Date: Apr 4, 2026

Jones & Anor v R: No “Masih” Jury Direction Requirement and No Probative Weight in Absence of Police Intelligence

1. Introduction

Jones & Anor v R concerned two appellants, Jordan Jones (driver) and Demare Vassell (front passenger), convicted after trial of possessing a firearm with intent to endanger life (s.16 Firearms Act 1968) and possessing ammunition without a certificate (s.1(1)(b) Firearms Act 1968). The case arose from a gang-related context surrounding the funeral and burial of Lemar Urquhart on 17 March 2023. Armed police stopped a hired Mercedes G-Wagon and recovered a loaded 9mm pistol from the rear seat; dashcam audio captured earlier conversations, including slang references to firearms and sounds consistent with cocking a weapon.

The appeal principally raised: (i) unused material disclosure (including whether material from other police operations should have been reviewed/disclosed), (ii) whether the defence should have been permitted to deploy and cross-examine on a prosecution disclosure note about absence of intelligence, and (iii) whether the jury required a direction (drawing on R v Masih [2015] EWCA Crim 477) that they must exclude all realistic possibilities consistent with innocence before convicting on circumstantial evidence.

2. Summary of the Judgment

The Court of Appeal (Criminal Division) dismissed the conviction appeals and refused renewed leave on the disclosure-related grounds. It held, in substance, that:

The trial judge was entitled—after r.3.11 closed hearings—to accept the prosecution’s assurance that disclosure obligations were met; reviewing material from Operation Fishjet was sensible, but reviewing the earlier homicide investigation (Operation Wormlaw) was not necessary given the live issues.
The absence of police intelligence that the defendants possessed or sought a firearm had no probative value on the jury’s task (knowledge and intent) and was properly excluded from evidence; cross-examination on it was properly prohibited.
A Masih-type jury direction (excluding all realistic possibilities consistent with innocence) was not required; the standard circumstantial evidence direction (avoid speculation; draw fair and reasonable inferences; be sure) was adequate.

The Court also refused leave to appeal sentence for the first appellant, upholding categorisation as a guideline category A2 offence with a 14-year starting point and finding a 15-year sentence justified.

3. Analysis

3.1 Precedents Cited

R v Akle [2021] EWCA Crim 1879 (with reference to H & C [2004] 2 AC 134)

The appellants relied on the disclosure principle that disclosure should not depend on a narrow or overly “restrictive” analysis of the parties’ cases; doubts should be resolved in favour of disclosure. The Court accepted the general importance of this approach, but treated it as operating within the statutory boundaries of s.3 CPIA 1996 (material must be reasonably capable of undermining the prosecution or assisting the defence), not as a license for unfocused or speculative disclosure requests spanning distinct investigations with different purposes and timelines.

R v Ali [2019] EWCA Crim 1527

The Court used R v Ali [2019] EWCA Crim 1527 to explain the exceptional category of cases where material might not meet the ordinary disclosure test, yet the prosecution should alert the court to its existence to avoid unfairness—while seeking protective procedures due to public interest sensitivity. This framed and justified the use of r.3.11 closed hearings in the present case.

R v Masih [2015] EWCA Crim 477

The defence sought to transplant a “exclude all realistic possibilities consistent with innocence” formulation into a jury direction. The Court distinguished R v Masih [2015] EWCA Crim 477 as addressing the test for a no case to answer submission at the close of the prosecution case, not establishing a mandatory jury direction. Masih was therefore not treated as imposing a compulsory template for summing-up in circumstantial cases.

R v Kelly [2015] EWCA Crim 817 (Kelly), R v Teper [1952] AC 480, and McGreevy

The Court anchored the correct approach to circumstantial evidence in the passage from R v Kelly [2015] EWCA Crim 817 (Kelly), which itself references the concerns in R v Teper [1952] AC 480 (guarding against speculation and ensuring countervailing evidence is weighed). It also relied on the point attributed in Kelly to McGreevy: circumstantial evidence is not a special category requiring a special burden/standard direction; the ultimate question is whether the jury is sure on all the evidence.

3.2 Legal Reasoning

(A) Disclosure boundaries: relevance, realism, and operational compartmentalisation

The Court reiterated that CPIA compliance is fundamental, but disclosure is not limitless. It approved the trial judge’s focus on the actual issues for the jury: whether the occupants (including the appellants) knew of the loaded gun in the vehicle at the time of the stop and possessed it with intent to endanger life.

