Summary of Legal Opinion

Factual and Procedural Background

This opinion concerns convictions at a trial in the Central Criminal Court where four individuals were convicted of murder and one of them was convicted of attempted murder. Two further persons were acquitted of murder and verdicts were not reached in relation to two others who were to be tried shortly thereafter. Two of those convicted applied for leave to appeal against conviction; their applications were referred by the Registrar directly to the full court because of the imminence of the further related trial. The full court proceeded with the hearing in effect as if it were a full appeal, with leading counsel for both the applicants and the prosecution.

The victim (referred to in the opinion as the young man who was shot) was fatally shot at an event at a venue in the early hours of 13 April 2023. One defendant (who gave evidence at trial but then refused to return for cross-examination) shot the victim; another defendant struck the victim with a sword-like knife. The prosecution alleged a conditional agreement among members of a group present at the venue that, if necessary, one or more of them would use unlawful violence intending at least really serious harm, and that the applicants were party to that agreement. The applicants had made no comment in their police interviews and both had been arrested about a week after the incident.

Legal Issues Presented

1. Whether, at the close of the prosecution case, there was sufficient evidence for a reasonable jury properly directed to conclude that the applicants were party to a conditional agreement to use unlawful violence (i.e., whether there was a case to answer).
2. whether the absence from cross-examination of a co-defendant who had given evidence rendered the trial unfair in relation to one appellant and required discharge of the jury in that appellant's case.
3. whether the admission of evidence of a co-accused's prior purchase of swords/knives (character/propensity or similar evidence) caused prejudice rendering an appellant's conviction unsafe.

Arguments of the Parties

Appellants' Arguments

• The applicants submitted that the judge erred in rejecting submissions of no case to answer because, they said, the evidence did not permit a reasonable jury to conclude there had been the alleged agreement or that the applicants were party to it.
• One appellant argued that the absence from cross-examination of a co-defendant who had given evidence made continuation of the trial unfair and that the jury should have been discharged in his case.
• The same appellant additionally argued that admission of evidence that a co-accused had purchased Roman-sword-style knives some months earlier was prejudicial to him and rendered his conviction unsafe.
• Appellants emphasised alternative factual interpretations (e.g., weapons carried for self-defence, spontaneous violence) and the absence of overt acts by the applicants assisting the principal offenders.

Prosecution's Arguments

• The prosecution's case was that there was a conditional agreement among members of the group that, should the need arise, one or more would use unlawful violence intending at least really serious harm, and that the acts of the principal offenders were carried out in furtherance of that agreement.
• Prosecution relied on pre-event conduct, the proximity of the applicants during the incident, what they did afterwards, and other circumstantial features to support an inference that the applicants were party to the agreement and thereby assisted or encouraged the principal offender.
• The prosecution sought admission of evidence that one co-accused had purchased similar swords/knives previously, arguing it was fact evidence relevant to whether that co-accused supplied the knife found at another defendant's home and relevant to whether the co-accused knew others in the group were armed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by addressing discrete issues in turn and by evaluating the judge's application of established principles to the facts.

On evidential sufficiency (no case to answer), the judge had set out the facts in detail and applied the Galbraith test as explained in Masih: the correct question is whether a reasonable jury, properly directed, could infer guilt on one possible view of the evidence. The judge explicitly rejected the approach that the prosecution must exclude all reasonable possibilities consistent with innocence at that stage; the court agreed that this was the proper approach.

The judge considered Jogee and the elements of secondary liability: (1) conduct (assistance or encouragement) and (2) the requisite mental element (intention to assist or encourage the principal to kill or to cause really serious harm). The judge also explained how an agreement can be an evidential route to prove both elements because an agreement to carry out a criminal venture can amount to encouragement or assistance.

The judge defined the prosecution's pleaded agreement as a conditional agreement that, should the need arise, one or more of the group would use unlawful violence intending at least really serious injury. On the facts (as summarised by the judge and recited in this opinion) there was evidence from which a reasonable jury could conclude: knowledge within the group that some members were armed with knives and that a gun was in the possession of one member (either by seeing it or by a gesture interpreted by the judge as indicating knowledge); that the group remained together and in close discussion while tension existed with the victim's group; that the group left together, waited outside, and then ran off together after the shooting. The judge held that these features could support an inference that there was a conditional agreement to use violence if necessary and that the applicants were party to it.

The court considered the applicants' alternative analyses (e.g., weapons carried defensively; spontaneity of the outside violence; lack of overt assistance by the applicants at the moment of attack). The court stated that while those were possible interpretations, an equally valid interpretation was that the group was armed and aware of others' weaponry and that the factual matrix permitted a reasonable jury to infer an agreement. The court emphasised that it was not the appellate function to second-guess a jury's verdict where there was evidence sufficient for the jury to convict.

On the issue of the co-defendant's prior purchases of sword-like knives, the judge had admitted the evidence as relevant to that co-defendant's case and, alternatively, under section 101(1)(d) of the Criminal Justice Act 2003. The judge directed the jury that the evidence was irrelevant to the case against one appellant; the court was satisfied that the evidence had some probative value as to the co-defendant and that, given the judge's unequivocal direction, it caused no prejudice to the appellant in question.

On the contention that the absence of the co-defendant (who had given evidence and then refused to return for cross-examination) made the trial unfair in relation to one appellant, the court reviewed the judge's handling of the matter. The judge had investigated the reasons for absence, found the absence to be voluntary, discharged the jury in the case of a third party whose trial was prejudiced but declined to discharge the jury in relation to the appellant. The court held that none of the matters which it was suggested could have been put to the absent witness would have advanced that appellant's case; accordingly the judge was entitled to refuse to discharge the jury and that decision was within the range of reasonable judicial choices.

Holding and Implications

PERMISSION TO APPEAL REFUSED.

Implications:

• The court concluded there was no arguable ground that the convictions of the applicants were unsafe; accordingly the convictions stand and permission to appeal was refused.
• The court found no material unfairness arising from the absence of the co-defendant for cross-examination in relation to the appellant who advanced that ground, and no prejudicial effect from the admitted evidence of the co-accused's prior purchases as related to that appellant, given the judge's directions to the jury.
• The opinion does not purport to establish a new legal principle; it applies established authorities (Galbraith, Masih, Jogee and related authorities) to the facts and upholds the trial judge's rulings as within the permissible range of judicial discretion.