Campbell, R. v

Shortly before 6.31 pm on Monday 9 January 2006, Matthew Smith was shot dead whilst attempting to drive a VW Golf out of a car park next to a block of flats in Colmer Road, Streatham, in South London. He was struck by two bullets of .45 calibre, which had probably been fired by the same gun, a Webley service revolver. The murder took place in the course of a meeting involving a potential drugs deal, although in fact some of the group who had come to buy, intended to rob the seller of the drugs who was sitting in the deceased’s car. Immediately after the murder of Matthew Smith, three others who were in the deceased’s car were robbed of their mobile phones.

Between November 2006 and March 2007 there was a trial at the Central Criminal Court, before HHJ Roberts QC and jury, of three defendants who were all accused of the murder of Matthew Smith and of three counts of robbery of the mobile phones. The present appellant, Jason Campbell, was convicted of the murder of Matthew Smith and of the three counts of robbery. He was sentenced to life imprisonment for the murder, with a minimum term of 30 years, less 408 days already spent on remand. Concurrent sentences (but for shorter terms) were passed in respect of the robbery offences. In July 2006, Campbell had pleaded guilty to possessing a prohibited firearm (a revolver); possessing prohibited ammunition and possession ammunition without a certificate. Those offences are relevant to issues that arise on this appeal.

There were two co- accused. The first was Daniel Springer. He was acquitted of murder but convicted of the manslaughter of Matthew Smith. He was also convicted of the three robbery offences. He was sentenced to 12 years for manslaughter and there were concurrent, shorter terms of imprisonment for the robbery offences. The second co-accused was Omar Parchment, who was acquitted on the counts of murder and robbery.

Campbell sought leave to appeal against the conviction of the murder offence. Nine grounds of appeal were originally advanced. The single judge granted leave to appeal on three of the grounds raised. Mr Sean Larkin, who appeared on his behalf (with Mr Edward Henry) renewed an application for leave to appeal on three further grounds, two of which were, effectively, new grounds. We heard argument on all six grounds raised and reserved our judgment at the end of the day long hearing.

We dismiss the appeal for the reasons that we give below.

From early in the afternoon of 9 January 2006, Springer had contacted a man called “Joseph” and asked him if he could obtain about 2 ¼ ounces of cannabis, which would have cost about £250. Springer claimed he was acting on behalf of a man called Wesley Blake. Both Springer and Joseph lived in South London on the East side of the A23, the main trunk road from London to Brighton that runs through Streatham. Both Springer and Joseph were users and small scale dealers in cannabis. Joseph made enquiries of Jermaine Jamieson, who lived in a block of flats in Colmer Road, which is on the West side of the A23. Eventually Jamieson telephoned Joseph to say that he had a supplier. Joseph relayed this to Springer who said that his cousin would give them (ie. Springer and Joseph) a lift to where the deal would take place. The deal was to be done on the corner of Ellison Road opposite the flats were Jermaine Jamieson lived.

At about 6.15pm on 9 January, Joseph was picked up in a silver car, which was a Toyota Celica. Springer was in the front passenger seat. There were two other black men in the car, one of which was the driver. Their identity was at the heart of the trial. Joseph’s evidence was that he directed the driver to the car park of the flats in Colmer Road. CCTV evidence showed this car turning off the A23 into Colmer Road at about 6.23 pm. It was parked near the entrance and facing outwards. Joseph got out of that car and phoned Jermaine, using Springer’s mobile phone. Joseph looked up at the flats expecting Jermaine to be there, but he was, in fact, in the front passenger seat of the VW Golf being driven by Matthew Smith which was at the far end of the car park. Graham King and Ben Neil were in the back seat of the VW Golf.

Joseph’s evidence was that he went over to Jermaine, who got out of the Golf and stood by the open passenger door. Another man from the Celica got out and went round the side of the block of flats to urinate. That person then returned to the Celica. The other two occupants then got out of that car and the three of them went over to the VW Golf with Joseph. One of the men from the Celica produced a large handgun and threatened Jermaine and his friends, with the intention of robbing them of the cannabis. But Jermaine had none. Matthew Smith tried to drive off in the VW Golf and was shot twice through the passenger door. Jermaine, Graham King and Ben Neil were then threatened again and robbed of their mobile phones. Joseph ran off down Ellison Road, adjacent to Colmer Road. Others drove off in the Celica.

A passer–by rang 999 and that call was logged at 6.31pm. The police and an ambulance arrived but Matthew Smith had already died from his wounds.

The appellant was arrested on 19 January 2006 at the flat where he lived with his girlfriend Leanne and their baby. The flat was at 37 Groveway, Brixton, ie. some way to the north of the scene of the shooting, but just off the A23, which, by that stage becomes Brixton Road. The following day the police found a .38 calibre gun, capable of being fired, under some floorboards in the flat. There were three live cartridges in its chambers, including one dum dum bullet. However, this gun could not have been that used to kill Matthew Smith. Although the appellant had already pleaded guilty to the offences of possession of a prohibited weapon and prohibited ammunition (and having it without a licence), at the trial he gave evidence that a friend called Chris had asked him to look after the gun for a few weeks. The appellant said that Chris had given him £100 for doing so. The appellant’s evidence at the trial was that he had seen that the gun was loaded so he wrapped it up and hid it so that Leanne would not see it.

