Neutral Citation Number: [2011] EWCA Crim 1175
200806177D2; 20086176D2
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge HONE Q.C.
T20077364, T200777379, T20087141
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/05/2011
Before :

LORD JUSTICE LEVESON
MR JUSTICE TUGENDHAT
and
MR JUSTICE EDER
- - - - - - - - - - - - - - - - - - - - -
Between :

	DELPHON MARVIN NICHOLAS
TREVOR DENNIE	Appellants	
	- and -		
	THE QUEEN	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr R. Orme for the Appellant Delphon Nicholas
Mr M Bromley-Martin & Mr G. Cockings for the Appellant, Trevor Dennie
Mr A. A. Jafferjee Q.C. & Mr J. Evans for the Crown

Hearing date : 15 April 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Leveson: 

1.	On 16 October 2008, following a trial which had commenced on 1 September 2008 at the Central Criminal Court before His Honour Judge Hone Q.C. and a jury, Delphon Marvin Nicholas and Trevor Dennie were convicted of the murder of Andrew Wanogho and sentenced to life imprisonment.  In each case the minimum term specified under s. 269(2) of the Criminal Justice Act 2003 was 30 years less time spent on remand (although, for good reason, that time was reduced in relation to Nicholas).  Sereata Jane Barrie, Michael Williams and Erron Cato were acquitted of murder.  Both Nicholas and Dennie appeal against conviction by limited leave of the single Judge.  
2.	At about 1.30 am on the night of 7/8 April 2006, Andrew Wanogho (“the deceased”) was murdered when he was walking towards the home of Sereata Barrie at 1a Pendrell Road, Brockley, South East London.  He was killed by a single gunshot wound to the heart by a gunman who the Crown alleged was waiting for him as he approached the bottom of the steps to the house.  The case advanced by the prosecution was that the appellants and the co-accused Williams all had motives to kill the deceased. Nicholas had orchestrated the execution while in custody at HMP Belmarsh with the use of an illicit mobile phone; Dennie was either the gunman or a party to the shooting.  Barrie had lured the deceased to her home; Williams had been involved in an incident with the deceased earlier that evening and had been able to alert Dennie as to his whereabouts; Cato was an accomplice who was present at the shooting, supporting and encouraging it.
3.	A great deal of the evidence upon which the Crown relied concerned a detailed analysis of mobile phone records said to establish contact between various participants in the events of the night and, using cell site analysis, their approximate location all against a background of what was happening at the time. In addition, in relation to Nicholas, the Crown also relied on his previous convictions in April 2002 for possessing a firearm and ammunition without a certificate.  It was clear that the gun involved in that conviction had not been the one used to murder the deceased.
4.	The defence case advanced on behalf of Nicholas was that he had not been involved in the murder; he was in custody at HMP Belmarsh at the time.  Initially, he had contended that he had not had access to an illicit mobile “830” telephone that was attributed to him on the night of the shooting.  During the course of his evidence, however, he abandoned that line and provided a new account in evidence to the effect that he was responsible for the use of that phone but that the discussions in which he was involved concerned obtaining cannabis for sale in prison.  Dennie’s case was that he had been having his haircut at the time of the shooting.  The telephone number which the Crown attributed to him (“025”) had been taken and used by Hishack Palmer, a friend and drug dealer partner of his who was using it specifically in order to arrange drugs deals.  One of these deals had been to supply a kilo of skunk on the orders of Nicholas: this was not the same arrangement that Nicholas had spoken about.  In relation to the appellants, the issue for the jury was whether or not they were sure that Nicholas had directed the shooting from prison, using the “830” telephone and whether they were sure that Dennie’s alibi for the time of the murder was false and that he also was a participant in the killing.
The Facts
5.	The deceased, a man with substantial previous convictions, had enemies.  He had previously been shot by a man who was later murdered.  The deceased was acquitted of involvement when the Crown offered no evidence against him although Sean Albert, who was driving the deceased about because he had been disqualified from driving, agreed that many still held him responsible for the death and had threatened him.  He was known to the defendants and there had been issues between them.  
6.	In particular, in November 2005, Kara Thwaites who was the girlfriend of the deceased and the mother of his child said that the deceased had been a close friend of Dennie and Williams but, following an argument in the first place with Williams and then with Dennie’s brother, Dennie telephoned.  Speaking to her, he said that he had had enough of the deceased who had gone too far.  He said that the deceased was “barred” from the New Cross area and, that he had spoken to brother of the deceased and that he felt sorry that her baby “would have no father”; he repeated the threat.  She later received a text message from Dennie to the effect that he and the deceased were going to meet to fight.  She had not told the deceased because of the way that he had reacted when she told him about the telephone calls and had not wanted to make things worse. When cross examined, she denied that she had been pressured by the family of the deceased into making a statement: they had told her to speak to the police about what had happened in the phone call of 28 November but not what to say.
