1 October. The complainant's blood was transferred onto his shoe and clothing when, minutes before his release, the complainant was bundled out of the van and into the car.

Yusuf Akbar

19. The key prosecution evidence against him was:

(i) Family connections: Lewis Poyser was his cousin; Ralph and Anthony McLeod were his uncles; Ismael Akbar was his brother.

(ii) Telephone contact with the co-accused on 30 September, including calls to Kofi Poyser and Anthony McLeod after the kidnap.

(iii) His admitted presence with the co-accused Ismaeel Akbar on the evening of 30 September when the demand calls were made.

(iv) Extensive contact with Ismaeel Akbar on 1 October.

(v) Participation in the collection of the money and drugs.

(vi) His subsequent presence at 9 Dovedale Ave and the sighting of his car at the drop point for the complainant.

20. The defence case was he was not involved and had an alibi.

Rulings

21. In the renewed applications for leave to appeal against conviction we are concerned with three of the judge's rulings

Submission of no case on count 3: causing grievous bodily harm with intent (the severing of the finger)

22. At the close of the prosecution case, the judge ruled that the jury could properly infer that Lewis Poyser, Ralph McLeod and Yusuf Akbar were closely connected to events as they unfolded and that it was essential to the success of the plan that the principals were prepared to enforce their demands by carrying out their threats to inflict demonstrable harm on the hostage. It was open to the jury, once they were sure of a defendant's guilt on the counts of false imprisonment and blackmail to conclude that he must have foreseen the risk that one or more of the principals would seriously harm the complainant intentionally to reinforce their demands.

Submissions as to whether the offence of causing grievous bodily harm should be left to the jury as an alternative on count 3

23. The defence wished the judge to leave an offence of causing grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 as an alternative to the count of causing grievous bodily harm with intent. The judge agreed with the prosecution that the alternative of a section 20 offence was not appropriate because the harm caused was a severed finger, a serious injury that could not have been caused in any way other than intentionally. Unless the jury were sure that a defendant foresaw a risk of really serious harm, they would have to find him not guilty.

Bad character application: Lewis Poyser

24. The prosecution was initially refused leave to adduce evidence of Lewis Poyser's guilty plea to the nightclub assault, but permitted to put before the jury, as an agreed fact, that Anthony McLeod, Kofi Poyser and Lemar Grant committed the assault in Lewis Poyser's presence, without revealing that he was a participant.
25. However, the judge changed her mind when, in his evidence, Lewis Poyser stated: "I think they would know I would not let this happen at my mum's house." The prosecution successfully renewed their application on the basis his comment was capable of giving a false impression.

Appeal Against Conviction

26. Although there are factual differences in the cases of Lewis Poyser, Ralph McLeod and Yusuf Akbar, they do not affect the substance of their arguments on three of the grounds. We shall consider them together in the order in which the arguments were advanced before us.

Ground one: the Jogee ground

27. The original grounds of appeal were lodged before the Supreme Court judgment in R v Jogee; R v Ruddock [2016] UKSC 8 and the judgment of the Court of Appeal in Johnson & Others [2016] EWCA Crim 1613. In the light of the judgment in Jogee, Lewis Poyser, Ralph McLeod and Yusuf Akbar sought to amend their grounds of appeal to add a new ground that the judge misdirected the jury on the law relating to joint enterprise on count 3.
28. Mr Schofield for Lewis Poyser, supported by Mr Muller for Ralph McLeod, invited the court to treat the application as a 'transitional case' so that the appellants do not require exceptional leave to advance the Jogee ground out of time and do not need to meet the substantial injustice test set out in the judgment of Lord Hughes and Lord Toulson at paragraph 100 of Jogee. The original grounds of appeal were lodged in time and contained a criticism of the judge's directions on the issue of "fundamental departure" from a joint enterprise. This ground, in effect, criticised the judge's directions for stretching the concept of parasitic accessory liability too far, the very issue under consideration in Jogee.
29. If that argument found favour, the test would be one of safety of the conviction as set out at paragraph 7 of Johnson and others:

"Appeals against conviction brought in time, must be judged in accordance with the well-established statutory requirement identified in s.2(1) of the Criminal Appeal Act 1968: it is not sufficient only for there to have been some misdirection or error in the conduct of the trial. What is crucial is that the verdict is thereby rendered unsafe … the decision in any case must be fact sensitive: a misdirection in law which was not in reality, in relation to a true (or real) issue in the trial does not thereby (and certainly does not necessarily) render a conviction unsafe'.

30. In the alternative, counsel invited the court to find that a substantial injustice would occur if they were not given exceptional leave pursuant to paragraph 21 of Johnson:
    

"In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct."