The police searched the address of the appellant’s mother and found a bag containing clothing of the appellant, which included tracksuit bottoms and two non- matching gloves. On a taping of the left glove were found 15 particles of firearms discharge residue, which counted as a high level. Five were of type one and ten of type two. Other small residues were found on the other glove and the tracksuit bottoms, but they were probably transferred from the left glove. In evidence, the appellant accepted that the glove on which the high level of residues had been found was his. He said that around New Year 2006 he had gone to the house of a girl called Andrea in South Norwood, where he handled a gun shown to him by a man known as Capone. The appellant said that he had been wearing gloves because it was January and it was cold. In evidence the appellant would not identify Andrea’s address. It was submitted at the trial on behalf of the Crown and also on behalf of the co-accused Springer that the amount of firearms discharge residue found on the glove was not consistent with the appellant simply handling a gun as he had described. It was argued that it was much more consistent with the appellant wearing that glove when he had fired a gun of some description.

The appellant gave a “no comment” interview on the advice of his solicitor. He read out a short prepared statement.

The appellant’s case was always that he was not involved in the events of 9 January 2006 at all. He accepted that he was the owner of a Peugeot car. His evidence was that on 9 January 2006 he was in Camberwell from noon to 16.30, with a Danish lady called Radhika, whom he had befriended and who was in search of accommodation. The appellant said that he was helping her to find some. The appellant said that he received a phone call from his cousin Jermaine Campbell (no relation to the Jermaine who was at the scene of the murder), who asked for a lift from his house, which was at 86 Knolly’s Road, Streatham, to go to the Myatts Field estate in Brixton. The appellant said he agreed to this and so shortly before 17.00 he drove to Streatham to pick up Jermaine Campbell and then drove up the A23 to Brixton with him.

The appellant, who said he was a Muslim, said that he then went to sunset prayers and made a social visit to a man in Brixton. Thereafter he drove to the house of his sister, Maria, who lived at 92, Newland Road, which is south of Colmer Road and also on the West side of the A23. The appellant said that he had arranged to pick up some money from her house. Then he drove back to Camberwell to pick up Radhika and drove her to her home in Balham. Therefore, at around the time of the shooting, he was driving either to the home of his sister, Maria, from Camberwell, or from her home in Newlands Road to Camberwell. In either case the journey would be along the A23.

Just before the trial started, Springer served a revised defence case statement in which he said that the appellant and the co-accused Parchment were involved in the shooting incident and that it was Parchment, not the appellant, who was the gunman and that there was another car involved apart from the Celica.

The Crown’s case at the trial was that the appellant was either in the Celica or had arrived in his car; (the Peugeot), that he was the man who had gone round the side of the flats to urinate (called at the trial “the urinator”) and that he was the shooter of Matthew Smith. Its case was that the urinator had been using a mobile phone as he left the Celica and went round the side of the flats. There was telephone cell – site evidence that at 18.26 and 7 seconds the appellant’s mobile phone (whose number ended in 288) called Radhika’s mobile phone for two minutes. The appellant accepted that he had called her. The call was transmitted from two cell – site antennae. The transmission started from the antennae at Windsor House, which is situated on the A23 (on the East side), but south of Colmer Road. The evidence was that the transmission was from sector 1 of that site, which radiates from about 340° through an arc of 120° either side of that point on the compass. But the transmission cell – site changed in the course of the call to antennae at a point called Furzedown. That was situated to the North West of Colmer Road and to the West of the A23. The Crown said that this evidence placed the appellant at the scene and that the transmission changed when he walked around the side of the flats to urinate. The appellant’s case was that this evidence was consistent with him being on his journey to or from his sister’s house.

The Crown also relied on the evidence of Springer to place the appellant at the scene. It further relied on the “bad character” evidence of (a) the appellant’s possession of the .38 calibre handgun and the ammunition found 11 days after the shooting and (b) the firearms residue on the glove; a previous conviction for robbery; untruthful prepared statements made in interview and the unreliability of the alibi evidence, which was either untrue or unsupported. In addition, the Crown relied on CCTV evidence which indicated the presence of a car, similar in appearance to the appellant’s Peugeot, arriving at the scene some 11 seconds after the Celica.

The evidence of eye witnesses at the scene of the murder, apart from Joseph, came from Jermaine, Graham and Ben. Jermaine said in evidence that the man with the gun/shooter was not the urinator. He said the driver of the Celica was the shooter. Graham’s evidence was that a man got out of the Celica and went to urinate and that he was on the phone when he went to do so. Ben’s evidence was that a person got out of the Celica and was on the phone and he went round the side of the flats to urinate.

Both the Crown and the appellant instructed cell – site experts. However, only the Crown’s expert, Mr John Phillips, gave evidence. He had conducted an analysis of the mobile phone communications between the appellant, Springer, Parchment, Wesley Blake, Joseph, Jermaine and others, including Radhika, which took place on 9 January 2006. From information provided by the mobile phone companies Mr Phillips had plotted the cell – site and antennae to or from which calls were transmitted. In order to see whether a particular phone call could have been made at the scene of the shooting at the relevant time, he conducted two “field exercises” at the scene in Colmer Road. First, he made test calls all around the site, including down the side of the flats. He noted that all calls used the Windsor House antennae, in sector one. Secondly, he measured the strength of the signal from a handheld device to see which was the best serving cell – site. His evidence was that Windsor House sector one gave the strongest signal, although at some points signals from Furzedown, Westwood High School (due East of Colmer Road) and Bishop Thomas Grant School (North East of Colmer Road) were good.

Mr Phillips also did field tests outside the home of the appellant’s sister, Maria, at 92 Newlands Road. He found that the strongest signal there by some way was from Windsor House, sector 3. It should be noted that Mr Phillips had not done any particular work on the Furzedown cell – site before the trial. This fact gives rise to one of the principal grounds of appeal.

Mr Wrack, junior counsel for the appellant at the trial, cross - examined Mr Phillips. Mr Phillips accepted that the movement of transmission of a call from one cell – site mast to another was consistent with the mobile telephone moving. He also accepted that cell-site movement was consistent with the phone being stationary but being affected by an obstruction, such as a passing vehicle, or even a fat person; or the weather; or a mast being too busy or pockets of coverage changing. It was therefore the appellant’s case that the evidence of Mr Phillips as it stood at the start of the judge’s summing up was equally consistent with the prosecution case that the call at 6.26pm (appellant’s mobile/Radhika) was made by the appellant whilst going round the side of the flats to urinate, but also with the defence case that it was made just as the appellant was coming towards or just leaving his sister’s house and within range of the Windsor House and Furzedown masts.

As we have already noted, the appellant gave evidence. He called Ruth Mordi as a defence witness in support of his alibi. She ran a charity in Camberwell and she said the appellant had brought Radhika there just after midday. She said that the appellant had finally left the premises at about 4.30 pm and that he had returned to collect Radhika at about 7pm. The appellant did not call his girlfriend, Leanne, who could have given evidence about the alibi, although a statement from her was adduced in evidence by the Crown. The appellant did not call his sister Maria (who could also have given evidence about the alibi). Nor did he call Radhika, whom the appellant said he had transported to and from Camberwell on 9 January 2006. Nor did the appellant call Andrea to corroborate his evidence about the circumstances in which residue had got onto the glove recovered from his mother’s house. In their closing speeches, both counsel for the Crown (Mr Finucane QC) and counsel for Springer, (Mr Goldberg QC) emphasised to the jury the fact that the appellant had not called Andrea.

The evidence in the trial, which had started on 5 November 2006, was completed on 29 January 2007. The judge began his summing up on 12 February 2007 and the jury retired on 21 February 2007. The summing up occupied nearly six hearing days, although there were gaps during this time, as we will note below. The judge provided the jury with a written list of summing-up topics. He provided counsel with his notes on various directions as to the law. These included his directions on “bad character” evidence. The structure of the judge’s summing up is clear. First, he dealt with the law and then he dealt with the evidence. He divided the law into 18 topics. He dealt with those on the first day of his summing up. He divided his summing up of the evidence into 16 topics. He dealt with the issues in the case of each defendant separately. One of the discrete topics the judge dealt with was entitled “Movement of Jason Campbell on 9 January”.

The grounds of appeal for which leave has been granted are concerned solely with what the judge said and what occurred in the course of the summing up. The complaints of the appellant can be summarised as follows: Point (1): the judge misdirected the jury by suggesting that there was some burden on the appellant to explain why witnesses of fact (in particular Andrea, but also Leanne, and the appellant’s mother and sister) and a cell – site expert had not been called on behalf of the appellant: (ground of appeal 7). Point (2): as a result of an exchange between the judge and Mr Wrack at the end of the fourth day of the summing up, the judge stated, in the presence of the jury at the start of the next day that he was going to ask Mr Phillips to do further work on the Furzedown cell – site. The work was done and a report was provided to the judge on the last day of his summing up. The judge told the jury that this work had been done. He said (vol XI page 9A) that he was “not sure that there was anything for either side in this”, but he also told the jury that all counsel would want to consider their position on the issue of whether Mr Phillips should be recalled. In fact, neither the Crown nor the appellant wished to recall him, but Springer did. The judge was asked to rule (in the absence of the jury), on whether Mr Phillips should be recalled. The judge ruled (vol XI pages 43 – 50) that he should not be recalled. The appellant says that the judge had wrongly encouraged speculation about the possibility of further cell – site evidence concerning the vital phone call from the appellant’s phone at 6.26 pm, which went to the heart of his alibi case: (ground of appeal 8).

Point (3) arises out of events on the fifth day of the summing up. A juror passed up a note (of which we do not have a copy and it is not read into the transcript), drawing attention to a phone call to Radhika’s phone, from Springer’s mobile phone and timed at 17.39 hours on 9 January 2006. That call was transmitted via the cell – site at Bluestar House, which is situated just off Brixton Road, ie. to the north of Colmer Road and nearer to the appellant’s home and the Myatts Field Estate in Brixton. It appears that up till the time the juror noticed it, no one had paid particular notice to this phone call. In the presence of the jury, the judge invited counsel to consider whether “anybody wishes to call any further evidence about that”. He also said: “…there does not seem any obvious reason why Mr Springer should be ringing Mr Campbell’s lady friend, Radhika”. Later the judge said to the jury that counsel for Mr Springer and the appellant would wish to discuss matters with their clients before deciding on whether to ask for them to be recalled to give further evidence. But then Mr Wrack, for the appellant, said that he would not be recalled, because he could not “meaningfully deal with a call that is made when he is not there”. The appellant says that, despite Mr Wrack’s statement to the jury, the effect of the judge’s comments was to engender an expectation that the appellant would be recalled and when he was not, that would have aroused the jury’s suspicions, to his prejudice: (ground of appeal 9).

