R v Luke Hibbert

On 19September 2024 in the Crown Court at Derby before His Honour Judge Gregory Dickinson KC, the appellant pleaded guilty to being concerned in supplying to another controlled drugs of Class A (count 6) and Class B (count 7). On 22November 2024, before the same court, the appellant was convicted on the second indictment of murder.

On 25 November 2024, before the same court, the appellant was sentenced for the murder to imprisonment for life with a minimum term of 24 years 4 days after taking into account the time spent on remand. He was sentenced to concurrent terms of 4 years and 1 year for the Class A and Class B drugs respectively.

The appellant appeals against conviction with the leave of the single judge.

There were three co-accused.

On Friday 23 June 2023, at 7.21pm, a 999-call was received in which the caller (a teenage boy) stated that he and his friends had been in a secluded wood not far from a cycle track near the Navigation Inn, Breaston, Derbyshire. He reported seeing the body of a young man in a stream. Paramedics and police officers attended the scene but the male was dead. He was Owen Fairclough, aged 21. His throat had been cut and he had been stabbed twice to his chest.

The prosecution case was that Towell owed the deceased money. The deceased had been pressing Towell to repay the money in the days preceding his death. In addition, Towell believed that the deceased would expose his criminal activities to the police, which would in turn have implications for Hill and the appellant. It was alleged that the co-accused (Hill, Oswald and Towell) and the appellant had planned to murder the deceased. On 21 June, Towell lured Mr Fairclough to a remote location to be killed by him, Hill and Oswald. Just before 11 pm, Towell called a taxi to pick up Mr Fairclough. He arrived at the scene about 10 minutes later and at some point between 11.25 pm and midnight he was murdered. It was alleged that the appellant, albeit not present at the time of the murder, had been aware of the plan to kill the deceased and had intentionally assisted or encouraged the others to carry it out.

To prove the case against him the prosecution relied upon evidence, which included the following:

The defence case was one of denial. The appellant gave evidence in which he denied playing any part in the planning of the killing. Given that the single ground of appeal before us challenges the judge's decision to reject the submission of no case to answer at the end of the prosecution case, there is no need for us to summarise in this judgment the evidence given on behalf of the defence.

The appellant was the only accused to make a submission of no case to answer. The judge had the benefit of clear written submissions from Mr Sam Green KC in substantially the same terms as his skeleton before us. The judge's ruling was careful and detailed. We give only a summary of it.

The judge said that on the evidence the jury would be entitled to conclude that Mr Fairclough was killed by Towell, Hill or Oswald and that all three were present at the time of the killing and participated in it either as a principal or secondary party. However, the appellant was not present at or in the vicinity of the killing, there was no evidence that he did anything to help the others at the time of the killing, or any direct evidence of an act or assistance or encouragement before the attack. The judge then directed himself by reference to the legal principles on the determination of submissions of no case to answer.

Mr Green had accepted that there was evidence that the appellant had known about a plot to kill someone, but the judge accepted his submission that an omission on the appellant's part to prevent or discourage the killing could not found criminal liability. He said that the prosecution had to prove some act of intentional assistance or encouragement with the intention that Mr Fairclough should be killed.

The prosecution had submitted that there was evidence of the appellant's participation in the planning of the killing. As a party to that plan he had encouraged the killing. That was the central issue before the judge, and indeed before us. Mr Green fairly and correctly accepted that if a reasonable jury, properly directed, could infer that the appellant participated in the making of the plan in this case, then it followed that they could conclude that he encouraged or assisted that plan and the killing.

The judge said that the appellant and Hill were long-term friends and drug dealers. The appellant had met Towell only recently. There were messages in which Towell tried to involve the appellant in counterfeit currency and document fraud but not the drug dealing to which Towell was a party. There was evidence of Towell’s concern that Mr Fairclough would inform the police about his extensive criminal activities. He was also concerned that any investigation would reveal the criminal activities of Hill and others including the appellant. Indeed, Towell, Hill and the appellant had pleaded guilty to the supply of Class A and Class B drugs.

The judge then went carefully and in some detail through the prosecution's Sequence of Events document in relation to the days before the killing (17-20 June 2023), the day of the killing (21 June 2023) and the following days. He identified communications between Towell, Hill and the appellant from which the appellant's guilt on the count of murder could reasonably be inferred.

