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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dunning, R. v [2025] EWCA Crim 464 (27 March 2025)
URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/464.html
Cite as: [2025] EWCA Crim 464

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Neutral Citation Number: [2025] EWCA Crim 464
CASE NO 202400810/B3-202401273/B3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
HHJ SIMON DREW 20BW1680823

Royal Courts of Justice
Strand
London
WC2A 2LL
27 March 2025

B e f o r e :

LORD JUSTICE STUART-SMITH
MR JUSTICE BRYAN
HIS HONOUR JUDGE ANDREW LEES
(Sitting as a Judge of the CACD)

____________________

REX
- v -
CARL DUNNING

____________________

MR A MONTGOMERY appeared on behalf of the Applicant.
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    MR JUSTICE BRYAN:

  1. On 2 February 2024 in the Crown Court at Birmingham (His Honour Judge Simon Drew KC), the applicant (then aged 44) was convicted of one count of Assisting an Offender contrary to section 4 of the Criminal Law Act 1967 (Count 4).
  2. On 8 March 2024, before the same Court and judge, the applicant was sentenced to 2 years' imprisonment (less 109 qualifying days to count towards sentence in relation to a qualifying tagged curfew).
  3. In relation to his co-accused, his co-accused Crowley, he was acquitted of murder (Count 1) but convicted of manslaughter (Count 2) and sentenced to an extended sentence of 17 years, comprising a custodial term of 13 years' detention and an extension period of 4 years, and his co-accused Henriques was convicted of Assisting an offender (Count 3), and sentenced to 21 months' imprisonment.
  4. The applicant renews his application for leave to appeal against conviction and sentence following refusal by the single judge.
  5. Turning to the facts. On 12 June 2023 the deceased, Hazim Al Bajouri, was stabbed by Crowley. At the time Crowley was living in a hostel which provided accommodation for vulnerable people. Crowley's father (the applicant) also lived in the hostel. Whilst living at the hostel, Crowley decided to make money by selling drugs to local users, including the applicant who had been a drug addict all of Crowley's life.
  6. The deceased and the witness Katie Davies were local drug addicts. Crowley had sold drugs to them in the past. On 12 June, Katie Davies met with another local drug user named Wally, who lived at the hostel with the applicant and Crowley and was one of Crowley's customers. Katie Davies and the deceased persuaded Wally to buy some drugs from Crowley and share a small amount with them. Katie Davies went to the hostel with Wally to purchase the drugs and the deceased waited outside, because he had previously been banned form the hostel. The deceased however asked for Crowley to speak to him to see if he could purchase drugs on credit, or tick. Crowley sold some drugs to Wally and then he and his friend, the co-defendant Henriques, left the hostel intending to go to the local shop.
  7. Once outside, the deceased approached Crowley and asked him if he would supply on credit. Crowley said no. The deceased and Katie Davies repeatedly asked for drugs and followed Crowley and Henriques to the shop, where they waited outside until Crowley re-appeared. The deceased and Katie Davies continued to pester Crowley whilst he walked back to the hostel. At one stage, the deceased put his hands up to stop Crowley from progressing and turned to face Crowley with his hands held together in front of him. At that point Crowley took out a knife from the front pocket of his hoodie and stabbed the deceased in the chest, before running back to the hostel with Henriques. The deceased was to die from a stab wound, which had punctured his heart.
  8. Crowley and Henriques returned to the hostel. The knife was disposed and Henriques took the hoodie Crowley had been wearing and attempted to wash it in the washing machine. However, the washing machine did not turn on and the hoodie was recovered by the police. The deceased's blood was found on it.
  9. Thereafter, Crowley visited his father, the applicant. CCTV footage showed Crowley bang on the applicant's door, briefly enter and then 6 seconds later he ran back down the corridor with the applicant running after him. Whilst outside, Crowley jumped over a wall and the applicant took off most of his clothes and threw them to Crowley, who then put them on, including the applicant's shoes, trousers and jacket. The applicant then ran back to his room and put on new clothes, before heading out to the bus stop where the deceased lay having been stabbed.
  10. The applicant then tried to administer first aid to the deceased. Whilst at the scene, the applicant told a police officer that the assailant had run off in what he knew was the opposite direction to the one that Crowley had actually gone in.
  11. Later that afternoon, the applicant, Crowley and Henriques met up at the applicant's mother's address, where Crowley had gone to on leaving the area. Crowley then made his way to his brother's house and was arrested the next day, as was Henriques. The applicant was arrested later that evening when he returned to the hostel.
  12. The Prosecution case was that the applicant must have been told that Crowley had been involved in some form of unlawful assault on a person in Hunter's Road given the actions that followed. The applicant quickly took his clothes off and gave them to his son, put on fresh clothing and immediately went to the scene of the stabbing where he tried to help the deceased and falsely told PC Dunford that he was a witness.
