Otway v R.

Just after 8.00 pm on Tuesday 22 August 2006 a blue Honda motor car entered Longlevens Road, Wythenshaw, Manchester and pulled up outside No 1. Both driver and passenger approached Mark Daniels who was shot dead in the street by the passenger gunman. Both men made their escape. Following a re-trial at Manchester Crown Court before HH Judge Gee QC and a jury on 16 June 2009 the appellant was convicted of the murder on the basis that he was the driver of the car in a joint enterprise with the gunman and sentenced to life imprisonment. The appellant was ordered to serve a minimum term of 27 years.

Keith J gave leave to appeal against conviction upon two grounds which concerned the judge’s directions to the jury upon the issue of joint enterprise. While not giving leave in respect of grounds 3-6, the single judge indicated his view that the appellant should be permitted to argue those grounds before the full court for their cumulative effect upon the safety of the jury’s verdict. The appellant’s representation has changed twice since the drafting of grounds of appeal by trial counsel, Mr Reid QC. Mr Francis FitzGibbon QC and Mr Mark McDonald sought leave to argue three further grounds of appeal. In the first it is asserted that the trial judge was wrong to admit into evidence the opinion of Mr David Blake, a podiatrist, since he was unqualified to be an expert witness. The second and third additional grounds related to the treatment of the witness Michael Kelly as hostile and the judge’s directions to the jury in respect of the value of Mr Kelly’s evidence. The second and third further grounds were abandoned by Mr FitzGibbon at the commencement at the appeal hearing. We propose to consider the grounds of appeal in the following order:

(1)

Admissibility of the evidence of Mr David Blake;

(2)

Directions upon joint enterprise;

(3)

Directions as to the facts.

Before embarking upon a consideration of the grounds we should describe, in summary, the circumstantial case upon which the prosecution relied.

The deceased, Mark Daniels, then aged 25, and Michael Kelly were close friends. They were in one another’s company at about 5.45 pm on Tuesday 22 August 2006 near McDonald’s restaurant in Wythenshaw. An argument developed between the deceased and the driver of a blue Honda motor car. At that time nothing came of the argument and the blue Honda was driven away. At 7.30 pm the same blue Honda motor car was captured on CCTV at a petrol station in the civic centre. At about 8.00 pm a blue Honda motor car drew into Longlevens Road and stopped. Michael Kelly told the police in a video recorded interview shortly after the killing that the blue Honda motor car was the same car as that whose driver had been engaged in the argument with the deceased near McDonald’s restaurant and that the driver was the same man on both occasions.

CCTV film at both McDonalds and the petrol station demonstrated that the car was a blue Honda Accord V319 ELW hatchback. It had the same non-standard spoiler on the tailgate. The evidence of witnesses whose statements were read to the jury described the car used in the murder as a blue Honda Accord or Civic hatchback with a style dating from 1998 or 1999 (V registrations commenced in 1999) with a square wing type attachment on the boot to make it look “sporty”. The car was described as metallic blue which matched the description of the vehicle captured by CCTV in the petrol station.

There was evidence, unchallenged by the appellant at trial, that he and the car were linked. In formal admissions it was recorded that the appellant had been seen with the car twice during the six weeks before the murder. On 13 July 2006 the appellant was in possession of the vehicle and of a valid MOT certificate in respect of it. The Honda car was found burned out on a dirt track at the rear of 75 Walton Hall Drive at about 1.30 am on 23 August 2006.

The appellant was in possession of a mobile telephone whose numbers ended in 655. It was habitually used by the appellant during August 2006. The appellant lived in Longsight, Manchester. Cell site evidence was consistent with the appellant’s presence in the vicinity of McDonalds and the petrol filling station at the relevant times. 1 minute 44 seconds before the first 999 call at 20.07.51, the 655 phone received a text whose cell site transmission indicated that the appellant was not far from Longlevens Road. The mobile phone was not used after a call made at 6.45 am on 23 August 2006.

The appellant was employed as a cleaner at Selfridges, Exchange Square, Manchester. He worked shifts on 21 August and 22 August between 7.00 am and 10.00 am. On 23 August 2006 he left work at 9.24 am and never returned. On 16 July 2008 the appellant was arrested at Manchester Airport having landed on a flight from Qatar. During interview on 16 and 17 July 2008 the appellant chose to make no comment to questions although, at the time of his arrest, he said he had returned to the jurisdiction to “sort it out”. He did not serve a defence statement and did not give evidence in his own defence.