The three grounds of appeal for which leave was not granted also concern the summing up. Two, identified as grounds 7A and 7B, were not in the original Notice of Appeal but the court allowed Mr Larkin to argue them. First, it is said that the judge failed to sum up the cell – site evidence fairly, by only emphasising that it was consistent with the Crown’s case and insufficiently indicating that it was also consistent with the appellant’s alibi case: (ground of appeal 5). Secondly, it is said that the judge gave a misdirection on “bad character” evidence in relation to the issue of the gun found in the appellant’s flat under the floor boards and the residue found on his glove. It is argued that the way the judge expressed the issue put a burden on the appellant to disprove the bad character evidence advanced by the Crown: (ground of appeal 7A). Thirdly, it is asserted that the judge should have given a specific Lucas direction on lies in relation to the appellant’s explanation of how the gun came to be under the floorboards of his flat and how the residue got on his glove. It was argued that this was needed to deal with a situation where the jury did not believe the appellant’s explanation of one or both of those matters and so concluded that they were lies: (ground of appeal 7B).

We are very grateful to both Mr Larkin and Mr Henry, for the appellant, and Mr Finucane QC and Mr Mably, for the Crown, for the very helpful written submissions that were prepared before the hearing of the appeal, together with a schedule of the relevant parts of the summing up we should read before hearing. This meant that the oral submissions could concentrate on the key issues and the oral submissions could be taken quicker. This enabled the hearing to be completed in the day.

The overall submission of Mr Larkin was that the Crown’s case against the appellant being the shooter was thin. The eye – witness evidence was not consistent as to who was the driver of the Celica, the urinator and the shooter and there was some evidence of a second car arriving on the scene. Therefore, the key piece of evidence on which the Crown had to place considerable reliance was the telephone evidence relating to the 2 minute call at 6.26 pm from the appellant’s phone to Radhika. On the appellant’s case, he was either on his way from Brixton to his sister’s house in Newlands Road, or returning from her house to collect Radhika from the charity project in Camberwell. The cell – site evidence was not conclusive on where the call was made and was, (it was submitted) equally consistent with the Crown’s case and the appellant’s alibi case. Therefore the judge had to be scrupulously careful in his summing up to ensure that there could be nothing in what he said or did that might prejudice the appellant in the slightest way. This was particularly so because Springer was running a “cut throat” defence and placing the appellant at the scene – although not identifying him as the shooter. However, the various statements and actions of the judge in the respects identified in the grounds of appeal meant that the appellant was prejudiced and so the conviction is not safe.

Mr Finucane submitted that the case against the appellant was much stronger than suggested now on appeal. The jury heard the eye witness accounts and saw the witnesses give their evidence. The evidence of Springer that the appellant was at the scene could not be dismissed. The “bad character” evidence as to the possession of the firearm, ammunition (including a dum dum bullet) and a previous conviction for robbery, were all powerful additional factors. On top of that was the cell – site evidence. All together it made a compelling case against the appellant. There was no misdirection by the judge in his summing up. Nor was there any prejudice to the appellant in the way that the judge expressed his directions or dealt with the issues of further work by Mr Phillips or the issue of the call at 17.39, which was raised in a juror’s note. The conviction was entirely safe.

Mr Larkin referred us to the decision of this court in R v Shakeel Khan [2001] EWCA Crim 486, in which Pill LJ reviewed the case law on the directions a judge should give if an issue arises concerning an alleged failure by a defendant to call a witness. Pill LJ referred to the Court of Appeal decisions in: R v Gallagher (1974) 59 Crim App R 239, R v Wilmot (1989) 89 Cr App R 341, R v Couzens and Frankel [1992] Crim LR 822, R v Weller [1994] Crim LR 856, R v Forsyth [1997] 2 Cr App R 299 and R v Wright [2000] Crim LR 510. Pill LJ then continued, at paragraphs 18 and 19 of the judgment:

Pill LJ made those remarks in a case where there was a single defendant. In this case it is important, in our view, to remember that there were three defendants and Springer in particular was running a “cut throat” defence against the appellant. It was therefore inevitable that counsel for Springer would comment heavily on any alleged deficiency in the case or evidence of the appellant. It would have been unrealistic to expect the Crown not to do likewise if counsel considered that it was a proper means of advancing the Crown’s case against the appellant. In this case both counsel for Springer and counsel for the Crown did make comments about the appellant’s failure to call witnesses.

That is the context in which the judge made the remarks he did in his summing up. He dealt first with the issue of witnesses who were not called when he gave his directions on the law in the first part of his summing up on Day 1 of his summing up (vol VIII of the transcripts in our bundles). He gave his directions at volume VIII, pages 25E to 27G. We will not set out the whole passage. He starts out by saying that in principle a jury is entitled to draw inferences from a defendant’s failure to call a particular witness who might have supported his case. But the judge “advises” the jury to be “rather cautious” about doing so. He explains that there may be many reasons why a witness is not called and, because of the law of privilege, judge and jury will not know why that is so in many cases. He concludes this passage of his directions as follows (at volume VIII, page 27E – G):

Mr Larkin submits that direction is neither clear enough nor firm enough. We disagree. It is, in our view, entirely clear and is sufficiently direct. The judge did not adopt a didactic style when summing up to this jury, with whom he had worked on the case for many weeks and whom he had observed closely. We have no doubt that the jury will have taken this as a general direction not to speculate on witnesses who were not called or on what evidence they might have given.

