Dante Morgan & Anor v R

This is an appeal against conviction by Dante Morgan with leave of the single judge. Chakia Lambert renews his application for leave to appeal against conviction following refusal by the single judge. Each of them also pursues an appeal against sentence with leave of the single judge. We shall refer to them by their second names only for brevity’s sake.

On 23 December 2021 in the Crown Court at Wolverhampton, before His Honour Judge Butterfield QC, Morgan (then aged 21) and Lambert (then aged 23) were convicted by the jury of conspiracy to commit robbery.

On 25 March 2022 Morgan was sentenced 9 years imprisonment (to run consecutively to a separate sentence of 9 years detention that had been imposed on 18 September 2020). Lambert was sentenced to 14 years’ imprisonment.

By leave of the single judge, this appellant seeks to challenge his conviction on the basis of the admission of prejudicial material by which the prosecution sought to prove the attribution of one of two mobile phones which it contended were in use by the appellant at the material time. The prosecution attributed mobile number 4428 to the Applicant on the basis of three police custody records. The defence did not accept the attribution and adduced evidence to show the phone belonged to the applicant’s mother. The defence submit that the three police custody records were wrongly admitted into evidence for the following reasons, in the words used in the Grounds:

Although these grounds challenge the two rulings made by the judge to admit the custody records during the prosecution case, Grounds (iii) and (iv) clearly involve an assessment of the safety of the conviction and thereby involve an assessment of whether the judge in summing up sufficiently addressed the prejudicial effect of the admission of the custody records.

Leave was refused by the single Judge and he now seeks leave to appeal on these grounds:

Grounds (i) and (iii) depend on the outcome of Morgan’s appeal. Ground (ii) criticises the Indictment which was in general terms. It reads:-

“CHAKIAH LEON LAMBERT and DANTE MORGAN between the 3rd day of August 2018 and the 17th day of August 2018 conspired together with others unknown to rob”

However, it was not bad in law, and no-one at the trial was in any doubt about the prosecution case. It appears that the argument is based on some comments at a pre-trial hearing by another judge, but it is not remotely arguable that the conviction is unsafe because of the form of the indictment. That renewed application is refused. We will turn to grounds (i) and (iii) if Morgan’s appeal succeeds.

In relation to Morgan’s appeal, the prosecution contends that it is not a sustainable point to argue that the content of the custody record is inadmissible hearsay. The learned judge was right to say that the custody records were business documents. The evidence of the appellant giving the 4428 number when arrested was evidence relevant to the offence and not bad character evidence.

That last sentence is capable of improvement. Bad character evidence is only ever admissible if it is relevant, and it does not follow from the fact that it is relevant that the evidence concerned is not bad character evidence. The prosecution means to submit that the evidence is not bad character evidence because of the terms of section 98 of the Criminal Justice Act 2003 (in which the word “relevance” does not appear). This reads:-

98 “Bad character”

References in this Chapter to evidence of a person's “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a)

has to do with the alleged facts of the offence with which the defendant is charged, or

(b)

is evidence of misconduct in connection with the investigation or prosecution of that offence.

There are three custody records involved in this appeal, created in 2016, 2018 and 2020. The 2018 Record was that which was created following the appellant’s arrest for the offence for which he was being tried. The other two were not. The 2016 arrest did not result in any conviction, but the 2020 arrest did. Morgan’s counsel wished to make a series of points to the jury about the precise content of the forms, and the circumstances in which they came into existence, to submit that they should not conclude that he had ever said that the 4428 phone was his number. This is presumably why a more anodyne form of admission could not be made.

The Prosecution case was that Morgan and Lambert were part of a group of offenders who were planning and carrying out violent robberies in the West Midlands. The dates in the Indictment are set out above, and define the conspiracy alleged.

There were three separate criminal incidents during the indictment period, the first two of which were preparatory acts to the third of them, a robbery which occurred on 16 August 2018. The prosecution did not seek to show that either Morgan or Lambert was involved in that robbery offence as a direct participant but did allege that each was involved in the acquisition of vehicles for use by the group in it. They were arrested in one of those vehicles on 16 August and could be connected to the other by fingerprint and telephone evidence. The connection with the VW Golf was direct in the case of Lambert, as we explain below. In the case of Morgan the connection involved the relationship between Lambert and Morgan and, in particular, a call he made to Lambert just before the robbery of the VW Golf. Morgan was located some distance from the scene of that event by cell site evidence, and his fingerprints were not found on the VW Golf.