On that footing, it held:

Operation Wormlaw (the earlier murder investigation) was separated by months and concerned identifying Urquhart’s killer, not the appellants’ knowledge/intent in the Mercedes on 17 March 2023. The Court was “unpersuaded” disclosure review needed to extend that far.
Operation Fishjet (wider funeral-related criminality) was more proximate and sensibly reviewed after the judge’s intervention; the judge was entitled to accept the prosecution’s assurance that it had been properly reviewed and nothing further met the s.3 test.

(B) Sensitive material and closed hearings

The Court endorsed the structural legality of deciding disclosure and cross-examination restrictions following r.3.11 closed hearings (and appellate closed hearings under r36.2). Importantly, it treated those procedures as a mechanism to reconcile fair-trial rights with public interest sensitivity, while still enabling the court to test whether the disclosure decision-making was lawful and safe.

(C) “Absence of intelligence” is not evidence of innocence

A key practical holding is the Court’s agreement with the trial judge that police intelligence can arise from multiple sources and is not a reliable proxy for what occurred. Just as the presence of intelligence is not proof of guilt, the absence of intelligence was held to have no probative value on whether the appellants knew of or possessed the firearm at the relevant time. This justified excluding the prosecution disclosure note from the jury and prohibiting cross-examination on it.

(D) Circumstantial evidence directions: no mandatory “exclude realistic possibilities” instruction

The Court held the standard direction (assess reliability; draw fair inferences; avoid speculation; be sure) adequately guarded against the risks identified in Kelly/Teper. It rejected the argument that fairness required a Masih-style direction, emphasising:

Masih concerned a legal sufficiency test for a judge, not a required jury summing-up formula.
The defence contention that someone else (Johnson or Martini) might have introduced a different gun later was not advanced as a positive evidential case but as an invitation to “consider whether” it could be excluded—something the Court characterised as closer to speculation than inference from evidence.
The jury had just heard closing speeches, so the defence theme was already prominent without needing judicial amplification.

(E) Sentencing: guideline categorisation and “leading roles” in joint firearms possession

On sentence, the Court upheld the trial judge’s findings that possession was continuous over much of the day and that the firearm was taken to public events. It accepted that differing functions (driver/organiser/instructions; direct handler) can still amount to “leading roles” within a single jointly committed offence, supporting category A2 and the imposed term.

3.3 Impact

Trial practice—intelligence material: The decision strengthens the proposition that the defence cannot treat “no intelligence” as affirmative exculpatory evidence. This will tend to limit attempts to put disclosure correspondence before juries as “proof” of innocence.
Disclosure scope across parallel operations: The Court’s approval of not extending review into a temporally and purposively distinct operation (here, the earlier homicide investigation) may be relied on to resist expansive disclosure demands, especially where the live issues are narrow and fact-specific.
Circumstantial evidence directions: The judgment confirms appellate reluctance to require “exclude all realistic possibilities” directions and reinforces the Crown Court Compendium approach: the safeguard is avoidance of speculation and insistence on being sure, not a formula that may be misconstrued as altering the standard of proof.
Appellate scrutiny with closed material: The case exemplifies how appellate courts may replicate closed procedures (r36.2) to verify the safety of rulings made after r3.11 hearings, thereby bolstering institutional confidence in sensitive disclosure adjudication.

4. Complex Concepts Simplified

CPIA 1996 s.3 disclosure test: The prosecution must disclose unused material if it might reasonably undermine the prosecution case or assist the defence. It is not a duty to disclose everything; it is a duty to disclose what matters to fairness and the real issues.
r.3.11 CPR 2025 “ex parte sensitive material hearing”: A closed hearing (without the defence present) where the judge reviews sensitive material or explanations that cannot safely be revealed. The purpose is to protect important public interests while still allowing the court to control fairness.
Circumstantial evidence: Evidence that points to guilt through inference (e.g., recorded conversations; context; conduct) rather than direct observation of the act. The jury must avoid guessing and only draw reasonable conclusions supported by the evidence, convicting only if sure.
“Masih direction”: A shorthand for language about excluding realistic innocent explanations. This case clarifies that Masih was about whether a case is legally strong enough to go to a jury, not a compulsory instruction the jury must be given in every circumstantial case.
Probative value: Whether something actually helps prove or disprove a fact in issue. Here, the court held the absence of police intelligence did not help answer whether the appellants knew about the gun or intended to endanger life.

5. Conclusion

Jones & Anor v R consolidates three practical propositions: (1) disclosure must be driven by the statutory test and the true issues, not speculative exploration across remote investigations; (2) the absence of police intelligence is not evidence that assists the defence on knowledge/intent and may properly be kept from the jury; and (3) a trial judge does not misdirect by declining to give a Masih-style “exclude realistic possibilities” direction where the standard circumstantial evidence direction properly warns against speculation and insists the jury must be sure.