  13. To prove the case in relation to Crowley the prosecution relied on evidence from Katie Davies who said that on the day of the stabbing she was with a person called Wally, whom she had persuaded to buy drugs from Crowley (known to her as "CJ"). She was with the deceased and purchased drugs from Crowley, the deceased asked Crowley if he could get drugs on credit and Crowley refused. The deceased was quite animated and kept asking, however Crowley still refused; when Crowley went to walk off the deceased put his hands up to try and stop Crowley, Crowley then stabbed the deceased.
  14. The prosecution also relied upon evidence from the police officers that attended, to the effect that Katie Davies said a male called "CJ" from the hostel had stabbed the deceased, she said she did not know the applicant when asked, but that the deceased was her partner and whilst talking to Katie Davies the applicant said he had only seen the deceased on the floor and he tried to stop the bleeding. Reliance was also placed upon CCTV footage.
  15. The applicant's defence case was that he was not aware of the stabbing when he gave his son Crowley his clothes and shoes and that he only found out about the stabbing later and he went to help. The applicant said that he had argued with his son during the day and said things he regretted. When his son later said they needed to get out of there, he was concerned because his son had a history of mental health issues and was behaving erratically. His son asked for his clothes and shoes and apologised for the earlier argument. He gave his clothing to his son innocently because he thought his son had had an argument with his girlfriend or security.
  16. The applicant gave evidence in the trial that he had four children with Crowley being the youngest. He lived in a hostel and Crowley had a room in the hostel as well. They saw each other each day but they did have arguments. Sometimes Crowley would commit self-harm during their arguments and he would apologise to try and stop Crowley harming himself. They had arguments because Crowley did not like the fact that he (the applicant) took drugs. On the day of the stabbing, he had had an argument with Crowley because Crowley saw him taking drugs. He said some things he did not mean, like "go hang yourself" and Crowley stormed out of the room. He continued to take drugs; crack cocaine, heroin and cannabis. He said he was "out of it".
  17. Per his evidence, the next thing he recalled was Crowley banging on his door saying "Dad. Dad, need to get out of here!" He asked Crowley what was going on but Crowley ran off to the back of the building. He chased after him. Crowley was wearing boxers and socks, and had no shoes on. He asked him what had happened and why he had no shoes on, but Crowley said he did not have time to explain and asked for his clothes and shoes. He did not push Crowley for an explanation because he did not want to upset Crowley anymore and wanted to try and apologise for their earlier argument. He assumed that Crowley had had an argument with his girlfriend or security.
  18. He gave Crowley his clothes, leaving him in boxer shorts, a t-shirt and socks. He then went back to his room and got some clothes. Whilst there he heard someone shout outside that someone had been stabbed and he made his way outside to where he could hear it was coming from. He saw lots of people standing around a man who was lying on the floor. He tried to give the man CPR because he had taken a first aid course when he was much younger, and he made concerted efforts to save his life before the ambulance arrived and the paramedics took over.
  19. The applicant tried to leave the scene but was spoken to by the police. He spoke to Crowley and told Crowley to hand himself in. He was arrested by police later. His evidence was that he felt guilty for the man who died, but when he gave Crowley his clothes he had not done anything wrong. He gave a "no comment" interview on the advice of his solicitor.
  20. In cross-examination he stated that his son was his drug dealer and had sold him drugs on the day, and that they did argue about the fact he was taking drugs, even though Crowley had sold them to him. His evidence was that he was not told by Crowley about the stabbing. He went back to his room after he had given Crowley his clothes to continue smoking drugs, and he only left when he heard a shout. He denied that his going to the bus stop within a time of 1 minute and 40 seconds was because he had been told by Crowley what had happened. He was there when the deceased's girlfriend spoke to the police and said it was a man called CJ.
  21. The issue for the jury in relation to the applicant was knowledge of the unlawful assault and intent. The jury found the applicant guilty of assisting an offender (namely Crowley).
  22. In relation to sentence, there was a Victim Personal Statement from Katy Gilbert (dated 20 February 2024).
  23. The applicant had seven convictions for 13 offences spanning from 2002 to 2023. In 2014 he was sentenced to 65 months' imprisonment for robbery and in 2023 he was sentenced to a community order for possessing an offensive weapon.
  24. There was a letter before the Court from the applicant's mother, Karen Morgan, which spoke of the positive steps the applicant had taken to overcome mental health problems as well as drug addiction.
