Neutral Citation Number: [2017] EWCA Crim 268
Case No. 2015/05129/C1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday 23rd February 2017

B e f o r e:
LADY  JUSTICE  HALLETT  DBE
(Vice-President of the Court of Appeal Criminal Division)

MR  JUSTICE  SPENCER

and

SIR  DAVID  MADDISON
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R E G I N A
 
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STEVEN  VARLEY
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Mr R Wright QC appeared on behalf of the Appellant 

Mr A Waterman QC appeared on behalf of the Crown
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J U D G M E N T(Approved)

LADY JUSTICE HALLETT: 
1.  The appellant and his co-accused, Michael Gath, were charged with two offences of robbery and one offence of murder.  Gath pleaded guilty to all three counts.  On 13th August 2015, in the Crown Court at Leeds, the appellant was convicted of all three counts.  

2.  He had been given an extension of time and leave to appeal against conviction by the single judge on one ground, namely, the admissibility of Gath's plea to the first robbery (count 3) in the appellant's trial.  He seeks the leave of the court to argue two further grounds based on the judgment of the Supreme Court in R v Jogee [2016] UKSC 8, and the judgment in R v Johnson and Others [2016] EWCA Crim 1613.

The Prosecution Case
3.  The deceased, Andrew Gordon, suffered from both mental and physical difficulties.  He was particularly vulnerable and seems to have fallen prey to those wanting his money.  He lived alone in a flat on the eleventh floor at Briarsdale Heights in Leeds.  

4.  The appellant had known him for some years.  Mr Gordon described the appellant as an alcoholic and drug user.  He did not regard the appellant as a friend.  Nevertheless, the appellant would visit, uninvited.

5.  On 28th January 2015 the robbery alleged in count 3 took place.  CCTV at Briarsdale Heights showed the appellant and Gath arrive at 20.42.  As they entered the lift, they both attempted to disguise their features.  Gath pulled up his collar, partly to cover his face.  The appellant pulled his hood over his head.  He used his sleeve to cover his fingers as he pressed the lift button.  At 20.44.42 they left the lift on the eleventh floor and banged on the deceased's door.  The deceased became concerned and telephoned the police.  He told the operator that the people outside claimed that they were police officers.  On the recording of his call, the banging on the door, and the word "police" can be heard.

6.  For reasons that remain unexplained, the operator told Mr Gordon to open the door to see who it was.  As he did so, the appellant and Gath barged into his living room.  The deceased was clearly frightened and can be heard to say, "He's kicked my fucking …"  The call ended abruptly as Gath snatched the phone.  Gath then took Mr Gordon's television set off its stand.  The appellant threatened to take the television set unless Mr Gordon gave them money.  He demanded £30.  Gath said nothing.  The deceased told Gath where he kept his money and the two men took £100.  Before leaving, the appellant punched Mr Gordon on the left cheek, causing a bruise.   The television set was damaged beyond repair.

7.  On 9th February 2015 CCTV footage showed the appellant on his bicycle and Gath on foot making their way again to Briarsdale Heights.  The appellant and Gath waited for someone to leave the building so that they could slip in.  At 15.43.32 the appellant went towards the lift with his hood up.  Gath pulled the neck of his jumper over his face.  They both entered the lift.  Neither the appellant, nor Gath was wearing gloves at that time.  They got out of the lift on the eleventh floor at 15.45.01 and went to the deceased's flat, where they remained for 45 minutes. During that time, a friend of Mr Gordon's visited.  She knocked on the door in a way that Mr Gordon would have recognised. 

8.  When the appellant and Gath left the flat, the appellant went into the lift, still with his hood up.  By then he was wearing gloves.  Shortly afterwards, Gath was seen running down the stairs carrying a dark-coloured bag.  The bag contained items taken from the deceased's flat, including his new television.

9.  By the evening it had become obvious to the appellant and Gath that the police were looking for them.  The appellant handed himself in to the police just after midnight on 11th February 2015, having hugged Gath "goodbye".  At that time it was not known that Mr Gordon was dead.

