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England and Wales High Court (Administrative Court) Decisions
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KERR
| THE QUEEN (ON THE APPLICATION OF ANTHONY DAVIES)
|- and -
|THE CRIMINAL CASES REVIEW COMMISSION
Ms Sarah Clover (instructed by The Criminal Cases Review Commission) for the Respondent
Hearing dates: 25 October 2018
Crown Copyright ©
Lord Justice Irwin:
The Evidence at Trial
" "They must have had a conversation in between when I wasn't around, because it was like it was down to two people to rob. They said that the 50 grand had come from a kid called Teddy. Johnny Daniels said it was what he was owed, so he went round and took it. It had been owed to him for protection. Daniels said that Teddy Simpson was worth robbing, 'He's got money. More than I robbed him of, plus a shipload of drugs coming in as well'". And Daniels, thought Stewart, seemed to know Teddy Simpson. He thought it would be quite easy to get the money from Teddy Simpson. "And there was supposed to be a couple of hundred grand in the house, plus the drugs when they came". And he said the decision was made about Edward Simpson.
The way that he put it was this. "The logistics were not discussed in my presence. I think Daniels wanted Davies to do it. Davies didn't want to. He thought there ought to be someone else to do it. Jigger didn't really want to do it, that was clear at the meeting". But he then went on to say, well, it has been over two years ago. "Daniels was on a tag. He couldn't leave the house, he couldn't do it. He didn't want to tell Daniels that, he told me, he approached me. He added ", I am sorry, " he asked me did I know anyone who wanted to do it"." (p.45)
"Jigger" is the Claimant's nickname.
"They said that Teddy Simpson was a shiverer. 'If you look intimidating, got presence about you, he'll give it to you straight away. You don't have to do much or use any violence'. It was left like that after the second meeting." (pp.45/46)
"But that phone call is very close to the CCTV footage of the cars driving past, the two of them driving past Sticker Lane, in the course of which Stewart says that Davies pointed out Sticker Lane to the men behind and made a phone call to that effect. Well, they went to Fenby Avenue. They parked up, says Stewart. He said Anthony Davies got out, he said to them "'Right, you know what to do. You don't need to hit him, just threaten him. Threats will be enough. Make sure you get the tape, ring when you're in the house'. Then he got back into my car, the Laguna, we turned round and we drove back to Sticker Lane and then to 21 Hope Avenue, my house". So Stewart, Davies, Mumtaz Ali, on his account, going to 21 Hope Avenue, leaving the Leeds men in Fenby Avenue about to drive down Sticker Lane and into 310, and there to do what it is said, if this account is right, is a robbery in which the threat of force is enough." (p.72)
"And he went to the door and as he was about to knock it again it opened. Everything happened very fast, he was dragged in. He was hit over the head immediately. There were several blows to the head with he thought an iron bar now you may conclude, members of the Jury, that was probably a frying pan and a wrench, an adjustable wrench. One of the men there had a stockinged mask and said "Open your fucking mouth or we'll kneecap you", forcing a gun between his teeth as he did so. And you know that although when the gun was picked up later on by a couple of people out with a metal detector in Judy Woods, and it was wiped by them, one handed it to the other, as they told you, in the statements which were read, they had not obviously wiped the muzzle bit where the blood was found which was consistent both with Gary Folkard and with Edward Simpson. And so you may think that at some stage during the events of the evening this imitation firearm looked like the real thing, that had been pushed into both their mouths." (p.77)
"Then, as he said, Anthony Davies got a phone call, he thought from Decosta. And Decosta said the "Leeds guy had gone", he, Decosta, was upset with Darren Martin. He said this. "Why have you sent this kid up here? He's hitting the guy". He said he was using "Tin snips" and cutting. Now this was not Darren Martin saying anything, this phone call was not anyone saying anything directly to Sonny Stewart, this was Decosta speaking to Davies and it is Stewart's report of what he understood the phone call to be about. He said, "Because Davies relayed it to me, he told me what was said".