The judge also relied upon evidence of the appellant having lied in his police interview but only in relation to one aspect. When he was questioned about the texts to him from Towell referring to the plan and the need for drastic action, the appellant brushed this aside, saying that he assumed this to be a flare-up of Towell's mental health problems — a psychotic episode. But although by that stage he knew that Mr Fairclough had been killed, the prosecution submitted it was significant that he did not say to the police that he knew about the killing but had played no part in it.

The judge concluded that the appellant had a case to answer. He said there was substantial evidence of the plot to kill Mr Fairclough; He identified evidence from which he said a jury could properly infer the appellant's participation by way of encouragement.

We are grateful to Mr Green KC and Mr Reilly, for the appellant, and Mr Joyce KC and Ms Joyce, for the prosecution, for their helpful written and oral submissions.

Mr Green accepts that a reasonable jury was entitled to conclude that the appellant knew of a plan to kill someone and the motive for that plan, namely the victim's threat to expose Towell's criminal activities, in particular drug dealing, which would lead to the police seizing his mobile phones and finding evidence against him, Hill and others of those activities. Those others could have included the appellant. He submitted that in relation to limb 1 of Galbraith there was no evidence that the appellant assisted or encouraged the murder; alternatively, under limb 2, that any evidence to that effect was too tenuous to be left to the jury. There was no direct evidence that the appellant assisted or encouraged the murder, nor was there evidence which taken at its highest could found an inference that he did so. Knowledge is a necessary but not a sufficient ingredient of secondary liability of this kind. An omission to take steps to prevent or discourage a planned criminal act cannot found such liability. The prosecution's case wrongly conflated the appellant's knowledge of the plan and its motive with proof of encouragement or assistance with the necessary intent. The necessary proof of the appellant's guilt could not be inferred from the volume of the contacts between the appellant and Towell or Hill, or by aggregating the messages. In part the appellant's contacts with Hill related to their drug dealing, and with Towell, his seeking to involve the appellant in counterfeit money or other fraudulent offending.

In summary the appellant submits that that the prosecution case depended on speculation rather than permissible inferences about the content of the communications. A reasonable jury could not have excluded all realistic possibilities consistent with the defendant's innocence.

The well-known principles upon which the courts must determine submissions of no case to answer were set out in R v Galbraith [1981] 1 WLR 1039 at 1042 B-D:

In R v Jabber [2006] EWCA Crim 2694, Moses LJ stated at [21] that for a jury to draw an inference adverse to a defendant from a combination of factual circumstances necessarily does involve their rejection of all realistic possibilities consistent with innocence. The true test for there being a case to answer is whether a reasonable jury, not all reasonable juries, could on one possible view of the evidence be entitled to draw adverse inferences against the defendant, rejecting all realistic possibilities consistent with his innocence.

The focus should be on what a reasonable jury could do rather than what it could not do. Reasonable juries may differ because the assessment of facts is not simply an exercise in logic. Different views may reasonably be taken about the weight to be given to potentially relevant evidence. If a judge concludes that a properly directed and reasonable jury could, on one possible view of the evidence taking the prosecution case at its highest, reach adverse inferences sufficient to convict the defendant then the case must not be withdrawn from the jury. The trial must continue (see R v GF [2012] EWCA Crim 1756 at [29]-[36]).

In R v F(S) [2011] EWCA Crim 1844; [2012] QB 703, Lord Judge LCJ reiterated the constitutional primacy of the jury in relation to fact finding, a function which a judge must not usurp (para 36). Accordingly, when ruling on a submission of no case to answer, judges should avoid discussing whether a case can safely be left to the jury or whether it would be safe for them to convict. If the trial continues and the jury does convict, then at that stage any issue about the safety of the conviction would be a matter for this court (para 37).

In this appeal the only issue for us to consider is whether the judge erred in rejecting the submission of no case to answer. No criticism is made, for example, of the legal directions eventually given to the jury or of the summing-up. Given this sole ground of appeal, we remind ourselves that this court will usually focus on whether there was a case for the appellant to answer rather than on any issue or analysis to do with the sufficiency of the reasons given in the judge's ruling (see Simon LJ in R v Chauhan & Croft [2019] EWCA Crim 1111; (2019) 2 Cr App R 27 at [21-23].

We have thought it necessary to set out the relevant legal principles in order to provide the context for our reasoning on this appeal. It is not to suggest that the judge in any way departed from any of those legal principles. Indeed, Mr Green did not submit otherwise.

