Anwar & Ors, R. v

On 21^st March 2016, at the Central Criminal Court, a trial commenced before His Honour Judge Pontius Q.C. and a jury on an indictment alleging against each of the six respondents charges of attempted murder, conspiracy to commit robbery and possession of a firearm with intent to commit robbery. On 18^th April, Judge Pontius ruled that there was no case to answer in relation to attempted murder and possession of a firearm with intent. In relation to these terminating rulings, the Crown now applies for leave to appeal pursuant to the provisions of s. 58 of the Criminal Justice Act 2003 (the 2003 Act): the Registrar has referred the application to the full Court.

On the basis that the trial is continuing against all the respondents in relation to the allegation of conspiracy to rob, the court is urgently waiting for this application to be resolved, with the jury being kept available so as to minimise what has been an inevitable interruption to the proceedings. The judge endorsed the application made by the prosecution that the application be expedited and this court has been able to rearrange its business to hear it within a week. After the hearing, we announced that both the application and the appeal would be allowed on the basis that the ruling involved an error of principle and was not reasonable for the judge to have made (see s. 67 (b) and (c) of the 2003 Act).

We reserved the reasons for our decision (which we now provide) because reliance was placed on the recent decision of the House of Lords in R v Jogee, Ruddock v The Queen [2016] UKPC 7; [2016] 2 WLR 681 and this is the first occasion that this court has had to address that decision. Having said that, the reporting restrictions set out in s. 71(1) of the 2003 Act apply until the conclusion by verdicts of the trial although we give leave for paragraphs 20-22 of this judgment to be published as a note without identifying the name of the case, the court or counsel.

On 24^th March 2015 the victim, Mr Rahul Samma, was telephoned from a number ending 129, which he stored as ‘East Dank’, offering to supply him with cannabis. He asked to speak to the person with whom he had dealt previously on that number: he subsequently identified that person as Umar Anwar. This person later that evening phoned him from a mobile number ending 048, the SIM card having been placed in a phone owned by David Stockley. As instructed Mr Samma drove to Draycot Road in Wanstead arriving at about 12.30am. He drove a friend’s BMW; she was asleep in the front passenger seat.

The Crown adduced compilation CCTV footage from Draycot Road to support its case that the respondents were acting in concert during the attack on Mr Samma. It also relied upon evidence of frequent communication between phones attributed to the respondents between the second call to Mr Samma and his arrival at Draycot Road. Cell site analysis showed phones attributed to the respondents save for Stockley moving from Leytonstone to Wanstead prior to Mr Samma’s arrival. There was also CCTV footage of a van driving along Leytonstone High Road, identical in a number of respects to a van that Stockley admitted having had transported to Plymouth on 9^th April 2015. The judge summarised the effect of this evidence as “a wealth of incriminating telephone cell-site and ANPR [automatic number plate recognition] evidence” which demonstrated that the six respondents “travelled to the area a short time before the incident and departed soon after [Mr Samma] was shot.”

After arriving at Draycot Road, Mr Samma got into a silver Vauxhall Astra to buy the cannabis. There were three occupants. The rear seat passenger said “You know what time it is” before the front seat passenger pointed a shotgun at his face while the driver brandished a knife. The prosecution alleged that Ramone Celaire had the shotgun and Carl Knight the knife; this was said to be based on Mr Samma’s descriptions although there was no identification evidence supporting what was said to be capable of being inferred from the description alone. In any event, there followed a violent struggle during which Mr Samma handed over his watch.

The prosecution submitted that the CCTV footage showed co-ordinated movement between the Astra and a white Mercedes van (alleged to be that shown on the Leytonstone High Road footage). Two men exited the van one being the driver who appeared to run towards the Astra. Mr Samma described seeing a man outside the Astra while he was trying to escape; that man repeatedly slammed the door into his legs to prevent his escape. The second male ran to the vehicle in which Mr Samma had arrived. Mr Samma escaped from the vehicle and ran after this second man. Mr Samma himself was chased by the man with the shotgun.

The second man got into the BMW in which Mr Samma had arrived and put his hands on the wheel. Mr Samma reached the vehicle and grabbed the man out of the driver’s seat while getting into the vehicle himself. He heard this man say, “Shoot him, shoot him”, and the man with the shotgun fired two shots, the second of which could have been fatal had it not had to travel through the BMW’s window. The shotgun had been discharged in the direction of Mr Samma’s chest; the absence of pellets on part of the chest coincided with where he had his right arm. The attackers ran off together and drove away in the Astra and Mercedes van, although only one man re-entered the van via the driver’s door before the vehicle drove off.