10.   On Wednesday 11th February, a neighbour decided to check on Mr Gordon.  She found that his flat door was closed, but unlocked.  Every internal door was open, except the bathroom.  The television was gone.  Every cupboard in the kitchen was open.  Carrier bags had been torn open in the spare bedroom.  She opened the bathroom door and she found the deceased's body in the bath.  His face was covered in blood.

11.  Miss Escott, a forensic scientist, visited the scene.  From her examination, it was obvious that a struggle had taken place, probably starting in the bedroom. An untidy search had been made of the flat.  It was likely that the deceased attempted to defend himself with a screwdriver.  He had lost one slipper in the front bedroom and his other slipper was found with his bank book on the floor of the bathroom.  An attempt had been made to gag him and he had been smothered whilst on his back in the bath.  Water had been poured or showered over his body.  Dilute blood had been dripped over him as he lay in the bath by somebody moving him. Bloodstained fabric, used as a gag, was in the sink. Traces of Gath's DNA were found on the gag.  Nothing was found forensically to link the appellant with the attack.

12.  Dr Lumb, a forensic pathologist, examined Mr Gordon's body.  He found facial injuries and prominent and obvious petechial haemorrhaging around the eyes and inside the eyelids.  These were signs of asphyxia.  There were also muscle tears and deep bruising across the body, indicative of blunt force trauma.  There were gapping fractures in two areas of the spine, associated extensive bleeding and bruising.  According to Dr Lumb, it is very difficult to cause a fractured spine of this kind; it required severe force.  As a result of the fractures, the deceased would have been in agony.  If conscious, he would have screamed out with pain.  Considerable abrasive force had also been applied to his face with the cloth found in the sink.  The doctor's conclusion was that the deceased had been involved in a violent struggle.  Death was caused by multiple injuries, including severe brain injury.  The brain injury was typical of an injury seen in the victim of a car crash, or in somebody who had fallen from a high building.  

13.  In his interview with the police, the appellant initially denied going to the flat on 28th January, picking on the deceased or asking him for money.  When confronted with Gath's account that they had been together at the flat on the 28th, the appellant continued to deny it.  He eventually accepted that he may have been to Briarsdale Heights and the eleventh floor that day, but still denied visiting the flat.  He declined to answer questions about his movements on 9th February.

14. Admissions were made at trial that the appellant had previous convictions for violence and also that four complaints had been made by the deceased against the appellant in the two years between 2009 and 2011, although no charges had been brought.

 The defence case

15.  By the time of the trial, the appellant’s account had changed again. He admitted he visited the deceased’s flat about seven or eight times, to play cards or have a drink.  He borrowed money from the deceased and did not always repay it.  He accepted that he took advantage of the deceased, but maintained that Mr Gordon had always been happy to lend him money.

16.  On 28th he had gone to the deceased to borrow money.  Gath had gone with him for a walk.  He had no idea why they had covered their faces.  They had knocked on the door and the deceased had let them in.  The appellant denied banging on the door and claiming to be a police officer.  He asked the deceased for £20 or £30, and the deceased agreed to give it to him.  The deceased told Gath where the money was.  Gath took about £65, but they did not tell Mr Gordon how much they had taken.  He denied threatening or punching Mr Gordon at any stage.  He did not know how Mr Gordon had received the bruise to this face.

16. He visited the flat again on the day of the murder but claimed that Gath alone was responsible for the violence inflicted. As they went into the flat, he looked in the hall cupboard to see if there was any money to take, but he could not find any.  Gath hit the deceased.  The appellant continued his search in the bedroom, where he found gloves and put them on.  Gath took the deceased into the bathroom, but the appellant did not take much notice.  He admitted that he had searched the flat, including the living room.  However, despite what must have been going on in the bathroom, he did not see or hear any violence.  The door to the bathroom was shut.  He spent the whole 45 minutes looking for money.  He denied taking the bank book, found on the bathroom floor, into the bathroom to question Mr Gordon about the whereabouts of his withdrawals.  He could not account for the items strewn around the flat. He believed the deceased was still alive when they left. 

17. He agreed that anyone who saw the injuries being inflicted on Mr Gordon would have realised that the intention was to cause really serious harm.  He said that if he had become aware of what was happening, he would have tried to stop it.  It was Gath who had used all the violence and Gath who had stolen all the property.  

