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Cite as: [2016] EWCA Crim 890

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Neutral Citation Number: [2016] EWCA Crim 890
Case No: 2014/03539 C4, 2014/03554 C4, 2014/03542 C4 and 2014/03541 C4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT BRADFORD
MR JUSTICE GLOBE

Royal Courts of Justice
Strand, London, WC2A 2LL
08/07/2016

B e f o r e :

LORD JUSTICE DAVIS
MRS JUSTICE CARR DBE
and
HIS HONOUR JUDGE COOKE QC (SITTING AS A JUDGE OF THE CACD)

____________________

Between:
REGINA
Respondent
- and -

LEE CALVERT
JOSEPH LOWTHER
ROBERT WOODHEAD
ANDREW FEATHER
Applicants

____________________

Simon Myerson QC for the Crown
Michael Wolkind QC for Applicant Calvert
Richard Wright QC for Applicant Lowther
Nigel Power QC for Applicant Woodhead
Matthew Stanbury for Applicant Feather
Hearing date: 21ST June 2016

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Davis:

    Introduction

  1. The four applicants seek leave to renew their applications for leave to appeal against their convictions for murder; in the case of three of the applicants they also renew their applications for leave to appeal against their convictions for possessing a firearm with intent to endanger life (the fourth applicant was acquitted on such count). The applicants were convicted of those offences on 26 June 2014 following a trial at Bradford Crown Court before Globe J and a jury.
  2. The grounds of challenge are these. It is said that the trial Judge was wrong to grant anonymity orders in respect of two witnesses under the provisions of sections 88 and 89 of the Coroners and Justice Act 2009. It is also said that the Judge was wrong to reject submissions of no case to answer at the close of the prosecution case. In addition (and following the refusal of leave on these grounds by the Single Judge) the applicants Calvert and Feather separately apply for leave to adduce fresh evidence and for leave to appeal on that ground. Any previous criticisms of the summing-up itself as advanced in the written grounds have not been pursued.
  3. The applicants also renew their applications for leave to appeal against sentence. All the applicants necessarily were sentenced to life imprisonment. In the case of Calvert the specified minimum term was 36 years (less time spent on remand), with a concurrent sentence of 15 years imprisonment for the firearms offence; in the case of each of Lowther and Woodhead, the specified minimum term was 32 years (less time spent on remand), with concurrent sentences of 15 years imprisonment for the firearms offence. In the case of Feather, the specified minimum term was 26 years (less time spent on remand).
  4. Before us, Calvert was represented by Mr Wolkind QC; Lowther was represented by Mr Wright QC; Woodhead was represented by Mr Power QC; Feather was represented by Mr Stanbury; and the Crown was represented by Mr Myerson QC. Mr Wright and Mr Myerson had appeared at the trial below. The others had not.
  5. Background facts