7.	Further, there was evidence that there had been an incident on 14 February 2006 when Leslie Nicholas (Nicholas’ father) had been on his own, driving his car whereupon the deceased had jumped in, punched Mr Nicholas in the face, got him out of the car and driven off.  A few days later, some “kids” had called him and demanded £300 for the return of the car (although it was later returned undamaged).  The prosecution argued that the object of this crime was to slight (or ‘diss’) Nicholas.
8.	Telephone evidence revealed that the deceased was in contact with Barrie during the evening of 7 April and, having failed to get into a cinema, he told his driver, Albert, that he wanted to be driven to a girl’s house, eventually directing him to 1a Pendrell Road: Albert’s evidence was that there was no mention of a drugs deal.  Before that visit, at 00.23, the deceased was dropped at a bar in Lewisham where he was involved in an incident with Williams, whom he hit a couple of times.  It was then that Albert took him to Pendrell Road but, when Albert knocked, there was no reply: this might have been because at some stage, Barrie had been taken to Camberwell to top up her gas meter card.  The two men then went to the home of the deceased’s sister where, after 5-10 minutes, Albert overheard a phone call during which the deceased asked “Are you in the house” and then said he would come over. Albert drove the deceased back to Pendrell Road and watched him walk towards the house whereupon he heard and saw a number of shots being fired at the bottom of the steps; looking in the direction of the shot, he saw a person wearing a furry coat (described by another witness as a black man wearing a parka type jacket with a fur lined hood up) but Albert could not provide a description.  Thereafter the deceased started to run before collapsing on the street: he was not seen to be using a mobile phone.  He asked Albert to be taken to his brother’s house but when the brother was not in Albert called the emergency services.  During the drive, Albert answered three calls on the deceased’s phone each of which emanated from Barrie.      
9.	Before leaving the evidence of Sean Albert, it is necessary to add that, when cross examined on behalf of Dennie, he said that between two and four days prior to the shooting, the deceased had met Dennie outside a shop known as the Honey Pot; they had appeared friendly.  Ten days after his evidence, however, Albert returned to the witness box having told the police that he had not told the truth about the Honey Pot meeting.  He explained that the previous month, while with another man, Shaun Francis, he had been approached by Dennie’s brother in an internet café; it was suggested to him that he should not attend court.  After the holiday, he had received calls from numbers he did not recognise and a person with an Asian voice told him to say what he had said in his statement but to agree with what was suggested to him.  The weekend before his evidence, he received a number of calls; there were no threats but, again, he was told to agree with what was suggested on behalf of Dennie and this is what he had done.  
10.	Albert was cross examined about this evidence on behalf of Dennie; he denied that he had been threatened by the family of the deceased.  In fact, in the weeks that he had been driving the deceased, they had not visited the Honey Pot although he was not with the deceased every day.
11.	There was no scientific evidence to link any perpetrator to the scene and we turn to the expert evidence of phone calls which was not itself substantially challenged: the only issue between Roger Wilkins called by the Crown and Kenneth Corker, called on behalf of Dennie was in relation to signal strength and the significance of cell sites.   What was in issue, however, was the attribution of the phones, that is to say who was making or receiving the relevant calls.  Thus, for the major part of the trial, Nicholas contended that the phone 830 which the Crown linked to him as being illicitly used while he was in custody was, in fact, being used by another inmate at HMP Belmarsh, namely Deon Colliard.  A substantial body of evidence was called which linked to Nicholas the recipients of calls from 830 and those who made calls to the number but, as we have recounted, during the course of his cross examination, Nicholas changed his account and conceded that, at all material times, he did in fact have the use of 830: a substantial swathe of evidence thereby became irrelevant.
12.	As for the 025 phone, there remained a real dispute throughout the case about whether, at the relevant time, that phone was in the possession of Dennie or, alternatively as he contended, a friend (and drugs business partner) Hishack Palmer.  It was common ground that Dennie had regularly used the phone (it being admitted that on 25 March 2006, he had called the police using that number after being bitten by a dog, and when arrested on 27 May 2006 had a different SIM card, 627, but in the handset that had held the SIM card for 025).  Further, there was a detailed analysis of the likely recipients of calls from Dennie and those of Palmer (although Dennie admitted in evidence that he occasionally called Palmer’s girl friend in order to locate Palmer).  The Crown’s case was that a detailed consideration of the pattern and use of 025 was essential and demonstrated that this was not a ‘shared’ phone or one of which Dennie would divest himself even if it was a phone which might have been used occasionally by Palmer (or others). The defence case was that the phone was a ‘business’ phone that could equally be in Palmer’s possession and a different schedule was prepared by Dennie’s solicitors to further the defence contentions.  This issue of attribution was at the forefront of Dennie’s case and one which we are told was addressed at considerable length during the course of Mr Bromley-Martin’s closing speech; it forms the gravamen of his grounds of appeal. 