31. The substantial injustice in Lewis Poyser's case was said to lie in the fact that had he not been convicted of an offence of causing grievous bodily harm with intent he would not have faced a sentence of life imprisonment. Mr Muller did not identify a substantial injustice peculiar to Ralph McLeod other than his conviction for a serious offence. Mr Mason QC for Yusuf Akbar focussed solely on the issue of whether the change in law and Jogee compliant directions would have made a difference to the verdict.
32. The judge's directions on joint enterprise were clear. She directed the jury to consider counts 1 and 2 first and, only if they convicted on both, should they move to count 3.

" .. you then have to consider whether (a defendant) is jointly responsible for count 3 cutting off the finger and that is also a form of joint enterprise but it is a different form….

The question is a disarmingly simple one: did the defendant foresee that others might seriously injure Damian Lowe with intent to cause him serious injury? And that intention of course is not his intention: it's his co-defendant's intention – the one who cuts the finger off – but did he nevertheless go on to participate in the false imprisonment and blackmail? So you will be considering a defendant's state of mind before the cutting off of the finger happened. When as he decided he was participating in the false imprisonment and blackmail, you decide what risk he foresaw. Of course if he simply foresaw that a co-defendant might cause harm accidentally or even cause deliberate harm without intending serious harm then you would find him not guilty. He has to have foreseen that his co-defendant would cause him really serious injury intending to cause him really serious injury….

…there is one further matter. He is only liable if they committed this crime in a way which is not fundamentally different from the risk he foresaw…

… what is fundamental to this crime- the cutting off of the finger-… is to reinforce the blackmail demands by seriously injuring him and showing the family that that's what they'd done. There might be a number of ways in which one could do that; it wouldn't have to be the cutting off of a finger; but it is that sort of risk that you need to be sure that a defendant foresaw."

33. This was a misdirection viewed in the context of the law as it now stands, because it equated foresight with intention, rather than treating the first as evidence of the second. Counsel accepted that it follows from the judge's directions and the jury's verdicts that the jury was satisfied that the appellants were involved in the false imprisonment and blackmail of Mr Lowe and participated with the foresight that an offence of causing grievous bodily harm with intent might be committed. But, foresight does not equate to intent. The offences of false imprisonment and blackmail do not necessarily involve the infliction of really serious harm and post Jogee, the jury should have been directed to focus on what the appellants actually intended. The jury may have convicted the appellants on count 3 on the basis that the principal/s spontaneously decided to depart from the original plan and caused Damien Lowe serious bodily harm with intent and that the risk of this happening was foreseen by the appellants but not intended.
34. The jury was not directed that a conviction in respect of count 3 was dependent on a factual finding that the original plan to kidnap and imprison the complainant included a contingency plan intentionally to cause really serious bodily harm, if the Bournes did not pay the ransom timeously. If so, it cannot be said with any confidence that the verdict would have been the same, had the jury been directed in accordance with the principles established in Jogee.
35. An attempt was made to distinguish the present case from the individual 'in time' appeals in Johnson and others. In those cases, the jury must have found that the Appellant was aware of the murder weapon, which by virtue of Jogee provides a strong (possibly irresistible) inference of a shared intention to cause really serious bodily harm. In this case, the jury was not required to make findings about the appellants' knowledge or otherwise of the weapon used to sever the complainant's finger.

Ground two: the submission of no case to answer

36. Lewis Poyser, Ralph McLeod and Yusuf Akbar renew their applications for leave to appeal on the basis that the judge erred in finding that there was a case to answer on count 3.
37. The judge's ruling was based on the sufficiency of evidence in the context of the following principles:

'The type of serious injury and the weapon which would be used is irrelevant in this case. What matters is whether a defendant foresaw the risk of an act with three requirements: the use of violence with intent to cause really serious bodily harm, in a way which was demonstrable to the victim's family, as a means of reinforcing the blackmail demands.

Whether this was by the cutting off of a finger, or, for example, by beating the victim and making video footage if the injuries, either of which could be shown to the family of the victim, matters not. The fundamental character of these acts comes from the purpose for which the injuries were inflicted, not the type of injury or the type of weapon used to cause it'.

38. The focus of the defence submissions of no case to answer was that even if the jury was satisfied the accused were guilty of false imprisonment and blackmail, the severing of Damien Lowe's finger by the principal/s may have been fundamentally different from what the Appellants foresaw the principal/s might do in the course of the false imprisonment and blackmail. The judge, it was said, wrongly concluded that the concept of 'fundamental departure' related to the purpose of the act as opposed to the type of act itself. The law as it applied at the time was that the type of act (as opposed to the purpose of the act) foreseen had to be fundamentally the same (per Lord Hutton in R v Powell and Daniels; R v English [1998] 1. Cr.App.R. 261 at 285)
39. Counsel acknowledged that in R v Jogee; R v Ruddock at paragraph 98 Lords Hughes and Toulson stated:

'The tendency which has developed in the application of the rule in Chan Wing-Siu to focus on what D2 knew of what weapon D1 was carrying can and should give way to an examination of whether D2 intended to assist in the crime charged … the question is whether he intended to assist the intentional infliction of grievous bodily harm at least, which question will often, as set out above, be answered by asking simply whether he himself intended grievous bodily harm at least … Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, and may be irresistible evidence one way or the other, but it is evidence and no more.'