And Davies reacted to it, he told you about the reaction which was in his presence. He reacted to it by laughing, saying "He's a game lad, Darren, he's a game lad". And he commented, Davies appeared to be enjoying it." (p.87)
"And this is evidence in the case of the trial of Davies. Why is it evidence in his case? Well, it is evidence that he had an enthusiasm for violence. It is his reaction that matters. Not so much what was said, but the fact he was endorsing it, he was loving it, according to Stewart. And violence against a man who had been abducted. Now that is evidence, if you accept it, which speaks of what he foresaw. He had no surprise, no apparent surprise at what was happening, only pleasure. Now is that the reaction of someone who never expected serious violence to be used at all? That is why the Crown want you to hear that evidence." (p.88)
"Now you can see the external injuries, the pictures perhaps speak all too graphically for themselves. What you cannot see are the internal injuries, so I will remind you of what Professor Milroy said about some of those. As to the facial bones, he said both the cheeks and the nasal bones were shattered with multiple fractures. The throat, what he described as the "Voice box cartilages", were broken with extensive bleeding. There had been, he concluded, a very heavy impact to the head, for instance by repeated stamping. The voice box could have been stamped on or it could have been a compressive force such as an arm-lock or a wide ligature such as a wide piece of clothing which would have compressed the neck. The result, the brain was swollen. That he thought was a reaction to the damage. There was extensive bleeding on the brain surface and the damage to the brain had been inflicted in life, it was not after death.
He told you that seven to nine ribs to the back were fractured by a heavy impact to the chest. The ribs had been displaced by the fracture, forcing the ribs into the chest cavity. A lung was punctured, it had collapsed, the right lung. Both shoulder blades were fractured. Heavy blows, he said, were sufficient to do that. There would have to be at least one blow to each scapula, each shoulder blade, separate from the blow or blows to the rib-cage.
What was the cause of death? Multiple injuries. The head, brain damage; the rib-cage fractures and the lung damage would have added together. The weapon. He said many were by stamping. There were no injuries to identify the sort of weapon, the wrench might account for some. And he cannot say in what order the injuries occurred. They were recent, that is, up until one hour before death.
Now you will have to consider, bearing in mind the account which I took you through yesterday of what Dr Klaentschi found in the hall, you remember the impact splatter, someone on their knees or on the floor, whether that was caused by a weapon, whether it may have been caused by stamping, a matter for you to decide. When cross-examined by Mr Kelson he said the impacts to the head would have caused brain injury. Most of the bleeding injuries were to the head. And he said punching in the face would not be enough to cause it, but breaking of the facial bones by a wrench could do it. So he was saying the blood in the head, the bleeding injuries, would not be caused by punching, you would need a weapon such as a wrench.
Brain injury would make a person unconscious. It is possible to recover, but it is more likely that once rendered unconscious you would stay that way. He was cross-examined by Mr Swift and he was asked about Injury No 3 which we have just looked at, and he said there were actually five lacerations but they had been caused by blunt trauma in what he thought was a single blow. So that is blunt trauma, single blow to the eyebrow or eyelid. And Injury No 6 was similar. And he asked about Injury No 20. Again, Figure 8. And he was told that damage was consistent with a clamp being applied to the ear and it being pulled. And that the wrench would have been capable of it." (pp.126/128)
"Well, next morning. Sonny Stewart says "I'm in bed, and some time round about 9 ", he first thinks 10 then it becomes later as his account develops, he says he was woken by Anthony Davies, "Who was frantic. He came up the stairs and said 'Get up. He's dead, he's dead. He's dead, get up'". He said that Darren Martin was outside in a green Suzuki, and they drove off in that car. He spoke to Darren Martin. Stewart said to him, "It's all your fault", and he gripped his shoulder. Well, Anthony Davies removed his hand from his shoulder and Stewart told you, neither Darren Martin or Darren Martin did not seem to be bothered." (pp.131/132)
"The first incident must have been a day or so before the 7th July of 2007. Why, because on the 7th July Gordon went to hospital. This was an attack which sent him to hospital. In Great Houghton Road, approached, he said, by Jigger, by Darren Martin and by an Asian called Noddy. They beat him up, they broke his nose, they knocked his teeth out. He said "Teeth", the medical report from the hospital said "Tooth", he already had missing teeth. Gordon told you, well, he had had a tooth missing before, but it was still teeth. He damaged his ribs, bruised his kidneys.