13.	The phone evidence revealed a complex interlinking of calls between the deceased and the various defendants which it is unnecessary to rehearse in this judgment.  Suffice to say that it has not been suggested on this appeal that it was not open to the jury to conclude that whoever was responsible for making or receiving the telephone calls at the time they were made, from or at the approximate locations identified by the cell site analysis, was involved in arranging and putting into effect the murder of the deceased.  
14.	Although following arrest both Nicholas and Dennie declined to answer questions when interviewed, both gave evidence.  Nicholas initially said that Colliard had been using 830 that night and that, while in Belmarsh, he had been supplying cannabis in prison.  He denied ever speaking to Palmer on the 025 phone and denied falling out with or threatening Dennie although acknowledged that the two had fought while in prison.  Having been cross examined on behalf of all parties, including the Crown (when it was put to him that he would be ‘doomed’ if he accepted possession of the 830 phone on 7 April), on the following day, he then accepted that he had done so.  He explained that he had lied because he had co-defendants to think about and that the type of character he was along with his personal history and the fall out he had with the deceased (when they had earlier fought over £100 and subsequently after his father’s car had been stolen) had made it a risky situation for him.
15.	His account was that he had fallen out with Dennie who had wanted him to say that the contact on the 025 phone was Palmer whereas it had, in fact, been Dennie.  He knew that Dennie, Palmer and the deceased were going to Barrie’s home on the night of the killing: it was in connection with the acquisition of ‘skunk’ cannabis which was also the reason for the calls.  He was not close to Barrie who would get paid for producing the drug but the deal had taken a long time which was why there were so many calls.  He called because he had heard there was a fight between the deceased and Williams but also made it clear that the fact that he had been speaking to Dennie on the phone did not mean that Dennie had committed the murder.
16.	Dennie said that he had been friendly with the deceased until 2001 when they had drifted apart although they had committed crimes and been arrested together: he had argued with the deceased but never wanted to harm him or fought with him.  They had argued in November 2005, because the deceased had threatened his brother but he had never suggested to Thwaites that her baby would have no father; he did remember that the deceased had taken him to task about what he had said and they had had a blazing row but never enough to stop being friends.  The text message had been a show of bravado.  He met the deceased at the Honey Pot a few days before the shooting; Albert was there (although he had not known his name).  The meeting was friendly.  He suggested that Albert had been ‘got at’ by the family of the deceased: he had not been involved in any approach to Albert and Francis after the shooting. 
17.	Early in 2006, he was involved in supplying ecstasy but did not deal much in cannabis.  He supplied in conjunction with Palmer and both of them used the 025 phone to make the deals: they changed the number every few months to minimise the risk of detection.  On 7 April, the family were at home.  At 7.15, he had received a call from Nicholas.  The call was passed by Dennie to Palmer and was about the acquisition of a kilo of skunk from Barrie.  At 00.21 on 8 April, the 025 phone was detected as having moved into the vicinity of a barber’s shop: Palmer had dropped him off for a haircut and then left him, taking the 025 phone with him.  The subsequent calls were made by Palmer.  After his haircut, his barber had dropped him at home at about 00.50.  He was only re-united to the 025 phone at about 01.50 when Palmer collected him and they went to a bar: it was then that Palmer had told him that there had been “some madness” outside Barrie’s house although he did not now what had happened to the kilo of skunk.  He was later to explain that his frequent visits to the barber (having been several times in the course of a week) were because of the way that he kept his hair shaped.  
18.	In 2008, while in custody with Nicholas, they had argued.  There had never been an agreement between them that he would give evidence that Colliard had used the 830 phone in return for Nicholas saying that Palmer was using the 025 phone although Nicholas was trying to persuade him to do so.  He said that he had twice been attacked and fought with Nicholas; they had both been moved to different prisons.  
19.	Dwayne Bryan gave evidence in relation to the meeting between the deceased and Dennie at the Honey Pot which he said (contrary to the account of Albert) had been friendly.  Following a hearsay application, similar evidence from Stuart Wilson was read and it was clear from the evidence of the Dennie’s solicitor as to the circumstances in which Wilson refused to sign the statement that he had made and his unwillingness to give evidence also created issues for the jury to consider.  The solicitor also spoke of an incident between Nicholas and Dennie in the cells at the Central Criminal Court (although he had not heard what was said).  The barber, Chris Frith, explained that he was frequently open until midnight or 2.00 am but was unable to recall whether Dennie had been for a haircut on that night being only contacted 8 weeks before the trial.  He often dropped Dennie at home if he was the last customer.  Finally, Shaun Francis gave evidence that he had been with Albert in the internet café when they had met Dennie’s brother but did not remember anything being said by the brother that could have been a threat.