The events in a little more detail were as follows:-

The prosecution relied on cell site and communications data from three phones which were referred to by the last 4 numbers of the phone number:

The 4428 phone number was linked to Morgan by evidence from police custody records. The officer in the case gave evidence that it had been provided as Morgan’s number on a custody record in 2016. It appeared again on the custody record in 2018. When arrested again in 2020 for another serious offence, it appeared again. The officer said that the only time the police had called the phone was in 2020 when it was answered by Morgan’s mother, Cynthia Bell. The prosecution case was that Morgan had occasional use of the 4428 number.

Agreed Fact 14 said:

A police custody record, which must be completed when an individual attends the police station, voluntarily or otherwise, shows the following with regard to Dante Morgan:

2.5.2016

Dante Morgan

“Home telephone [blank]

Business Telephone – 07984604428”

Mother - Cynthia Bell

Attended with the defendant

“Home telephone 07984604428….”

16.8.2018

Dante Morgan

“Home telephone [blank]

Business Telephone – 07984604428”

14.7.2020

Dante Morgan

“Home telephone [blank]

Business Telephone – 07984604428”

The police log shows the police called Cynthia Bell on the …4428 number and she answered [4.51pm]”

No doubt this agreed fact was the subject of discussion after the judge’s two rulings which permitted its admission. It is not true that a custody record must be completed whenever a person attends a police station, as the wording perhaps may imply. It is only required, as the name implies, when they have been arrested and taken into custody. Moreover, it is simply not true that one custody record contains that information. Three separate custody records are involved. The effect of this wording is to reduce the prejudicial impact of the circumstances surrounding these records.

A document was placed before the jury which set out agreed conclusions from the phone data. It was agreed between an expert instructed on behalf of the defence and an expert instructed on behalf of the prosecution. This was an analysis of the locational information about the whereabouts of the three phones at relevant times. It is important and we will set out its conclusions in full, omitting some conclusions about the 12 and 16 August:-

2.

Agreed analysis and conclusions

4August 2018

2.1.

The data, between 00:00hrs and 08:55hrs on the 4August 2018, is of a type to be expected if the:

2.1.1.

7774 (LAMBERT) phone had been in the Dudley area at times between 00:10hrs and 00:17hrs and the Tipton area at 00:54hrs.

2.1.2.

4428 (MORGAN) phone had been in the Dudley area at 08:45hrs and 08:55hrs.

2.1.3.

1363 (MORGAN) phone had been in the Dudley area at 00:31hrs.

2.2.

It Is not possible to determine the location of the 7774 (LAMBERT), 4428 (MORGAN) and 1363 (MORGAN) phones at any other times between 00:00hrs and 08:55hrs.

2.3.

There is nothing within the call data records to support any of the subject mobiles operating in the Solihull area during the period under consideration. There were however significant periods of inactivity during which the whereabouts of each mobile cannot be established.

14August 2018

2.7.

The data, on the 14August 2018, is of a type to be expected if the 7774 (LAMBERT) phone had:

2.7.1.

Been in the Oldbury area at 16:56hrs.

2.7.2.

Travelled to the Kingswinford area by 17:33hrs, which neither supports nor conflicts with the presence of this mobile in the area of 23 Brierley Hill Road at 17:20hrs.

2.7.3.

Travelled to the Penn area by 18:02hrs, which is not in conflict with having been at 41 Ashenden Rise at 17:58hrs.

2.7.4.

Travelled to the Smethwick area by 18:41hrs.

2.8.

The data, on the 14August 2018, does not conflict with the 7774 (LAMBERT) phone having moved away from the area of Brierley Hill Road after 17:33hrs and arriving in Penn by 18:02hrs. The cells used at 18:02/18:03hrs do not support this mobile operating at the address 41 Ashenden Rise, albeit, there would have been opportunity for a visit to the area which includes this address by this mobile before or after these connections

2.9.