18.  On the way out, he had not discussed with Gath what had happened. When he surrendered himself to the police, he did so because he thought that he was wanted on other more minor matters.  When he handed himself in, he was still wearing the same clothes that he had been wearing on 9th February, but they had been washed because they were dirty.  

Appeal

Ground one
19.  Gath's guilty plea was admitted pursuant to section 74 of the police and Criminal Evidence Act 1984, which provides:

"(1)  In any proceedings the fact that a person other than the accused has been convicted of an offence … shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.

(2)  In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom, he shall be taken to have committed that offence unless the contrary is proved."

Section 78 of the 1984 Act, pursuant to which Mr Wright QC invited the trial judge to exclude the guilty plea, reads:

"(1)  In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances … the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

20. Mr Wright referred us to a number of decisions, culminating in R v Smith [2007] EWCA Crim 2105, in support of the proposition that, where evidence is to be adduced under section 74, the purpose for that evidence to be adduced should be identified so that the effect of its admission in evidence can be properly assessed under section 78, and also that section 74 should be used sparingly.

21.  In Smith, the court concluded that there was unfairness, on the particular facts, in admitting a co-accused's guilty plea.  In giving the judgment of the court, Hughes LJ (as he then was) said this:
"18.  It remains a proper approach, we are satisfied, that if there is no real question but that the offence was committed by someone and the real issue is whether the present defendant is party to it or not, evidence of pleas of guilty is likely to be perfectly fair, though of course each case depends upon its own facts.  However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off the issues that the jury has to try. …"

22. Mr Wright argues that there was here a real issue as to whether or not an offence of robbery was committed on 28th January and that the admission of the evidence of Gath's plea of guilty has, effectively, closed off that issue.  The defence did not accept that there had been a robbery and deny participation; he effectively disputed there had been a robbery at all.  Accordingly, the admission of Gath's guilty plea, which acknowledged that a robbery had occurred on 28th January, fundamentally undermined the appellant's case and his credibility, and had such an adverse effect on the fairness of the trial that it should not have been admitted. 

23.  Mr Waterman QC on behalf of the prosecution took issue with Mr Wright as to whether or not there was a real question as to whether a robbery had been committed.  He took us to the various accounts given by the appellant during the course of the interview and in his Defence Case Statement.  He pointed to the extremely strong evidence that a robbery had occurred. The appellant may not have conceded that a robbery had occurred, but it was never really in issue. The issue was whether he participated in it. Accordingly, there was no undue prejudice to the appellant in the admission of Gath’s plea of guilty.

Ground two
24.  The second ground of appeal is one upon which Mr Wright requires leave.  This was a case in which murder was left to the jury on the basis of “parasitic accessory liability”.  The route to verdict was in these terms:

"Question 1

Are you sure that the [appellant] participated jointly with Michael Gath in a robbery, either from the outset, or at some subsequent stage?

If no, not guilty of murder or manslaughter.
If yes, got to question 2.

Question 2

Are you sure that when the [appellant] participated in the robbery, at any stage, he realised that there was a real risk that Michael Gath might cause the [deceased] really serious bodily harm with, at least, the intention to cause really serious bodily harm?

If yes, guilty of murder.
If no, go to question 3."

Question 3 then dealt with the alternative verdict of manslaughter.

25. The route to verdict supplemented the judge's full directions on the elements of murder. The jury was directed perfectly properly, according to the law as it was then understood, that mere foresight would suffice to convict the appellant of murder.  At no stage were the jury directed to consider the possibility of a shared intention, or an intention to assist or encourage the principal in the commission of the offence of murder.

26.  Mr Wright described this case as one of those exceptional cases that was left to the jury on a narrow foresight only basis, which, as a result of the decision in Jogee, renders the conviction unsafe.  In applying the test post Jogee, set out in paragraph 21 of Johnson, he placed this offence at the lower end of the spectrum.  This was not a case where a weapon was taken to the scene or was used, nor there was any intention to use a weapon.  The inference of participation with intent to cause really serious harm was not a strong one.  There was no forensic evidence to establish to any degree of certainty that the appellant himself used force on the deceased, or positively encouraged the use of force, with the requisite murderous intent.