20.	The co-accused Barrie gave evidence to the effect that she had not been part of a plan to kill the deceased.  She described her own drug dealing activities and explained that her contact with the deceased at the material time related to drugs.  She said that the person to whom she spoke on the 025 number was Hishack Palmer to whom she had not spoken for at least ten years.  This evidence was clearly supportive of Dennie’s case but was obviously of potentially similar status for the jury to consider as the contrary evidence of Nicholas.
The Appeal of Delphon Nicholas
21.	We turn to the grounds upon which Nicholas challenges the safety of his conviction.  The first concerns what is contended by Mr Orme (who did not appear at the trial) to have been the wrongful admission in evidence of Nicholas’ previous conviction, in April 2002, for the offence of possession of a firearm without a certificate (which was not the firearm involved in this murder) and possession of ammunition for which he was sentenced to a total of 3½ years imprisonment.  The facts summarised by the judge were that, having been stopped by the police in a motor car driven by another, Nicholas ran off with a metal object which he discarded whilst running.  It was a firearm manufactured to fire blanks but which had been modified to fire live ammunition; the magazine which was also recovered contained two shells with what are described as air pellet heads.  It was also recorded that the defence case in relation to this firearm was that it was owned by the driver of the car who could not run away because of a back disability.
22.	The judge admitted the conviction under s. 101(1)(d) of the Criminal Justice Act 2003 as relevant to an important matter in issue between the prosecution and the defence and, in particular, relying on s. 103(1)(a) of the Act as evidence of propensity to possess a firearm.  In his ruling, he said:
“I really do think that there is probative force in the fact that it is capable of showing, quite properly, a propensity to possess a firearm and I acknowledge that possession in the context of this case has a wide meaning, in the sense that if Mr Nicholas did actually organise a shooting he would be jointly in possession of the firearm, if he instructed others that that was the way it was to be done.  So there is the propensity established for the possession of a firearm itself and also [of] live ammunition and also more particularly [a link] to persons who would be able to provide such firearms.”
23.	Mr Orme challenges the basis of the information upon which the judge reached the conclusion that he did as to the circumstances of the offences and, for our part, we agree that it would have been better had rather more detail of the circumstances been available.  In the event, however, the matter was put before the jury in the form of an Admission in these terms and it was only otherwise apparently fleetingly referred to by Nicholas himself when he gave evidence:
“On 22 April 2002, Delphon Nicholas was convicted of possession of a firearm without a certificate and possession of ammunition.”
24.	When summing up this aspect of the case, Judge Hone explained that this type of evidence was not previously provided “because of the fear that such information would prejudice the jury against a defendant and that they would give it more weight than it deserved”.  He went on:
“Today such evidence is often permitted because a jury understandably want to know whether what the defendant is alleged to have done is out of character or whether he has behaved in a similar way before.  … The person with bad character may be less likely to tell the truth but it obviously does not follow that he is incapable of doing so.  Of course, a defendant’s previous conviction is only bad character.  It does not tell whether he has committed the offence of which he is charged in this case.  What really matters is the evidence that you have heard in relation to that offence.  So being careful not be unfairly prejudiced [sic] against the defendant by what you heard about his previous conviction nor give it disproportionate importance in your discussion.”
25.	Mr Jafferjee Q.C. for the Crown pointed to the basis upon which Nicholas was then defending the allegation: although he had used the 830 mobile phone, on the night in question it was in the possession of another man, Deon Colliard, and he had absolutely no communication with Dennie, or Barrie or anyone else.  It was argued by the Crown that the previous conviction was relevant to the identity of the person using the 830 number and whether Nicholas had a propensity to commit offences of the kind with which he was charged.  The context was a man conversant with and with access to a firearm being alleged to have orchestrated a murder with a firearm.
26.	Mr Orme submits that what he describes as a fleeting possession of a firearm and ammunition for the purpose of disposal for another is not capable of showing a propensity to organise by telephone from a prison cell a murder by shooting although he does recognise that it may demonstrate a willingness by Nicholas to involve himself in firearms.  The first proposition characterises the value of the evidence too narrowly.  The concession, however, is all that is required to permit the evidence to be admissible if not as evidence of propensity then as evidence relevant to an important matter in issue between the defendant and the prosecution namely the association of Nicholas with firearms or, more particularly, those who have possession and control of firearms that can be made available should the need arise.  It is submitted by Mr Jafferjee that the jury was entitled to have regard to the coincidence that Nicholas had a provable link to possession or control of a firearm in the past and (on the basis of the evidence, albeit then challenged although later admitted) was in telephone contact from his cell with others who were at liberty one of whom was in contact with the deceased (in respect of whom there was evidence that he had a grudge) and at least one other who was in the close proximity to the area where the deceased was shot.  