  6. As these are renewed applications, and since the background facts are well known to the parties, fully set out in the summing-up and also fully summarised in the Criminal Appeals' Office summary, we need only give a broad outline.
  7. Barry Selby was viciously attacked by a group of masked men in the bedroom of his home at 11 Rayleigh Street, East Bowling, Bradford at around 2 am on 14 October 2013. His wife, Donna Selby, was present and witnessed what happened. He was first shot in the knee with a handgun. He then had acid poured over him. He subsequently died in hospital. The agreed medical evidence was that the gunshot wound was not causative of the death; death was the consequence of the acid attack.
  8. There had been three men involved in the bedroom attack: although neighbours were to say they observed five (as they thought) men leaving the vicinity of the house. They left in a dark Mitsubishi 4x4 vehicle. In addition, a light coloured Astra was also caught on CCTV leaving the East Bowling area shortly afterwards. It was later found parked at Dorchester Court in Holmewood: a neighbour noted it being parked there at around 2.20 am. CCTV captured four men, dressed in dark clothes, running away. It was the Crown's case that Calvert, Lowther and Woodhead had been involved in the attack on Barry Selby; and that Feather (the owner of the Astra) had been there to assist as a get-away driver. The Crown's case also had initially been that Feather was the "armourer", either providing or storing the gun; but that aspect fell away at trial.
  9. Some four hours earlier there had been a shooting incident at 48 Farway, Holmewood in Bradford. A shotgun and a handgun were fired at a house, which was the home of Anne-Marie Haigh and her family. A dark Mitsubishi 4x4 vehicle had drawn up and a number of men, wearing dark clothing and balaclavas, emerged. The guns were then fired at the house and the group departed.
  10. In the light of the forensic evidence relating to the bullets that were found, it was common ground that the same handgun which was not itself ever found - was used in both instances. It was also common ground that the same Mitsubishi - also never found - had been used. What most emphatically was not common ground was whether the same people were involved.
  11. Anne-Marie Haigh was an associate of the Selby family (she was also a cousin of Lowther). The applicants themselves were friends. There were agreed background facts that a group of young men on the Holmewood estate in Bradford, of which Calvert was a leading member, had been involved in a series of violent incidents with another group of which Liam Selby, Barry Selby's son, was a leading member. Guns had on occasion been used. There also had been agreed instances of physical violence between Liam Selby and Calvert (there was no evidence that Lowther, Woodhead or Feather had been involved in any such violence).
  12. It was the Crown's case that the two attacks represented a continuation of the feud: the background hostility providing the motive for the attacks. Calvert was said to be the ringleader.
  13. There was no direct evidence linking Calvert to the first attack at 48 Farway. Anne-Marie Haigh gave evidence that, observing the incident from the kitchen window of her next-door neighbour, she recognised Lowther, her cousin whom she knew well. She also recognised Woodhead whom she also knew and whose face she said she saw before his balaclava was pulled down. Two other individuals had observed what happened. They were given the names "Charlie" and "Sam" at trial. These were the two witnesses in respect of whom anonymity orders were made. The defendants were not permitted to know their identities: and their evidence was given in a manner such that they could only be seen by Judge and jury and with voice distortion techniques. Each of those two witnesses gave evidence that they recognised Lowther as one of the men. They also said that one of the other men, whom they did not claim to identify, was taller than the others. Woodhead is significantly taller than Calvert and Lowther.
  14. As to the attack at 11 Rayleigh Street, there was no identification evidence of either Lowther or Woodhead. However Donna Selby gave evidence that, although the men in the room were masked, she recognised Calvert. Witnesses who saw the group leaving the scene described one of the men as taller than the others. A description of the jacket that man was wearing was given. Such a jacket (albeit one of a common kind) was later found at Woodhead's house.
  15. There was no forensic evidence linking any of the applicants to the scene of either incident. There was some telephone and cell-site evidence capable of being consistent with the Crown's case but by no means in itself conclusive.
  16. In addition to the evidence of motive and the identification evidence of Donna Selby, the prosecution also relied as a central plank of its case against Calvert on what was said to be in effect a cell confession made by Calvert, while on remand, to another prisoner called Cowan: a man with numerous previous convictions, including for dishonesty. Clearly his evidence was to be viewed with great caution, as the Judge stressed to the jury. The defence case was that no credence whatsoever could be given to Cowan (one possible inference, among others, posed was that he had been suborned on behalf of the Selby family). However, the prosecution were able to point to a seemingly contemporaneous note made by Cowan containing Feather's phone number and Feather's nick-name "Bogard": Cowan said that Calvert had given him these details to enable Cowan, who hoped to be released on bail, to contact "Bogard" - whom Cowan did not know - about disposal of a gun.
  17. None of the applicants chose to give or call evidence at trial.
  18. The anonymity ruling