40. Nonetheless they maintained that it remains the case that a secondary party is not liable for overwhelming supervening acts by the principal/s 'which nobody in the defendant's shoes could have contemplated might happen' (Jogee at para 97), such as a kidnapper departing from the original plan and/or deciding spontaneously to amputate a victim's finger to reinforce the ransom demands. The appellants' ignorance of the presence of a weapon might lead to the irresistible inference that he lacked the necessary intention to assist in the intentional infliction of really serious bodily harm. Accordingly, the judge's ruling was wrong in her declaration of the relevant principles and in her assessment of the sufficiency of the evidence.

Ground three: the judge erred in refusing to leave the alternative of wounding contrary to section 20 of the Offences against the Person Act 1861.

41. Lewis Posyer, Ralph McLeod and Yusuf Akbar renew their applications for leave to appeal on this ground.
42. They relied on the principle expressed in R v Coutts [2007] 1. Cr.App.R 6 to the effect that the way in which counsel chose to present their respective cases at trial, is not determinative of the issue of whether or not a lesser alternative should have been left to the jury. If the alternative verdict was obviously raised by the evidence, the failure to leave the alternative renders the conviction unsafe.
43. In this case, there was said to be evidence upon which the jury could have concluded that the appellants: (i) participated in the false imprisonment and blackmail offences; (ii) foresaw the possibility that the principal/s would use violence against the complainant; but (iii) did not foresee or intend that really serious bodily harm with intent would be inflicted. If this was the limit of the jury's findings, it would support an acquittal of s.18 but a conviction of s.20. Counsel rejected the suggestion this was a speculative route to verdict. It was possible on the factual matrix, and fitted with the formulation in Jogee at paragraph 96.

Ground four: Lewis Poyser's bad character

44. Lewis Poyser seeks to renew his application for leave on the ground that the judge wrongly allowed the prosecution to admit the appellant's plea of guilty to the nightclub incident. Mr Schofield insisted that in giving the answer: "I think they would know I would not let this happen at my mum's house" Lewis Poyser was not seeking to convey the impression that he did not condone violence generally. The answer was 'measured and contained a crucial caveat' namely that he would not allow violence at his mother's house. It contained no assertion about his general attitude to violence, nor did he seek to present himself in a different and more favourable light from his co-accused.
45. Reliance was placed on R v D; R v P; and R v U [2012] 1 CrAppR 8 CA as authority for the proposition that the section 101(1) (f) gateway is over-used and caution should be applied before invoking it. R v Gary Good [2008] EWCA Crim 2923 is authority for the proposition that where the comment made by the defendant is equivocal, the gateway should not be used. Even if admissible under the gateway, the trial judge should have exercised her discretion to exclude the evidence because of the significant prejudice the admission of the evidence would cause.

Conclusions on Conviction

Ground one: The Jogee ground

46. The appellants undoubtedly need exceptional leave. This case falls squarely within the terms of paragraph 25 of Johnson and others. An application was made within time for leave to appeal and leave was refused. The grounds were renewed to the full court and a subsequent application made to add a ground based on the judgment in Jogee. The fact that the original grounds included a ground based on a different aspect of the judge's directions on joint enterprise is not to the point. The appellants must, therefore, meet the substantial injustice test, a high threshold (see Johnson and others paragraph 21).
47. We have regard to the "strength of the case advanced that the change in the law would in fact have made a difference". It follows from the judge's directions and the jury's verdicts that they found:

(i) the appellants were participants in the continued detention of the hostage (false imprisonment) and in the demands made to the family (blackmail);

(ii) each participated in some way in the wounding;

(iii) each foresaw the risk that another participant would cause the victim really serious harm with intent to do really serious harm;

(iv) the conduct that caused the injury that in fact resulted was not fundamentally different from what the appellants had foreseen.

48. Thus, the offences of which the appellants were convicted were crime A offences of serious violence at the upper end of the spectrum. The inference of their participation with an intention to cause really serious harm is, in our view, irresistible. Jogee complaint directions would not have made a difference.
49. We were not, therefore, persuaded that the appellants have met the substantial injustice test and we refuse leave. For the avoidance of doubt, had we been solely in the territory of safety of the conviction, the result would have been the same.

Renewed grounds

50. In refusing leave to appeal against conviction on the renewed grounds the single Judge provided a careful analysis of the evidence and gave full and detailed reasons. We agree with them and do not intend to repeat them. We add only this.