27.	Although we see force in the argument that the evidence of the previous convictions was not inevitably evidence of propensity to commit murder, it is unnecessary to decide whether possession on its own of a modified weapon that, essentially, could only be used to commit a crime of violence, is, in fact, sufficient because we have no doubt that it was, in fact, admissible under section 100(1)(d) of the 2003 Act.  It is therefore not necessary to rely on s. 103 which only identifies what is included within the phrase “matters in issue” in s. 100(1)(d) and is not intended to limit the admissibility of other relevant material not falling within the ambit of propensity to commit the offence.  Neither do we consider that the judge should have concluded, pursuant to s. 101(3) of the 2003 Act that the admission of the evidence would have such an adverse effect on the fairness of the proceedings: it was not of peripheral significance that some few years before this killing, Nicholas had been prepared to consort with (and thus had access to) a person who carried potentially lethal firearms.
28.	As for the prejudice consequent upon the admission of the evidence, Mr Orme accurately points to the failure of the judge to give a full warning in accordance with Hanson [2005] 2 Cr App R 21 on the question of propensity.  In fact, although the judge admitted the evidence on the grounds of propensity, the word does not appear in his summing up.  Before being corrected by counsel for the Prosecution, the judge started to direct the jury on the basis that the evidence had been admitted on the ground that Nicholas had attacked the character of two of the prosecution witnesses (that is under s.101(1)(g) of the 2003 Act). So he started to direct the jury that the evidence of Nicholas’s bad character was relevant to his credibility as a witness. After being corrected by counsel (to the effect that Nicholas had made no such attack), the judge gave the direction (quoted above) that they should not conclude that he was incapable of telling the truth, and that the previous conviction did not mean that he had committed the offence of which he was charged. He also directed them not to give disproportionate importance to the previous conviction. 
29.	What the judge omitted from the direction were two points referred to by this Court in Hanson. He did not direct the jury that they should take into account what Nicholas said about the previous conviction. But there is no error in that omission, because Nicholas said nothing about the previous conviction. Nor did the judge direct the jury that whether the previous conviction showed a propensity was for them to decide. This omission has to be seen against the background that when he made his ruling that the evidence was admissible, Nicholas was denying that he had the 830 telephone at all that night. He changed his case after this evidence had been admitted. It would have been better if the judge had given a fuller direction to the jury on the relevance of the previous convictions but in all the circumstances of this case, we consider adequate the warning as to significance and weight and do not believe that the limitations of the direction start to render unsafe the verdict in his case.
30.	Although not pursued in argument, Mr Orme had wished to pursue an application to call fresh evidence from Mr Peter Brown, an expert in cell site analysis who considered the use of mobile phone 830 to contact mobile phone 246 between 01:13 and 01:25 on the morning of 8 April.  In particular, he expressed an opinion about the data available from which inferences could be drawn from mobile phone records.  Thus, in relation to a call at 01:17:57 from 830 (Nicholas’ illicit phone in his cell) to 246 (Barrie’s mobile phone) which is not matched by a record of an incoming call on 246, the call could have been an incoming roaming call that was answered by the user of 246 or could have been diverted to voicemail: the data simply cannot establish which type of event it was.  He also concluded that, given potential variation in network clock times, it was possible that 246 ended that call at 01:18:07 and initiated a call to 025 (which Nicholas contends was Dennie but which it is said by Dennie and Barrie was Palmer) said to have started at 01:18:06 and ended at 01:18:22 picked up by the O2 GSM network.  At 01:19:02, 830 originated a voice call of 3 minutes 1 second duration to 246, again without a matching incoming call record: again, this could either have connected to the user of 246 or to its voice mail service.  For reasons which it is unnecessary to develop, Mr Orme wished to argue that this potential evidence critically affected the inferences which could be drawn about the Nicholas’ knowledge of the whereabouts of the deceased.
31.	This application was not, in the event, pursued because in the last few days, Mr Brown had withdrawn his opinion having learnt that, in 2006, the relevant provider would have sent a text to the recipient of a voice mail to the effect that a voice mail had been left.  As there was no such text, the possibility that the call was not answered no longer became available and the state of the evidence was as it had been at the trial. In addition, there were answered calls on either side of the calls in issue. Given the expert’s recent change of mind, however, he did seek to adjourn this aspect of what was, in any event, only an application, while further expert evidence was sought.  We refused to adjourn for a number of reasons.  First, this appeal has been outstanding for a considerable period of time. Second, it is difficult to see why this evidence would not have been available at the time: indeed, Mr Brown had been due to give evidence at the trial (being replaced because of his ill health by his employer, Mr Wilkins); the significance of the cell site analysis had always been clear to all.  Third, for the first part of the trial, the defence of Nicholas had been that he was not involved with 830; he changed his account only when giving evidence but did not then suggest that he had left a 3 minute voice mail on Barrie’s phone (which would be a remarkable message particularly having regard to the extent to which Nicholas had been communicating with Barrie during the course of that evening).  Finally, all that the expert could ever suggest was to admit of a possibility that a call had been put through to voicemail in the context of there being no evidence that such ever happened.  We say no more about this potential (but now abandoned) ground of appeal.  The appeal against conviction brought by Nicholas is dismissed.