Mr Larkin next refers us to remarks that the judge made on the second day of the summing up, when commenting on the evidence about the particles of residue found on the appellant’s glove. The judge said, at volume IX, page 89H to page 90D:

He also refers us to remarks the judge made (on the fourth day of his summing up) about the fact that the appellant had not called a cell – site expert. The judge said (at volume XI, page 135 E-H):

Lastly he refers us to three statements of the judge later on the same day, concerning the appellant’s alibi case. The first is at volume XI, pages 149G to 150G:

The second is at volume XI, page 152E to 153E:

The third passage is where the judge deals with Maria, the appellant’s sister, at pages volume XI, pages153G to 154B:

We have concluded that the remarks of the judge about the witnesses of fact that were not called by the appellant are consistent with the law as confirmed by Pill LJ in Shakeel Khan, which we have set out above. The comments were measured. The judge cautioned the jury to be careful and he reminded them of the approach he had directed them to take on the first day of his summing up.

With regard to the remarks by the judge on the fact that no cell-site expert had been called by the appellant, the judge did no more than state the obvious, in our view. The jury knew that the appellant’s team had instructed a cell-site expert. It was obvious that if that expert had disagreed with the conclusions or work of Mr Phillips on a significant point, he would have been called to give evidence. In any event, the judge had accurately summarised the effect of the evidence on the particular point in hand and did so in a neutral manner at volume X1 page 135H to 136E. Moreover, the judge did not, at any stage, suggest that the evidence of Mr Phillips was inconsistent with the alibi case of the appellant.

Overall, we are quite satisfied that the judge did not, at any stage, suggest that there was some kind of burden (of any kind) on the appellant to explain why he had not called either a cell –site expert or various witnesses of fact. The judge’s comments were within the area of discretion allowed to him by the cases. It was almost inevitable that he would have to make some comment given the “cut-throat” defence run by Springer.

There are, we think, two key questions to be considered in relation to this ground. First, should the judge have informed the jury at all about the possibility of further evidence from Mr Phillips (or indeed the appellant’s expert) concerning the Furzedown cell-site? Secondly, was the judge wrong to tell the jury what he did (volume XI, pages 52F to 54B), after he had made his ruling on the admission of further evidence from Mr Phillips in the absence of the jury?

We have already set out briefly the circumstances, on the fourth day of the judge’s summing up, in which the possibility of further investigations by Mr Phillips arose. However, some more detail needs to be added at this stage. In the afternoon of the fourth day of his summing up, the judge was concentrating on the evidence relating to the central issue of fact in the case: where was the appellant when he made the call timed at 18.26 and 7 seconds to Radhika, which went on for about two minutes? At volume XI pages 139 to 141 of the transcript, the judge goes through the evidence relating to this phone call. He states the undisputed fact that at the start of the call it was transmitted by the Windsor House sector 1 antenna and that, by the end, it was transmitted by Furzedown sector 2. He recalls that Mr Phillips had done his field study at the scene and found that at some points around the Colmer Road flats car park, the signal strength from Furzedown 2 was equal to that of Windsor House, sector one. The judge states that Mr Phillips had said that although his test calls were picked up by Windsor House sector 1, “…on another day and in different conditions, it was perfectly feasible that a call from the car park area would have been transmitted by any of [the three other cell-sites]”: volume XI, page 139F-G. None of that part of the summing up is controversial and Mr Larkin accepts that it correctly summarises the evidence on those points.

The judge then went on to analyse the situation with regard to the urinator. He said, at volume XI, page 140H - 141C:

The judge then recounts the Crown’s response to the defence case that this call was made when the appellant was on the road to or from his sister’s house at 92 Newlands Road, which, it will be recalled, was just to the west of Windsor House and was south east of Furzedown. The judge repeated Mr Finucane’s argument that if that was so, then:

At the end of that day’s summing up, in the absence of the jury, Mr Wrack for the appellant raised a number of points with the judge about what he had said concerning Mr Phillip’s evidence. At volume XI page 159A (the last page of the transcript), Mr Wrack reminds the judge that Mr Phillips had not plotted Furzedown, “…and that anything that is said about any direction of cells in relation to Furzedown is pure speculation”. The judge accepted that no plotting had been done and the issue was left there.

The following day, before the jury came in, there was further discussion between the judge and Mr Wrack on this point. The judge said that he would remind the jury that there was no evidence from Mr Phillips about Furzedown sector 2. He then says that the exchange the previous day has set him thinking:

There was further discussion and the judge indicated that he wished Mr Phillips (and the appellant’s expert if he wished) to deal with this point. Mr Wrack stated, politely, that there was no evidence on the point and that was how the position should be left. The jury was then called in and the judge dealt with other points that Mr Wrack had raised concerning Mr Phillips’ evidence. Then the judge said to the jury (at volume XII, page 17H – 18G):

At the end of that day’s hearing, the judge said, in the presence of the jury, that one of the “outstanding points” remaining was “the outcome of Mr Phillip’s efforts this evening, which I hope it will be possible to arrange to be done as a joint exercise, between himself and somebody on Mr Campbell’s behalf”: volume XII page 148F. He said that this was worth the effort “just to give the jury that further piece of information in case it helps”: volume XII page 148H – 149A.

Mr Phillips worked late into the night on a supplementary report. The judge had it and read it before he came into court the following day. In the absence of the jury the judge said that, in his view, the report did not “invalidate anything I said in the summing – up and indeed it confirms the possibility that the calls made by the urinator, whoever he was, could have started on Windsor House sector one and finished on Furzedown sector two”: volume XIII page 2E-F. The judge indicated that his inclination was not to have further evidence on this point. Mr Wrack said that he needed to talk to his client, the appellant.

