Garrington v Rex

Factual and Procedural Background

On 30th March 2023, in the Crown Court at Wolverhampton before Judge Stacey, the Appellant was unanimously convicted of murder, possession of a prohibited firearm, two counts of having an article with a blade, and perverting the course of public justice. The Appellant was acquitted of wounding with intent to do grievous bodily harm and possession of an imitation firearm with intent to cause fear of violence. No verdict was reached on the alternative offence of manslaughter. On 12th June 2023, the Appellant was sentenced to life imprisonment for murder with a minimum term of 22 years (less 385 days remand) and concurrent sentences on other counts. The Appellant appealed against conviction with leave of the Full Court.

The co-accused were convicted of murder and manslaughter in relation to the same incident involving the killing of a victim at a residential address. The prosecution case outlined that the co-accused entered the victim’s home armed and committed the murder and related offences. The Appellant was alleged to have played a supporting role by assisting in preparations, providing a base for changing clothing, meeting co-defendants, waiting by the getaway vehicle, and participating in the destruction of evidence by setting fire to the vehicle used in the attack.

The prosecution’s identification of the Appellant relied heavily on CCTV footage analysis by a police employee, Mr. Jenkins, who identified a profile known as P3 as the Appellant based on comparison with custody photographs. The Appellant denied being P3 or any involvement in the joint enterprise.

Legal Issues Presented

1. Whether the evidence identifying the Appellant as profile P3 in the CCTV footage was sufficient to establish a case for the Appellant to answer.
2. Whether the judge correctly rejected the submission of no case to answer on the basis of the quality and sufficiency of the identification and supporting evidence.
3. Whether the prosecution proved beyond reasonable doubt that the Appellant participated in the joint enterprise with the requisite mens rea.

Arguments of the Parties

Appellant's Arguments

• The evidence of Mr. Jenkins did not amount to a positive identification of the Appellant as P3, only showing consistency but lacking certainty required for criminal proof.
• The prosecution failed to prove that the images of P3 throughout the evening were of the same person.
• There was an absence of CCTV evidence showing P3’s movements between key locations, undermining the prosecution’s case.
• Evidence from a witness indicated the Appellant was at home at times inconsistent with the prosecution’s timeline.
• Phone usage evidence could be explained by co-defendant Waldron’s use of the Appellant’s phone.
• Even if identified as P3, there was insufficient evidence to prove the Appellant’s participation in the joint enterprise with the necessary intent.

Prosecution's Arguments

• Mr. Jenkins’ extensive analysis of CCTV footage and comparison with custody photographs was admissible identification evidence under Attorney General's Reference No. 2 of 2002.
• The overall evidence, including phone records, CCTV footage of movements, and interactions with co-defendants, supported the identification of the Appellant as P3.
• The jury could properly infer the Appellant’s involvement in the joint enterprise from the circumstantial evidence.
• Absence of certain CCTV footage did not contradict the prosecution’s case but were matters for the jury’s consideration.
• The prosecution relied on established legal principles that a reasonable jury could convict if they accepted the evidence and rejected innocent explanations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney General's Reference No. 2 of 2002 [2002] EWCA Crim 2373	Admissibility of identification evidence based on photographic images and expert comparison.	The court accepted that Mr. Jenkins' evidence was admissible identification evidence under this precedent, allowing the jury to consider it with appropriate caution.
R v Galbraith [1981] 1 WLR 1039	Guidance on when a judge should stop a case due to insufficient evidence (no case to answer).	The court applied Galbraith principles to assess whether the evidence was sufficient for a reasonable jury to convict, concluding the case should proceed to the jury.
R v Turnbull [1977] QB 224	Directions for jury on assessing identification evidence, especially where identification is critical and potentially unreliable.	The court confirmed the judge gave correct Turnbull directions to the jury regarding the identification evidence and the need for caution.
R v Jabber [2006] EWCA Crim 2694	Clarification on the test for drawing adverse inferences and rejecting innocent explanations.	The court relied on this authority to explain the test for a case to answer, focusing on what a reasonable jury could do rather than what it must do.
G and F v R [2012] EWCA Crim 1756	Test for whether a reasonable jury could convict based on evidence.	The court applied this precedent to affirm that a case should not be withdrawn if a reasonable jury could convict on the evidence.
R v Barker [2021] EWCA Crim 603	Use of contextual evidence to support identification and involvement in criminal activity.	The court cited Barker by analogy to support the inference linking the Appellant to P3 based on location and timing of events.

Court's Reasoning and Analysis

The court began by affirming the established principles from Turnbull regarding identification evidence, emphasizing the need for caution when the quality of identification is not strong. The court acknowledged that Mr. Jenkins’ evidence did not amount to a positive identification with absolute certainty but found that it was admissible identification evidence under the Attorney General's Reference No. 2 of 2002.

The court examined the totality of the prosecution's evidence, including CCTV footage showing a consistent profile (P3) throughout the day and evening, phone call records linking the Appellant to co-defendants near the time of the offences, and the Appellant’s interactions with others involved. The court noted that the absence of CCTV footage showing certain movements did not necessarily contradict the prosecution’s case and was a matter for the jury to weigh.

Applying the Galbraith test, the court concluded that the evidence, taken at its highest, was sufficient for a reasonable jury properly directed to convict the Appellant. The court rejected the submission that the case should have been withdrawn for lack of evidence, holding that the points raised by the defence were matters for the jury to consider in their assessment of credibility and weight.

The court also emphasized that the jury had been given proper legal directions on identification and the need for caution, and no criticism was made of those directions. The court found that the circumstantial evidence supported the identification and the Appellant’s involvement in the joint enterprise with the necessary mens rea.

Holding and Implications

The appeal against conviction is dismissed.

The court held that there was a sufficient evidential basis for the jury to find the Appellant guilty of the offences charged, including murder and related counts. The judge correctly rejected the submission of no case to answer, and the convictions are safe. The decision upholds the jury’s verdict and does not establish new legal precedent but reinforces existing principles concerning identification evidence and the application of the Galbraith test for no case submissions.