The Appeal of Trevor Dennie
32.	In relation to Trevor Dennie, Mr Bromley-Martin Q.C. (who appeared at the trial) now puts the appeal fairly and squarely upon the basis that the judge failed adequately to sum up the evidence regarding the most significant issue in his case which was whether, at the relevant time, the Crown had proved that the mobile phone 025 was being used by Dennie (as the Crown and Nicholas had alleged) and had thereby excluded the possibility that it was being used by Hishack Palmer (as Dennie and Barrie alleged).  It is also contended that the judge had wrongly refused to direct the jury that the Crown had altered its case in relation to attribution of the use of this number on the basis that it had been initially contended that Dennie had alone used the number and subsequently conceded that he and Palmer had done so and that, therefore, they must have been together.  These two grounds reflect different facets of the same issue namely a direction by the judge of the competing arguments on attribution of use of 025.
33.	Mr Bromley-Martin was particularly critical of the judge’s failure to summarise the respective contentions of the parties in relation to the general use of 025.  He pointed out the schedule which his solicitors had prepared and identified five calls and one text message which he argues were clearly made by Palmer using 025 (although one of them requires an assumption that Palmer would turn off his own mobile if using the ‘drugs’ phone 025 which, for our part, we would not be prepared to make).
34.	It is important to bear in mind the context within which the judge was directing the jury. It was not his task to prepare an analysis of the case for the benefit of someone who knows nothing about it and wants to appreciate every facet.  He was providing directions of law and a summary of the facts to a jury that had spent some six weeks focussing on the detail of the evidence and the differing arguments that the Crown and each of the defendants had placed before the court.  He was entitled to assume detailed understanding of the issues that had been pored over at great length.  In particular, it is clear that a considerable amount of time had been spent focussing on the telephone evidence and, in particular, the schedule of calls which was Exhibit 3, such that the judge observed, without demur:
“All counsel have referred in detail to evidence over a period of four days and this means that I do not need to repeat every single detail of Exhibit 3.  You will now know the significant contents of the important document almost off by heart.”
35.	In that regard, it is not surprising that the judge did not repeat the detail which was set out in a painstaking fashion not only in the Crown’s exhibit but also that produced by Dennie’s solicitors: he did not focus on the arguments but did refer to the evidence.  Thus, the judge spent some considerable time reminding the jury of Dennie’s evidence which included reference to the use by him and Hishack Palmer of the 025 phone to deal in drugs.  Dealing with the early evening of 7 April, he identified a number of calls consistent with use by Dennie but then, starting from 1935, he went through the calls in detail, identifying where it was suggested by the defence that the inference should be drawn that Palmer had the phone.  Far from being unfair to Dennie, Mr Jafferjee makes the point that the judge did not invite the jury to consider that whether the use said to be by Palmer was, in truth, in relation to drugs deals. Further, having pointed out calls to the mother of one of Palmer’s girlfriends (who gave evidence that she had neither met nor spoken to Dennie), he then pointed out a call to Dennie’s sister commenting:
“It is a matter for [you] to decide who was controlling that phone at the relevant time. There is nothing inconsistent with Trevor Dennie using the 025 phone on occasions if he was with Hishack Palmer in the same area.  However, his case is as I remind you that he was at home …”
36.	The judge went on to deal with 00.19 when the cell site activated by 025 moved in a manner consistent with Dennie going to the barber’s at which Dennie said that he was dropped  by Palmer.  He went on to remind the jury that Dennie said that Palmer would have been using the phone at this time when the cell site was consistent with the phone moving to the vicinity of Pendrell Road.  The judge went on:
“Trevor Dennie’s case is that this was Hishack Palmer on his own to deal with this weed thing (as he put it) for Delphon Nicholas.  He says that he was having his hair cut and was not with the 025. The prosecution say that is untrue; that he was with the 025 phone and was the person using it quite possibly perhaps with Hishack Palmer.  The prosecution also say it would be virtually unthinkable that Trevor Dennie to be in the barber shop with no phone at all to communicate with.  How, for example, was he going to get picked up?”
37.	The judge went on to make it clear that Dennie gave evidence that the calls 00.26 and 00.41 were made by Hishack Palmer and reminded the jury that Dennie went on to say that he was driven home by the barber|: “Hishack Palmer was the one who had the 025 phone after dropping him at the barber’s”.  He also reminded the jury that Dennie had said that 025 was “primarily” his phone if Hishack Palmer was not using it and the two spent a lot of time together.
38.	At this stage it is appropriate to pick up the second, linked, complaint made by Mr Bromley-Martin which concerns the judge’s failure (and, indeed, refusal) to direct the jury that the Crown had changed its case, thereby undermining his submission that this is exactly what had happened.  The note of opening (a transcript of what was said not being available) asserts that “Dennie’s number was 025” and summarises the way in which the phone with that number could be established as his by reference to six features of its use and attribution to him by others including persons called, names stored and call patterns.  He argues that the Crown was thereby asserting (and setting out to prove) that only Dennie used 025: “sole use” was his phrase.  As we have set out above, it was common ground that Dennie generally used the phone but, during the course of the evidence, it was established not only that calls had been made from places which Dennie did not accept he had visited but which he said had been visited by Hishack Palmer whom he contended used it for the drugs business which they jointly operated but also calls to numbers associated only with Hishack Palmer (including his girl friend). By the time of the closing speech, he argued that the Crown were now saying that the sole use did not have to be proved. 
39.	During the course of his summing up, Judge Hone said this:
“I will correct one point made by Mr Bromley-Martin in his final submissions that the prosecution opened the case saying that Trevor Dennie was in sole possession of the 025 phone and that there has been a shift in the prosecution case.  My note and recollection is that the prosecution did not assert that the phone was exclusive to Trevor Dennie and so in my view there has been no shift in the prosecution case which is worthy of any adverse comment.” 
40.	This comment elicited complaint from Mr Bromley-Martin and, in the absence of the jury, he asked the judge to revisit this issue and to direct the jury to the effect that the note of opening demonstrated an intention to call evidence to establish that it was only Dennie that used the 025 phone and that once it was conceded that even one other person had done so, the inference that it must have been Dennie in the vicinity of the home of Barrie at 1.29, proximate to the time of the killing, disappears.  He explained that he had made adverse comment in his speech because the Crown had changed its stance.  
41.	Mr Jafferjee did not agree: although Mr Bromley-Martin had used the phrase “sole use”, he had never suggested that but had said, simply, that it was Dennie’s phone.  As to its use, he did not demur that Palmer had used the phone but as to the extent of its use, he pointed to Dennie’s evidence that he (Dennie) had called Palmer’s girlfriend to find Palmer.  He submitted that Mr Bromley-Martin was deliberately putting the Crown’s case so high in order to knock it down.   The judge dealt with that dispute in this way (the transcript being corrected to reflect the joint recollection of the parties):
“You would not be surprised that when I made the remark about a shift in the prosecution case, we had a debate about that and the central debate is whether there was sole use of the phone or joint possession and so forth.  I [have] given you what my impression was.  I did not think there was a shift.  That is disagreed with by Mr Bromley-Martin who says there was.  I am not going to go to the stake about it.  You decide if you think there was shift, that is one thing.  I just happen to think there was not and actually at the end of the day, it possibly does [not] matter because it [doesn’t] matter that much.  These are the things that you have to decide.  So I hope in a nice way of being fair to both sides.”
42.	It may be that the transcript of this remark was not perfect but is quite clear that the judge left the issue to the jury to decide.  That is exactly what he should have done having, at the start of his summing up, made it abundantly clear that if he offered any view or opinion with which the jury disagreed, they “must” reject his view and follow their collective instincts.  
43.	It is important to put this point in context.  Although Mr Bromley-Martin submitted to the judge that once it was conceded that even if one other person had used 025, the inference that it must have been Dennie in the vicinity of the home of Barrie at 1.29, proximate to the time of the killing, disappears (which, at least to us, suggests that he was arguing that the case turned entirely on that issue of fact), he did not suggest either at trial or in this court that, at the close of the prosecution case, there was no case to answer.  He did not do so because, as he explained, there was the evidence of Kara Thwaites that Dennie had threatened the deceased; there was the evidence of Albert that Dennie or others acting on his behalf had tried to put pressure on him in relation to his evidence.  Although not direct evidence of involvement in the murder, these features themselves created circumstances against which the use of the 025 phone (and the part that it may have played in the killing) fell to be assessed.  Thus, in argument, Mr Bromley-Martin accepted that there was never a time when the jury properly directed could not conclude that the 025 mobile was in the hands of Dennie at the time of the murder; after the close of the Crown case there was, additional to the other material, the evidence of Nicholas to that effect.  If it was truly the case that unless the Crown demonstrated that every call to and from 025 had been made by Dennie, the possibility that Palmer had made the relevant calls could not be excluded and therefore had to be ignored, the other features of the case could not, on their own, erect a case.  