After this discussion the jury was called in and the judge informed them that Mr Phillips had completed his further survey that night and that it had been disclosed to everybody. He continued: (volume XIII, page 9A to 9G):

After a break, the hearing resumed in the absence of the jury. Mr Gomulka, for Mr Springer, made an application that Mr Phillips should be recalled to deal with the material in his new report. He submitted that the new material seriously undermined the appellant’s case and strongly supported that of Mr Springer. Mr Gomulka was supported in this by Mr Carey – Hughes QC, leading counsel for Mr Parchment. Miss Cartwright, for the Crown, submitted that the evidence did undermine the appellant’s case, but that the Crown would not actively seek the recall of Mr Phillips, nor would it oppose it. In reply, Mr Goldberg QC submitted that if Mr Phillips was not recalled, it would be unfair to his client and contrary to the wishes of three of the four parties in the trial.

The judge gave his ruling in the absence of the jury: volume XIII pages 43E to 51G. He pointed out that it was only in exceptional cases that evidence would be admitted in a jury trial after the judge had started his summing-up, although this could be done: volume XIII, page 45D – G. The judge explained why he had decided that Mr Phillips should be asked to investigate whether the route that the appellant said that he took between his sister’s house and Brixton/Camberwell was covered by the Furzedown cell-site: Vol XIII page 47F – 48A. He said that there was nothing in the supplementary report of Mr Phillips that invalidated what he had said in his summing – up about the appellant’s case. He concluded that Mr Phillips should not be recalled, because “the value of Mr Phillips evidence to the jury would not be such as to justify departing from the normal established practice”: volume XIII page 49C-D. He went on to say that he was not convinced that the evidence would materially assist the jury (volume XIII page 50D). However, he also said that he thought “…that the introduction of this evidence at this stage would risk the possibility of real prejudice to Mr Campbell’s case”: volume XIII page 50F. The judge added that one of the reasons why he had decided to ask Mr Phillips to do the work in Furzedown was that the survey “might reveal matters helpful to Mr Campbell’s case which would have put his case on a different footing to that which I summed up to the jury, but that has not been the case…”: volume XIII page 51E.

The jury was then called in and the judge announced that there would be no more evidence. The judge said that getting Mr Phillips to do the additional work was a worthwhile exercise “…because one of the things I was concerned about was that his report might throw up something that invalidated something I said to you on one side or the other in summing up the case to you”: volume XIII page 52H to 53A. He said that he had concluded that further evidence from Mr Phillips would not assist the jury significantly, therefore there would be no more evidence.

The submissions of Mr Larkin on this ground do not centre on the substance of that report but on the procedure that was adopted by the judge. Mr Larkin submits first, that the judge was wrong even to suggest that the question of the coverage of Furzedown sector two should be further investigated by Mr Phillips at the stage where he was nearing the end of his summing up. Secondly, he submits that the judge was wrong to have canvassed this issue before the jury (when Mr Phillips had not done the work), particularly as it would have been clear to the jury that this further evidence only went to the alibi defence of this appellant. Thirdly, Mr Larkin submits that when Mr Phillips had done his report, the judge was wrong to indicate to the jury that, effectively, it would be the appellant’s decision on whether Mr Phillips would be recalled or not. Fourthly, the judge was wrong to indicate to the jury, after he had given his ruling on recalling Mr Phillips, that the further report might have “invalidated something I had said to you on one side or the other in summing up the case to you”. That left the jury wondering what this “something” was and never knew what point the judge was driving at.

We have not been supplied with a copy of the supplementary report of Mr Phillips nor have we been asked to consider it.

Mr Larkin referred us to the decision of R v Cleghorn [1967] 2 QB 584. That was a case where neither the prosecution nor the defence called a witness and the judge decided to call the witness himself. The witness was cross –examined by both prosecution and defence counsel and the defendant had to be recalled and further defence witnesses were also called as a result of the evidence of the witness called by the judge. On appeal, the Court of Appeal quashed the conviction. It held that the judge had a discretion to call a witness not called by either party. However, generally speaking, he should do so only if it would cause no injustice to the defendant and because some matter had arisen ex improviso. Neither was the case there.

That case is helpful in underlining two well – known general rules. The first is that it is up to the prosecution and the defence to decide what evidence to call. The second is that if evidence on a particular point has not been called by either side by the close of the evidence and the start of counsels’ speeches, a court will not generally permit further evidence to be adduced, except in exceptional cases.

We can well understand how the discussion between the judge and Mr Wrack at the end of the judge’s fourth day of summing up set the judge’s mind to considering whether there was not a major point in the cell-site evidence that had been missed by the experts. In a very long case such as this where the factual and expert evidence had been so carefully examined on so many issues, the judge’s anxiety at that stage that something important had been overlooked was only natural. We therefore do not criticise him for raising the possibility that Mr Phillips, if possible with the defence expert, should consider the issue of the coverage by Furzedown sector two, even at that very stage in the trial.

However, we do, with respect, think that it would have been far better if the judge had not informed the jury (volume XII pages 17H to 18G) that he was going to ask Mr Phillips to try and do the additional work. There was a danger that the jury might expect further evidence to be called. After all, Mr Springer had been recalled, so the jury knew it could be done. Further, the jury might speculate on what the new evidence might be and, indeed, what was troubling the judge about the present state of the evidence.