In cross-examination he said "Well, I accept I squared up to Davies", surprised in the street by Davies looking for his money, he on his own, Davies with his two fellows and a man called Foxy who had set up the meeting. And it was suggested to him by Mr Kelson on Davies' behalf, that what happened was simply that Jigger had "Got one in first". Well, Joseph Gordon maintained in fact that Darren Martin had thrown the first punch at him. After he had been attacked, he said, he was on the floor and he told you that when he was on the floor Davies had said to him "It's not over. I still want my money. Next time I'll cut you from here to here"." (pp.147/148)
"Well, again, how do you use that evidence, taken together with the agreed facts of that dreadful conversation, conversations, recorded on the motorway where Davies is directing is heard directing violence and appears to be glorifying in it? You do not convict Davies out of prejudice. So how is this more than prejudice, if it is? A matter entirely for you whether it is. And the answer, if you want to look at it that way, a matter entirely for you, is perhaps this, the Crown will say this tells you what sort of person Davies is, and that is relevant because is he the sort of person who would have behaved as Stewart suggests, getting involved in a robbery and a murder? Secondly, is he the sort of person who would have foreseen the use of violence? This man uses violence casually to enforce drug debts. What does he expect if three men go into Edward Simpson's house at night, his home, to rob him of a quarter-of-a-million pounds, when he is on his own, a man in his fifties."
The Decision of the CCRC
"It was the prosecution's case that you organised the robbery and that you must have realised that during the course of that robbery the robbers might inflict serious violence on the victim. The prosecution relied upon evidence of your bad character, in particular an instance where you were heard to be directing a violent assault on another man who owed you money for drugs, and evidence of your use of violence and intimidation towards another man in order to make him deal drugs on your behalf. It was said that you were someone who delighted in inflicting serious injury on others and that you had positively encouraged the violence towards Mr Simpson.
Although you did not give evidence at the trial, it was your case that you did not foresee that your co-defendants would inflict serious violence upon the victim and that you had no intention to kill him or to cause him really serious harm. You challenged the prosecution's evidence on the basis that the case against you was circumstantial, the cell site evidence was unreliable and Sonny Stewart was serving his own ends and could not be relied upon as a witness of truth."
"Jogee indicated that in most cases that predated it, the judge's directions to the jury may well have included a "foresight" direction but this does not mean that in every case where the judge directed the jury in this way, a conviction should be overturned."
"- A mis-direction on this aspect of the law in itself will not make a conviction unsafe: it depends on the facts of the case.
- In addition, for people who were lawfully convicted under the "old law", (as distinct from the law as it is now understood) the Court will not quash a conviction, following a reference by the CCRC, unless there is "substantial injustice".
- The burden is on the applicant to show "substantial injustice". It is a "high threshold".
- It will not be enough that the correct direction might have led to a different verdict. "In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference" to the verdict, (Johnson, paragraph 21)
- Cases where the jury had concluded/the evidence showed that a secondary party knew that others in his group were armed, but nonetheless joined in committing a violent crime with them were unlikely to involve a substantial injustice because those facts were likely to be strong evidence that the secondary party also intended to commit really serious harm.
- The Court will also consider whether the secondary party was guilty of other, though less serious, criminal conduct.
- The Court will examine the matters before the jury and what can be inferred from their verdicts, having regard to the prosecution case, the defence case, the directions to the jury and the route to verdict."
" requires the jury to have reached the following factual conclusions in order to convict you:
- That you played a part in the attack upon the victim which led to his death, be that through planning, or providing assistance or encouragement.