44.	Mr Bromley-Martin was right to take the approach that he did not least because it clearly represents the law. In R v. Bokkum (7 March 2000, unreported) Tuckey LJ rejected, as contrary to Galbraith, the proposition that in a case dependent on circumstantial evidence, the judge would be required to withdraw the case if some inference other than guilt could reasonably be drawn from the facts proved. He should only withdraw it if he considered it unsafe for the jury to conclude that the defendant was guilty on the totality of the evidence.  This approach was approved in R v. Edwards [2004] EWCA Crim 2102 (paras 83-5) and adopted in R v. Jabber [2006] EWCA Crim 2694 per Moses LJ (at para 21).  In this case, the totality of the evidence was the history between the deceased and Dennie, the conclusions that the jury could reach about the evidence of Albert, the phone evidence, the evidence which Dennie and his witnesses gave and the evidence which Nicholas and Barrie gave (albeit pointing in different directions).
45.	These two grounds of appeal are different facets of the same issue which concerns the judge’s approach to the view that the jury should take of the evidence of attribution of use of 025 or, to put it another way, whether the jury could be sure that Dennie was using the phone at the time of the killing.  That required them to consider all the evidence, including that of Thwaites and Albert for the Crown, and the evidence of Dennie and that called on his behalf.  The jury also had to consider the phone schedule together with the interlinking contacts between defendants and others (whether associated with Dennie, Palmer or others) along with the general location of the place from or at which calls were made or taken (subject to the limitations of cell site generalities).  It also required them to consider the evidence of Nicholas (who said that he was speaking to Dennie albeit not about any murder) and Barrie (who said she was speaking to Palmer).  Mr Bromley-Martin suggests that as the jury convicted Nicholas and acquitted Barrie, her evidence was powerful support for Dennie’s position but that is effectively to seek to advance an argument of inconsistent verdicts which was initially pursued and then, rightly, abandoned after the single judge refused leave.  
46.	Mr Bromley-Martin was understandably concerned that his credibility in the eyes of the jury was likely to be damaged by judicial disagreement with his proposition that the Crown had changed its case.  For our part, we are not prepared to accept that the language used in paragraph 31 of the opening note ties the Crown to the proposition that is advanced and so permits of the emphatic denunciation that Mr Bromley-Martin considered appropriate; we are not in a position to go further, because we have not seen a transcript of the opening speech.  In the event, the way that the judge summarised the issue was entirely appropriate.  He left it to the jury 
47.	We have examined the two grounds of appeal individually and then taken them together to consider whether the way in which the judge left the case to the jury failed sufficiently to remind them of what was in issue and the decisions of fact that they had to reach.  Other judges might have adopted a different style and examined the case issue by issue: so there is no doubt about it, we add that we express our disapproval of the rather unhelpful way that the judge addressed the evidence, witness by witness, examination followed by cross examination in each case as if by reading from his notebook which is an approach to summing up that has been deprecated for many years.  Nevertheless, it is clear from those parts of the summing up to which we have referred above, he did point the jury to the correct questions and he was entitled to take the view that it was not necessary to repeat to the jury features apparent from a detailed consideration of Exhibit 3 which he commented they knew “almost off by heart”. 
48.	It is trite to say that the fact that counsel address the jury in such a way as makes crystal clear the nature of the case being advanced does not relieve the judge of the responsibility accurately to direct the jury as to the law and fairly to summarise the facts, leaving the jury to decide whether, to the appropriate standard, the prosecution has proved guilt.  In this case, as is clear from the passages which we have set out above, the judge undeniably asked the correct fundamental questions of the jury although he did not articulate the argument which had been advanced by Mr Bromley-Martin as to the approach which they should adopt.  In our judgment, that does not render the summing up unbalanced or unfair. Neither does the way that he directed the jury in relation to the submission that the prosecution had ‘shifted’ its position.  .
49.	In the circumstances, we do not accept the grounds specifically advanced for contending that the verdict reached by the jury in relation to Dennie is unsafe.  We add that we have also considered the factual inaccuracies which Mr Bromley-Martin has incorporated from very much lengthier grounds initially advanced by Dennie in person.  He did not contend that, on their own, they were sufficient to undermine the safety of the conviction but argued that they had to be taken with the errors on which he had relied as providing support for the argument that the approach of the judge was unfair and unbalanced, thereby further undermining the safety of the conviction.  Given that we do not consider that Mr Bromley-Martin’s primary arguments can be sustained, these errors (which, for these purposes, we assume) are not sufficient to do so.
50.	Both appeals against conviction are dismissed.