The allegation made by the Crown (as described by Judge Pontius) was that all six respondents were party to a conspiracy to rob Rahul Samma and that the agreement, in which all participated, was accompanied by a decision that a loaded firearm would be carried to the scene of the planned robbery, the shared intention being that the gun would be used specifically to kill Mr Samma “if the need arose, e.g. if the victim put up any resistance”. As the judge observed, in those circumstances, an intention to kill would have to be proved, there being no alternative of attempting to cause grievous bodily harm. Further, it was not suggested that an intention to kill arose only at the time of the robbery being carried out “in an unplanned and spontaneous escalation of events”.

The Crown’s case relied upon the facts that the loaded shotgun had been taken to the scene by someone and that after a chase of the victim from one of the robbers’ vehicles, the shotgun had been fired twice, apparently after someone shouted, “Shoot him, shoot him.” The Crown further submitted that other evidence such as cell site showed all the defendants converging to a quiet residential street as well as departing shortly after the shooting and that the gun was fired at a time when it could reasonably be supposed that Mr Samma was trying to prevent one of the robbers from stealing the car in which he had arrived. In the event, it was argued that all this formed a sound basis upon which the jury could conclude that not only was this a well-planned criminal enterprise but that all the robbers had the necessary knowledge that a firearm was to be carried to the robbery, and intended to be used during the course of the robbery, with the required if conditional intention to kill.

As to approach, the judge accepted the common submission advanced on behalf of the defendants, observing:

“It must follow that, in order to achieve a conviction, the prosecution would have to produce sufficient evidence to make the jury sure that, at the time the conspiracy to commit robbery was hatched, a defendant knew that – as part of the plan – a firearm loaded with live rounds, was to be carried to the scene of the intended robbery and, further, that the defendant (again, at the time he joined in the agreement to rob) intended that the firearm should be used to kill [Mr Samma] if he resisted the robbers.”

Furthermore, he also accepted that a distinction had to be drawn between conditional intent and foresight of the consequences of another’s act which is of particular importance following the Supreme Court decision in R v Jogee. Thus, the Crown’s case required not only proof of awareness that an accomplice carried a loaded firearm and that this might be used to kill during the robbery but also that the gunman shot Mr Samma with the requisite intention for attempted murder and the particular accomplice then being considered intentionally assisted or encouraged the gunman, intending him to use the gun to kill the victim if the need arose. “Essentially”, therefore, there had to be evidence capable of proving an awareness at the time of joining the agreement “of the possession of the loaded shotgun by one of his fellow conspirators”.

The judge went on applying the principles he identified in Jogee (at [94]) albeit adopting a test which considered the matter at a later stage, namely presence at the scene:

“That, in turn, requires reliable evidence of identification upon which the jury could safely act in order to identify a defendant as being present at the scene of the robbery and shooting, whether or not identifiable as the gunman. Such identification evidence might, depending on the jury’s view, be capable of providing a basis for concluding that the defendant had the necessary conditional intent that RS should be shot dead and, further, that an attempt to murder him was within the scope of the plan to which the defendant had given his assent and intentional support (borrowing the words used at [94] of [Jogee].”

The judge then considered who could be proved to have been present in the Astra (in which the gun was produced) and concluded that, in his judgment, “there was no reliable evidence upon which the jury could be satisfied that any particular defendant was present in that vehicle at the time RS having entered it, was robbed, assaulted and threatened with a shotgun”. Seeking to make good that conclusion, he then analysed the detailed evidence with some care.

It is of significance to add that he observed that “it would plainly be naïve to imagine that anyone present in the Astra when it arrived in Draycott Road was not aware of the shotgun, given the size of such a weapon, even if … the barrels had been shortened” before going on to conclude that:

“the state of the identification evidence prevents the prosecution from inviting the jury confidently to conclude that any one of the defendants was one of the three men in that vehicle or, alternatively, was the man who fired the shots”.

Thus, although there was a case for all defendants to answer in respect of the count of conspiracy to rob, he concluded that there was no evidence to establish a prima facie case as to (a) any particular defendant being in the Vauxhall Astra; (b) any particular defendant holding the shotgun either in the Astra or when the shots were fired; or (c) crucially any particular defendant being aware, by the time of travelling to the scene that the shotgun was loaded, or that he was intending that it should be used if necessary specifically to kill.