  19. The Crown at trial put in detailed grounds seeking anonymity directions which are of course a form of special measures in respect of Charlie and Sam. The applications were strongly opposed. It was said that their evidence was critical and, not least because this was purported recognition evidence, there should be no restriction on identifying those witnesses or on the questioning of them.
  20. The Judge considered the matter with exemplary thoroughness. He did not simply assess the Crown's summaries provided to him. He assessed all the underlying materials for himself. He found, among other things, that there was nothing to suggest a motive to tell lies or to suggest partiality.
  21. In his detailed written ruling the Judge went meticulously through all the relevant statutory provisions, and statutory conditions, of the 2009 Act. He had regard to the relevant prosecutorial guidelines and relevant authorities such as Mayers [2009] 1 CAR 30 and Donovan [2012] EWCA Crim 2749. He fully appreciated that any such order, if to be made, was one of last resort. He fully appreciated the paramount importance of the fairness of the trial. He had regard to all the defence submissions, including the question of contact and discussion between the two witnesses and also between them and Anne-Marie Haigh. The Judge permitted questioning to cover those aspects, as well as on other topics which the Judge considered "essential" for the defence to be able to raise with the witnesses.
  22. Counsel before us acknowledged the meticulous care with which the Judge approached the matter (in such circumstances this court had declined, at an earlier hearing, to review again for itself all the underlying materials which the Judge had assessed). But what Mr Wright, on behalf of Lowther, submitted was that the Judge was wrong to reject the submission that the evidence of Charlie and Sam was, even if not the sole evidence, potentially decisive. He submitted that the evidence of identification of Anne-Marie Haigh could not stand on its own as sufficient without the supporting witnesses, Charlie and Sam. The Judge however, had found that their evidence, while "extremely important", was not "sole or decisive" evidence. Mr Wright submitted that the Judge was wrong in that. Mr Wright accepted that, under the statutory provisions, even if the evidence is sole or decisive that is not necessarily a bar to making an anonymity order. But it clearly is a consideration of the greatest importance; and the Judge's exercise of discretion was, he said, vitiated by his failure to acknowledge the evidence as potentially decisive.
  23. Mr Wright went on to say that the Judge's assessment made at an early stage of the trial rested on various other matters advanced by the prosecution as indicating that this evidence was not of itself decisive. Those included, amongst other things, matters such as alleged telephone contact between Lowther and the others at material times and the finding of a green balaclava said to be linked to Lowther. But as the trial thereafter progressed those various points fell away. Thus, he said, the Judge's assessment had been made on a basis which had become displaced; and the Judge had had a continuous duty of review throughout the trial to ensure the fairness of the proceedings.
  24. We are certainly prepared to accept for present purposes that there is such an obligation of review. If the original basis for making anonymity directions is displaced during the trial, such that the trial may potentially become unfair, the matter needs to be revisited. That approach would be consistent with general Article 6 considerations which are of themselves consistent with the need to view the proceedings as a whole.
  25. But that does not, in our judgment, avail Mr Wright in this case. Some aspects of the prosecution case did fall away as the trial proceeded. But in other aspects it either was sustained or improved. For example, through fear, Anne-Marie Haigh had not been prepared before trial to name Lowther in any witness statement (although she had given his name to the police) as one of the men she saw. But during the trial, and after the Judge's anonymity ruling, she decided that she was prepared to name him. She then gave a further witness statement, and evidence before the jury, to that effect.
  26. In our view, the Judge's approach to the anonymity application was in accordance with the applicable legal principles. He took all relevant matters into account. The exercise of his discretion when he gave his anonymity ruling is not open, even arguably, to challenge. Thereafter nothing which occurred during trial, looked at overall, sufficed to render invalid the previous decision. We add in any event that we have no doubt that so experienced a Judge as Globe J would have kept the matter under review. We also note that no trial counsel had subsequently suggested that the matter should be revisited or the jury discharged. Further, the Judge gave scrupulously fair and detailed instructions to the jury as to how they were to approach this evidence.
  27. In agreement with the reasons of the Single Judge, we reject this ground.
  28. Submission of no case to answer

  29. At the close of the prosecution case, it was submitted on behalf of Calvert that there was no case for him to answer on the firearms offence relating to 48 Farway (Count 1 and the alternative Count 2). The like submission was made on behalf of Feather. Both realistically accepted on the evidence that there was a case to answer on the murder count (Count 3). For Lowther, on the other hand, while it was accepted that there was a case to answer on Counts 1 and 2 it was submitted that there was no case for him to answer on Count 3. For Woodhead it was submitted that there was no case for him to answer on all three counts.
  30. At the heart of the respective submissions was the proposition that, even if the same handgun and same Mitsubishi vehicle had been involved in both incidents, it was simply speculation that the same people were involved in both incidents: indeed, in the case of Feather the Judge was to accept that there was no sufficient evidence to link Feather to the Farway incident and that not guilty verdicts were to be directed accordingly. Various other points were made which the Judge fully reviewed. It was in addition submitted on behalf of Woodhead that the evidence of recognition of Anne-Marie Haigh (which was not supported in this regard by the evidence of Charlie or Sam) was of a fleeting glimpse kind and was too unsatisfactory to be left to the jury. The entire case against Woodhead depended on her identification of him at Farway.
  31. As to this latter point made on behalf of Woodhead, the Judge found that "insofar as the identification [of Anne-Marie Haigh] is to be regarded as a poor identification within Turnbull terms" there were four matters providing support: that Woodhead was significantly taller than Calvert and Sam and Charlie had given evidence of the presence of a taller man; that one of the men seen running away from Rayleigh Street was wearing a distinctive jacket similar to one found later at Woodhead's house; that a witness had seen a tall man running away from Rayleigh Street towards the Mitsubishi; and if the jury were sure with regard to Calvert and/or Lowther that Woodhead was a friend and associate of theirs.
  32. In our view, and rejecting Mr Power's submissions, the Judge was entitled to conclude that the evidence of identification of Woodhead at Farway was not such that the case against him should be withdrawn from the jury.
  33. As to the overarching common submission relating to the link between the two incidents, and whether it could properly be inferred that each of Calvert, Lowther and Woodhead was involved in both, the Judge reminded himself of the relevant legal authorities and principles. He concluded, on the primary facts, that there was sufficient evidence from which, applying the criminal standard, a reasonable jury could properly conclude that those three defendants were involved in both incidents. He identified seven primary factors (expanded to eight in the summing-up) in that regard at pages 12-13 of his ruling, which we need not replicate here.
  34. In our view, and having assessed the position for ourselves, the Judge's overall conclusion on this was justified. His evaluation was one properly open to him. In agreement again with the Single Judge, we can see no arguable error in his approach or in his conclusion.
  35. Fresh evidence

