R v Kalam Bagge & Anor

LORD JUSTICE WILLIAM DAVIS: This judgment is subject to an order made pursuant to section 4(2) of the Contempt of Court Act 1981 postponing publication of any report of these proceedings until the conclusion of the forthcoming trial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings. This order is to remain in place until verdicts are returned or the trial judge otherwise directs.

On 19 June 2024 in the Central Criminal Court, Kalam Bagge, Rhys Antwi, Tyrese Barnett and Leo Reid were convicted of murder. Barnett was also convicted of attempted murder. Antwi had previously pleaded guilty to having an offensive weapon. Two other men were acquitted of murder. Finally, for different reasons, no verdict was reached in relation to two further people allegedly involved in the murder. They are to be tried in a few weeks' time.

Bagge and Antwi applied for leave to appeal against conviction. The Registrar has referred their applications to the full court without any consideration of the case by a single judge. She took that course because of the imminence of the further trial of the two other people charged with murder.

Both applicants and the prosecution have been represented at this hearing of the application by leading counsel. Thus, we have been able to deal with the case in the same way as if it were a full hearing of the appeal.

The victim of the murder was a young man named Tyler McDermott. In the early hours of 13 April 2023 in a street in Tottenham he was shot in the head by Barnett. After Barnett had shot McDermott, Reid struck him with a sword-like knife on the right hip/buttock area causing a gaping wound. Although that wound could have been fatal, the pathological evidence was that the gunshot may have led immediately to Mr McDermott's death. The shooting was treated as the substantial cause of death.

The case against Bagge and Antwi was that there was a conditional agreement between them and the other defendants charged with murder that, should the need arise, one or more of them would use unlawful violence against one or more persons, intending at the least to cause really serious harm. The prosecution said that the actions of Barnett and Reid were carried out in furtherance of the agreement. They said that, by reference to what happened prior to the shooting, the proximity of the applicants Bagge and Antwi at the time of the shooting and what the applicants did after the shooting, the jury could be sure that the applicants were party to the agreement. Further, by entering into the agreement the applicants assisted or encouraged the principal offender, namely Barnett.

Both applicants now argue that there was insufficient evidence at the close of the prosecution case for a reasonable jury properly to conclude there was an agreement as alleged and/or that either applicant was party to it. Submissions of no case to answer were made at the trial on behalf of each applicant. The applicants say that the judge was in error when she rejected those submissions.

Antwi has two further grounds. The first of the further grounds relates to the position of Barnett. He was called to give evidence. He concluded his evidence-in-chief. He then refused to return to court to be cross-examined. The trial continued in Barnett's absence. Antwi's submission is that the absence of Barnett rendered it unfair to continue the trial in his case. In relation to him the jury should have been discharged. The second additional ground relied on by Antwi relates to the admission of what is said to be bad character evidence in relation to the co-accused Reid. It is argued that admission of this evidence caused such prejudice to Antwi's case as to render his conviction unsafe.

In the early hours of 13 April 2023, Bagge and Reid, together with a female, arrived at Pirate Studios in Tottenham. Barnett, Antwi and others were already there. There was a party taking place at the venue. When Bagge's group arrived, Barnett and the others met them in a corridor at the venue. The combined group went to the room where the party was taking place. At the door to that room the female, who had arrived carrying a plastic shopping bag, and Barnett, stood close to each other for a short time. CCTV footage was insufficiently clear to establish precisely what happened. There was time whilst they were standing together for the female to hand something to Barnett. Other members of the combined group were close by at this point. Shortly afterwards Barnett, Reid and Bagge moved to a secluded area away from the room in which the party was taking place. From CCTV footage it appeared that Barnett was showing something to the other two. When they emerged from that area something blue was visible in Barnett's pocket. It had not been visible previously. Whatever the blue thing was could not be identified at that point by reference to the CCTV. However, the gun that Barnett used to shoot McDermott was in a blue plastic bag.

At an earlier stage and prior to the arrival of Bagge's group, Antwi had been given a large knife, very similar in appearance to the one later in Reid's possession. He had been given it by a female in an area off a corridor at the venue. There was clear CCTV footage of the handing over of the knife. Having been given the knife, Antwi showed it to Barnett and another young male (one of those in relation to whom no verdict was reached). As they moved away from the area where Antwi had produced the knife, Antwi made what can reasonably be described as a gun gesture with his hands in the direction of Barnett. This was prior to the arrival of the female with the shopping bag who came to the venue with Bagge.

