England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HH Judge Lockhart QC
T20197333

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 March 2022

This judgment was handed down remotely by circulation to the parties' representatives by email, released to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 14 March 2022 at 10.30am

Lord Justice William Davis:

1. On the 10^th November 2020 in the Crown Court at Warwick Abdirazac Hussein Abdi (to whom we shall refer as Abdi) was convicted of one offence of murder and two offences of wounding with intent. The following day he was sentenced to life imprisonment with a minimum term of 23 years in respect of the offence of murder. Concurrent determinate sentences of 9 years' imprisonment were imposed in respect of the offences of wounding with intent. Convicted of the same offences was a young man named Frank Kenfack. A third man named Ngozi was acquitted.
2. On 3 March 2022 having heard the submissions of Mr Bernard Tetlow QC and Mr Sanjeev Sharma on behalf of Abdi and Mr Michael Burrows QC on behalf of the respondent prosecutor, we announced our decision to dismiss Abdi's appeal against conviction and to refuse his renewed application for leave to appeal against his sentence. We said that we would give our reasons in writing at a later date. We now do so.
3. Abdi appeals against his convictions with the leave of the full Court. The basis of his appeal is that what is commonly referred to as gang evidence was wrongly admitted. His renewed application for leave to appeal against sentence was adjourned to follow the outcome of the appeal against conviction.
4. At around 11.30 p.m. on 24 November 2018 a 16 year old boy, Jaydon James, was with friends in the street in the Wood End area of Coventry. A black Peugeot 407 car pulled up near to them. Some men, probably three in number, got out of the car and ran towards James and his friends. A chase on foot ensued. Some of those being chased got away. James did not. The chasing group caught up with him in a driveway at the side of a church. One of the group was armed with a large knife. James was stabbed in the back. The knife went right through his body. He died shortly afterwards from the effects of the stab wound. Two of his friends, Mohammed Wafi and Jack Glenn, sustained slash wounds to their legs from the knife. Wafi also was wounded to his back. Those involved in the attack returned to the Peugeot car which drove away at speed. A passing taxi driver was able to see something of the registration number. It had three letters and four numbers. The taxi driver thought that it was an Irish registration. He also caught sight of the driver. His description of the driver was consistent with Abdi's appearance. The Peugeot had been stolen in Coventry three days earlier. At some point during the day on 24 November false number plates had been put on the car, the false number being NEZ 5156 which is an Irish registration. The car was abandoned later elsewhere in Coventry.
5. Whoever was party to the use of the knife on the evening of 24 November was guilty of murder and of wounding with intent. At the trial of Abdi, Kenfack and Ngozi this proposition was not seriously disputed albeit that the jury were fully and properly directed in relation to intent. The defence of each of them was that they were not in the group which chased James and his friends nor were they in the car from which the group came and to which it returned.
6. The prosecution case placing Abdi and the other defendants at the scene was circumstantial. We shall deal first with the case against Kenfack as it was without any consideration of gang material.
7. Approximately 20 minutes before the incident in which James was killed the black Peugeot stopped at a petrol station about 1 ½ miles away from where he was attacked. CCTV footage from the petrol station showed the front passenger getting out of the car. The evidence showed that the front passenger was Kenfack. He was identified from the CCTV footage by a police officer who knew him. An expert in imagery analysis compared the CCTV footage with known images of Kenfack and concluded that there was strong support for the contention that he was the man. The CCTV footage showed that Kenfack had what appeared to be a knife concealed in the back of his jacket and that the car had passengers in the back seat as well as the driver. Further CCTV footage was recovered from an area close to the scene of the attack. The images were too dark for any identification of the figures visible on that footage. However, one of the figures was wearing clothing similar to that being worn by Kenfack when he was seen at the petrol station and was holding a long item consistent in appearance with a knife.