Ground two: Submission of no case

51. The real question for us in considering the judge's ruling that there was a case to answer is not whether her statement of the legal principles, as she understood them to be, was correct but whether her assessment of the sufficiency of the evidence was correct. In any event, we reject the criticisms of her approach on the legal principles to be applied. She rightly focussed on the evidence of participation in the offence and of the accompanying mens rea.
52. There was ample evidence from which the jury could conclude that the appellants were involved in the joint enterprise falsely to imprison and blackmail from start to finish. The severing of the finger was at the heart of the blackmail and must have been agreed as part of the plan, for Ishmael Akbar to make the threat and for three of the others to carry it out. Both McLeod and Poyser were at the house when the finger was severed and remained there supervising him afterwards. Blood was found on McLeod's clothing. Akbar was with his brother when the threat to cut off the finger was made.
53. If so, it was for the jury to assess the extent of their involvement and whether the joint enterprise encompassed the causing of really serious injury with the intention of causing really serious injury, if necessary, to reinforce the ransom demands. The appellants' state of mind on the section 18 offence and the possibility that others had gone far beyond what they had agreed or intended was very much a matter for the jury to consider. The judge in effect directed the jury that if the severing of the finger amounted to such a fundamental departure from the plan that 'no one in appellant's shoes' could have contemplated it might happen, they should acquit.

Ground three: alternative of wounding contrary to section 20

54. The prosecution pinned their colours firmly to the mast that the blackmailers intended to reinforce their ransom demands with threats of serious injury and intended to carry out their threats if the family did not co-operate. One of those threats was to cut off Mr Lowe's finger. The severing of Mr Lowe's finger undoubtedly caused him really serious harm. All those involved in the severing of the finger must have intended to cause him really serious harm. The only issue for the jury was whether the appellants were involved in the severing of the finger or whether the persons responsible had gone beyond the agreed plan. The lesser alternative offence of wounding was simply not raised, let alone 'obviously raised' on the facts. There was no question here of the jury's convicting of a more serious offence for fear of letting the appellant ''get clean away'' with a complete acquittal.

Ground four: The bad character of Poyser

55. The Judge heard the applicant give his evidence and she was well placed to assess the impression he had given to the jury. She applied the correct principles and took into account all relevant matters in her ruling. The Court of Appeal will not interfere with a judge's decision in such matters unless the judge was clearly wrong. She was not.
56. The applications for leave to appeal against conviction are refused.

Appeal against Sentence

57. Lewis Poyser, Lemar Grant, Kofi Poyser, Anthony McLeod have leave to argue that the judge gave insufficient weight to the totality principle, resulting in too high a minimum term. Ralph McLeod has leave to argue that the judge erred in finding that he was a dangerous offender and that a life sentence was required. Other grounds are renewed.

Antecedents

58. Taking the appellants in alphabetical order:

(i) Yusuf Akbar is now aged 36 and had one previous conviction for a minor offence, but the judge in sentencing treated him as being of good character.

(ii) Lemar Grant is now aged 28 and had ten previous convictions. He had two convictions for robbery in 2005 and 2008, assault occasioning actual bodily harm in 2005 and aggravated vehicle taking in 2010. In 2007 he served a short custodial sentence for criminal damage, battery and breaching community orders.

(iii) Ricardo Grant is now aged 27 and seven previous convictions. He had a conviction for robbery and threatening a witness in 2005, two convictions for possessing an offensive weapon in 2006 and 2008, but nothing since 2008. He had not received a custodial sentence.

(iv) Anthony McLeod is now aged 37 and had 12 previous convictions including and offence of assault occasioning actual bodily harm in 1995, a number of drug-related offences, including possessing Class A drugs with intent and possessing a firearm with ammunition in a public place in 2005 for which he was sentenced to a total of 7 years' imprisonment.

(v) Ralph McLeod is now aged 40 and had previous convictions for relatively minor offences against the person, possession of drugs, possession of an offensive weapon, motoring and dishonesty offences. In 2000 he was convicted of wounding with intent for which he was sentenced to 4½ years' imprisonment. The circumstances of the offence were far from clear at the time of sentencing. The judge knew little more than it involved the use of a machete. On 6 May 2014 he was sentenced to 5 years for conspiring to produce cannabis. He was serving this sentence when sentenced for the present offences.

(vi) Kofi Poyser is now aged 25 and had one previous conviction for a drink-driving offence.

(vii) Lewis Poyser is now aged 26 and had no previous convictions.

59. They were all assessed as posing a high risk of harm under section 229 of the Criminal Justice Act 2003 in the light of the facts of the index offences, and their association with their co-accused.

Sentencing Remarks

The nightclub incident

60. The judge described the nightclub assault in June 2013 as a brutal attack upon a defenceless man who was prostrate on the ground and which continued after he was unconscious. On the Sentencing Guidelines, the case fell into the greater harm category and the higher culpability category (the use of shod feet as weapons). She was not persuaded that there had been provocation: the CCTV footage showed the complainant walking away after they left the club; nor was she persuaded that there was a lack of premeditation. The aggravating factors were that the incident took place in a public street in front of horrified onlookers and that alcohol was involved. She placed the offence in category 1 with a starting point of 12 years and a range of 9-16 years. Because of the brutality, the sustained nature of the attack and the seriousness of the injuries, she made an upward adjustment from the starting point to a generic figure of 15 years appropriate following a contested trial, subject to individual aggravating and mitigating features. She allowed 25% credit for the guilty pleas.

The kidnap and associated offences

61. The judge described the kidnap and false imprisonment of Damian Lowe and the blackmail of his family as a carefully planned operation in which all ten men played vital roles, although it was unclear who did what at each stage. The judge decided she would treat none as leaders, but equally none except Yusuf Akbar could claim that their role was a subordinate one. It was essential to the success of the plan that they were willing to back up the blackmail demands by seriously injuring the complainant in a way that was demonstrable to his family. Taking all the circumstances into account, count 3 the offence of causing grievous bodily harm with intent, was a top end category 1 offence. There were no Sentencing Guidelines for the associated offences of kidnap and false imprisonment, but there was relevant case law. She reached a generic figure for a contested trial of 20 years for those who were involved in the kidnap from the beginning, and 18 years for those who were involved in the false imprisonment, blackmail and grievous bodily harm. She allowed 25% credit for those who pleaded guilty at the second Plea and Case Management hearing but only 20% for those who pleaded guilty closer to the trial.
62. The judge rejected submissions that the three who were convicted after trial should be treated as having more minor roles. Having heard the evidence, the judge was satisfied that they were all willing participants in a plan where there was an intention to cause injury and that they were aware of the likely gravity of it.
63. She observed that had Anthony McLeod, Lewis Poyser, Kofi Poyser and Lemar Grant, been sentenced for the nightclub incident at the time, a life sentence would have been mandatory for the Damian Lowe offences (as a second serious offence under section 224A of the Criminal Justice Act 2003).
64. Those who stood to be sentenced for both sets of offences and/or who had serious matters of violence in their past were found to be dangerous offenders (pursuant to section 229 CJA 2003). The risk posed could not be managed by an extended sentence, and a life sentence was required (section 225).
65. The individual appellants were sentenced on the following basis:

i) Yusuf Akbar was not involved in the kidnap but was involved from the evening of that same day and was present when the demand calls were made. His flat was used as the location for the cash drop-off and he played a key role in the collection of that money. He was also involved in depositing the complainant. He played a significant role from a relatively early stage. However, there was insufficient to support a finding of dangerousness. A determinate sentence was appropriate.

ii) Lemar Grant was one of the kidnappers and was at or near 9 Dovedale Ave for most of the period. Blood on his clothing showed he had direct contact with the complainant. He was entitled to 20% for his pleas to the kidnap offences, and 25% for his plea to the nightclub assault. He was dangerous and required a life sentence.

iii) Ricardo Grant was one of the kidnappers and was the gunman. He was at or near 9 Dovedale Avenue for most of the period for which the complainant was held and he was one of those who travelled to deposit him. He did not have serious violent offending in his past. A determinate sentence would suffice.

iv) Anthony McLeod did not take part in the kidnap but was at or near 9 Dovedale Ave for a significant part of the period. He liaised closely with Ismaeel Akbar when the demand calls were made and travelled to collect the ransom. His role in the nightclub assault was aggravated by his return after the initial attack. He had convictions for violent offences. He was a serving prisoner. He was entitled to 20% credit for his pleas to the Damian Lowe offences and to 25% for the nightclub assault. He was dangerous and a life sentence was required.

v) Ralph McLeod did not take part in the kidnap but was at or near 9 Dovedale Ave for a significant part of the period. He travelled to collect the ransom. There was blood on his clothing. He was a serving prisoner and had a previous conviction for a section 18 offence. He was dangerous and a life sentence was required.

vi) Kofi Poyser was one of the kidnappers and was near or at 9 Dovedale Ave for most of the period. He had the complainant's blood on his clothing. He was entitled to 20% credit for his pleas. His role in the nightclub assault was aggravated by the fact that he returned after the initial attack to deliver a final kick. He was entitled to 25% credit for that offence. He did not have relevant antecedents. He was dangerous and a life sentence was required.

vii) Lewis Poyser did not take part in the kidnap but was at or near 9 Dovedale Ave for a significant part of the period. He picked Anthony McLeod up from Northampton while the kidnap was taking place and was in contact with the kidnappers immediately afterwards. He remained at 9 Dovedale Ave while the others went to collect the ransom. His role in the nightclub assault was mitigated by the fact that there came a point when he tried to pull one of the others away. He had no other convictions. He was entitled to 25% credit for his plea for the nightclub incident but he had fought the later matters. He was dangerous and a life sentence was required.