However, although we think that it would better not to inform the jury at that stage, the critical question is whether the actions of the judge did or might have caused prejudice to the appellant so as to render his conviction unsafe. We are quite certain that no prejudice was caused to the appellant. First, the judge ruled that the additional evidence should not be introduced. It is possible that if it had been, it could have been prejudicial to the appellant. Secondly, when the judge told the jury of the result of his ruling (volume XIII page 53A – C), he made it clear that the evidence would not assist them further one way or the other, whereas, if he had thought that it would, they would have heard it: page 54A-C. Thirdly, the judge was careful at all stages not to suggest that either the existing evidence of Mr Phillips, or the further work by him, undermined the validity of the alibi defence of the appellant. The judge had (quite properly) reminded the jury of the Crown’s argument concerning the cell-site evidence and whether that undermined the alibi defence, but the judge did not suggest that anything additional that Mr Phillips had done either supported or detracted from that case.

Lastly, we must assume that the jury acted on what the judge had told them, which was that there was nothing in the new report of Mr Phillips that would be of any real assistance one way or the other. Therefore the jury was left with the position being as it was before the judge had started the investigation going. Thus the jury would have been thrown back on the evidence, factual and expert, that it had, in order to decide on the alibi defence. In short, the appellant was not prejudiced at all by the exercise and so it cannot affect the safety of the conviction.

On the fifth day of the summing up, after a short break, a member of the jury sent a note about the phone call from Mr Springer’s mobile to Radhika’s mobile, timed at 17.39 hours on 9 January. The judge dealt with the matter in the presence of the jury, without any prior discussion with counsel about the note, as follows (volume XII page 42A to 42H):

The judge returned to that issue later in the afternoon, again in the presence of the jury. He said that counsel for the appellant and Mr Springer would want to discuss the matter with their clients “before they make a decision as to whether to ask for Mr Springer or Mr Campbell to be recalled to give any further evidence about [the phone call]”: volume XII page 122D. The judge pointed out that it would be unusual at that stage of the trial for witnesses to be recalled, but because a juror had spotted the point “…I think that it is only right to give you that opportunity and obviously the opportunity to discuss matters with your clients”: volume XII page 122F-G. Mr Wrack responded by saying that it was not intended to recall Mr Campbell: page 123B. Then after a short break, Mr Wrack said (page 124F – 123C):

The position of Mr Springer was left open at that stage. (His team might have wanted to recall him or might have wanted the appellant to be recalled on this point). The judge referred to the matter again, in the presence of the jury, near the end of that day’s hearing: volume XII page 148F. The following day the judge said to the jury (volume XIII page 8E) that it was important that counsel for Mr Springer should be able to discuss with him the important point about the phone call. When the judge informed the jury of his ruling on the issue of further evidence from Mr Phillips, he also said that neither Mr Springer nor the appellant would be recalled on the Springer/Radhika mobile phone call at 17.39 hours. “They are content that the evidence is left where it stands and you can draw whatever inferences”: volume XIII page 52E.

Mr Larkin submits that the judge made several errors. First, he submits, the judge was wrong to deal with the jury note about the phone call in the presence of the jury without first discussing it with counsel. Secondly, he submits that the judge should not have stated, in the presence of the jury, that counsel would wish to consider with their clients whether either Mr Springer or the appellant should be recalled. That put an expectation of further evidence on this point in the minds of the jury. Thirdly, this put an unfair burden on the appellant and his legal team, because the judge was hinting that the two defendants would be recalled unless they decided to the contrary. The jury might be left speculating on why either was not recalled if that was their decision. All this, submits Mr Larkin, was prejudicial to the appellant and means that the conviction is not safe.

In our view it would, with respect, have been more sensible if the judge had followed the usual course of showing the jury note to counsel first and then inviting discussion before he raised the matter in the presence of the jury. There was no reason in this case why that normal procedure should not have been followed. But, once again, the key question is whether the course followed by the judge caused prejudice to the appellant in such a way as to throw doubt on the safety of his conviction.

We are quite certain that it did not cause any prejudice. The jury was told by Mr Wrack that the appellant would not be recalled to give any evidence on the point. This was because his evidence was that he had not been involved in the enterprise at any stage (whereas Mr Springer on his own admission had been involved in arranging and going to the drugs deal) so that he could not have made a call from Springer’s mobile when he had not been with Springer at any time that day. In our view that was a perfectly logical attitude to take and a rational, indeed obvious, reason why there was no need to recall the appellant. The jury had the appellant’s evidence on the key issue of his presence at the scene. Either it was accepted or it was not. The possibility that he might have given more evidence, which possibility was firmly dismissed for the logical and sensible reason given by Mr Wrack, did not prejudice him and it cannot place any doubt on the safety of the conviction.

Mr Larkin concentrated his submissions on the fact that the judge, when dealing with the crucial call of 18.26 hours, did not fully put the defence submission that the movement of the call from Windsor sector one to Furzedown sector two was consistent with its case. It is said that the judge did not fairly summarise the points elicited in cross examination of Mr Phillips by Mr Wrack for the appellant.

We have examined carefully in the transcript all the relevant parts of Mr Phillip’s cross examination on this issue and cross – checked it with the summing up. We cannot accept this argument. The judge dealt with the issue carefully and fully.

As already noted, the Crown relied on the “bad character” evidence of the gun and ammunition found in the appellant’s flat some 11 days after the shooting and also the firearms residue on one of his gloves. Mr Larkin submits that the judge misdirected the jury regarding their approach to the appellant’s bad character and shifted the burden of proof in respect of the appellant’s account regarding both matters.