In the period leading up to around 4 o'clock in the morning, the group, which included the applicants, spent a significant period together in the corridor outside the room in which the party was going on. The CCTV footage showed that periodically they were in close discussion, one with another. At the same time, McDermott and other young men with whom he was associated, were in the same general area. The groups were not engaging in any friendly fashion. It appeared there was some tension between them. The sword-like knife with which Reid struck McDermott was concealed down his trousers whilst he was in the venue. As the combined group was in the corridor Reid took out the knife. On the CCTV footage it appeared that he was doing so just in order to adjust its position. However, when he took out the knife it was fully visible to anyone in the corridor. Precisely who was looking at Reid as he did this was not clear from the CCTV footage. Equally, he took no steps to conceal what he had with him. The knife was large and obvious.

At around 4.00 am Barnett, Reid, the applicants and other members of the group left the venue. Once outside they stood in a group on the far side of the road from the venue's exit. McDermott and others emerged shortly afterwards. McDermott moved towards Barnett's group. If anything was said it was only a few words because within a few moments Barnett pointed the gun at McDermott and shot him. He turned and fired at one of McDermott's friends. With the exception of Reid he and the other members of the combined group, including the applicants, turned and ran off. Reid ran at the body of McDermott lying on the road. He swung a blow with the sword-like knife, causing the wound to which we have referred. He then also ran off, joining the combined group.

At some point the group split. Bagge and Antwi walked to Walthamstow bus station with another member of the group. CCTV footage from the bus station showed Bagge dropping an object and then retrieving it. The object appeared to be a knife. Subsequently Antwi travelled from Walthamstow to Northampton where he booked into a Travelodge.

Both applicants were arrested about a week later. When interviewed both made no comment.

In the course of the prosecution case at trial, the prosecution applied to adduce evidence that in 2022 Reid had had an account with a company in Luton which sold what were described as "Roman sword knives". In October and November 2022 he bought eight such knives. The knives sold by the company were very similar in appearance to the knife found at Antwi's home on 20 April 2023 i.e. the knife handed to Antwi on the night of the murder. The argument was that the evidence of Reid's purchase of the knives was evidence to do with the facts of the offence. It was a proper inference that he had supplied the knife recovered from Antwi's home. Such supply it was said, was relevant to the issue of whether Reid knew that others in the group were armed, which in turn went to the question of the existence of an agreement of the kind alleged by the prosecution. The judge admitted the evidence, both as evidence to do with the facts of the case and, in the alternative, as evidence relevant to an important issue in the case, pursuant to section 101(1)(d) of the Criminal Justice Act 2003. When she summed up the case to the jury, she directed them that the evidence was irrelevant to the case against Antwi.

After the judge refused to withdraw the cases of the applicants from the jury at the close of the prosecution case, Barnett gave evidence. In his evidence-in-chief he said that he had found the gun outside a party at which he had been prior to going to the Pirate Studios. He had given it to the female before he got it back from her at Pirate Studios. He said nothing in his evidence about any gun gesture made by Antwi.

Barnett refused to come to court after he had completed his evidence-in-chief. There was considerable delay whilst investigations were conducted into his mental state and whether his absence from court was due to illness. Eventually it became apparent that Barnett was not prepared to return to court. It was further established that his absence was voluntary. The judge discharged the jury from reaching a verdict in the case of the female who allegedly had handed over the gun to Barnett. The judge found that the trial process was incapable of addressing the prejudice to her case resulting from her counsel's inability to cross-examine Barnett. The judge declined to discharge the jury in Antwi's case.

We shall deal first with the discrete grounds of appeal advanced on behalf of Antwi. The objection to the admission of the evidence relating to Reid's purchase of knives from the company in Luton is that it could not have assisted the jury on the issue of whether Reid knew that Antwi was armed in the early hours of 13 April 2023. The knives were purchased in October and November 2022, namely some six months before the events with which the jury were concerned. To suggest that the purchases indicated that Reid knew that Antwi was armed on the night in question was, it was said, to invite speculation. The evidence, it was further argued, was prejudicial to Antwi's case.

Counsel representing Reid objected to the admission of the evidence. His objection was on the basis that the purchase of the knives was so divorced in time from 13 April 2023 that the evidence lacked any probative value. The judge found that the knives purchased by Reid were singular in appearance and very similar to the knife in Antwi's possession. It was capable of supporting the prosecution case as to Reid's knowledge of what Antwi had on the night in question. As we have said, the judge made it quite clear to the jury that the evidence was of no relevance to the case against Antwi.