Lewis Poyser

Ground one: the starting point

66. The judge set the starting point sentence too high in all the circumstances of the case, and when compared with the tariffs imposed in previous comparable cases; for which proposition see R v Stephens [2010] EWCA Crim 911; R v Smickele and others [2013] 1 Cr App R (S) 64; Attorney-General's Reference (Nos 92 and 93 of 2014) [2014] EWCA Crim 2713; and R v Tehery Mahmoud [2015] EWCA Crim 441
67. The judge erred by not fixing a starting point sentence in respect of the Lewis Poyser that was faithful to the way in which she had directed the jury. She directed the jury on parasitic accessory liability as then understood in these terms:

" … this [parasitic accessory liability] is a piece of law that I think sometimes comes as a surprise to people, because there are a number of things that it does not require … it does not require him to want the crime to be committed; indeed, he might even hope that it wouldn't be committed; and those sorts of factors might very well be relevant to any sentence that a defendant got if he was found guilty of this count."

68. Yet her sentencing remarks suggest she concluded that the appellant far from being a secondary party to the section 18 offence was a leading participant with full intent. For those convicted as a secondary party, 18 years was excessive as a notional determinate figure.

Ground two: The imposition of the life sentence

69. The judge failed to follow the guidance established in R v Burinskas [2014] 2 CrAppR (S) 45 as to: (i) the factors which must be considered before imposing of a discretionary life sentence (paragraph 22) and (ii) the need to consider alternative sentences (paragraph 43).
70. In Burinskas, the court considered in detail the effect upon sentencing of amendments to the dangerous offender provisions in Chapter 5, Part 12 of the Criminal Justice Act 2003 (CJA 2003) made by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) and in particular the effect of s.225(2)(b) as to whether the seriousness of the offence (or of the offence and one or more offences associated with it) is such as to justify a life sentence.
71. At paragraph 22 of the judgment, the Court set out the relevant considerations:

i) The seriousness of the offence itself, on its own or with other offences associated with it in accordance with the provisions of s.143(1). This is always a matter for the judgment of the court.

ii) The defendant's previous convictions (in accordance with s.143(2)).

iii) The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger.

iv) The available alternative sentences.

72. Under the heading "The general approach to sentencing where Chapter 5 applies" at paragraph 43, the court set out the order in which a judge should approach sentencing in a case of this type:

i) Consider the question of dangerousness. If the offender is not dangerous and section 224A does not apply, a determinate sentence should be passed. If the offender is not dangerous and the conditions in section 224A are satisfied then (subject to ss.2 (a) and (b)), a life sentence must be imposed.

ii) If the offender is dangerous, consider whether the seriousness of the offence and offences associated with it justify a life sentence. Seriousness is to be considered as we have set out at paragraph 22.

iii) If a life sentence is justified then the judge must pass a life sentence in accordance with s.225. If s.224A also applies, the judge should record that fact in open court.

iv) If a life sentence is not justified, then the sentencing judge should consider whether s.224A applies. If it does then (subject to the terms of s.224A) a life sentence must be imposed.

v) If section 224A does not apply the judge should then consider the provisions of section 226A. Before passing an extended sentence the judge should consider a determinate sentence.

73. Mr Schofield suggests that the judge seems to have moved from the seriousness of the offences to a finding of dangerousness without bearing in mind the other considerations and without any consideration of possible alternative offences. He accepted that the offences of which Lewis Poyser was convicted and to which he pleaded guilty were undoubtedly serious but seriousness is not the only consideration. He invited us to consider the appellant's age and record as a whole. He is a young man who, until the nightclub incident, had no previous convictions for or involvement in violence. The fact that in one year of his life he committed these offences does not lead inevitably to the conclusion that he is dangerous. His record suggests otherwise. If contrary to that submission, the finding of dangerousness was upheld, he urged the court to do, what he claims the judge did not do, which is to consider possible alternatives such as a very lengthy sentence of imprisonment commensurate with the seriousness of the offences or an extended sentence either of which would provide the public with adequate protection.

Ground three: Totality

74. The judge acknowledged the totality principle and the principles set out in the Sentencing Council's Guideline, including the overriding principle that a total sentence for more than one offence must be just and proportionate. However, she failed to apply it properly or at all.
75. In her remarks directed at those who stood to be sentenced for both incidents, she stated as follows:

"For those of you who are to be sentenced for both matters, that is the Clique Nightclub as well as the Damien Lowe matters, I have also considered totality in relation to those two separate matters. It is clear of course that consecutive sentences are appropriate for this quite different offence, which was committed three months earlier. Three of the four of you were on bail for that matter at the time of the later offences. I have considered this carefully and I do not consider a reduction in the sentence for that matter – which would imply a substantial under-sentencing of that matter – is appropriate in the interest of totality. It does not seem to me to be a just and proportionate approach in these circumstances to give defendants who have committed a very grave crime a discount on the basis that they committed further very grave crimes of a quite different sort three months later. I have therefore not discounted the earlier sentence on that basis."

76. She then simply calculated the notional determinate terms for each indictment and aggregated them without any reduction. In Lewis Poyser's case the fact that he committed a second offence on bail should not have the effect of extinguishing the totality principle.