The data, on the 14August 2018, is of a type to be expected if the 4428 (MORGAN) phone had been in the Bournville area at times between 17:06hrs and 18:41hrs, which is in conflict with having been at 23 Brierley Hill Road at 17:20hrs and 41 Ashenden Rise at 17:58hrs.

2.10.

The data, on the 14August 2018, is of a type to be expected if the 1363 (MORGAN) phone had been in the Dudley area at:

2.10.1.

16:44hrs and at 17:32hrs and 17:33hrs, which is in conflict with having been at 23 Brierley Hill Road at 17:20hrs.

2.10.2.

Times between 17:43hrs and 18:29hrs, which is in conflict with having been at 41 Ashenden Rise at 17:58hrs.

15August 2018

2.11.

The data, on the 15August 2018, between 07:20hrs and 10:20hrs, is of a type to be expected if the:

2.11.1.

7774 (LAMBERT) phone had been in the general Sutton Coldfield area at 07:23hrs and again at 10:05hrs and 10:06hrs.

2.11.2.

4428 (MORGAN) phone had been in an area that includes 2 Arundel Drive at sometime between 07:21hrs and 07:36hrs and again at 08:25hrs and had then moved to the Selly Oak area by 08:51hrs.

2.12.

The call data neither supports, nor conflicts with the possibility of the 4428 (MORGAN) phone being in the area of Tesco Express in Rowley Regis around 08:20hrs, this being within around 3.5km of 2 Arundel Drive using the most direct road route. The same can be said for this mobile being in the area of West Smethwick Park around 08:33hrs.

2.13.

The data, on the 15August 2018, is of a type to be expected if the 1363 (MORGAN) phone had been in an area that includes the location of the ANPR capture of vehicle PX64LLW in the Lozells area at 16:06hrs.

What all this means is that Lambert’s phone suggested he might have been at the theft of the Alfa Romeo, or he might not. He could also have been at the robbery of the VW Golf. The coincidence of the phone being in consistent locations for both events on 14 August is said to be significant. He could not have been at the Tesco robbery. The phone evidence did not put either of the Morgan phones at the scene of any of the incidents. It excluded him from presence at the incidents on 14 August, and he was cell sited at home. The 4428 phone could have been at the Tesco robbery location, but its other locational data suggested that at this time it was being used by his mother on her way to work which would explain that siting.

The locational data was therefore broadly helpful to Morgan, and implicated Lambert only in respect of the robbery of the VW Golf.

It was the communications data which was of greater significance to the case against Morgan. This showed that the 4428 phone was frequently in contact with Lambert, his cousin, during the indictment period. It also showed a contact on which the prosecution placed weight in the case against Morgan. It will be recalled that he gave the number of the disputed 4428 phone, but not the admitted 1363 phone when he was taken into custody on 16 August, 2 days after this relevant contact. The prosecution suggested that the 4428 was used by him when not engaged in criminality, but that the contact involving the 1363 was something he was keen to avoid being linked to him. Strong evidence of attribution of the 1363 phone was found in the searches, so this strategy did not succeed. An empty box for the phone was recovered, but the phone itself was not. He never explained where it had gone.

The contact on the 14 August on which much attention was focussed before us is a call made by the Morgan 1363 phone to the Lambert 7774 number at 17:33:16. The 1363 phone was cell sited to Morgan’s home, and the 7774 number was at a location which would have enabled it to be in the vicinity of the VW Golf robbery and the earlier incident at Brierley Hill Road, see conclusions 2.7.2 and 2.7.3 on the agreed conclusions document set out above. The call lasted 34 seconds. During that day there had been a number of other phone contacts between the 1363 number and numbers attributable to Lambert. At the time when he received that call the prosecution alleged that Lambert was moving from the aborted offence in Brierley Hill Road to the successful robbery in Ashenden Rise. The fingerprint evidence and locational data put Lambert as directly involved with that offence. What were they talking about? Did Morgan call his cousin to find out how he was getting on with the procurement of the vehicle for next day’s planned robbery? If so, it would follow that Morgan was aware of what was happening and implicated in it. Why didn’t Morgan give the police his 1363 number, instead preferring to give them his mother’s number? Neither Morgan nor Lambert gave evidence at the trial, and no answer to these questions was proffered by either of them.