It will be recalled that the appellant had admitted that he knew of the presence of the gun and the ammunition underneath the floorboards, but his explanation of them being in his flat was that a friend had asked him to keep them for him. He also accepted that there could be residue on a glove and gave an explanation that the residue must have got there when he handled a gun at a party at Andrea’s house. The appellant had pleaded guilty to the possession of the gun and ammunition before the murder trial.

The relevant part of the judge’s direction of the law on “bad character” , given on the first day of his summing – up, is as follows (volume VIII, page 54D – 55G).

Mr Larkin submits that the judge failed to follow the guidance given by the Judicial Studies Board’s specimen direction 24, although he recognises that the specimen direction he referred to was not promulgated until October 2008, that is 20 months after the summing up was given. Mr Larkin has to accept that the judge properly directed the jury on what the relevant “bad character” evidence was and why it was relevant. But he argues that the judge did not then properly direct the jury to consider three basic issues: (i) whether they accepted the “bad character” evidence in issue; (ii) whether that evidence established propensity or some other “matter in issue” between the Crown and the appellant; and (iii) if so, whether and to what extent that assists the jury to resolve the ultimate question.

Mr Larkin submits first, that in the passage at volume VIII page 54E to H, the judge effectively reversed the burden of proof by inviting the jury to consider first whether it accepted the evidence of the appellant on the issue of why he had the gun and the ammunition and how he got the residue on a glove. Secondly, he submits that when the judge directed the jury that if it rejected the appellant’s explanation, it would be open to conclude that the appellant “is a gunman”, he was effectively inviting them to consider treating him as “the” gunman, ie. the man who shot Mr Smith. Thirdly, he submits that the judge did not spell out clearly to the jury that even if it was satisfied that the appellant possessed a gun and ammunition, neither of which were associated with the shooting, that did not mean necessarily that it was more likely that the appellant was the “shooter” as opposed to being someone who might be associated with violent crime or drugs deals generally. Mr Larkin submits that these misdirections together make the verdict unsafe.

We are prepared to grant Mr Larkin leave to advance this proposed new ground, but ultimately we reject it. A careful reading of the judge’s direction shows that he did not reverse the burden of proof. We accept that the judge might have been better to add the words “or might have been” after the words “If you accept his evidence that he was” simply keeping the firearm for someone else (etc) at volume VIII page 54E. But that hardly a major flaw. The important point is that the judge’s directions were given on the premise that the appellant had already admitted that he had possession of the gun and the ammunition and that there were firearm residues on one of his gloves. There was, effectively, already a prima facie case against the appellant on the facts on both points. So it is not surprising that the judge would start by asking the jury to consider whether it accepted the appellant’s version of events.

However, the judge then went on to direct that the jury had to consider a two stage test before the jury could consider the “bad character” evidence. He emphasised that the jury would not only have to reject the appellant’s explanation about the gun, ammunition and residue, but it would also have to conclude that the loaded firearm was his and was being kept for his own use and that the residue got on his glove from firing that gun or another one. Taken together in the context of this case, we think that the judge’s directions put the burden of proof as it should be, viz. on the Crown at all times.

The judge then made it clear that even if the jury is satisfied on those points, that only meant it was open to the jury to conclude that the appellant was “a gunman”. And that in itself may be “something that offers some support for the prosecution case against him as regards this robbery and murder”. That language does not urge the jury to conclude (if the appellant’s explanations were rejected and the Crown’s case accepted) that the appellant was “the gunman”. The direction is much more carefully phrased. The judge emphasises that, at best, “it can add another fairly small piece of the jigsaw which the prosecution are trying to make into a complete picture”: volume VIII page 55C. These remarks effectively make it clear, in the context of this case, that even if the jury did accept the Crown’s case, that even if the appellant had behaved badly with regard to the gun, ammunition and residue, it did not prove he behaved as alleged by the Crown on the occasion in question. Moreover, the judge said, in terms, that even if the jury was satisfied as to the bad character evidence, “…It cannot of course on its own prove him guilty of these crimes”.

There is therefore no material error in the “bad character” direction.

On this point we do not grant leave because, in our view, the point is unarguable. The position must be as follows: if there is a dispute of fact about the evidence that is said to establish “bad character”, the jury will have to decide whether the evidence of the defendant is, or might be, true. If the jury decides that the defendant’s evidence is, or might be true, then that is the end of the “bad character” issue; the jury must put the point out of its mind. However, if the jury decides to reject the defendant’s version of events because it does not accept that his evidence even might be true and the jury also accepts that the Crown has proved, so that the jury is sure, its version of the relevant facts, then the jury will go on to consider whether that demonstrates “bad character”. If it decides that it does, the jury will consider the remaining issues relating to “bad character”.

In either eventuality, a Lucas direction on lies is unnecessary and irrelevant. In the first case, “bad character” ceases to be an issue, so that there is no need for a Lucas direction on lies. In the second case, if the jury is satisfied that the defendant’s version is false and the Crown has proved its case on the relevant facts, “bad character” is proved and the jury will go on to consider how that evidence assists in the case, if at all. In that case a Lucas direction is not necessary either, because the relevance of the “bad character” evidence is not the fact that a defendant has lied about an event, but the fact that it is proved the defendant did do something which has been proved to be “misconduct”, within the meaning of section 98 of the Criminal Justice Act 2003.

Therefore there was no requirement for the judge to give a Lucas direction in the context of the “bad character” issues where there was an issue on the facts and there was a contest between the Crown’s and the appellant’s version of events.

For the reasons given above, we conclude that the arguments put by Mr Larkin on behalf of the appellant all fail. The appeal must therefore be dismissed.