Kofi Poyser and Anthony McLeod

77. Mr Schofield advanced the same ground on totality for Kofi Poyser and Anthony McLeod.

Ralph McLeod

78. Ralph McLeod has leave to argue two grounds:

Ground one: The judge erred in making a finding of dangerousness

Ground two: The imposition of the life sentence was unnecessary and excessive

79. In her sentencing remarks, the judge observed:

"Those of you who were involved…and who have no serious offences of violence in their antecedent history, I find that this alone is insufficient to support a finding of dangerousness to justify either a life sentence or an extended sentence…However, those of you…who have serious matters of violence in your past do, in my judgement, satisfy the criteria for dangerousness"

80. Mr Muller conceded the appellant Ralph McLeod has a previous conviction for serious violence but invited the court to place little weight upon it. It was some years ago and McLeod maintains he was convicted on the basis of excessive self defence in that he responded to an attacked by the complainant EE armed with a machete. Given the significance of the conviction, we were concerned at the lack of clarity about the circumstances of the offence at the time of the sentencing hearing and called for further information.
81. We have now received the witness statement of the complainant EE and the summary prepared for the original hearing. EE claimed that in September 1998, he was walking past a group of 8 youths including the appellant when for no apparent reason he was confronted by the appellant. The appellant announced to one of his friends that he did not like EE and after a short verbal exchange produced a machete with a twelve inch blade. He told EE "Get out of my face or I will chop you in the head." He thrust the machete towards EE. EE grabbed hold of the blade in an attempt to defend himself. As EE and the appellant struggled for possession of the machete, the appellant called on his friends to hold EE. Other members of the group punched and kicked EE on the ground. The appellant retrieved the machete and hit EE twice over the head with it. As EE's fiancée ran to his aid, the appellant swung the machete at both of them. Police officers, who had witnessed the incident, moved in and the appellant and his group ran off. EE suffered 95% cuts to the tendons on two of his fingers and a cut to his head. He was detained in hospital for three days during which his head wound was stitched and he underwent surgery to repair the damaged tendons. By the time of the sentencing hearing, he had been warned he may not recover full use of his hand.
82. Nevertheless, Mr Muller steadfastly maintained that the circumstances of the offence remain unclear and that the sentence imposed suggests the appellant was not sentenced on the basis of EE's full account. The court should accept the version of events most favourable to the appellant namely that he was threatened by EE with a machete, managed to get hold it and overreacted in self defence.

Ground three: The starting point was too high

83. He renewed a third ground adopting Mr Schofield's submissions.

Lemar Grant

Ground one: The 'totality' principle.

84. Lemar Grant has leave to appeal on the one ground. Mr Dean, on Lemar Grant's behalf, did not seek to renew his other grounds. He has no complaint about the notional determinate terms in themselves but he too argues that the judge wrongly aggregated the notional determinate terms of 16 years and 10 years and applied no discount whatsoever. This is a significant failing; the judge should have reduced the length of the total sentence significantly to reflect all the features of the case and of the Appellant's background. The judge was concerned that if she applied the principle of totality and gave a discount, it would imply a substantial under-sentencing for the Clique Nightclub matter. However, that proposition could be advanced in every case where totality has to be considered, yet discounts are still given in order to reflect the overall gravity of the offending and/or the Appellant's personal circumstances.
85. Lemar Grant was aged 25 at the time of sentencing, is currently not eligible for parole until he is 38 years old. He is extremely young, had a very minor record at the time he committed these offences. His capacity to mature and change in the next few years is much greater than that of a more experienced, mature, older and sophisticated adult offender.

Ricardo Grant

86. Ricardo Grant sought to renew two grounds:

Ground one: The starting point of 20 years was too high

Ground two: Insufficient credit for guilty pleas.

87. Ricardo Grant was not represented but Mr Schofield invited us to bear his submissions in mind when considering Ricardo Grant's renewed application.