The attribution of the 4428 phone was of limited probative value to the prosecution case. By the end of the evidence it was clear that it was a phone belonging to Morgan’s mother, Cynthia Bell, who gave evidence in the defence case and said that the 4428 number belonged to her on contract and had been her phone for 19 years. Lambert is her brother’s grandson, and so she might call him from time to time. The prosecution suggested that the timing and volume of calls between Lambert and the 4428 phone suggested strongly that it was Morgan using her phone at the times of many of these calls, and relied on this to show the closeness between Lambert and Morgan at the time of the conspiracy. She said that she would allow him to use her phone if he asked.

It is necessary to refer to two rulings given by the judge in relation to the admissibility of the custody records contained in Agreed Fact 14. This occurred during the prosecution case and before the evidence crystallised in the way we have described when Mrs. Bell gave evidence.

On 13 December 2021 the judge heard submissions relating to the admission of evidence of attribution of the 4428 phone. It was disputed by Morgan that this was his phone. The evidence of his mother, that it was her phone but she would have allowed to use it if he had asked, had not been adduced by this stage as the argument occurred during the prosecution case. Counsel for Morgan submittedthat attribution evidence about number 4428 from two custody records (dated 2 May 2016 and dated 14 July 2020) should be excluded. The evidence had not previously been relied on and it was unfair for the Crown to seek to do so at such a late stage. It was submitted that the attribution of the phone was clearly contested in the Defence Statement and so the Crown should have been alive to their need for proof. It was further submitted that it was unfair for the Crown to seek to bolster its evidence of attribution in circumstances where they have not performed a subscriber check on the number in question.

On 14 December 2021 in written reasons the Judge ruledthat the material linking Morgan to the 4428 number did not fall to be analysed as bad character material even if it derived from the custody records. It was to do with the facts of the case and therefore was defined as other than bad character evidence by section 98 of the Criminal Justice Act 2003. There was little or no unfairness and little or no prejudice. He said:-

“-In the case of Dante Morgan, I decline to exclude the two new PIC records the Crown seeks to adduce”.

Following that decision, on 14 December 2021 Mr. Williams made further submissions to the same effect. It was submitted that when the foundation material was looked at it was incapable of sustaining the conclusion the prosecution sought to build upon it (that the phone was attributable to Morgan).Further it was submitted that when the nature of the material was looked at it was more prejudicial than probative and therefore should be excluded whether by virtue of section 78 of the Police and Criminal Act 1984 or the judge’s common law powers. The detail of the submissions is apparent from the ruling.

The judge ruled:-

“The question which is at large is whether …..Dante Morgan, can validly be linked by this material to a phone number ending 4428. On the first of the custody records that name is linked both with Dante Morgan himself and also with his mother, Cynthia Bell, who was present as an appropriate adult. In linking to the defendant it is linked under the heading ‘work telephone’.

I do not for my part, I am afraid, place much store by that. There is no separate entry for a mobile telephone of the detained person. The only entry other than home telephone, ie landline, is work telephone. So I put that point on one side. But it is unquestionably the case on the face of the 2 May 2016 document that the number appears to be linked into both.

On that foundation Mr Williams submits that the appearance of that phone linked to Dante Morgan in later person in custody records is untrustworthy because it may be symptomatic of auto-populating process or simply building on previous entries, ie building on the entries of this 2 May 2016 document.

In my judgment, the prosecution have adequately answered that suggestion by pointing out that the address for the detained person has been updated. The height of the detained person has been updated. The appropriate adult disappears as he disappears from the need to have one present and the right to have someone informed has been updated on the second custody record.

Therefore, I do not find that this material is incapable of belief due to the potential for auto-population.

When it comes to the plain link to Mrs Cynthia Bell, the defendant's mother, the prosecution submit that the phone does link to her. They make that concession, but they say it has not exclusively been used by her and this material is amongst the material that is capable of demonstrating the same.

In my judgment, the material put before me are business documents. They are potentially admissible as such documents created in the course of a trade, profession or business.