  25. There was also a pre-sentence report before the Court. The author noted that the applicant was still maintaining that he did not know he was doing anything wrong. Whilst the applicant was assessed as of low-risk of re-offending within a 2-year period and low risk of serious further offending by reference to risk assessment tools, the authors considered that this underestimated the risk of future offending and considered that the true risk was medium, which could be reduced if the applicant abstained from drug use. The author noted that the applicant was aware that it was likely that he would receive an immediate custodial sentence, but if the Court considered there were reasons why a community-based sentence could be imposed then an 18 month community with a Rehabilitation Activity Requirement and Unpaid work was proposed.
  26. In his sentencing remarks, and after outlining the facts, the judge identified that the applicant was 44 and had a poor record, which included a substantial sentence of imprisonment in 2014. However at the time of committing the offence he had stayed out of trouble for almost a decade. The court considered the pre-sentence report and a letter from Karen Morgan who supports the applicant with his wellbeing. The judge noted that the applicant had a long-term addiction to class A drugs and had been consuming them on the day of the offence. Whilst the judge accepted that the applicant provided some assistance to the deceased, at the same time he was gathering information to help his son and was misleading the police. It was accepted that he was making effort to overcome his addiction. The judge found that culpability was high given that the applicant knew that he was assisting an offender who he knew had stabbed, and, at the very least, severely injured, another man, yet was prepared to assist Crowley. In relation to culpability he noted that Crowley was arrested within 24 hours and he accordingly assessed culpability as medium culpability. He passed a sentence of 2 years' imprisonment.
  27. The grounds of appeal against conviction, refused by the single judge, but renewed before us, are that the judge's summing-up unduly favoured the prosecution in the review of the evidence and that the judge's remarks were not offset when the judge came to deal with the defence case.
  28. The grounds of appeal against sentence, also refused by the single judge, but renewed before us, are that the judge erred in imposing a 2-year sentence in light of what was characterised as the potent mitigation available to the applicant, and that the judge erred in not suspending the sentence. It was noted that the judge did not make any express reference to the Imposition Guideline, and whilst he referred to certain authorities of potential relevance he did not refer to another (R v Downey 14 Cr App R (S) 760, where it was submitted the facts were considerably worse in relation to which a sentence of 1 year's imprisonment was imposed. It was also suggested that the judge had placed a gloss on the factors identified in the case of R v Yates [2004] EWCA Crim 2439, including the extent to which the interests of justice had been damaged, by referring to the applicant having "risked" seriously damaging the interests of justice.
  29. There are also before us a Respondent's Notice and Grounds of Opposition in which the Crown submit that the summing-up was fair and any objections made at the time were accepted and dealt with. The judge did not conjure up a theory but set out the prosecution case, as well as reminding the jury of the defence case. An important part of the prosecution case was that the applicant created a false trail to protect his son. The prosecution case was the applicant's presence at the scene of the stabbing shortly afterwards, was evidence that suggested he must have known his son had been involved in the stabbing, hence he knew where to run to. The jury were entitled to reject the applicant's account as to why he went to the scene. The prosecution case as to the assistance given to the deceased at the scene was that the applicant did so because he knew his son was the stabber. Equally the prosecution case was that the applicant lied to the police officers as to which way the assailant had fled because he was continuing to try and help his son.
  30. In relation to sentence the Crown submit that the judge considered previous case law guidance and made findings of facts which were pertinent to the assessment of culpability and harm, including a very serious offence which had been committed by Crowley, and in full knowledge of that offence, the appellant had given his son his clothes in order to disguise his identity and get away, and the applicant had actively misled the police and as a result of such assistance, Crowley evaded the police for 24 hours. Whilst the judge acknowledged the assistance the applicant had given to the deceased, the judge also said it had to be balanced against other actions including that the applicant went to the scene to find out what the police knew and put them off his son's trail and the lie to the police to actively mislead them. Equally the applicant's long-term consumption of drugs was an aggravating factor, the offence having been committed under the influence of drugs in circumstances where the applicant's son was a drug dealer and had refused to supply drugs to the deceased which was at least in part the cause of the incident. It was submitted that suspension of the sentence was a matter for the judge and the judge was correct not to exercise his discretion, the offence being one against the administration of justice. The judge did not find a prospect of rehabilitation, the applicant had a poor antecedent history and had made limited efforts to overcome his addiction.