We are satisfied that the evidence was properly admitted in the case of Reid. It may not have been the most compelling part of the case against him. As the judge was to direct the jury, even if they were sure that Reid had supplied a knife to Antwi and that this showed that Reid did have knowledge of Antwi's possession of a knife on 13 April 2023, it was only one part of the evidence in the case. However, it had some probative value when considering Reid's case.

We are satisfied that admitting the evidence caused no prejudice to Antwi. The judge directed the jury in unequivocal terms to ignore the evidence when considering the case against Antwi. Antwi's case involved acceptance that he had a large knife with him on the night of the shooting. Reid did not give evidence. When Antwi gave evidence he said that he had obtained the knife from a friend. Even if he said that the knife came from Mr Reid, in our judgment this would not have affected his case.

In oral argument Mr Green KC on behalf of Antwi submitted that the prejudice arose from the prospect that the jury used this evidence to speculate as to the relationship between Antwi and Reid. But the judge's direction was clear. We must proceed on the basis that the jury will have observed that direction. The direction prevented impermissible speculation.

The other discrete ground concerns the decision by the judge not to discharge the jury in Antwi's case when Barnett was not available to be cross-examined. It is argued that Barnett's absence was problematic for Antwi's case. The prosecution case as to how he came by the gun, namely from a female who brought it to Pirate Studios, was similar to their case in relation to Antwi being given a knife by a female. It was argued that, although Barnett said nothing in his evidence about the gun gesture from Antwi which was apparent on the CCTV footage, he was no longer available to be asked about it. It could not be suggested to him that the gesture was innocuous. Barnett had said in evidence that he had heard that McDermott's group had weapons. Antwi was, because of Barnett's absence, not in a position to test this evidence.

Notwithstanding those arguments, we are in no doubt that the judge was right not to discharge the jury in Antwi's case. None of the matters which it is said could have been put to Barnett would have advanced Antwi's case. His position was not prejudiced by the inability to cross-examine Barnett.

In oral submissions Mr Green said that he could have undermined Barnett's credibility by establishing that his explanation as to how he came to have a gun - he had found it earlier in the evening in the street - was incredible. In our judgment Mr Green did not need to cross-examine to establish that proposition. In any event, we do not consider that Antwi's case would have been advanced thereby. Looking at it in the round, at the very least the judge's decision in relation to the discharge of the jury was well within the range reasonably open to her. That is sufficient to dispose of this ground of appeal.

We turn then to the argument put by both applicants, namely that there was no case for them to answer at the close of the prosecution case. In her written ruling the judge set out in considerable detail the facts on which the prosecution relied. We have set out these facts in more summary form earlier in this judgment.

The judge then identified the well-known test in Galbraith before setting out the approach to be taken in a circumstantial case of the kind with which she was faced. She said this:

The judge went on to consider the principles in relation to secondary participation in an offence in the light of the decision of the Supreme Court in Jogee [2016] UKSC 8. She stated that the prosecution had to prove conduct, namely assistance or encouragement of the principal by the secondary party, and the mental element, namely an intention to assist or encourage D1 to attack the victim intending that the principal should kill or cause the victim really serious harm with the intent for murder.

The judge referred to the possibility that demonstrating an agreement that one or more of those parties to the agreement would act with the necessary intent for murder could be an evidential route to the jury finding both the conduct and mental elements necessary to convict a secondary party as set out in Jogee. At [78] the Supreme Court said this:

The judge defined the agreement in this case as follows:

As to whether there was an agreement, the judge concluded that a reasonable jury could determine as follows: all of the group were aware that Reid and Antwi had large knives; all of the group knew that Barnett had a gun, in the case of Bagge because there was evidence he saw it and in Antwi's case because of the gun gesture; the group largely remained together in the venue and were in close discussion when it was apparent there was tension involving McDermott's group; the group left together and remained outside the venue until McDermott appeared; after the shooting they ran off together. These features were sufficient, said the judge, to allow a reasonable jury to find that there was an agreement. Given the weaponry being carried by some members of the group, it was a permissible inference that the agreement was to use violence if the need arose. On the evidence as a whole the applicants were party to the agreement.

The first submission made by the applicants is that the judge adopted an erroneous approach to the assessment of a circumstantial case at the close of the prosecution case. Relying on a line of authority, culminating in Bassett [2020] EWCA Crim 1376 it is argued that the judge had to be satisfied that all reasonable possibilities consistent with the applicant's innocence had been excluded. The submission is that she was wrong when she failed to engage in that exercise.