I do not accept that it is prejudicial for the jury to understand that someone was processed by the police. That does not connote guilt of any matter. It only connotes investigation. There is the potential for factual points to be made going both ways but in my judgment it is not the case that this material is incapable validly of sustaining the conclusion that the phone number is linked to Dante Morgan whether one takes any of the person in custody records individually or takes the three cumulatively.

I am not for my part attracted by the suggestion of just putting part of this material in. It seems to me that it does stand or fall as a piece and Mr Williams' submissions in that regard have weight. Although when he admitted that this material was symptomatic of a late attempt to attribute the number to his client, again that is not consistent as previously reviewed with the agreed facts being furnished as far back as July 2020 which sought to make that very link.

However, those latter points are no more than context and marginal. In terms of the material overall it seems to me it is not wholly unambiguous but it is capable of validly sustaining a conclusion that it links the defendant to the contested mobile number and so there is no basis upon which to revisit or review my earlier ruling that this material is admissible to that end and I so rule”.

As we have said, an assessment of the safety of the conviction following the admission of evidence is affected by the way in which the matter was dealt with by the judge in summing up. We have emphasised the sentence in the ruling which makes a significant point about prejudice and appears to be the basis on which the judge decided that the evidence was more probative than prejudicial.

When summing up the evidence about the attribution of phone 4428 to Lambert, the judge said this:-

“The other number said by the prosecution to be linked to Mr-Morgan was on a custody record. That's the disputed 4428. A custody record is a document that the police create when they are dealing with somebody.”

He was not asked to expand on this, and no criticism was made of this approach at trial. Mr. Williams candidly told us that the defence did not want to risk highlighting the existence of the custody records because they might then assume a more prominent place in the jury’s mind than otherwise would be the case. Nevertheless, the judge did not direct the jury in the terms he had used when admitting the evidence in the highlighted sentence. There was a later passage where the number of custody records was referred to when the judge summed up some police evidence:-

“He confirmed, as we previously heard, that the 4428 disputed light green phone there wasn't a subscriber check carried on that. He said the reason for that was because in the police's view it had been provided as the defendant's number on a custody record in 2016. Not changed when there was a 2018 custody record and further dealings. Effectively, he was saying in the eyes of the police it had been reiterated it was the defendant's. The only time the police called it was in 2020 and it was answered by the defendant's mother, by Mr Morgan's mum.”

Finally, a further police witness was asked about this, and the judge summed this evidence up as follows:-

“Attribution, said the officer, was based on the previous police documentation that had been referred, to these custody records. His assertion was that the phone number that's now disputed had been put forward as belonging to the defendant and there had also been phone traffic between that number and the number accepted by Mr Lambert in the context that the two are cousins, which backed up the police's belief that it did relate to Dante Morgan and no one else. But he was aware that the phones were being used after arrest. Both the disputed 4428 light green phone and also the 1363 phone that Mr Morgan accepts, as it happens, were both used after the defendants' arrests it was adduced. But the officer in the case, DS Cole, said that he was not aware of that during the time that the defendants were in custody. So, for instance, they couldn't be asked about that in their interviews. He thought when he first was asked about it that 4428, disputed light green phone, was no longer in use but he later went away to check that. He informed us it still is in use to this day.”

The fact that there were multiple custody records was therefore mentioned on at least two occasions, and the defence hope to avoid highlighting it may not have come to fruition.

The judge, in our view, dealt properly with the submissions which were made to him, and which are repeated in grounds (i) and (ii) of this appeal. His finding that there was no prejudice caused by the failure to make applications as required by the CrimPR was open to him and cannot be criticised on this appeal. Equally, the points about the evidential significance of the documents go to weight and were for the jury to assess. They were admissible as evidence in business records under section 117 of the Criminal Justice Act 2003 of the truth of the matter stated, namely

It was for the jury to decide whether those matters were in fact stated in the documents or whether there was some doubt about that, and further for them to consider the arguments about how otherwise that number came to appear on the records. These grounds are not in our judgment arguable.