  36. We turn to the fresh evidence applications.
  37. (a) Feather

  38. Feather initially put in an application for leave to appeal out of time based solely on the prospective outcome of the proposed appeals of the other three applicants. Since we have rejected those, this point likewise fails for Feather. Mr Stanbury, on our query, also made explicit to us that no challenge to the Judge's joint enterprise directions, in the light of recent Supreme Court authority, is made.
  39. No other ground with regard to conviction had at the time been advanced on behalf of Feather. Nor had any other ground been advanced at the previous hearing before this court of these renewed applications on 28 April 2016: which hearing had been intended to deal substantively with the renewed applications but which had to be adjourned because of a muddle about the need for Mr Myerson's attendance.
  40. In the interim, however, there have been produced on behalf of Feather two expert reports, of a Mr Burgess and a Mr Kennedy, with an application for leave to adduce them as fresh evidence. The context appears to be that Feather's parents, since the trial, have been endeavouring to establish a basis for setting aside their son's conviction. They have had an amount of contact with the Criminal Appeal Office. There have been various attempts to get Legal Aid. Their efforts, and their funding difficulties, are to be acknowledged and respected. The fact remains that this application is made, for the first time, nearly two years after trial.
  41. We do not know the full extent or ambit of the parents' investigations. But they certainly extended to a close review of the CCTV evidence deployed by the Crown at trial, designed to show the movements of Feather's gold Astra that night. Detailed CCTV evidence and charts purporting to show the continuity of such movements of that Astra were produced at trial. In summing-up to the jury the Judge invited the jury, as had the prosecution, to have regard to the totality of such evidence.
  42. The present proposed fresh evidence is directed at alleged sightings of the Astra as recorded on clips 15 and 16, derived from CCTV footage at the Gold Shop and the Gallopers' pub. This footage was relied upon to place the Astra in the vicinity of Wakefield Road at 1.24 am on the night in question (Feather had previously said to the police that he was driving round the Holmewood Estate at that time). It is said that in such footage a Volvo lorry, with a company name on it, can also be clearly seen. Feather's father has since tracked down the company and the vehicle.
  43. A report from Mr Burgess, an expert in tachograph analysis, was obtained. It is dated 23 May 2016. Mr Burgess has analysed the Volvo lorry's tachograph for the night of 14 October 2013. He had no reason for thinking the tachograph faulty, allowing for a tolerance of 2 minutes. Analysing the tachograph and the vehicle movements, he places the lorry at the Gold Shop at between 1.43 am and 1.47 am.
  44. Mr Stanbury submits that this evidence, if admitted, casts grave doubt on the accuracy of the Crown's case on the movements of Feather's Astra car that night. He further, although to a lesser extent, relies on a report dated 3 June 2016 from Mr Kennedy, a senior forensic scientist. This suggests "serious doubts" as to the accuracy of the Crown's case on timings and movements of the Astra, including at the Gold Shop and at the Gallopers' pub. With all respect, Mr Kennedy's report is framed in rather partisan and tendentions language. In any event, it is plainly a preliminary report: Mr Kennedy himself says, on the basis of the information available to him, that "I am unable to provide an authoritative opinion in relation to the accuracy or otherwise of the time information." He suggests that "this is an issue worthy of proper investigation."
  45. In our view, it is far too late to seek to adduce any of this evidence and it would be contrary to the interest of justice to permit such a step. Even allowing, as we do, for all the difficulties an overall delay of nearly two years cannot be accepted. Further, the whole issue of the accuracy of the various purported CCTV sightings and timings was hotly debated at trial. The defence team had strongly attacked the prosecution case on this. It had been disputed that clips 15 and 16 identified the Astra of Feather and the calibration of the CCTV timings was also part of the dispute. Moreover, if some reliance was to be placed on any deduction to be drawn from the presence of the Volvo lorry then it should have been investigated at the time; although in any case the defence had other arguments at trial to deploy.
  46. In any event, as Mr Myerson pointed out, the Crown's case in no way depended on the purported sightings at the Gold Shop and the Gallopers. Even on the prosecution case, there was an absence of sightings of the Astra after 1.24 am up to the time the incident at Rayleigh Road. But there was CCTV evidence of the Astra (clips 18 and 19) that indicated that the Astra was in the East Bowling area at just after 2.13 am, heading towards Holmewood. It is correct that the Judge had told the jury to look at the CCTV evidence, and related movement charts, as a matter of totality. But, as Mr Myerson put it, the use of clips 15 and 16 was to explain how Feather may have got there. The important fact on the prosecution case was that he was there. Thus the latest evidence, if admitted, would in any event not have afforded a ground for allowing the appeal.
  47. Overall, in our judgment there is no proper basis for giving leave to adduce this fresh evidence, designed to bolster a point which the defence had already advanced at trial; and in any event there is no reasonable justification for such matters not having been investigated and deployed at trial. This is not technicality. It is fundamental to the way the appeal system works. A defendant ordinarily must advance his best case at trial. If he is convicted he cannot be permitted thereafter (at all events absent special circumstances, which on the materials before us do not apply here) in effect to have another go and to cast around for other materials which might have supported his case.
  48. (b) Calvert

  49. The proposed fresh evidence Calvert seeks leave to adduce is of a different kind.
  50. The first is evidence from Kelly Calvert. She is Calvert's sister. She attended the trial. Since the trial she has been very active in publicly asserting Calvert's innocence and in seeking to gain public support.
  51. In a witness statement dated 20 February 2015 she says that Calvert was at her house on the night of 14 October 2013 (reflected in the defence statement). She says that she does not know why she was not permitted to give her evidence to this effect: she says that she pressed the solicitors at trial but was "ignored". Calvert himself in a witness statement dated 5 March 2015 says that at trial he and Kelly both wished to give evidence of alibi to this effect. He says that his legal team were negligent in failing to advise him that he and Kelly should give evidence, as well as in other respects.
  52. Privilege thus having been waived, the comments of the defence legal team have been obtained. They conclusively rebut the criticisms. It is evident that the matter was carefully considered at several discussions and an informed decision (evidenced in writing) was made not to call such evidence. The solicitors in fact also say that Kelly stated to them that she was relieved not to have given evidence. We need not say more, since Mr Wolkind expressly disclaimed pursuing any criticisms of the trial legal team. But the very fact that such allegations were made by Kelly Calvert is, with all respect, indicative of a rather distorted and subjective outlook - even if understandable - when it comes to her brother's conviction.
  53. The other aspects of Kelly Calvert's proposed evidence relate primarily to discussions she had with a woman after trial, introduced to her as a result of her Facebook campaign. According to Kelly Calvert, this woman - whom she names - told her, in conversations which she secretly recorded, that she had been told that a (named) member of the Selby family had arranged for "somebody" (whom Kelly took to be Cowan) to come forward to incriminate Calvert. These various assertions are based on inadmissible multiple hearsay. The various named individuals have not themselves given any statements. This evidence in this form is not capable of belief nor would it give a ground for allowing the appeal. There is no arguable basis for saying that it should be permitted to be adduced in evidence.
  54. The remaining aspects of the proposed fresh evidence likewise all relate to Cowan. It appears that Calvert's legal team at trial had available to them Calvert's and Cowan's prison records. At trial various positive suggestions had been put to Cowan in cross-examination: for example, that he was a known "grass" and that he had been paid to give false evidence. Cowan denied that. As the Judge rightly told the jury, questions from counsel are not evidence. The proposed fresh evidence is clearly directed to meet that point and to seek to show that Cowan is indeed a liar and had been suborned to give misleading evidence at trial (which indeed was part of the defence case at trial). Possibly one can deduce that Calvert and his family remain aggrieved that the prosecution case accepted by the jury to an extent depended on a witness such as Cowan.
  55. Calvert himself has put in two further witness statements in this regard since trial. In them he denies ever having spoken whilst in prison to Cowan, let alone confessing to him (although in cross-examination at trial Calvert's counsel in fact had put it to Cowan that Cowan spoke at least once to Calvert). He seeks to give other evidence designed to show that Cowan would have had no, or very limited, opportunity to speak to him whilst in prison at HMP Armley, Leeds.
  56. There is in our judgment no arguable basis for allowing this evidence of Calvert to be adduced either. Calvert had elected to give no evidence at trial. That was a tactical choice. He could, for example, have denied ever meeting or talking to Cowan; he could have given such explanation as he had for Cowan having written down Bogard's name and telephone number. He did not. He cannot now having been convicted seek to put in his own account of events with regard to Cowan, whose evidence had been, and had been described by the Judge as, "crucial." That point cannot be overcome by his seeking now also to adduce other evidence (to which we will turn) also designed to undermine Cowan's evidence. It would overall, in our judgment, be contrary to the interests of justice to allow Calvert's new evidence to be adduced and there is no arguable basis, having regard to s. 23 of the Criminal Appeal Act 1968, for doing so.
  57. The remaining proposed fresh evidence is in the form of witness statements from three proposed witnesses: Trotter, Green and Loftus. The Gogana statement is not satisfactory as to when or in what circumstances this evidence became available.
  58. Trotter is Calvert's first cousin. His witness statement is dated 20 January 2015. He says that he was remanded in HMP Armley from 1 November 2013 for an offence of violence. He says that he was in due course placed in a cell, with Calvert. Lowther and Woodhead shared a cell next door. He claims that Calvert, and the others, were locked up for 24 hours a day because of reports of threats on their lives. He says that, for reasons which are wholly unexplained by him, he (Trotter) also shared the same regime. The same routine continued, he says, when he was placed in a cell with Lowther. His conclusion is that it was impossible, during that time at HMP Armley, for Calvert to have spoken to Cowan: although in fact the contents of his statement do not bear out so generalised a proposition.
  59. This statement is not capable of belief nor would it afford a ground for allowing the appeal. Trotter is Calvert's cousin and has an interest in supporting him. Further Trotter in fact says that he offered to give evidence at trial for Woodhead (the offer was not taken up). There is also no explanation as to why Trotter himself would be detained 24 hours a day. In any event, there was evidence from prison staff disclosed before trial that staff shortages at the prison were such that prisoners did frequently fraternise with each other even when they were intended to be locked up. Yet further, what Trotter says is inconsistent with Green's evidence. We also observe that in the Gogana statement it is said that Calvert gave instructions that he told his former solicitors about Trotter before trial. Those solicitors deny that they were so told; but the Gogana statement at least indicates that Calvert himself indeed knew about Trotter and potential "assistance" he might afford. There is, overall, no arguable basis for this evidence now being received.
  60. As for Green, he had also been in HMP Armley. He made a statement after the trial dated 28 October 2014. He says that he had made contact with Calvert's (new) solicitors on 26 August 2014.
  61. Green says that he had been at HMP Armley from July 2013 until 10 January 2014 (he is an experienced criminal). Green states that for part of that time he was given the role of a prison listener. He says that on one day, the date of which he cannot recall, Cowan came in to speak to him about having given a statement to the police about Calvert. Green knew Calvert and had spoken to him on a number of occasions in prison when on association together (this of course is inconsistent with Trotter's statement if not also Calvert's statement). Cowan said to Green that he was scared of repercussions. He said that he had given the statement after a visit of Calvert to his cell (Calvert, of course, now maintains that he never spoke to Cowan) because he "had been approached by another prisoner and asked to give the statement saying Lee Calvert had told him [about killing somebody] and in return he had been paid drugs and money". Green says he did not believe Cowan had even spoken to Calvert and told him so but Cowan maintained that he had. Green says he completed a form recording the fact of the visit. (It is, we note, the case that counsel then acting for Calvert had, following the trial, advised that Green's prison records be obtained; but they have not been disclosed in the evidence.) Further, Green states, it has to be said wholly implausibly, that after his release from prison he came across the "Free the Bradford Four" Facebook entry set up by Kelly Calvert after the trial, took an interest and "then recalled my conversation with Cowan on D-wing and realised that he must have given evidence which was a surprise as he had said to me that he was going to retract his statement". Green then contacted Calvert's solicitors.
  62. It may be noted that there was evidence obtained before trial by the prosecution and disclosed in the schedule of unused material in the form of a statement dated 14 May 2014 from a man called Gatenby (an associate of the Selby family and a former friend of Feather). Gatenby said that in about April 2014 he had met Green in prison, he having been recalled for breach of his licence. According to Gatenby, Green had said to Gatenby that, while out of prison, Calvert's mother and another person had approached him. He (Green) had been told by them that someone had put in a statement saying Calvert had confessed while in prison to murder; and Green had been offered 10,000 to give a statement saying that Calvert was with Green all the time and had not confessed and that Gatenby had put this other person up to making the statement. Police thereafter before trial, as was evidenced, tried to pursue these allegations further with Green, in connection with the case; but Green failed to meet appointments.
  63. It is also to be noted that in their letter of 1 April 2015 (privilege having been waived) the former solicitors of Calvert say that they had written to Green on 14 March 2014 asking him to contact them "in order to assist with Mr Calvert's case". It thus is clear that Calvert's solicitors themselves prior to trial had been made aware of Green and of possible assistance he could give. There was no response from Green until 21 August 2014, after the trial, when Green's partner contacted the solicitors to say that he would provide a statement.
  64. No explanation is given as to why further steps were not taken by the defence team to contact Green after 14 March 2014 and before trial. It is at all events clear that Calvert and his legal team had been on notice of this prospective witness. In such circumstances, his evidence could with due diligence have been made available at trial, unless it was deliberately decided not to follow up the matter with Green. At all events, no reasonable explanation has been provided. That is not necessarily always conclusive in all cases the identified requirements of s. 23 of the Criminal Appeal Act 1963 are all subordinate to the overriding requirement of the interests of justice but in the circumstances of this case we consider that it is. There is no proper basis for permitting this evidence to be received in all the circumstances. It has all the marks of having a second go when the tactic of conducting the trial without calling evidence failed to achieve the desired outcome.
  65. That leaves the evidence of Loftus. It is not properly explained, either by Loftus or anyone else, in what circumstances he came to give his statement dated 7 October 2014. He had been at HMP Armley between 11 November 2013 and March 2014. The waiver of privilege letter indicates that Calvert had drawn the attention of his solicitors to Loftus when draft Grounds of Appeal were being prepared in the immediate aftermath of the trial. In his subsequent statement Calvert had himself referred to asking his solicitors to "follow up any leads", following his conviction. All this indicates and is not sufficiently rebutted by any statement that the evidence of Loftus could have been obtained before trial.
  66. Loftus' evidence is to the effect that during that period he heard a prisoner in the showers abusing Cowan who was denying it - for making a prosecution statement (that is suggestive of it being common knowledge in the prison, as Mr Myerson observed). According to Loftus, Cowan whom he did not then know then told Loftus that he had given a statement and had been paid. Cowan also said that he had retracted the statement. According to Loftus he spoke to Cowan "several times" subsequently about this statement why, is unexplained and that each time Cowan said that he had withdrawn it.
  67. In particular in view of the position about Green, the failure to explain how it was that Loftus' statement was not sought earlier and how it eventually emerged is most disconcerting. It is unexplained why Calvert was in a position to tell his solicitors about Loftus shortly after the trial but not before. It is unexplained how or when Loftus came to be in contact with Calvert. Moreover, as Mr Myerson pointed out, nowhere does Loftus (any more than Green) record Cowan actually saying that the statement he made was in fact false.
  68. Given the circumstances, and given the lack of explanation as to how Lotfus' statement came to be provided as it was, there is in our judgment no properly arguable basis for permitting it now to be received in evidence.
  69. Mr Wolkind conceded that a defendant cannot simply have a second go and change tactics when the original trial tactics of not calling evidence did not procure an acquittal. However, he submitted that we should consider the proposed evidence cumulatively in assessing this application to adduce fresh evidence and whether leave to appeal should be granted. We have done. Mr Wolkind also accepted that there were discrepancies and inconsistencies between the various statements. He submitted nevertheless that it was proper for the full court hereafter at least to hear de bene esse the oral evidence of these witnesses (or some of them), as a test of Cowan's evidence, before deciding whether or not formally to receive the evidence and whether or not to allow the appeal. That course may be appropriate in some cases: and if we were to decide to grant leave to appeal in this case we would then leave it to the full court to assess the outcome of the appeal and whether or not formally to receive the evidence (see Cross [2014] EWCA Crim 96).
  70. But at this stage it has been the function of this court on the renewed application to decide whether or not there is a properly arguable case, on the proposed evidence thus far presented, for that proposed evidence to be received, having regard to the provisions of s. 23. This court takes the view that it is not so arguable. This proposed evidence should not be permitted to be the subject of further oral examination in the hope that something might "turn up". It would be contrary to the proper functioning of the criminal appellate process and not in accordance with the interests of justice to allow any of this evidence to be adduced, in the circumstances of this particular case.
  71. Consequently this application relating to the proposed fresh evidence is also refused.
  72. Sentence