Ms Catherine Farrelly for the Crown argues in relation to each of the respondents that on any reasonable view, the evidence supported a safe inference that anyone who agreed to and participated in the robbery must have known that a loaded shotgun was being carried to the scene and intended that it be used with intent to kill should the need arise. Thus, the judge was wrong to limit his analysis to a consideration of whether the evidence was sufficient to prove the presence of any particular defendant on Draycott Road. Furthermore, the judge failed to take into account the material consideration that the circumstances in which the words “Shoot him, shoot him” were uttered followed, as they were, immediately by discharge of the shotgun twice at the intended victim. She contended that the evidence showed that these words were spoken by a man from the Mercedes van so that it was open to a jury to conclude that even those who had not been in the Astra with the shotgun were aware of a loaded shotgun being carried and shared an intent that it be used with intent to kill should the need arise.

Furthermore, in relation to Celaire, it was argued that there was additional evidence that he was the gunman on the basis that he had changed his appearance (by shaving) shortly before attending the police station on 5^th July 2015. This was said to be relevant to support the reliability of Mr Samma’s description of the gunman as having a moustache and hair on his chin (which was removed): it was contended that this change to appearance flowed from the fact that Mr Samma had seen him. Additionally, there was evidence from YouTube which was evidence of his being in a gang with access to and willingness to use firearms.

The respondents point to the requirement that there had to be sufficient evidence that a jury could be sure that each defendant joined an agreement to rob knowing that in the event of resistance, he would be shot dead with a loaded shotgun. It is contended that the evidence went no further than establishing a conspiracy to rob but that there was no evidence that its terms were any wider so as to include possession, let alone the use of a firearm. Furthermore, it was argued that the prosecution ignore the possibility that although the person with the shotgun took it to the scene with the knowledge of those in the Astra, the others were in ignorance of his possession of the weapon, let alone his intention to use it. Furthermore, it is argued that the prosecution now concede that it cannot prove that any defendant (with the exception of Celaire) was present in Draycott Road.

Before analysing the facts of this case, the recent seminal decision of the Supreme Court requires some consideration. In his judgment, the learned judge refers to Jogee on no fewer than four occasions, but it is important to underline that it was common ground before us that the decision did not advance the argument about whether or not there was a case to answer in respect of any of these respondents. Suffice to say, for our part, we find it difficult to foresee circumstances in which there might have been a case to answer under the law before Jogee but, because of the way in which the law is now articulated, there no longer is. In addition to sufficient proof of encouragement or assistance, what is required is an intention, perhaps conditional, to encourage the commission of the relevant offence: see [90]. It is clear that any defendant must have knowledge of existing facts necessary for the principal’s intended conduct to be criminal and knowledge, if such there be, that any particular weapon is carried by the principal will be evidence going to the jury’s assessment of the defendant’s intention: see [9], [16], [26].

The jury will, of course, continue to look at the full picture or factual matrix in order to determine whether the relevant and necessary intent can be inferred. Thus, Lord Hughes and Lord Toulson emphasised (at [93]) that juries frequently decided questions of intent (and conditional intent) by a process of inference from facts and circumstances proved (using the notation of that case): “whether they are sure that D1’s act was within the scope of the joint venture, that is, whether D2 expressly or tacitly agreed to a plan which included D1 going as far as he did and committing crime B if the occasion arose”. They went on (at [94]) in these terms:

“If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose; or in other words that it was within the scope of the plan to which D gave his assent and intentional support. But that will be a question of fact for the jury in all the circumstances.”

Thus, the same facts which would previously have been used to support the inference of mens rea before the decision in Jogee will equally be used now. What has changed is the articulation of the mens rea and the requirement that to prove (in the case of Jogee) the crime of murder it is not sufficient that D2 foresaw that D1 might intentionally cause grievous bodily harm or kill if the circumstances arose. What is now required is that D2 intended that D1 cause grievous bodily harm or kill if the circumstances arise. Thus, the evidential requirements justifying a decision that there is a case to answer are likely to be the same even if, applying the facts to the different directions in law, the jury might reach a different conclusion.

The issue for the Judge Pontius was whether a reasonable jury properly directed could be sure that the particular defendant participated with others in a plan to rob Mr Samma, first, knowing that one of their number had embarked on the enterprise with a loaded shotgun and, second, intending that the enterprise should include the discharge of the loaded weapon with intent to kill in the event that its use was rendered necessary in the course of the robbery.