In our judgment she did not fall into error. She asked whether a reasonable jury, properly directed, could exclude any reasonable possibility consistent with a verdict of not guilty. That was the right question for her to ask. The task of the judge at the close of the prosecution case is as explained in Masih at [3]:

The second argument of the applicants is that cases where a conditional agreement of the kind suggested by the prosecution might arise generally involve instigation of the violence by the accused, whether by a direct confrontation or by going to a place with the intention of creating a confrontation. In this instance, the applicants and the other members of the group did not leave the venue intent on a violent confrontation. We consider that that is a possible analysis of events. An equally valid analysis is that the group was well armed, that several members of the group were armed with knives and in one case a gun, that the group as a whole was aware of the weaponry available and that they waited as a group until McDermott and others emerged from the venue. There was material, in our judgment, on which a reasonable jury could conclude that a conditional agreement of the kind alleged had been reached.

It was also argued in writing that the violence which caused the death of McDermott, namely the use of a gun by Barnett, was an overwhelming, supervening act of the kind referred to in Jogee at [97]:

The judge did not deal with that issue in her ruling. That may be because, insofar as it was raised at all by any defendant, the prosecution argument was that the issue of overwhelming supervening event was a matter to be considered at the conclusion of all of the evidence. Whether that was correct is not necessary for us to decide. If the overwhelming supervening event was said to be Barnett's use of a gun to kill McDermott, the judge explained why there was evidence sufficient to allow a reasonable jury to conclude that the applicants as a matter of fact did contemplate the use of a gun because of their awareness that Barnett had a gun. Even if the judge was wrong about that, there was prima facie evidence that the applicants knew that members of the group were carrying dangerous weapons. More to the point, the applicants themselves were in possession of such weapons. On the basis that there was an agreement of the kind to which the judge referred, Barnett's use of a gun was an escalation of the level of weaponry. It was not of such a character as to relegate to history the argument to which the applicants were said to be party.

The oral submissions on behalf of the applicants concentrated on factual issues. Whether by reference to the first or the second limb of Galbraith, it was argued that the evidence failed to demonstrate the existence of the agreement alleged by the prosecution. It was said that the fact that the applicants were carrying knives was more consistent with the commonplace situation of young men in possession of weapons in order to defend themselves. At no stage did any of the defendants on trial produce a knife, save for Reid. It is argued that what happened outside the venue was spontaneous violence unconnected with any supposed agreement. Neither applicant did any act which assisted either Barnett or Reid. In his submissions Mr Green invited us to consider that it sent out a poor message to young men in the applicants' position if they were to be convicted of murder on the basis of an agreement without any overt act on their part.

With respect to Mr Green, our function is not to send out messages. Rather, it is for us to determine whether the evidence at the close of the prosecution case was capable in law of establishing secondary liability. The rationale at [78] of Jogee is clear. We do not repeat it. We cannot say that the factual matters relied on by the judge did not permit her to find that a reasonable jury could infer that an agreement had been reached and that the agreement amounted to assistance or encouragement. It is said, quite rightly, that there was no evidence of any overt assistance given by the applicants to Barnett in his violence against McDermott. The submission is that the judge did not give proper weight to that feature of the case. In our judgment that ignores the way in which the case was put against the applicants. There was an agreement, at least capable of being established by the evidence, that prior to the attack on McDermott that Barnett should use deadly force. The agreement of itself amounted to assistance or encouragement.

Although not part of the argument relating to the rejection of the submission of no case to answer, Mr Green, both in writing and orally, criticised that part of the summing-up to the jury which dealt with the concept of an agreement. It is not necessary for us to rehearse that passage. Mr Green says that the judge should have referred in the course of her summing-up to the fact that "in most cases" there will be an overt act. That phrase comes from paragraph 78 of Jogee. With respect to Mr Green, we consider that proposition cannot be correct. The judge dealt with the facts of the case before the jury. That was the appropriate course. She was correct to avoid comparison with other cases. She clearly directed the jury, as was the case, that there was no overt act. It was for the jury to determine, notwithstanding that, whether the conditional agreement alleged existed. The judge made no error in her conclusions at the conclusion of the prosecution case. The jury were entitled to reach the verdict that they did in the case of each applicant. It is not our function to seek to second guess those verdicts.

In the event we do not consider that there is any arguable ground that the convictions of the applicants were unsafe. Therefore we refuse permission to appeal.