In addition it is common ground in this appeal that an omission on the appellant's part to prevent or discourage the killing could not found criminal liability. It is also agreed that such liability could not be based on the appellant condoning the killing by communications with his co-accused after the event. The appellant agrees with the judge's formulation of the matters which the prosecution had to prove. The issue is essentially about the proper analysis of the evidence to which the Galbraith test should be applied. We have therefore reviewed the material before us carefully.

The material parts of the Sequence of Events need to be read in context and as a whole. That context includes the fact that the appellant was involved in drug dealing with Hill; Hill likewise with Towell. The appellant had been friends with Hill for many years but he first met Towell not long before the killing. Furthermore, a reasonable jury would have been entitled to conclude that Towell, Hill and Oswald arrived at Breaston not long before 11 pm on 21 June 2023 and that Towell had arranged to meet Fairclough in order to carry out a killing which had been planned the previous day. The issue for them was whether the appellant took part in that planning of the murder.

Towell travelled from the UK to Spain on 12 June 2023. He returned to the UK in the early hours of Saturday 17 June. The issues regarding the debt Towell owed Mr Fairclough had been raised in their messages before the trip to Spain. Mr Fairclough had threatened to go to the police over Towell's criminal activities and there was concern that the ensuing investigation would uncover similar activities on the part of Hill and others.

On 16 June Mr Fairclough told Towell (who was still in Spain at that stage) that he would be available to meet him from Wednesday (i.e. 21 June).

Just before 4 am on 17 June, very shortly after his return to the UK that night, Towell rang Hill. A minute later Towell called the appellant and arranged to visit him. He arrived at the appellant's home at about 4.30 am.

In the context of the problems posed by Mr Fairclough's threat to go to the police, Towell's sequential contacts with Hill and the appellant just after his return in the early hours of the morning could reasonably be taken to indicate that both were at risk from disclosure to the police.

Just after 10.30pm that day the appellant texted Towell offering him general support if ever that should be required.

At 12.22 pm the next day (Sunday 18 June) Towell texted Hill to say that a killing ("a holiday") was planned for Wednesday 21 June and that he needed to talk about the arrangements ("the boarding pass").

At 4 am the next morning Towell texted the appellant thanking him for the chat they had, referring to their meeting on 17 June in the early hours of the morning.

The prosecution's case was that at around 8pm on 19 June the appellant drove Hill from the Nottingham area to Coventry, returning at about 2 am on 20 June. This was for a different purpose, namely for Hill to collect a consignment of drugs. But on Hill's return home there was a series of messages between him and Oswald between 2 am to 4.30 am on 20 June.

At 7.30 am that day Towell called the appellant for about 2 minutes. At 8.30pm the appellant texted Towell, "we’ll have a proper chat about this very soon". The defence said that this could have been to do with a message from Towell the previous day about counterfeit money, but the prosecution said that it was necessary to see what happened later that day. At 8.42pm the appellant telephoned Towell for 26 minutes. Just after that call started Towell texted Hill. Then a few minutes later Hill messaged Oswald, "Signal encrypted so we can talk on call here." The prosecution's case was that a discussion was taking place between these participants about the planning of the murder.

Sometime after 9.24pm the appellant disconnected his phone from the internet at his home and put it into airplane mode. Mr Green accepted this morning that the court should proceed on the basis that the appellant went to Hill's home nearby. There he took a photograph of drugs, cash and a Rambo-style knife.

Evidence indicated that the appellant's phone was taken out of aeroplane mode and he was back home by about 10.15pm.

Between 10.34pm and 10.56pm there were then three calls between Towell and the appellant: the second lasted 5 minutes and the third 26 minutes. These calls occurred about 2 hours after the earlier call between these two which had lasted 26 minutes. At 11.23 the appellant sent a message to Hill.

On the day of the killing the appellant rang Towell at 6.30 am and spoke to him for 16 minutes. At 12.40 pm Towell failed to reach Hill by phone. From 2.20 pm Towell started to contact the appellant becoming increasingly anxious about being unable to communicate with Hill. At 2.25 pm he messaged the appellant asking him to let him know if he had heard from Hill as "time's ticking for this ting". The prosecution say that this was a reference to the plan to murder made the previous day. At 2.25 pm Towell was again unsuccessful in reaching Hill. He tried to ring the appellant but did not get through. The appellant replied by text at 2.27 pm that "he's asleep" (i.e. Hill) and that the appellant himself was recovering.