- That you realised that one of the attackers might cause serious harm to the victim, intending when he did so to cause him such harm.
- That the acts performed by the attackers were not of an entirely different nature to the acts that you foresaw."
"The use of really serious violence must have been within the scope of the plan to which you each gave your assent and intentional support; the use of force must have been contemplated in circumstances where the victim did not hand over the items willingly or sought to raise the alarm."
"You clearly exercised a significant level of control over the operation and were instrumental in setting it up. The cell site evidence was consistent with you being in the company of Sonny Stewart throughout; telephone evidence showed the level of contact between you and the other defendants at the relevant times. It was you who instructed Darren Martin to bring the replica firearm and pass it to Errol Witter for use in the robbery. At the final briefing with the men from Leeds, it was you who told them to go and get on with it and ring you when they had done the job. When you were informed that the victim had been moved from the house in the back of a van, you contacted Darren Martin and instructed him to bring another van into which the victim would be transferred. A van that was registered to you was present when the body was dumped and later found burned out.
The prosecution contended that the way in which the victim was handled and treated after his removal from his home demonstrated that you and your co-defendants were all well aware that serious violence would be used against him. No-one was shocked that he was moved, no-one tried to stop it or stepped in to take him to hospital or expressed any displeasure at what others had done to him. When you were informed that Darren Martin was hitting the victim and using tin snips to cut him, you endorsed and encouraged it, showing no apparent surprise at what had evidently occurred and the level of continuing violence.
In these circumstances, despite the misdirection, the CCRC considers that any argument that a post-Jogee direction would, in fact, have made a difference to your case is not sufficiently strong to raise a real possibility that the Court would conclude that a substantial injustice has been done."
" unambiguous evidence before the jury that those carrying out the robbery were asked and were expected to threaten the victim ('V') but were also told not to physically attack him." (emphasis added)
This assertion was an error, but it may have originated from a similar mischaracterisation of the evidence which crept into the judgment of The Court of Appeal in 2010. It is accepted by Ms Gerry for the Claimant that there never was an instruction not to mount a physical attack.
"In the CCRC's view, if the victim had been subdued at the doorway, as a result of his actions in stabbing Robert Cameron, this can clearly be taken as evidence that the men were more than content to use extreme physical violence against the victim in order to get what they wanted from him, i.e. money and/or drugs. This is entirely inconsistent with your earlier submissions that the plan was only to threaten him, and in fact clearly supports the prosecution case that the use of really serious violence must have been within the scope of the plan and must have been sanctioned in circumstances where the victim was non-compliant."
"evidence of your intention per se but the evidence of how the deceased was treated after he was taken from the house did provide support for the case that serious violence was within the contemplation of all parties".
The matter of bad character had been properly handled. In other respects, this letter repeated the established position of the CCRC in respect of the evidence. For these reasons, expressed more expansively in the letter, the CCRC concluded that
"any argument that a post-Jogee direction would in fact have made a difference to your case is not sufficiently strong to raise a real possibility that the Court would conclude that a substantial injustice has been done."
The CCRC was unchanged in its view, and declined to refer.
The Basis for CCRC Referrals and the Approach of the Court
"13 - Conditions for making of references.
(1) A reference of a conviction, shall not be made under any of sections 9 to 12B unless
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider
(i) in the case of a conviction, because of an argument, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it "
"The "real possibility" test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not." (pp. 149F to 150A)
"65. The question is not straightforward. First, as already seen, the exercise of the power to refer, including its predictive element, is a matter for the judgment of the CCRC, not the Court and is not to be usurped by the Court. Secondly, the CCRC has a discretion not to refer, even when the threshold conditions are satisfied. Thirdly, in many cases (perhaps most but I do not know) the issue for the CCRC will not give rise to "bright-line" decisions on substantive criminal law at all; for instance, cases where a reference is sought on grounds of fresh evidence or an alleged failure to give proper disclosure. Fourthly, questions of some awkwardness could arise as to the role of this Court and that of the CACD were this Court purportedly to decide unsettled issues of substantive criminal law definitively for itself. All of this points towards the Court being slow to intervene where the CCRC has taken a tenable and not irrational view, whatever the Court's own view might be. That said, I would be unwilling to say that there could not be cases where the CCRC's decision was vitiated by an error of substantive law though it may well be that in such a case the matter could simply be disposed of by the conclusion (ex hypothesi readily arrived at) that the CCRC's decision was not tenable."