8. After the event Kenfack's mother showed a police officer a photograph which she had on her mobile telephone of Kenfack wearing clothes apparently matching the clothing he was wearing when seen at the petrol station on the night of the killing. That clothing was never recovered. In due course Kenfack was to admit that he had disposed of the clothing.
9. The police spoke to Kenfack's mother when, on 26 November, she reported him as missing. He was not at home because very shortly after the incident on the evening of 24 November he went to Oxford without saying anything to his mother about where he was going. It was a proper inference that he went to Oxford to lie low.
10. Kenfack did not use his mobile telephone from the point at which he was seen at the petrol station until the next day. After some use on 25 November the telephone was not used again.
11. When Kenfack was interviewed he said that he had not been in any Peugeot car on 24 November. He gave an account of his movements which did not involve that car at all. He gave a rather different account to the jury. In his evidence he admitted that he had been in the Peugeot car at around 4.30 p.m. on 24 November. He said that he had been picked up in the car and dropped in Coventry City Centre. At that point Abdi had also been in the car. He accepted also that he had later gone in the car to the petrol station but he said that he left the car before the incident involving Jaydon James. Kenfack acknowledged that he had lied in his interview.
12. The circumstantial case against Kenfack was strong. It is true that there was no scientific evidence linking him to the murder of James. A blade was recovered at the scene which bore the DNA of Mohammed Wafi. It was plainly associated with the attack. No DNA or finger-mark linking Kenfack to the blade was recovered. At least one balaclava mask was found at the scene. This bore no scientific link to Kenfack. He could not be associated via any scientific evidence with the Peugeot. This lack of scientific evidence does not undermine the circumstantial case we have outlined.
13. The circumstantial case against Abdi falls to be considered in the light of the evidence relating to Kenfack. There was evidence that they knew each other. They were in regular telephone contact. They had been seen together on occasion. On 24 November Abdi's telephone called Kenfack at around 4.30 p.m. At this point Kenfack had just got into a taxi. After receiving the call he told the taxi to stop and he got out. He was picked up by the Peugeot. Mr Tetlow's submission to us was that the prosecution could say no more than the car which picked up Kenfack was consistent with the stolen Peugeot. Mr Burrows took us to CCTV footage relating to the period just after Kenfack was picked up. The content of that footage provided compelling evidence that the Peugeot seen on the CCTV footage was the stolen Peugeot. As we have said Kenfack's evidence to the jury was that Abdi also was in the car. The cell site evidence in relation to the telephones of Abdi and Kenfack was consistent with the two of them being together just after 4.30 p.m. That strand of evidence also indicated that the two telephones appeared to travel together into Coventry City Centre. The data indicated that both telephones remained in the same general area for about 1 ½ hours. What happened after that in relation to Abdi could not be the subject of any cell site evidence because Abdi's telephone was not in use. No information was available. What could be said was that Abdi was not calling Kenfack during the evening of 24 November. There was only very limited information in relation to Kenfack. As we have said he did not use his telephone from the time of the sighting at the petrol station until the next day after which he no longer used the telephone at all. That scenario also applied to Abdi. These circumstances permitted the inference that Abdi had been with Kenfack on the evening of 24 November. His behaviour after the event was similar to that of Kenfack. He unexpectedly went to the home of a relative in Bolton. It was a proper inference that this was to keep away from Coventry i.e. the scene of the stabbing.
14. When interviewed Abdi said that he had not telephoned Kenfack on the afternoon of 24 November and that he had not been in the Peugeot car. Although he did not give evidence, Kenfack's evidence contradicting what Abdi said interview was not challenged. It was properly conceded that Abdi had lied in interview about being in the Peugeot.
15. Taking all of those circumstances into account there was a clear case for Abdi to answer. The jury were entitled to find that at 4.30 p.m. on 24 November he was in the car which had been stolen days before the attack and to which false number plates had been attached on the day of the attack. It was a proper inference that by the afternoon of 24 November the Peugeot was ready to be used to transport the attackers. Abdi's presence in the car at that time was of significant probative value. Moreover, he travelled in the car with Kenfack whose participation in the attack was demonstrable. After the attack his behaviour was very similar to that of Kenfack and indicative of involvement in the offences. Mr Tetlow points to the fact that from about 5.45 p.m. Abdi's telephone was not in use. Thus, there was no evidence of where he was after that time. Moreover, the evidence demonstrates that he was not with Kenfack in the middle part of the evening because Kenfack was caught on CCTV in Coventry City Centre with no sign of Abdi. These factors would be of greater significance were it not for the fact that the car in which they had travelled together from 4.30 p.m. onwards was the car with false number plates which by then was an integral part of the plan to carry out an attack. We acknowledge that, just as in the case of Kenfack, there was no scientific evidence linking him with the stabbing. That does not undermine the circumstantial case that was established by the other evidence.
16. It is against that background that we consider the submissions in relation to gang material. Mr Tetlow's first submission is that the circumstantial evidence was insufficient to amount to a prima facie case. Neither he nor Mr Sharma appeared at trial. Thus, the submission cannot merely be met by reference to the fact that no argument was made to the trial judge that there was insufficient evidence for the jury to consider. Nonetheless it is telling that leading and junior counsel who represented Abdi at trial did not consider that a submission to the trial judge of no case to answer was appropriate. They did not mount any argument about the sufficiency of the prosecution absent the gang material when lodging grounds of appeal. Leaving that aside it will be apparent from what we have already said that we do not accept the proposition that there was no prima facie case. The matters we have set out establish a case to be left to the jury. We accept that the case against Kenfack was stronger because of the evidence identifying him at the petrol station. It was in part the strength of the case against Kenfack which supported the circumstantial case against Abdi.
17. However, that submission is but one part of the case put forward by Mr Tetlow. The gravamen of the appeal is that the judge erred in admitting evidence relating to gang activity and that, linked to that error, the judge should not have admitted evidence of two occasions on which Abdi had been the victim of violence, namely being shot.
18. The written ruling of the trial judge ran to over 50 typed pages. He conducted a comprehensive review of the law with particular reference to Lewis and others [2014] 1 Cr App R 1, Myers [2016] AC 314, Awoyemi [2016] EWCA Crim 668, Sode and others [2017] EWCA Crim 705 and H and others [2018] EWCA Crim 2868. The core principles he set out were these. Gang evidence would not be admissible unless it were relevant to an issue in the case. Even if gang evidence were relevant, it would be excluded if its prejudicial effect outweighed its probative value. Evidence of motive for an offence always will be relevant. Gang evidence in relation to an individual may be relevant where identity is in issue. The judge noted that gang evidence could be admissible as evidence to do with the alleged facts of the offence or as bad character evidence via Section 101(1)(d) of the Criminal Justice Act 2003 or via both routes. Whichever route was taken, he was required to consider whether admitting the evidence would have such an adverse effect on the fairness of the proceedings that it should not be admitted.
19. The judge went on to consider the admissibility of the evidence of PS Ashton who had lengthy experience of street gangs in Coventry and who provided a history of two gangs in particular. By reference to the criteria set out in Myers the judge concluded that the officer was qualified to give general evidence about the gangs.
20. Insofar as the individual defendants were concerned, PS Ashton was not permitted to give evidence of gang affiliation based on hearsay material. Rather, proof of their association with a gang required direct admissible evidence.
21. The background evidence that was admitted was as follows:

1. Prior to the events of 24 November 2018 there were two particular street gangs in Coventry. One gang was known as C2 and its geographical territory was the CV2 postcode, an area in the north east of Coventry. The other gang was known as RB7 with a base in the central area of Coventry.

2. It was only in 2018 that the two gangs become separate entities. Before that there had been a single gang known as RB7. When the split occurred, rivalry between the two gangs became apparent and manifested itself in violence between them.

3. The violence used involved the use of guns and knives. Members of C2 would be attacked by members of RB7 and vice versa. Agreed facts were placed before the jury which set out some 30 incidents from the latter part of 2018 onwards with the most recent event being a fatal shooting in March 2020 of Abdul Hasan, a member of RB7.

These matters were established by the evidence of PS Ashton together with the agreed facts.

22. In relation to Jaydon James the evidence showed that his home was in the CV2 postcode i.e. near to the scene of the stabbing. There was video material posted on YouTube and graffiti near to the scene of the stabbing which indicated that James had been associated with the C2 gang albeit not associated with acts of violence. His mother gave evidence of a conversation she had had with him prior to his death in which he had said that RB7 members had robbed him of his jacket and that he feared further violence at the hands of RB7. James had shown his mother an Instagram post by someone called Reeko. In the picture Reeko was wearing his jacket. Reeko was identified as someone called Mwanza with a connection to RB7.
23. The evidence of James's association with C2 and its relevance to the attack on him was given further support by what was heard shouted by someone in James's group as they were chased by the men who came from the Peugeot car, namely "it's RB7" or something to that effect. This evidence formed part of the res gestae. Whoever shouted it appreciated that the chasing group was associated with RB7.
24. The objection taken at trial to the admission of the gang evidence and the basis of the appeal before us in relation to that evidence is not that there was no proper evidence of gang rivalry in Coventry which manifested itself in serious violence. Clearly there was. The grounds of appeal begin with the argument that there was no clear evidence that the stabbings were gang related. We disagree. The evidence of James's association with the C2 gang coupled with the location of the stabbing and what was said at the time of the incident amounted to at least prima facie evidence that the attack on him was gang related. However, this argument is not at the forefront of the appeal. The propositions on which Mr Tetlow principally relies are twofold. First, there was no proper evidential foundation for a finding that Abdi was a member of or closely associated with RB7. Second, evidence was admitted of two occasions on which Abdi was shot. These events had no evidential link to the stabbing of Jaydon James and his friends.
25. The first issue is whether there was an evidential foundation for an assertion that Abdi was sufficiently associated with RB7 to render gang material relevant in his case. The prosecution relied on video material which had been posted on YouTube. Abdi appeared in three videos the content of which was said to indicate gang association. In "Realist Jo Jo Taking A Trip" the lyric referred to RB7. The jury had evidence that people identifiable as RB7 members appeared in the video. At a point approximately 1 minute 50 seconds into the video, the lyric was "trying to put a sting in their abs". At this point Abdi was to the fore and was making what could be interpreted as a stabbing motion towards his chest. There was evidence from someone with expertise in rap and drill lyrics that this particular lyric referred to stabbing someone. The video was posted some time prior to the events of 24 November 2018. The other videos were called "Ten Toes Tap Drill" and "Realist Jo Jo Raindrop". In the latter video there was specific mention of RB7 and references to shooting and shank. Shank is a slang term for knife.
26. Mr Tetlow argues that appearance in videos and the use in those videos of violent lyrics should not automatically lead to the conclusion that someone is a gang member. That is correct. But that is not the same as saying that they cannot lead to that conclusion. So long as appropriate caution is advised by the judge (which is what occurred in this case) a jury is entitled to consider such material. If there was an alternative explanation for Abdi's appearance in the videos, he did not choose to give it.
27. In addition to the video evidence the jury had to consider the fact that Abdi was shown in the Instagram post by Mwanza. The two were standing together. Mwanza was wearing the coat allegedly stolen from Jayden James.
28. Finally Abdi in August 2018 posted a picture of himself apparently taken at the Notting Hill Carnival under the moniker "realist-abbz". This moniker demonstrates a link to the video material. Under the picture Abdi had typed "everybody want to talk about guns but nobody want to sell me one". Mr Tetlow argues that this was a lyric from a commercially available rap song. So it may be but Abdi chose to post it. There was no explanation from him as to why he did.
29. We are satisfied that there was an evidential foundation arising from this material to justify the proposition that Abdi at the very least was associated with RB7. Whether the jury accepted the proposition was a matter for them.
30. The second matter is whether the judge should have admitted the evidence of the two occasions on which Abdi himself was shot. On 14 August 2018 he was shot with a shotgun when he was at an address in Wood End, Coventry. This is an area within the CV2 postcode. On the day after the shooting the police visited Abdi in hospital where he was awaiting surgery to remove shotgun pellets from his leg. Unsurprisingly the police wished to investigate the shooting. They wanted to know about the circumstances in which Abdi was shot. His response was to say that it was an accident and that he had not been threatened by anyone. He gave no further details and declined to make a witness statement. On 25 February 2019 Abdi was shot outside a gym in Hales Street near to the centre of Coventry. As had been the case in relation to the August 2018 shooting he chose to say nothing to the police about the circumstances in which he had been shot. He declined to make a witness statement.
31. The evidence of the shooting incidents was admitted (a) in relation to August 2018 as a potentially gang related event which provided a motive for Abdi to be involved in the offences on 24 November 2018 and (b) in relation to February 2019 as a potentially gang related event by way of revenge for Abdi's involvement in the offences on 24 November.
32. In relation to both incidents the judge admitted the evidence pursuant to Section 98 i.e. it was evidence to do with the facts of the offences. This approach is in accordance with the decision of this Court in Sule [2012] EWCA Crim 1130 as confirmed in Stewart [2016] EWCA Crim 447. We can find no reason to distinguish the reasoning to be found in Sule and Stewart. It is unnecessary for us to set out that reasoning here. The only distinction to be drawn between those cases and the facts in this case is that one of the shooting incidents relied on by the prosecution occurred after the offences allegedly committed by the accused. In Sule and Stewart all of the incidents occurred before the alleged offences and they were relied on as evidence of motive. Here one of the incidents was said to be by way of revenge. That equally amounts to a matter to do with the facts of the offences.
33. We are quite satisfied that the evidence relating to the shootings in August 2018 and February 2019 was relevant to the issue of whether Abdi was involved in a gang. He may have been the victim on those occasions. But his reaction to the incidents was significant. He did not make any statement of complaint. An ordinary member of the public who was shot would show considerable interest in the identity of the person who had shot them and in the steps to be taken to bring that person to justice. Abdi's reaction to be being shot on two separate occasions indicates that he had something to hide and/or that he proposed to deal with the issue himself. Either position demonstrates involvement in gang activity.
34. The fact that there was a gap of approximately three months between Abdi being shot in August 2018 and the offences in November 2018 does not affect the relevance of the former event to motive. As was said in Sule at [12] "where the evidence is relied upon for motive it would be irrational to introduce a temporal requirement". The same rationale must apply if it is said that the shooting was a revenge attack.
35. Mr Tetlow's submission is that there was no evidential link between the shooting incidents and the offences in November 2018. In relation to the shooting in August 2018 he submits that there was no evidence as to who was involved. He points to the fact that there were other incidents of violence between August 2018 and 24 November 2018. We consider that the absence of evidence as to who precisely was involved in shooting Abdi in August 2018 does not affect the admissibility of that event. The jury had evidence showing that Abdi was associated with RB7. They had evidence that there were many episodes of tit for tat violence. The precise identity of the gunman in August 2018 is not to the point. The same applies to the incident in February 2019 when Abdi again was shot.
36. He argues that the admission of the evidence invited speculation. We disagree with that general proposition. In relation to each incident the jury was directed that they had to be satisfied that the shooting was a gang related event and that it provided evidence of motive (the August 2018 shooting) or evidence of revenge (the February 2019 shooting). The jury were clearly directed in relation to circumstantial evidence that they should not speculate and that they had to reject other reasonable explanations for such evidence before acting upon it. The judge referred specifically to the gang material as a species of circumstantial evidence. All of these directions were provided to the jury in writing.
37. Mr Tetlow makes a particular submission in relation to the direction of law given by the judge in relation to the shooting in February 2019. To explain the submission we must set out the relevant direction. It was as follows:

"b. Are we satisfied that AA was shot on 25.02.19 in a gang related event and that this was because he had been involved in some way in the attack on C2 on 24.11.18?


In dispute.


1. If yes, then you could use it to support the other circumstantial evidence that you found to place him in the car and allow it to assist you in coming to a sure conclusion in his case.

2. If no, ignore this piece gang material it cannot offer support."

38. Mr Tetlow argues that this direction is flawed. It begins by asking the jury whether they are satisfied that Abdi was shot in February 2019 in a gang related event because he had been involved in the attack on 24 November 2018. It goes on to say that, if the jury were so satisfied, they could use those findings to support other circumstantial evidence placing Abdi in the car i.e. at the scene of the attack. But the second part of the direction is redundant. If the jury were to answer the initial question in the affirmative, they would not need to use the evidence of the shooting to support other circumstantial evidence. It would be determinative on its own. We agree with Mr Tetlow's analysis. With respect to the judge this particular direction is confusing. However, the initial question protected Abdi from any speculative exercise on the part of the jury. It required the jury to be satisfied that Abdi was involved in the attack on 24 November. The jury must have appreciated that this was the central factual issue in the case. There was no risk that they would speculate on this issue.
39. Mr Tetlow criticises the use of the word "satisfied". He points out that it was not made clear in the direction to which we have referred that "satisfied" meant "sure". He goes so far as to say that this misdirection (as he categorises it) is sufficient on its own to render the convictions unsafe.
40. In our view this submission by Mr Tetlow ignores the overall structure of the summing up. The passage of which he complains appears on page 38 of the written legal directions, the document provided to the jury running to more than 50 pages. In his introduction to the legal directions which the judge delivered orally he set out an overview of the case. The overview referred to the prosecution's assertion that the offences were gang related and then set out the duty of the prosecution to prove that assertion. The judge then turned to the written directions. The first matter with which the directions dealt was the requirement on the prosecution to prove their case so that the jury were sure of it. In his subsequent direction in relation to circumstantial evidence the judge directed the jury that, in order to convict any defendant on the basis of such evidence, they had to reach "a sure conclusion" that the relevant defendant was guilty.
41. In our view the direction given in relation to the shooting in February 2019, whilst infelicitously worded, was not flawed so as to undermine the safety of the convictions. It had to be read in the context of the directions as a whole. We are satisfied that the jury would not have read the direction to mean that for instance merely finding that the shooting was potentially or possibly a gang related event would be sufficient.
42. The issue for us is whether the evidence relating to the shooting of Abdi in August 2018 and February 2019 was capable of having the effect for which the prosecution contended. We are satisfied that it was. The evidence was not to be viewed in isolation. It had to be considered together with the other evidence linking Abdi to gang activity to which we already have referred. It was for the jury to determine whether it did have that effect.
43. We are grateful to Mr Tetlow and Mr Sharma for the careful arguments they have put before us. However, we are wholly unpersuaded that those arguments, whether taken singly or together, cast doubt on the safety of the convictions. So it was that we dismissed the appeal against the convictions.
44. We turn to the renewed application for leave to appeal against sentence. The single point taken is that the minimum term of 23 years made insufficient allowance for Abdi's age at the time of the offences (19 years 6 months) and for his relative good character. He had a single finding of guilt when he was aged 17 for offences of dishonesty. It is accepted that the appropriate starting point within Schedule 21 of the Criminal Justice Act 2003 (which was the statutory provision in force at the time of sentence) was 25 years. The murder was committed with a weapon brought to the scene for the purpose of attacking the victim. It is also acknowledged that the offence was aggravated by the planning involved. A car was stolen for the purpose of carrying out an attack on a rival gang. False number plates were attached to it. A group was assembled to put the plan into effect.
45. Moreover, the minimum term imposed in respect of the offence of murder was required to reflect the offences of wounding with intent committed at the same time. This could not involve creating a cumulative total of the appropriate sentences. But it meant that some increase in the minimum term was necessary.
46. The judge referred to Abdi's age in his sentencing remarks and noted what was said in Peters [2005] 2 Cr App R (S) 101. He said this:

"….there should be no sudden acceleration of sentence levels due to age. There is a need for flexibility in that there is no sudden step change in maturity."

That was the correct approach. The argument now put is that, notwithstanding what the judge said, the minimum term imposed did amount to a sudden acceleration of sentence. Had Abdi been 18 months younger, he would have been subject to a starting point of 12 years by reference to Schedule 21. The minimum term in the case of Kenfack (who was nearing his 17^th birthday at the time of the offences) was 17 years. He was sentenced as the person who inflicted the fatal injury. It is not suggested that there should have been parity between Abdi and Kenfack. Rather, it is submitted that the minimum term in Kenfack's case demonstrates that there was an undue acceleration of the sentence in relation to Abdi.

47. We do not accept the argument that the judge failed to give sufficient weight to Abdi's age. Had he been a mature adult who fell to be sentenced for a planned murder committed in the context of gang rivalry and for associated offences of wounding with intent, the minimum term would have been significantly greater than 25 years. The minimum term imposed on Abdi properly reflected the mitigating effect of his age.
48. We do not consider that there is any arguable ground for an appeal against the length of the minimum term. In those circumstances we dismissed the renewed application for leave to appeal against sentence.