Two minutes later Towell messaged the appellant:

It is significant that this message used the word holiday twice and the phrase “splash him”. It would have been open to a reasonable jury to read this message as referring to killing the man by stabbing and that if that did not happen Towell's phone would definitely be examined and Hill and other men would be in serious trouble. Given that this message was sent to the appellant, the prosecution rely upon it as one of the indications that he was part of the plan. Why else would a message of this kind be sent?

Between 4.21 and 5.11 pm Towell unsuccessfully made three calls to the appellant.

At 5.15 pm he then sent this frantic text to the appellant:

This message indicated that because Towell could not get hold of Hill, the murder plan made the previous day was at risk. He went on to speak about microwaving his phone and laptop as an apparent attempt to conceal incriminating material, but he added that he could not cover Hill's phone, with the implication that that would incriminate others including the appellant.

At 5.34 pm Towell texted Hill again. At 6.01 pm Hill responded both to Towell and Oswald, saying that he had just woken up. Towell and Hill then spoke on the phone for about 23 minutes.

From about 6.50 pm Oswald, Towell and Hill were travelling to the location where they had arranged to meet prior to carrying out the murder. At 7.15 pm Towell unsuccessfully tried to ring the appellant. Just over an hour later at 8.26 pm the appellant had woken up and unsuccessfully tried to return Towell's call twice. Then at 8.35 pm he sent a message to Towell saying that he had slept through the messages sent to him and asking what the situation was. Read in context, it could properly be inferred that the appellant was referring to the same plan.

There was no reply from Towell. By that stage Towell, Hill and Oswald were in the vicinity of the village of Breaston, By about 10.55 pm the three of them were in the vicinity of the location where the victim was to be killed. Towell booked a taxi to collect Mr Fairclough and bring him there and then the murder took place.

The Sequence of Events then deals with the communications between the appellant and Towell or Hill on 22 June and subsequent days.

Having reviewed all the material before the court, we are satisfied that a reasonable jury could properly have inferred that the appellant knew not only of the plan but also participated in making the plan with the relevant mens rea. A reasonable jury was not restricted to concluding that the appellant only had knowledge of the plan to kill a person who was threatening to tell the police about the criminal activities of Towell and others.

The text messages from Towell to the appellant on 21 June incriminated the appellant. As Mr Joyce rightly submitted, a reasonable jury would be entitled to conclude that Towell would not have referred in those messages to the appellant to a plan to commit a crime, particularly one as serious as murder, unless he had participated in the making of the plan on the previous day. On the day of the killing, Towell did not ask the appellant simply to get Hill to contact him urgently as someone who knew Hill well. A reasonable jury could conclude that he texted the appellant as someone who, as a party to the plan to murder made on the previous day, already understood its importance, that it was to be carried out on the Wednesday, the significance of Hill's involvement, and that the plan was at risk if Hill were to be absent.

Whilst Towell was in Spain he had learnt that Mr Fairclough could meet him from the Wednesday of the following week, 21 June. On 18 June, the day after he returned to the UK, the killing of Mr Fairclough had been set for 21 June. A jury could infer that Towell and others at risk of being investigated wanted to avoid delay and reduce the risk of Mr Fairclough going to the police in the meantime. Although Towell and the appellant had not known each other for long, one of the first things Towell did when he returned to the UK on 17 June, despite the pressure he was under, was to visit the appellant at his home in the early hours of the morning.

Over the next few days there was a substantial amount of communication between the appellant and Towell. There was also a pattern, or sequencing, which involved Towell, Hill and the appellant and sometimes also Oswald. If the jury accepted evidence that the plan was made on 20 June 2021 (which was something which they were entitled to accept), they could also consider the pattern of communications between the four co-accused that day as indicating the appellant's involvement in the planning of the murder.

Although the appellant did not respond to Towell's messages on 21 June when they were sent, when he woke up at around 8.25 pm he saw those messages and rang Towell twice, before sending a text asking what the situation was. A reasonable jury could properly infer that the appellant was concerned to know about the carrying out of the murder plan in view of the frantic messages he had been receiving from Towell while he was asleep, and that he did not simply know about the plan, but he was a participant in it at least by encouragement.

It follows that we do not see any error in the judge's ruling on the submission that there was no case to answer. Instead, we would like to pay tribute to the careful and well-judged reasoning of the judge when he gave his ruling.

Having reviewed all the relevant material, we conclude that the judge made no error in rejecting the appellant's submission of no case to answer and that there is no basis for this court to find the conviction for murder unsafe. For all those reasons we dismiss the appeal.

We would like to thank all counsel for their helpful submissions.