Where the rulings are more troubling is in their failure fully to address the route to admissibility of the two disputed custody records. These related to arrests in 2016 and 2020 on suspicion of offences which were not part of the offence for which Morgan was on trial. The 2018 custody record was relied on as evidence of misconduct in connection with the investigation or prosecution of the offence with which the defendant is charged. The misconduct was failing to identify honestly the phone which he was using most regularly at the material time, namely the 1363 phone. This was therefore not evidence of bad character and fell within section 98(b) of the Criminal Justice Act 2003. The 2016 and 2020 records were probably correctly treated as “evidence of, or of a disposition towards, misconduct”, although merely being arrested is not itself reprehensible behaviour. However, they plainly did not “have to do with” the offence on the indictment.

Had the judge correctly categorised the 2016 and 2020 records as evidence of bad character, he would have been required to apply section 101(1)(d) of the Criminal Justice Act 2003. He would then have been driven to identify the important matter in issue between the defendant and the prosecution to which it was relevant. We suspect that the answer to this question is much more obvious in hindsight than it was at the time when the judge made his ruling, because the evidence about the communications and locational data of the 2 Morgan phones became much clearer during the trial. The attribution of the 4428 phone to Morgan was not very important at all. It was clearly his mother’s mobile phone number to which he may have had access. If it had been cell-sited at the scene of the robbery of the Golf or the robbery at Tesco, no doubt that degree of attribution would have sufficed to generate some adverse findings against Morgan, since each of those offences was perpetrated by 4 young men. But there was no such evidence. The point which the prosecution could make, and did make, was that when he was being investigated for the 2018 offence he gave his mother’s phone number rather than that of the phone he was actually using. The 2016 and 2020 records did not add anything at all to that point. They were therefore not admissible under section 101(1)(d) and should not have been admitted.

There is some prejudice resulting from the admission of the 2016 and 2020 custody records. That prejudice could not be neutralised by telling the jury that no conviction had resulted from these arrests, because the 2020 arrest did result in a conviction for a serious offence. As we have explained above, the judge did not say anything in summing up which had the effect of neutralising the prejudice. It may perhaps, as defence counsel feared, have been difficult to devise any form of words which would achieve this without simply highlighting the prejudicial evidence.

The question for us, therefore, is whether the wrongful admission of prejudicial evidence leads us to conclude that Morgan’s conviction is unsafe. After much thought, we have decided that it does. This was a case based on circumstantial evidence which was unexplained by Morgan who did not give evidence. The arrest in the Alfa Romeo in company with Lambert and the contact between a phone which was concealed from the police at the time of the robbery of the VW Golf together comprise a case to answer. As such, it was probably not a surprise that the jury found it proved. However, we cannot exclude the possibility that when assessing the strength of the case the jury may have been influenced by the fact that Morgan had been under criminal investigation in 2016 and 2020. In summing up oral evidence given by police witnesses, the judge moved away from the careful (and misleading) terms of the admission and there clearly was material before the jury from which they could conclude that there had been three separate investigations into Morgan. This may have created an unfavourable impression of him, and may have played some part in the jury’s decision.

Accordingly, we allow the appeal against conviction and quash it.

The case against Morgan depended on the guilt of Lambert, but the reverse is not true. Once the jury were sure that Lambert had been guilty of playing a part in the acquisition of the VW Golf, then the contacts between him and Morgan during the conspiracy period acquire evidential value.

The case against Lambert was very strong and, for the reason given above, Morgan’s success on appeal does not undermine his conviction in any way.

This application is therefore refused.

Following the distribution of this judgment in draft the court received a written application for a re-trial in the case of Morgan which we grant. The re-trial should take place before a different judge, nominated by a Presiding Judge of the Midland Circuit.

We heard submissions on behalf of both appellants in relation to sentence, but in view of our decision in relation to Morgan’s conviction we do not think it appropriate to deal with either. Morgan’s sentence is, of course, quashed. We consider that the right course is to adjourn Lambert’s appeal against sentence until after the conclusion of the retrial in Morgan’s case. If he is convicted again, and if he seeks to appeal against the sentence imposed, both appeals will be heard together which we consider is in the interests of justice. Lambert’s sentence will inevitably be long even if his appeal is well-founded and it will be disposed of before any question of his release arises.

We leave the appeal against sentence in Morgan’s case with the observation that the role of the sentencing judge after any conviction at the retrial will be to assess sentence afresh. By statute, the sentence cannot be any more severe than that imposed following the first trial, but that is the only relevant constraint on the powers of the sentencing court at that stage.