27.  Mr Waterman disagreed with the suggestion that this was not a strong case.  It was a very powerful case; had the judge directed the jury in a Jogee-compliant manner, it would have inevitably led to a conviction for murder.

Conclusions

Ground one
28. We reject the assertion that no reasonable judge could have properly exercised his discretion to admit the guilty plea; still less that its admission into evidence renders the convictions unsafe.  We see considerable force in Mr Waterman's submissions that, in reality, the appellant could not deny that a robbery had occurred.  The recording of Mr Gordon's call, the video interview he gave, the bruise to his cheek, the taking of money, the appellant's lies and limited admissions all point to the fact that there was a robbery and he knew there was.  His case may have changed considerably but it was not positively to assert that there was no robbery.  Had he done so, it would have significantly undermined his credibility.  It was his case that he was drunk and had not been aware of what Gath was doing.  

29. The real issue was therefore whether the appellant was a participant to the robbery that undoubtedly occurred. The evidence of Gath's guilty plea did not close off that issue.  A robbery can be committed by one person.  Gath might have acted alone.  

30. The judge's directions to the jury on the relevance of the guilty plea were full and fair. Gath’s plea was admitted simply to prove that the robbery had occurred.  It did not prove that the appellant was party to the offence or any of the offences.

Ground two 
31.  This is a case in which an application for leave to appeal was made in time and an appeal pending. The second ground, based on the judgment in Jogee was added later, when the Supreme Court’s judgment became available. Accordingly, it falls under the heading of "Other cases" at paragraphs 24 to 28 of Johnson and others, Mr Wright had to satisfy the court that it meets the test of substantial injustice if leave is not granted. This is a high threshold.  The judgments in Jogee and in Johnson and others make clear that the effect of putting the law right is not to render invalid all the convictions arrived at over many years, by the faithful application of the law as then understood.  

32. In this case the appellant’s secondary liability was said to arise out of a prior joint criminal namely robbery. The proper approach to a case of secondary liability arising out of a prior joint criminal venture was set out at [92] of Jogee as follows:

"In cases of secondary liability arising out of a prior joint criminal venture, it will also often be necessary to draw the jury's attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional.  The bank robbers who attack the bank when one or more of them is armed no doubt hope that it will not be necessary to use the guns, but it may be a perfectly proper inference that all were intending that if they meet resistance the weapons should be used with the intent to do grievous bodily harm at least. …"

33. As the court in Johnson observed at paragraph 20, the court must have regard primarily to the strength of the case advanced that the change in the law would, in fact, have made a difference. There is a spectrum.  At one end, there is criminal venture to commit a crime of violence with a weapon so that the inference of participation with the necessary intent is very strong and where it would be very difficult to satisfy the test of substantial injustice.  At the other end, the criminal venture is to commit a crime not involving intended violence where it may be easier to establish substantial injustice.  

34.  This offence falls towards the upper end of the spectrum.  Crime A (the robbery) may not have involved a weapon, but it was a serious crime of violence.  The jury's verdicts indicate that they were satisfied that the appellant and Gath robbed Mr Gordon on 28th January and returned on 9th February, intent on committing a second robbery.  The appellant was an active party in both robberies. On 9th February, the appellant's job, at the very least, was to search the flat.  The attack on Mr Gordon began almost as soon as Gath and the appellant entered and moved from one part of the small flat to the other. Mr Gordon was beaten savagely (and in an excruciatingly painful way) to death when the appellant was only feet or yards away. He stayed for 45 minutes playing his part, having realised that Gath was using really serious violence with the requisite intent. At some stage, someone (presumably the appellant) took Mr Gordon's bank book into the bathroom in an attempt to extract information.  

35. In those circumstances, the only proper inference is that the appellant participated in the robbery with the requisite intent as set out in Jogee. The change in the law would not have made a difference. The test of substantial injustice has not been made out. 

36.  For those reasons, the appeal must be dismissed. We are indebted to both Mr Wright and to Mr Waterman for the clarity and focus of their written and oral submissions,
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