  73. All parties have renewed their applications for leave to appeal against sentence. Having reflected on the matter, we grant leave in all cases.
  74. This was a shocking case of murder, preceded by a most serious incident of discharge of firearms with intent.
  75. The statutory starting point for the minimum term would be one of at least 25 years: the acid which was the cause of death as well as the gun, which was not being brought to the scene. It was not seriously disputed, however, that the combination of circumstances was such as to entitle the Judge to go to a starting point of 30 years, as he said that he did, on the ground that the seriousness of the murder offence (in combination with the other offence) was "particularly high."
  76. At the time of the offending Calvert was aged 22; Woodhead was aged 28; Lowther was aged 21; Feather was aged 23. Leaving aside what was set out in the agreed background facts, Calvert had a number of previous convictions and reprimands for relatively minor matters, many committed while he was a juvenile. He was, however, sentenced in 2010 to 6 months detention for assault occasioning actual bodily harm. Lowther had one previous conviction in 2011 for attempted burglary (for which he received a community order). Woodhead received a substantial custodial term in 2006 for offences of robbery, burglary and aggravated vehicle taking. Feather was of effective previous good character.
  77. The complaints advanced by all appellants overlap. These are, on any view, enormously long sentences for relatively young men. Further, there is no history of very serious violence in their antecedents. Yet further, while the Judge indicated that he was alive to the risk of double counting, the sentences ultimately imposed fail, it is said, to acknowledge the factors that had already moved the sentences properly up from a starting point of 25 years to one of 30 years on the basis that the seriousness of the offences was particularly high. It is therefore suggested that there in reality has been an element of double counting. Further, whilst the first incident of course had to be reflected in the overall sentence it is said that it did not justify the overall sentence ultimately imposed.
  78. On behalf of Feather, it is emphasised that he was acquitted on Count 1 and 2 and so did not fall to be sentenced for that incident. Moreover, whilst he had an important role in assisting the get-away he had had no actual participation in the events occurring inside 11 Rayleigh Street.
  79. A further point taken by all counsel is that the Judge gave, it is said, insufficient weight to the fact that, as he accepted, there was no intent to kill. In the circumstances of this case, it is submitted, that factor was significant mitigation and merited a significant reduction.
  80. In passing sentence, the Judge inevitably dwelt at some length on the shocking features of both incidents. He regarded the Farway incident as "separate offending", justifying adding four years on to the minimum terms, applying the principle of totality. He with justification described the murder as "vicious, cowardly and truly wicked."
  81. We consider nevertheless, that there is, overall, a degree of force in the appellant's submissions. Calvert was clearly assessed as the ring-leader: and his was the lead sentence. We think that, notwithstanding the appalling and terrorising nature of this criminality, extended over two grave incidents, a minimum term of 36 years imprisonment for someone of his age, and lacking intent to kill, was too long. We quash it and substitute a sentence of 32 years as the minimum term.
  82. This necessarily impacts also on the sentence on Lowther. We quash the sentence in his case relating to the minimum term and substitute a minimum term of 27 years. Woodhead was older and has a worse record than Lowther. That would justify a rather longer minimum term in his case. However, the Judge did not differentiate between him and Lowther; and we will respect that. The minimum term in his case will thus also be 27 years.
  83. Feather is in a rather different position again. He was not involved in the first incident. Further, the sentencing Judge in terms acknowledged the "lesser involvement" of the three others as compared to Calvert: and it can fairly be said that although Feather's involvement in assisting in the getaway was very important his overall involvement was the least of the three. In his case, the minimum term will be 20 years.
  84. The appeals against sentence are allowed to the extent indicated. Time spent on remand will continue to count towards sentence.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/890.html