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Lunkulu & Ors v REGINA
Factual and Procedural Background
On 27 February 2014 at the Central Criminal Court before Judge Morris QC and a jury, four defendants were convicted of murder related to the fatal shooting of a 21-year-old victim on 5 October 2009 at a social club in Hackney. The murder occurred within the context of a violent feud between two rival Turkish drug gangs in North London. The prosecution alleged that the defendants were members or associates of one gang and had planned and executed a retaliatory shooting. Sentences ranging from detention at Her Majesty's Pleasure with a minimum term of 18 years to life imprisonment with minimum terms up to 35 years were imposed on the defendants. Various applications and appeals against conviction and sentence were subsequently made by the defendants, with extensions of time granted for some applications.
Legal Issues Presented
- Whether the trial judge was biased in favour of the prosecution, particularly in the summing up to the jury.
- The admissibility and relevance of evidence relating to prior violent incidents and convictions of one defendant under section 98 and 101 of the Criminal Justice Act 2003.
- The correctness of directions given to the jury regarding secondary participation and the identity of the principal offender.
- The appropriateness of the judge's handling of evidential inconsistencies and disputed identifications, including CCTV evidence and gait analysis.
- Whether the judge erred in refusing to allow certain unused material and witness statements to be adduced.
- The validity of the sentences imposed, including their proportionality and whether the sentencing judge properly applied relevant sentencing principles and guidelines.
- Whether an alternative verdict of assisting an offender should have been left to the jury.
Arguments of the Parties
Appellants' Arguments
- Alleged judicial bias in the summing up, including disproportionate focus on prosecution arguments, use of dismissive language, and inadequate presentation of defence cases.
- Challenge to the attribution of mobile telephone numbers and the weight given to related evidence.
- Disputes over identification of defendants in CCTV footage and the sufficiency of evidence linking them to the shooting.
- Criticism of the admission of prior convictions and violent incidents as evidence of bad character or propensity.
- Submission that the judge failed to properly direct the jury on the possibility of alternative verdicts and the impact of defendants’ silence in interview.
- Contestation of the sentences imposed as excessive or unsupported by evidence.
Respondent's (Prosecution) Arguments
- The judge's summing up was balanced, comprehensive, and properly focused on the evidence presented, with appropriate directions on law and fact.
- Evidence of prior incidents and convictions was admissible as intrinsic to the facts of the offence and relevant to the ongoing gang feud.
- Mobile telephone evidence and CCTV identifications were supported by corroborative material and expert testimony.
- The prosecution was not obliged to call certain witnesses whose evidence was of low value or marginal relevance.
- No basis existed for alternative verdicts given the strength of the murder charge evidence.
- Sentences reflected the defendants’ roles, ages, and the aggravating features of the offence, consistent with sentencing guidelines.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Singh-Mann and others [2014] EWCA Crim 717 | Judge’s duty to fairly summarise defence case when defendant does not give evidence. | Confirmed that the judge’s summing up was proper in outlining the defence submissions and evidence. |
| Sharp [1994] QB 261 | Limits on judicial intervention during cross-examination. | Found no material irregularity or hampering of defence counsel by the judge’s interventions. |
| R. v. McNeill [2007] EWCA Crim 2927 | Interpretation of evidence "to do with" the alleged facts under section 98 Criminal Justice Act 2003. | Supported admissibility of evidence closely connected in time and fact to the offence. |
| R. v. Tirnaveanu [2007] EWCA Crim 1239 | Analysis of what constitutes evidence "to do with the alleged facts of the offence". | Applied to determine admissibility of prior incidents as relevant to the charged offence. |
| R. v. Sule [2012] EWCA Crim 1130 | Admissibility of evidence of prior incidents forming motive or context of offence under section 98. | Held prior violent incidents forming part of a feud were intrinsic to the case and admissible. |
| R v Humphris [2005] EWCA Crim 2030 | Requirement to call evidence proving facts underlying convictions if relied upon. | Considered but found inapplicable as admissions were made and schedule was agreed. |
| R v C [2010] EWCA Crim 2971 | Proof of convictions and evidential presumptions under section 74 Police and Criminal Evidence Act 1984. | Confirmed no obligation for prosecution to prove disputed convictions if defendant does not challenge. |
| R v Russell-Jones [1995] 1 Cr. App. R. 538 | Prosecutorial discretion in calling witnesses and disclosure obligations. | Upheld prosecution discretion not to call a witness with marginal or unhelpful evidence. |
| R. v. Coutts [2006] UKHL 39 | When judges should leave alternative verdicts to the jury. | Held that alternative verdict was not appropriate where it would distract from the main issue. |
| Attorney General's References (Nos 143 and 144) (R v Brown and Carty) [2007] EWCA Crim 1245 | Sentencing principles for offenders of similar culpability but different ages. | Applied to assess proportionality of sentences among defendants close in age. |
| R v Taylor [2007] EWCA Crim 803 | Sentencing starting points under Schedule 21 Criminal Justice Act 2003. | Confirmed sentencing approach should not be mechanistic and must consider individual circumstances. |
Court's Reasoning and Analysis
The court carefully reviewed the entirety of the trial and appeal materials, focusing on the fairness of the trial, the admissibility of evidence, and the appropriateness of sentences. It found that the judge's summing up was balanced and coherent, providing adequate directions on law and a fair summary of the evidence and arguments, including the defence cases despite most defendants not giving evidence. Allegations of judicial bias, dismissive tone, and inappropriate judicial intervention were rejected based on the audio record and the absence of credible evidence.
The court held that evidence relating to prior violent incidents and convictions of one defendant was properly admitted either as part of the facts of the offence or as relevant bad character evidence under statutory provisions. The agreed schedule of incidents was treated as a formal admission, obviating the need for lengthy additional evidence. The prosecution was not obliged to call witnesses whose evidence was marginal or unhelpful, and the refusal to admit certain unused material did not render the trial unfair.
Regarding identification and telephone evidence, the court accepted that the judge correctly focused on the prosecution's extensive circumstantial evidence, including CCTV footage, mobile phone analysis, and expert gait analysis, while fairly addressing the defence challenges and disputes. Directions to the jury on secondary participation were amended to limit conviction of one defendant to the principal role of gunman, narrowing the basis of conviction appropriately.
The court also found no error in the judge’s refusal to leave an alternative verdict of assisting an offender, as this was not consistent with the central issues of the case. Sentences were upheld as justified and proportionate, reflecting the defendants’ ages, roles in the offence, and aggravating features such as planning, gang involvement, and use of a firearm. Differences in sentences among defendants were explained by differences in culpability and involvement.
Holding and Implications
The court DISMISSED the appeal against conviction of the defendant who had been granted limited leave, and REFUSED the renewed applications for leave to appeal conviction of the other defendants. It also DISMISSED the appeals against sentence of two appellants and REFUSED the application for leave to appeal sentence of another.
The direct effect is that the convictions and sentences as imposed at trial stand. The decision confirms the safety of convictions based largely on circumstantial evidence in gang-related murder cases and affirms the proper application of statutory provisions concerning evidence of bad character and sentencing principles. No new legal precedent was established beyond the application of established case law and statutory provisions to the facts of this case.
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