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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 >> Cornwall v R.  EWCA Crim 2458 (26 November 2009)
Cite as:  EWCA Crim 2458
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ON APPEAL FROM CHELMSFORD CROWN COURT
HH JUDGE BALL QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE PENRY-DAVEY
THE RECORDER OF NORWICH
(sitting as an additional Judge of the Court of Appeal Criminal Division)
| KENNY CORNWALL
|- and -
John Dodd QC (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates : 18.11.2009
Crown Copyright ©
Lord Justice Leveson:
" making decisions about the evidence, drawing conclusions from it, drawing inferences from it that can safely and sensibly be drawn. That is why you are here. You are twelve ordinary people with a great collective common sense which you will bring to bear on the case."
The Primary Challenge
"I find that terrifying. Surely the job of the courts is to make it clear that there is always a line over which we cannot cross, whatever the pressures and special circumstances. And barely has the trial ended but we have the Lord Chancellor saying the law on so called 'mercy killings; should be downgraded. Should it? Again, we seem to be sending out a message that there can be some special category of killing."
Although the context is very different, Mr Sallon suggests that the thrust of this article is to challenge the view of the law that certain killings are not to be characterised as murder, irrespective of the circumstances because "there is a line over which we cannot cross". Mr Sallon submitted that this article provides a possible indicator to a fair minded and impartial observer that Mr Shanahan would not approach his task in accordance with the judge's directions.
"It must in my view be accepted that most adult human beings, as a result of their background, education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also, for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone."
"The requirement of both impartiality and the appearance of impartiality applies to every juror see the comment of the Commission in Gregory v. UK [(1998) 25 EHRR 577] at paragraph 42. At the stage of jury selection precautions must be taken in order to ensure that each juror is impartial. If, in the course of the trial it becomes apparent that a juror is partial to the case of one of the parties, that juror must be discharged and consideration given as to whether the trial can fairly proceed with the remaining jurors. If, after verdict, it is established that a juror was, or has the appearance of having been partial to the case of one of the parties the conviction must be quashed. "Even a guilty defendant is entitled to be tried by an impartial tribunal and the consequence is inescapable" per Lord Bingham of Cornhill in R v. Abdroikof at paragraph 27."
"The murder of Alan Reilly occurred against the background of a very significant episode of drugs dealing and the development of a drug-using culture in the area of Braintree where the attack took place. Kenny Cornwall was a young man from London, part of a group who were coming out from London to supply the local users; and in his evidence to the jury, he indicated that he had been supplying in Braintree for some few months, but that was just one of a number of areas in which he and his friends had plied their trade. It was lucrative, but it was dangerous; and in order to carry out his trade and he had been trading on the day of the murder he would regularly, the court has no difficulty in concluding, arm himself with a knife to protect himself, to protect the precious load of drugs that he would be carrying and to protect the cash that he held.
Drug dealing is a dangerous business and he had been doing it very successfully for some time. But to do it successfully, you have to be hard, you have to be tough and you have to be prepared in extreme circumstances to use violence."
"I do not sentence [the applicant] upon the premise that he returned to the scene to confront Reilly with the knife But as he turned that corner and saw Reilly present, he reacted in what turned out to be a fatal and lethal way. He went for Reilly. He pulled his knife. He would not be diverted from attacking Reilly by Mills. The evidence suggests that Mills tried to deflect him but he was determined to attack Alan Reilly. The evidence shows that although Reilly had a stick and at one point may have stood to face and confront the [applicant] he ultimately chose to try and run from him. He did not get away. He was caught and stabbed repeatedly. The repetition and savagery of those blows makes it plain to me that his intention during the instant of that attack and I accept that it was over quite quickly was an intention to kill and he succeeded."
"No. My clear view from the facts is that at the instant when the attack occurred, there was not the slightest reason for [the applicant] to have pulled the knife and for him to have conducted himself in the way that he did and what triggered the attack was not any sense of a necessity to defend himself, but the seizing of an opportunity to make a point against a man who had earlier assaulted him. To that extent, it was a revenge attack, albeit one arising opportunistically."