Conclusions on Sentence

88. We begin with a few general remarks. This must have been a difficult trial to conduct and a very difficult sentencing exercise. We wish to pay tribute to the trial judge HHJ de Bertodano. She took meticulous care throughout in her rulings and in the sentencing process. Her approach generally to assessing the gravity of the offences and the roles of the accused before her was impeccable.
89. The assault on Tobias McIntosh was a particularly serious one, leaving him with grave injuries from which he could have died. It was a sustained and brutal attack with shod feet and it continued after he was totally helpless. The CCTV footage speaks for itself. This was a category 1 offence with a starting point of 12 years and a range of 9-16 years. There was no mitigation in any alleged provocation. The only mitigation was in the pleas of guilty. The 'generic' figure of 15 years following a contested trial, subject to individual aggravating and mitigating features selected by the judge was entirely appropriate. The judge properly allowed 25% credit for guilty pleas that were not entered at the first available opportunity.
90. The offences committed upon Damian Lowe had many aggravating factors: a seizure of the hostage at gunpoint, from a public place, the terror to which he was subjected, the brutality of the amputation of his finger, the conditions in which he was confined, the effect upon the victim, the effect upon his family, the involvement of many others, the sum demanded by way of ransom, and the fact that the whole took place within a gangland culture of drug trafficking. Only Yusuf Akbar had a subordinate role. We do not accept the assertion that those who were 'found guilty on the basis of secondary participation' in the severing of the finger were entitled to a reduction in their sentence. The judge heard the evidence; she was able to form a proper assessment of the roles of each of the accused before her. She concluded, on ample evidence, that all the appellants played a vital role in the offences.
91. Thus, we are satisfied the higher figure of 20 years for those involved from the outset and 18 years for those involved only in the false imprisonment, blackmail and grievous bodily harm were justified. We say "only", the offences were very serious offences in their own right. Those who pleaded did not do so at the first reasonable opportunity and the judge ensured they were given ample credit for the timeliness of their pleas.
92. Accordingly, we reject the contentions that the judge's generic 'starting points' for the two incidents were too high and that she failed to give sufficient credit for pleas.
93. We also reject Lewis Poyser's ground that the judge was wrong to find him dangerous and to impose a life sentence. Far from failing to follow the guidance in Burinskas, the judge's sentencing remarks (that we have not rehearsed in full) make clear that she followed it to the letter. Given the overall seriousness of the offending, and the fact the second group of offences were committed when the appellant was on bail for a very serious offence of violence, the finding of dangerousness was justified, if not inevitable. We also note, as HHJ de Bertodano and the single judge noted, that had those who pleaded guilty to the nightclub incident been sentenced at that time, a life sentence would have been mandatory for the second serious offence (see s 224 CJA 2003).
94. It follows that we reject all the renewed grounds for the reasons given by the single judge. The only grounds that have caused us any concern are the ones that troubled the single judge and on which he gave leave, namely totality and the life sentence for Ralph McLeod based on his previous conviction.

Ralph McCleod

95. We were not persuaded by Mr Muller's valiant attempts to play down the seriousness of the 2000 conviction for section 18 wounding. It was a long time ago but we note that he used a machete, a potentially lethal weapon, to inflict potentially life changing injuries. Furthermore, we note that the author of the pre sentence report assessed him as dangerous and expressed concern about what might happen if McLeod mixes with 'criminal elements'. His most recent conviction (he was a serving prisoner at the time of the trial) shows that he continues to do that.
96. The kidnap of Mr Lowe and the associated offenses were grave offences. The appellant may not have taken part in the actual kidnap but he was at or near 9 Dovedale Avenue for a significant part of the period of Mr Lowe's ordeal. He went to collect the ransom. There was blood on his clothing indicative of very close involvement with the victim at the time or soon after his finger was severed. Involvement in offences of that seriousness combined with the circumstances of the previous conviction and his continued involvement in crime lead to our conclusion that the judge's finding of dangerousness and the life sentence were justified on the material before her.

Totality

97. Finally, we turn to the issue of totality. As we have indicated, we were not persuaded that the notional determinate sentences for the nightclub incident and for the kidnap offences were excessive. The only question for us is whether the judge was right to conclude that "it would not be just and proportionate to give defendants who have committed a very grave crime a discount on the basis that they committed further very grave crimes of a quite different sort three months later" solely to reflect the principle of totality. Much as we understand the judge's reasoning, with respect we would disagree with her if her comment was intended as a statement of general principle. The fact of committing offences on bail or of committing a series of serious offences within a few months of each other can be reflected in the overall assessment of the seriousness of the offending. The principle set out in the Sentencing Council's guideline that "it will usually be impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences" remains valid and due regard must be had to it. Having said that, there may be exceptions to that 'normal' rule and the ultimate question for the judge was whether the overall sentence imposed was just and proportionate. This she recognised. To answer that question for ourselves, we have analysed the facts of all the offences and the offenders with considerable care.
98. Those who were involved in both the nightclub incident and the kidnap offences received sentences that involve their serving at least an additional 4 or 4 ½ years as part of their minimum terms on top of the sentences imposed for the kidnap offences. The nightclub incident was a particularly serious offence of its kind. The appellants were fortunate not to be facing a charge of murder for which the starting point for the minimum term would have been 15 years. Having committed that offence the appellants became involved in another extremely grave series of offences during which they yet again inflicted very serious harm with intent to do so, disfigured a man for life and caused him and his family untold pain and distress. In our view, in those circumstances, it cannot be said that the total sentence was unjust or disproportionate.

Representation order

99. We have received an application from Mr Schofield for a representation order in relation to the presentation of the application for leave to appeal against conviction. We reject the application for a representation order to present the renewed grounds. However, he was invited to consider advancing the Jogee ground by the Registrar and the burden of arguing it fell almost entirely upon his shoulders. Given the extent of his assistance, we are prepared to grant a representation order in respect of that ground alone.