  31. We are grateful to Mr Montgomery for the quality of his written and oral submissions however, ultimately, the grounds of appeal against conviction and sentence do not bear examination, and the conviction is not arguably unsafe, and the sentence passed is not arguably manifestly excessive, and essentially for the reasons given by the single judge.
  32. As for the grounds of appeal against conviction, we have had the benefit of a detailed and comprehensive note of both the applicant's evidence and the summing up (in circumstances where the audio is not transcribable). First, we do not consider that there is any substance in the contention that the judge "conjured up the theory" that the applicant had gone to the scene of the stabbing to lay a false trail. In fact it was part of the prosecution case that the applicant had gone to the scene for that purpose, based on the false evidence of the applicant that he had seen the direction in which the assailant had run and had directed a direction that was the opposite direction to that in which his son had run.
  33. Secondly, at the end of the judge's summing-up of the applicant's evidence, the applicant's counsel raised a concern about a suggestion of a "false trail". As a result, when the jury came back in, the judge specifically reminded the jury of the applicant's evidence and the applicant's explanation.
  34. Thirdly, whilst the applicant contended that that there was no evidence that the applicant's son had told him what had happened, the fact that the applicant went immediately to the scene of the stabbing, after having spoken to his son and given him the clothes would entitle the jury to infer that his son had told him what had happened. Equally, the jury was entitled to reject the applicant's explanation that an unknown person had shouted out that someone had been stabbed at the bus stop.
  35. Fourthly, whilst the judge at one point did ask a rhetorical question along the lines suggested on behalf of the applicant at paragraph 6 of the Grounds, the judge did fairly remind the jury of the applicant's evidence and the applicant's case.
  36. Taken as a whole we are satisfied that it is not right to characterise the nature and number of the judge's remarks as amounting to a judicial endorsement of the prosecution. Furthermore, we consider that far from the case against the applicant being weak, the case was a strong one, being supported, as it was, by the applicant's attendance at the scene of the stabbing, which was a factor supportive of assistance, and not the contrary, given what the applicant said about where the assailant had gone, which was a lie, and was designed to assist and protect Crowley.
  37. In all the circumstances the conviction was not arguably unsafe, and accordingly the application for leave to appeal against conviction is dismissed.
  38. Turning to the application for leave to appeal against sentence, the judge took into account all the points the applicant submits were "potent", and had express regard to the assistance that the applicant provided to the deceased. He also took into account each of the aspects of mitigation that are referred to in the Advice and Grounds, to which were taken again orally today by Mr Montgomery. However we consider that those significantly underplay the assistance provided by the applicant, which was not limited to providing clothing, and also involved trying to throw the police off his son's trail.
  39. The judge had regard to the authorities to which he was referred, and took a starting point of 2 years 6 months' custody and then adjusted it downwards to 2 years' imprisonment weighing up the aggravating and mitigating factors. Such a sentence was not arguably manifestly excessive in the context of an offence which, by its very nature, damages the administration of justice, and which was in the context of the very serious offence of manslaughter. The most recent case of R v Memmory and others [2023] EWCA Crim 186 (an A/G Reference), reviewed relevant previous authorities (including Yates), and indicated (at [53]) that a starting point of 3 years' imprisonment would be appropriate for this type of offence. On no view, and even having regard to all the mitigation on which the applicant places reliance, was a sentence of 2 years' imprisonment arguably manifestly excessive.
  40. Equally it was a matter for the judge as to whether or not it was appropriate to suspend such sentence. Whilst the judge should have made express reference to the Imposition Guideline, he no doubt had it well in mind, and the factors in favour of suspension were rehearsed in counsel's submissions by way of mitigation, and the judge (having read the pre-sentence report) had express regard to the applicant's mitigation including the assistance he provided to the deceased. Nevertheless this was a very serious offence which by its very nature usually merits an immediate custodial sentence, and which in the present case was in the context of very serious associated offending, and the judge was entitled to conclude that an immediate sentence of imprisonment was appropriate. The reality was that the applicant's offending was so serious that only an immediate custodial sentence was appropriate.
  41. Accordingly the application for leave to appeal against sentence is also not arguable, and is also dismissed.


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