Investigating officers recovered from the petrol filling station in Manchester city centre CCTV recordings depicting the driver of the Honda Accord pulling up at a petrol pump, serving himself with fuel, entering the filling station shop and exiting to return to his car. While the CCTV recording was inadequate for the purpose of making a facial identification (and the driver was not recognised by the investigation team), its quality was regarded as sufficient for “walking gait analysis”. There was provided to Mr David Blake a copy of the CCTV images (some 2 minutes duration in all but 20 seconds of walking time) together with reference samples of the appellant walking within the reception area of a police station and in a cell block. The recordings were of good quality. Mr Blake spent some 6 hours comparing the CCTV and reference samples reaching conclusions as to the similarity between the walking gait of the man seen in each of the images. He provided a witness statement to the prosecution dated 19 January 2009.

In his witness statement Mr Blake spoke of the ‘science’, his expertise and experience as follows:

“I am a podiatrist and specialist in lower limb gait, pathomechanics and biomechanics. I routinely use slow motion and freeze frame digital video camera equipment to analyse gait clinically to assess and diagnose anatomical and skeletal conditions. Forensic podiatry and CCTV analysis are key aspects of my practice. I am a specialist in biomechanics at Nuffield Hospital, Wolverhampton, as well as providing medico-legal reports. I have also presented my findings at Inner London Crown Court, Manchester Crown Court and Stratford Magistrates Court, London, on behalf of the defence and prosecution. I have been practising for 12 years, 9 of which have been spent at the Nuffield Hospital, Wolverhampton.”

Mr Blake described the practice of gait analysis as follows:

“Gait analysis is the examination of walking or running. The gait, or walking cycle, skeletal movement in general can have recognised anatomical movements or reference points during a walking cycle. Biomechanics is the examination and analysis of body movement. Specifically in this case to humans the skeleton can at times give an anatomical signature that if not unique, can be a relatively rare anatomical position or movement to a few individuals. A person’s walking cycle or his skeletal anatomy is difficult to hide as it is part of their body’s anatomy. The science of gait analysis was introduced into the UK and the profession of podiatry in the early 1970s. The gait cycle can be broken down into factors such as the position of feet and other parts of the lower limb. Thus features of gait can be identified and sometimes quantified. Podiatrists use gait analysis virtually every day in their practice. Recently that science has been applied forensically. The Council for the Registration of Forensic Practitioners recognises gait analysis and footprint identification as important components in identification of individuals. A podiatric section has recently been set up ... some clinicians may suggest that certain key elements of gait cycle or biomechanical (body) position and movement can leave a unique signature confirming that an individual in comparison is one of the same ...”

It is an important feature of the evidence and argument considered by the court in this appeal that no attempt has been made, by expert evidence, to challenge the accuracy of this part of Mr Blake’s evidence.

The first trial of the appellant took place in February 2009 when he was represented by Mr Griffiths of counsel and Miss Crossley, a higher court advocate. Miss Crossley made an application to Maddison J for the exclusion of Mr Blake’s evidence. It was submitted by Miss Crossley that the exercise performed by Mr Blake was no different from that which the jury could make for themselves. There was no statistical database against which the jury could judge the significance of Mr Blake’s evidence. It would, Miss Crossley submitted, have been different if a witness was purporting to recognise the appellant from the CCTV evidence. There was, she argued, no scientific basis, certainly no measurement, to support Mr Blake’s methodology. Miss Crossley posed the question whether there was a “sufficiently recognised body of experience” against which to test the evidence. This was nothing more than subjective judgement which was equivalent to the early attempts to introduce voice recognition and facial mapping evidence without the support of the scientific community and peer review. Miss Crossley conceded, however, that Mr Blake was relying upon his own clinical experience.

In his “summary” of findings in his witness statement Mr Blake said that he saw approximately 2,000 patients per year. It was “highly unusual to find a skeletal structure that has a linear spine without some scoliosis or lordosis” (curvature). He concluded that the appellant, in common with the driver of the Honda, had an unusually erect posture. Mr Blake estimated that only in about 7% of his practice population did he find “the slight neck flexion or head poke where the head is projected excessively forward” which he observed in both sets of recordings. Mr Blake gave evidence in the voir dire when he informed Maddison J that podiatrists were the “principal practitioners of biomechanics and gait analysis”. His judgement of the walking gait of a population was related specifically to his own practice. He was aware of the range of walking gait and knew the difference between that which was conventional and that which was not. Maddison J ruled, first, that the jury would not without expert assistance be able to form a judgment about these matters and, second, that the subject matter of Mr Blake’s opinion formed part of a body of knowledge or experience which was sufficiently organised or recognised. The judge ruled that Mr Blake should be permitted to give evidence in which he identified the similarities between the walking gait of the appellant and the walking gait of the suspect. It would be for the jury to assess that evidence having viewed the recorded material for themselves. Mr Blake would not, however, be permitted to give evidence relating to the facial features of the appellant or the suspect, and would not be permitted to evaluate his comparison of walking gait by reference to the chance that the driver of the Honda motorcar at the petrol filling station was someone other than the appellant. Mr FitzGibbon argues that Mr Blake was not qualified to give this evidence at all.

Counsel for the respondent, Mr Brian Cummings QC, who was not counsel at the trial, submits that the court should decline to hear argument upon the admissibility of Mr Blake’s evidence since no objection was taken to its admissibility at the time of the re-trial in May and June 2009. The appellant should not be permitted, he submitted, to make a tactical decision at trial such as, in effect, to provide him with a second bite of the cherry in the Court of Appeal. We were assured by Mr FitzGibbon that the explanation for Mr Reid’s decision not to challenge the admissibility of the evidence at the re-trial was straightforward. Having failed to persuade Maddison J not to admit the evidence it was thought that there was little prospect of success upon renewal of the objection. Having regard to this court’s obligation to consider the safety of the verdict we have taken the view that the appellant’s present argument should be considered.

There were five features of the appellant’s walking gait which, Mr Blake pointed out to the jury, were similar to those he observed in the CCTV recording at the filling station:

(1)

Both men walked with the head thrust slightly forward in flexion or, as Mr Blake called it “head poke” which he demonstrated to the jury;

(2)

Both men had squared off shoulders;

(3)

Both men had a tendency to hold their arms in flexion and, upon forward movement, to move the hands towards the mid-line of the body;

(4)

Both men had what Mr Blake described as a “very linear spine” by which he meant that the spine was comparatively straight or erect without noticeably curvature;

(5)

Both men walked with a “narrow base of gait”, by which he meant the opposite of an individual who walked with legs astride; during the action of striding the feet passed close together.

The high point of Mr Blake’s comparison evidence appears at paragraph 17B of the transcript of his evidence on 2 June 2009;

“... in my opinion there is a significant correlation when he combined all of these elements. We come to what we call a signature of an individual which correlates, or there are certainly similarities between this individual and Mr Otway.”

Mr Blake, when cross-examined, was asked what measurements, if any, he relied upon in making his judgment. He replied that he did measurements in a clinical environment but “I think in the case of the CCTV footage provided and with the camera angles, I think to make an accurate measurement would be perhaps naïve”.

The written submissions made by Mr FitzGibbon were:

1.

Gait analysis as a forensic science is not sufficiently recognised or advanced to merit its use in court.

2.

Mr Blake could not be considered an expert in the field of gait analysis even if it was a creditable discipline.

3.

There was no recognised statistical basis upon which the jury could be assisted by Mr Blake to reach a judgment of probability.

Mr Fitzgibbon has drawn to our attention several recent decisions upon the admissibility of scientific evidence including Reed, Reed and Garmson [2009] EWCA Crim 2698, [2010] 1 Cr App R 23; R v Bonython [1984] 32 SASR 45; Dallagher [2002] EWCA Crim 1903, [2003] 1 Cr App R 12; Gilfoyle(No 2) [2001] 2 Cr App R 57; Luttrell [2004] EWCA Crim 1344, [2004] 2 Crim App R 31; Atkins and Atkins [2009] EWCA Crim 1876, [2010] 1 Cr App R 8; and T [2010] EWCA Crim 2439. For present purposes we consider it sufficient to recall the words of Rose LJ (Vice President) in Luttrell & Others at paragraphs 32-34;

“32.

For expert evidence to be admissible, two conditions must be satisfied: first, that study or experience will give a witness’s opinion an authority which the opinion of one not so qualified will lack; and secondly the witness must be so qualified to express the opinion. The first was elucidated in Bonython [1984] 38 SASR 45, where King CJ (at p.46) said that the question “may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgement on the matter without the assistance of witness possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge of experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.

33.

If these two conditions are met and the evidence of the witness is admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact: Robb [1991] 93 Cr App R 161, 165; Darragher [2002] EWCA Crim 1903, [2003] 1 Cr App R 12 para 23 ... It might added that, as with any evidence, expert testimony will not be admitted unless it is relevant in the sense that “it is logically probative or disapprobative of some matter that requires proof”: per Lord Simon in Kilbourne [1973] AC 729, 756 D.

34.

As we have indicated, the appellants argued that evidence should not be admitted unless it passes a certain test, that the evidence can seen to be reliable because the methods used are sufficiently explained to be tested in cross-examination and so to be verifiable or falsifiable. Where, as here, the Crown is seeking to adduce the evidence in a criminal trial, this could properly be considered by the court when deciding whether to refuse to allow the evidence, under section 78 of the Police and Criminal Evidence Act 1984 or otherwise, in order to ensure a fair trial. We cannot accept that this is a requirement of admissibility. In established fields of science, the court may take the view that expert evidence would fall beyond the recognised limits of the field or that methods are too unconventional to be regarded as subject to the scientific discipline. But a skill or expertise can be recognised and respected, and thus satisfy the conditions for admissible expert evidence, although the discipline is not susceptible to this sort of scientific discipline...”

In support of his argument Mr FitzGibbon seeks the admission, under section 23(2) Criminal Appeal Act 1968, of the evidence of Professor Allan Jamieson. Professor Jamieson is the Director of the Forensic Institute which we understand to be a commercial organisation offering the services of forensic scientists in different specialist fields of expertise. Professor Jamieson is by academic qualification an expert in biology and genetics. He is an expert witness of many years standing. Professor Jamieson is not an expert in podiatry or biomechanics. It is clear from the contents of his statement that Professor Jamieson has engaged in a good deal of research of material in which is discussed the qualification of a science or technique to be the proper subject of expert scientific evidence. Most of the product quoted by Professor Jamieson derives from international sources. Professor Jamieson’s central thesis appears in a report of the National Academy of Sciences in the United States, published in 2009, from which the following extract is quoted at page 3 of his statement:

“In a number of forensic science disciplines forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.”

Professor Jamieson argues that before a witness should be permitted to give evidence of opinion both the science in which he claims to be expert and the witness’s expertise in that science should have been the subject of independent validation. Professor Jamieson quotes an extract from a decision of the Supreme Court of the United States, Frye, 293 F 1013 (DC Cir 1923) June 28 1993:

“Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised, and while the court will go a long way in admitting expert testimony deduced from a well recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Professor Jamieson advances the argument that there is an absence of evidence whether the technique employed by Mr Blake has been tested in field conditions, subjected to peer review and publication, tested for a potential or known rate of error or subjected to verifiable standards. He continues:

“In my opinion, it is unacceptable, and fails to comply with the published guidelines for good forensic practice, to couch an opinion on identification or individualisation in terms that do not allow an estimate of the match probability or the likelihood that the person seen in the video image was, in fact, not Mr Otway.”

Basing his opinion upon a paper (2009) published by the UK Association of Forensic Science Providers, Professor Jamieson espouses the view that the expert must be able to “address at least one pair of propositions usually based upon the prosecution issue and one based upon the an alternative (defence issue)” and “He will be able, if required, to provide the data he has used and its provenance”. Professor Jamieson has underscored these passages for emphasis. He comments upon the extract:

“These form the basis for the use of the Likelihood Ratio, the approach endorsed by the UK Association of Forensic Science Providers. This is part of the basis of the criticism that I offer herein as regards the lack of a proper scientific foundation for the assessment of the reliability of any claims made for expertise in gait comparison.”

He has not, however, placed emphasis on the sentence which follows the first-quoted words above, namely, “If a reasonable alternative cannot be identified then the expert may address only the one proposition but will make it clear that he cannot evaluate the strength of the evidence”. In other words, the extract with which Professor Jamieson seeks to support his argument does not support it at all. The Association’s view, as expressed, is that unless the expert can in consequence of his analysis address the statistical probabilities of alternative propositions he should make it clear that he cannot make an evaluation of his findings. It is not the Association’s view, as expressed, that unless the expert can address at least one pair of propositions his evidence is or should be inadmissible. Furthermore, it simply does not follow, as Professor Jamieson appears to argue, that these observations of the Association support the assertion that the ability of the expert to address the alternative propositions is a pre-condition for the scientific foundation of his expertise.

We make clear that we have considered all of the contents of Professor Jamieson’s statement and not just those which we have extracted into this judgment. Unfortunately, Professor Jamieson’s evidence suffers from two further deficiencies: First, Professor Jamieson is not a podiatrist. He is not in a position to express an opinion whether Mr Blake had the expertise which he purported to employ in his analysis. Second, in his insistence upon the existence of a database from which statistical probability could be assessed, Professor Jamieson has ignored the law of England and Wales. In T [2010] EWCA Crim 2439 at paragraphs 92-96 Thomas LJ, giving the judgment of the court, made reference to several recent cases in which, by reason of the subject matter of the expert evidence, the expert was unable to evaluate his findings by reference to a database of random selection. Nevertheless the evidence of evaluation, founded upon and explained to be the consequence of personal experience, was properly admitted. The proposition that evidence of a comparison cannot be admitted if its evaluation is expressed in terms subjective experience is simply wrong in law. While we have found Professor Jamieson’s statement helpful in identifying the scope of Mr FitzGibbons’ submissions we decline to admit his evidence on the ground that it is irrelevant to the issue of the admissibility of Mr Blake’s evidence.

Expert evidence of opinion is, however, one of the exceptions to the rule that opinion evidence is inadmissible. It is for the party seeking to adduce such evidence to demonstrate to the court the expertise, the qualification and the foundation for the witness’s opinion (see Atkins and Atkins, per Hughes LJ at para. 9). We have identified at paragraph 10 above the evidence which the prosecution placed before Maddison J to establish the admissibility of Mr Blake’s opinion. Like the judge we consider that the evidence was, in the absence of contradiction, sufficient to establish the existence of (1) the science or expertise, (2) the witness’ proficiency in it, and (3) the foundation for the witness’s opinion.

In the course of argument the court invited Mr FitzGibbon to identify the area of expertise which he was challenging. He made it clear that he did not challenge Mr Blake’s qualification and experience in clinical podiatry. No challenge was being made to Mr Blake’s ability, by means of the expertise and experience he had acquired in his 12 years of practice as a podiatrist, to identify particular features in an individual’s walking gait. Mr FitzGibbon explained that he was challenging Mr Blake’s ability to compare the walking gait of two individuals. In our view, this is an untenable proposition. There was evidence before Maddison J of the witness’s familiarity both with the technique of assessment of a walking gait and of the use of recorded material for the purpose of analysis. The appellant did not seek to adduce, either before the trial judges or this court, the evidence of any expert podiatrist in an attempt to undermine Mr Blake’s assertion that he was qualified to make a comparison between one walking gait and another. Mr FitzGibbon simply characterised Mr Blake’s evidence as “self-validation”. We do not understand the basis for this argument. Mr Blake explained in evidence the clinical practice of podiatry, his qualifications, the need to make the relevant assessment in the course of that practice, and his own expertise in it. None of this is challenged. That is not self-validation; it is unchallenged validation. If the appellant wished to make the assertion either that there was no such science or expertise, or that Mr Blake was unqualified to express an opinion based upon it, it seems to us that the onus was upon the appellant to do more than merely to make the bare assertion. Mr Blake’s evidence of the existence of the science and his own proficiency in it was, on the face it, acceptable and the appellant has done nothing, even now, to undermine it. Since, as Mr FitzGibbon told us, he was not challenging Mr Blake’s proficiency in identifying the features of a walking gait, it must follow that he was unable effectively to challenge his ability to assess the walking gait of two individuals side by side. There is, it seems to us, no difference between the expertise required to carry out the analysis of each gait (which is not challenged by the appellant) and the expertise required to carry out a comparison between the two (which is challenged by the appellant).

Atkins & Atkins [2009] EWCA Crim. 1876was an appeal in which the expertise of facial mapping was examined by the court. Hughes LJ, considering the nature of evaluation of a comparison between the features of the suspect and reference faces, said at paragraph 23:

“An expert who spends years studying this kind of comparison can properly form a judgment as to the significance of what he has found in any particular case. It is a judgement based on his experience. A jury is entitled to be informed of his assessment. The alternative, of simply leaving the jury to make up its own mind about similarities and dissimilarities, with no assistance at all about their significance, would be to give the jury raw material with no means of evaluating it.”

We accept the submission made by Mr FitzGibbon that in a comparison exercise based upon facial mapping or walking gait, it is a necessary condition of admissibility that the witness is able to demonstrate to the court the features of comparison upon which his opinion is formed. Since the comparison is visual, an inability by the witness to explain and demonstrate the features upon which his opinion is formed not only places in doubt the existence of the science or technique claimed; it undermines the foundation of reliability required. We have read a transcript of Mr Blake’s evidence and we have viewed the recorded material from which he demonstrated the foundation for his opinion. We entertain no doubt that the jury was in a position to follow and assess the value of his evidence. There is no danger here that the jury was being invited simply to take Mr Blake’s comparison on trust. We agree with Maddison J, however, that Mr Blake’s ability safely to express his ultimate conclusion in terms of probability of a match, even probability based on Mr Blake’s clinical experience, was insufficiently established. It is important that juries are not misled to an over-valuation of comparison evidence.

Mr FitzGibbon made it clear that he had no criticisms to make of the way in which HH Judge Gee QC directed the jury as to Mr Blake’s evidence. No attempt was made to identify the man at the filling station and the jury was specifically warned that they must not make the attempt. The exercise in which the jury was engaged was a consideration of the effect of the circumstantial case as a whole. They were entitled to take into account, together with the circumstances listed at paragraphs 4 – 7 above, the similarities in walking gait identified by Mr Blake when considering whether there was any sensible prospect that the man at the filling station was someone other than the appellant. In those circumstances we see no basis upon which this aspect of the trial can be successfully challenged and leave is refused. We do not wish it to be thought that we are endorsing the use of podiatric evidence in general. Upon the evidence before him and the argument addressed to this court, we conclude that Maddison J was right to rule the evidence admissible. However, each such application must be considered on its own merits. It may well be, as in the present case, that the trial judge will need to be astute when such evidence is admitted that it is strictly confined within the expertise established and that the proper limits of evaluation are identified from the outset. We endorse, with respect, the views of the court in T (pars 97-99)as to the necessity for the parties to have issues of disclosure and admissibility well in mind during preparation for the case management hearing so that, when the appropriate time comes, the trial judge is presented with all the material needed to make an assessment of admissibility, and the permissible scope of the evidence if admitted.

Michael Kelly was a dealer in Class A drugs and a career criminal. Several times during the course of his evidence he proclaimed his dislike for the police. However, he appears to have been severely shaken by the experience of witnessing the murder of his closest friend. During the course of his video interview with the police shortly after the murder he said, omitting the officer’s questions:

“... he’s got out of the car now; thinking “whoa”; I’m saying to him, “Here you are mate, fucking hell, there’s kids, ... here, what are you doing?” and the man’s brandishing it, like he’s in a fucking western film ... click and he’s fucking about with it. Now it must have jammed or sommat ... I can hear Mark saying, “Whoa, whoa mate”... as he’s walking to him. Now the black kid’s got out of the driver’s seat and we’re saying to him, “Don’t smoke him, don’t smoke him”, you know what I mean, ... This is as I’m going out the garden ... as I have got to the corner of my road and I have jumped, I have gone to cross over, just here, clack, clack, clack, three times.”

During the course of the second tape the officer asked for clarification; he asked Kelly whether the “black guy” said anything to him. Kelly replied, “not a thing” but he continued:

“or he might have and I’ve not really took any notice of whatever he was saying to me, I was too ... I was off me ...”

The officer asked “what’s the first thing you’ve heard either of those two men saying?” Kelly replied:

“The black kid said, “Don’t smoke him, don’t smoke him.”

Kelly said that he presumed the black guy was talking to the white kid.

Kelly proceeded to identify Martin Joyce as the gunman at an identification procedure and made a statement in which he insisted that the man who drove the gunman to Longlevens Road was the same man, driving the same car, as at McDonalds shortly before. On 19 September 2007 Kelly was arrested in Manchester in possession of two hand grenades, heroin, cocaine, ecstasy and cannabis. He gave evidence at the trial of Martin Joyce on 19 and 20 June 2008 but, for the first time in cross examination, purported to entertain doubt as to the correctness of his identification of Joyce. As a result the prosecution offered no further evidence and Joyce was acquitted. The appellant returned to the UK following Joyce’s acquittal, was arrested and stood trial in February 2009. Kelly was awaiting sentence in respect of the matters for which he had been arrested in September 2007. Kelly gave evidence before Maddison J on 12 February 2009. During his evidence in chief Kelly repeated that the same black man was driving the car at McDonalds as at the killing and that the blue car looked identical. In cross-examination, however, he began to express doubt both about the identity of the black man and of the vehicle. The judge declined an application made by the prosecution during re-examination to treat Kelly as hostile. That night, Kelly telephoned Miss Crossley, defence counsel, to ask why he had not been asked further questions by the defence. The implication was that if he had been asked further questions he could have firmed up on his doubt about the identity of the driver in favour of the appellant.

On the morning of 17 February Kelly attended court wishing to hand a letter to the judge. He now wished to state that the driver was not the defendant but another man who happened to have approached him on the night of 16 February. Neither the prosecution nor the defence wished Kelly to be recalled and the trial continued. The jury was unable to agree on a verdict and was discharged. During the course of his evidence at the re-trial before HH Judge Gee QC, Kelly said that the defendant was not the driver of the car. The prosecution was in possession of a letter written by the appellant to the deceased’s mother in which Kelly was apparently apologising for resiling upon his evidence concerning Joyce and implying that he would be resiling from his evidence concerning the driver. Before he entered the witness box Kelly made a remark to the officer having his care suggesting that he had no alternative but to change his account. The prosecution successfully applied to treat Michael Kelly as a hostile witness and the jury saw the video recorded interviews between Kelly and the investigating officers. As the judge subsequently directed the jury, Kelly’s out of court statements could, depending upon their view as to his reliability, be treated as evidence in the case. The appellant relied upon Kelly’s reference to the driver’s remark, “Don’t smoke him”, as evidence which tended to disprove the driver’s participation in a joint enterprise; alternatively, which tended to establish a withdrawal by the driver from the joint enterprise.

“Sam Little” was a pseudonym used by an anonymous witness. He too was at the scene of the murder. Little’s evidence was read to the jury. He said in an edited composite statement whose content was agreed between prosecution and defence:

“The car had come from the Copefield Road end of Longlevens Road. Two guys got out of the car, the passenger and the driver both got out of the front doors, no-one got out of the back and I didn’t see anyone in the back of the car. One of these two guys had a gun, it was the white male that had the gun not the black male. I saw it in his hand when they walked on to the driveway. One of the guys said “What you saying? What the fuck you saying?” to Mark Daniels. This took place when the two guys had walked from the car to the driveway in front of the garage. Mark was on the driveway too. I heard the first shot, I thought it was a firework. The noise came from the ginnell [alley] at the side of the house between the house and the garage. Mark was curled up like in a foetal position. He was at the bottom of the ginnell by the doors lying on his right hand side with his legs near the door and his head near the door at 90˚ to that one. He was definitely curled up on the deck when the second shot went off. The gunman was very close to Mark, leaning over him with the gun stretched out in his right hand. The other guy was next to the gunman, on the gunman’s left. It was the white male, not the black male that shot Mark Daniels. After they shot him they turned round. They went out of the double gates and drove down the road away from Copefield Road...”

The appellant complains that the judge in summing up the evidence to the jury diminished the importance of the words “Don’t smoke him” and wrongly permitted the jury to consider that Sam Little had not heard them. In his grounds Mr Reid suggested that the jury should at least have been informed of Little’s precise position, a fact which he suggested had not been disclosed. We do not accept these criticisms of the judge. At pages 13 and 30 of the transcript of his summing up, the judge made plain to the jury, as he was bound to do, their need to exercise “real caution” before relying on any part of Kelly’s evidence and statements. He reminded the jury at pages 45-47, in detail, of Kelly’s account in interview of the “Don’t shoot him” remark. He concluded at page 47A:

“... that, as you know, is potentially relevant to your consideration, if you should find the defendant was the driver of the car as to whether he was a party to a joint enterprise and, if so, whether he withdrew from it. I have already directed you upon that.”

The direction to which the judge was referring is at page 9D - 10G:

“From this, say the prosecution, it could not be clearer that the driver knew the other man had a gun and was a party to a joint enterprise to kill or cause grievous bodily harm to Mark Daniels and as such they allege he is guilty of the offence of murder as much as if he had pulled the trigger himself, fired three shots, two of which struck Daniels, one of them proving fatal. On the other hand there is evidence although again, only from Kelly that the driver of the vehicle said: “Don’t smoke him” which he understood to mean “Don’t shoot him”. He said that during the course of the second interview he had with the police on the night of the murder... Sam Little, the other eye witness whose statement was read to you, does not describe anything like that and the witness was you may think, in a position to hear anything said because the witness heard one of the two men say “What you saying, what you saying?” If you reject Kelly’s evidence about what he said the driver said, that is the end of this particular point. If on the other hand, your view is that those words were spoken or even may have been spoken, how do you approach the matter? Where does that take you?First you may take those words into account in deciding whether the driver was a party to a joint enterprise to kill or seriously to injure Mark Daniels.Do those words indicate or might they indicate that the driver did not know when he got out of the car that the passenger had a gun or that it was not the driver’s intention that the gun be used? But, if you are sure that the driver was a party to a joint enterprise to use the gun to kill or seriously to injure Mark Daniels up to the point that these words were spoken, you must ask whether those words indicate or might indicate that the driver, the prosecution say the defendant, then backed out of the joint enterprise after which the other man was acting entirely on his own.” [emphasis added]

It seems to us that far from diminishing the importance of the words relied on by the appellant the judge was emphasising them and explaining how they were relevant to the issue of joint enterprise and withdrawal from joint enterprise. He was bound to direct the jury that, while exercising caution, it was a matter for them to decide whether the words were used or may have been used by the driver, and if so, to what effect. We do not accept that in order for the judge fairly to draw the attention of the jury to the evidence of Sam Little the prosecution was required to adduce Sam Little’s precise vantage point. The judge was simply pointing out to the jury the uncontested evidence that Sam Little did hear remarks made by the participants but did not mention the words “Don’t smoke him”. Furthermore the defence knew exactly where the witness Little was standing, namely in the ginnell. At the request of the defence that sentence of his statement which made this clear was omitted from the edited version which was read to the jury. There is no substance in the criticism made.

Complaint is made that the trial judge failed to give sufficient weight or emphasis to the relevance of the words “Don’t smoke him” to the principal issue whether there was a joint enterprise, but concentrated upon their relevance to the issue of withdrawal from a joint enterprise. As we have indicated the judge made it perfectly clear that the words were relevant to both issues. At the conclusion of his summing up, however, the judge provided the jury with four written questions as follows:

(1)

Are we sure that the defendant was the driver of the blue car at the time of the shooting at 1 Longlevens Road on 22 August 2006?

(2)

Are we sure that the defendant was party to a joint enterprise to kill or cause really serious injury to Mark Daniels?

(3)

Did the defendant speak or may he have spoken the words referred to by Kelly?

(4)

Do those words in the circumstances in which they were spoken indicate or may they indicate that the defendant withdraw from the joint enterprise?

Mr Reid properly pointed out to the judge in the presence of the jury just before they retired that while the relevance of the words to withdrawal was specifically dealt with in question 4 the judge had not in his written questions indicated their relevance to question 2, namely whether there was a joint enterprise at all. The judge responded as follows:

“You are quite right Mr Reid. You are right to remind the jury that and I should have done so when I went through the questions because your submission was he said or may have said those words, “Don’t smoke him”. In the event that the jury find that he was the driver that might reflect the fact that he wasn’t a party to the joint enterprise involving the use of the gun... Do you understand that members of the jury.”

There can, in our view, be no doubt that the jury understood exactly the relevance of the words quoted to their consideration of both questions 2 and 4. They returned within the hour with a verdict of guilty.

Complaint is made that the judge gave an incomplete direction upon withdrawal from the joint enterprise. He did not direct the jury to the effect that it was not an essential pre-requisite of an effective withdrawal that reasonable steps must be taken to prevent the crime (see Flaherty & Ors [2004] EWCA Crim 526, [2004] 2 Cr App R 20, paragraph 60 of the judgment of Mantell LJ). The judge directed the jury as follows (transcript page 10F):

“The law does recognise that a person who is a party to a joint enterprise to commit a criminal offence may withdraw from the joint enterprise in such a way that he is no longer responsible for any crime that may then be committed. But the withdrawal must be (1) real and effective and (2) it must be communicated to the other party in good time... It is for you to decide whether or not the words referred to by Kelly said by him to have been spoken by the driver meets those tests, if of course you think those words were spoken or may have been spoken at all.”

The judge then referred the jury to some of the circumstances of the killing and continued (transcript page 11D):

“But you will know also, and I shall remind you of the evidence from Sam Little, one of the eye witnesses, that the shooting took place ... when both men had gone down the ginnell where Mark Daniels had gone to try to escape the gunman, and the driver was standing close to the gunman when he fired the fatal shot. So, moreover, you are entitled to bear in mind that there is nothing to suggest that the driver did anything to restrain the passenger or to try to prevent him from using the gun, though this by itself does not mean that the driver cannot possibly have withdrawn from the enterprise.”

In our judgment there is nothing inaccurate or incomplete in this direction to the jury. The judge made plain that whether the driver did anything to prevent the killing was relevant to the issue of withdrawal, but he was not required to restrain the gunman before the jury could conclude that he had withdrawn from the enterprise.

It is contended that the judge should have gone further by providing the jury with examples of participation which would not amount to joint enterprise. It is submitted that the jury should have been told, for example, that it would not be enough to establish joint enterprise merely for the prosecution to prove that the defendant had driven his passenger to the scene of the killing and away again. At page 8B of the transcript the judge said:

“What do I mean by joint enterprise? Where a criminal offence is committed by two persons, each may play a different part. But if they are in it together as part of a joint plan or agreement to commit it, each of them is guilty. In this case the prosecution must prove, not only that the defendant ... went to 1 Longlevens Road, but that he knew when he got out of the car that the other man had a gun, that it was the intention of both of them that Mark Daniels should be killed or at least very seriously injured by the use of the gun and that having that intention the defendant played some part however great or small in committing that offence. For example, driving the gunman to and from the scene. Being with the gunman, having got out of the car as back-up or at least to deter intervention, or at least as encouragement to the others.”

In our view the judge could hardly have made it plainer what were the requirements of joint enterprise.

In the original written grounds Mr Reid asserted that the trial judge failed to point out to the jury that, as to Kelly’s letter to Mrs Daniels apologising for his conduct, the defence argued that Kelly may not have been referring to Martin Joyce at all. At page 3 of the letter he wrote:

“When I got arrested I had a machine gun and two hand grenades. I know I shouldn’t be telling you this but I’d already found out where his mum lives plus where he was staying, one for each house and that’s no bullshit”.

At the time the letter was written Joyce was in custody. The argument was that Kelly must, therefore, have been referring to someone else. We do not accept the argument. The letter is phrased in the past tense and is not specific as to the time at which the individual concerned was staying at the address Kelly had discovered. The letter, read as whole is quite clear as to its intention, namely, to apologise for hijacking the trials of Joyce and the appellant and, by way of excuse, to reassure Mrs Daniels that he would take his own retribution. The judge summarised the arguments respectively for the prosecution and the defence at the close of his summing up. It was not incumbent upon him to deal with every single submission made to the jury on behalf of the appellant. The jury were well aware of the need to assess Kelly’s reliability in the round including the underlying intention behind the letter he wrote to his friend’s mother.

Criticism is made that the judge failed to draw the jury’s attention to inconsistencies between Sam Little’s description of the driver and the appellant. The criticism is inaccurate. The judge read from Little’s statement to provide the jury with his full description of the driver at page 55H-56B of the transcript. At page 57A the judge emphasised to the jury the difference in height of the driver described by Little by comparison with the known height of the defendant.

In our judgment this was a strong circumstantial case. None of the criticisms of the summing up have substance and we have no grounds for doubting the safety of the verdict. The appeal will be dismissed.

We have received from counsel for the appellant, as requested, an explanation why preparation towards the hearing of this appeal failed to follow the directions timetable which the court set by agreement between the parties, and why no timely application was made to the court for a modification of the timetable. In consequence of these failures, the hearing of this appeal had to be re-listed at inconvenience and expense to other parties. We acknowledge counsels’ apology and propose to take no further action save to emphasise the personal responsibility of counsel for compliance and management.