In this case, there is evidence of significant pre-planning and coordination between a number of defendants, first, to lure the victim to a place where he can be robbed and, secondly, with movement of all those who attended at or near the scene from one part of London to the scene along with their return after the shooting. In those circumstances, although no prior agreement is, of course, necessary, we see no reason why a reasonable jury could not draw the inference that what actually occurred had been the subject of discussion prior to the initiating telephone call and was, in the event, what each of the participants agreed should occur.

If the jury were to draw the inference that the planning for the robbery included agreement as to the means to threaten the victim and the willingness to use the weapon if occasion for its use occurred, then the acts of the man in possession of the firearm were acts in pursuance of the joint enterprise that there is prima facie evidence each defendant was party to. In that context, as Judge Pontius observed (and has not been disputed before us), there was undeniably a case to answer in respect of the men in the Astra, one of whom had the gun.

As to those who were not in the Astra, the comment that can be attributed to a participant other than the man in possession of the weapon which happened in the 45 seconds between the CCTV capturing someone coming out of the silver Astra and people returning to it after the shots had been fired was the exhortation ‘shoot him, shoot him’. It is accepted (and we agree) that there is material which allows the jury to conclude that this was said by one of those who came out of the Mercedes van: this is highly suggestive of the conclusion that someone in that van believed the firearm was loaded and capable of being fired. This may not be the only inference to be drawn, but it is a reasonable one, and a matter for the jury in the light of all the evidence. This piece of evidence therefore provides support for the prosecution case that what occurred was neither unexpected nor an individual act of the shooter outside the scope of the joint enterprise but that, rather, those in the Mercedes van must also have appreciated the position.

Beyond that, we accept that it might be that one or more of the participants in the conspiracy to rob might not have been in either car. But once there is evidence that the occupants of both those two vehicles knew about the presence of the loaded gun, with one exhorting the principal to shoot Mr Samma, given the evidence of planning and coordination (not least the way in which the victim was lured to the scene) it is a legitimate inference that all involved knew what was planned. Without in any sense reversing the burden of proof, there is nothing that we have been shown in the evidence that is inconsistent with that inference.

Returning to the approach of Judge Pontius, having correctly identified the question, when he came to answer it (at paragraph 24 of his judgment), he did so only by reference to prima facie evidence of presence in the Astra, possession of the shotgun either in the vehicle or when the shots were fired and awareness “by any particular defendant” when travelling to the scene, that the shotgun was loaded and intended to be used, if necessary, specifically to kill. Had he analysed the case from the evidence of participation from the outset in the conspiracy and the inferences to be drawn from what happened before, during and after the incident, for there to be a case for any defendant to answer, it was unnecessary that the judge should be able to ascribe a particular role or responsibility that defendant. Whether that will be sufficient for the jury is, of course, another matter.

We, therefore, conclude that the judge was wrong to conclude that the existence of a case to answer depended on proof that any one defendant was inside the silver Astra where the size of the shotgun is likely to have alerted all occupants to its presence or otherwise played some identifiable role in the events of that night. This error can be described equally as an error of law in identifying what reasonable inferences can be drawn from the facts proved or admitted, or an unreasonable overall conclusion as to the sufficiency of the evidence at this stage of the trial that it was not open to a reasonable judge properly directing himself to reach.

We deal shortly with the other submissions made by the Crown relating to free standing argument that there was a case for Celaire to answer in relation to the allegation of attempted murder and possession of a firearm. Suffice to say, we agree that the judge was entitled to reach the conclusion that the quality of the evidence that was said to identify that defendant as the gun man was insufficient to leave the case to the jury on that basis alone. The judge noted the weaknesses and inconsistences in the evidence at paragraph 16 of his judgment and it was entirely a matter for him to decide whether the evidence of description (which is different from identification) was sufficient to leave the case to the jury on that basis alone. That does not mean that the evidence on which the Crown relied before us in the hearing of this appeal will not play a role in the remainder of the trial; again, that will be a matter for the jury.

For the reasons which we have sought to explain, we granted leave and allowed the appeal by reversing the decision of the judge on the basis that the ruling involved an error of law or principle and thus was not a ruling that it was reasonable for the judge to have made. We ordered that the proceedings in the Crown Court be resumed: see s. 61(4) of the 2003 Act.