The Effect of a "Foresight" Misdirection post-Jogee
"92. 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 met resistance the weapons should be used with the intent to do grievous bodily harm at least. The group of young men which faces down a rival group may hope that the rivals will slink quietly away, but it may well be a perfectly proper inference that all were intending that if resistance were to be met, grievous bodily harm at least should be done."
"100. .The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years. Nor is refusal of leave limited to cases where the defendant could, if the true position in law had been appreciated, have been charged with a different offence. An example is Ramsden  Crim LR 547 , where a defendant who had been convicted of dangerous driving, before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence, was refused leave to appeal out of time after that latter decision had been published. The court observed that alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. Likewise in Mitchell (1977) 65 Cr App R 185 , 189, Geoffrey Lane LJ re-stated the principle thus:
"It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction."
For more recent statements of the same rule see Hawkins  1 Cr App R 234 (Lord Bingham CJ) and Cottrell and Fletcher  EWCA Crim 2016;  1 WLR 3262 (Sir Igor Judge P) together with the cases reviewed in R v R  EWCA Crim 1974;  1 Cr App R 150. As Cottrell and Fletcher decides, the same principles must govern the decision of the Criminal Cases Review Commission if it is asked to consider referring a conviction to the Court of Appeal: see in particular para 58."
"18. The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law. The requirement takes into account the requirement in a common law system for a court to be able to alter or correct the law upon which a large number of cases have been determined without the consequence that each of those cases can be re-opened. It also takes into account the interests of the victim (or the victim's family), particularly in cases where death has resulted and closure is particularly important."
"21. In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct. It is not, however, in our view, material to consider the length of time that has elapsed. If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice."
"38. The most likely scenario as the case has been presented to us (and the fairest scenario for the purpose of this appeal) is that that this was planned as a burglary of an unoccupied dwelling house. It was not planned as a robbery and no violence was initially intended. It went wrong with fatal consequences because the householder, Mr Maduemezia, could not and did not hear the door bell. When Flynn attacked Mr Maduemezia, the applicant continued to participate in the robbery despite having the foresight that Flynn would cause Mr Maduemezia really serious bodily harm with the intention of doing so. The case was perfectly properly, as the law then stood, presented to the jury on that basis. The applicant is in a very different position from his co-accused. He was not accused of intending or foreseeing any violence when they arrived at the flat, he was not accused of inflicting the violence and he was not accused of intending to cause grievous bodily harm. Furthermore, there was only a very short time between the discovery of Mr Maduemezia at home and the conversion of the burglary into the robbery with the infliction of the violence that killed him. The violence does not seem to have been a sustained and savage attack; it may have been solely a push and a punch.
39. On that basis, the facts of this case (again we emphasise the facts as we feel obliged to take them) do not fit easily into the examples given at R v Johnson at paragraph 21 of the spectrum of offences. If crime A was the burglary of an unoccupied dwelling the offence would undoubtedly fall easily into the lower end of the spectrum, but in our view crime A is the robbery. The robbery was not a crime A at the upper end of the spectrum because no weapon was carried to the scene or used, the joint enterprise involving the threat or use of force was formed at the very last moment and the physical violence was limited. However, nor is this an offence at the bottom of the spectrum because robbery always involves the threat or use of force. We place the robbery between the middle to the lower end of the R v Johnson spectrum."
Analysis and Conclusions
Mr Justice Kerr: