R v Kieran Thomas Claffey & Anor

This is the hearing of renewed applications for leave to appeal against conviction for murder on the part of Mr Claffey and against convictions for conspiracy to rob and murder on the part of Mr Roach. They were convicted on 8 March 2024 following a trial. There are a number of different grounds of appeal.

So far as is material to these applications, the facts can be briefly stated, but that is not to underestimate the important issues for both the prosecution and all of the defendants, including these applicants, with which the jury had to grapple.

A group of men were involved in a conspiracy to rob a local drug dealer who had boasted about his wealth. His name was Braden Lynam, and the prosecution case was that those involved in the conspiracy to rob were Daniel Bull, Harley Wilson, Bradley O'Dell, Leighton Tabone, Aaron Morgan and the applicants Mr Claffey and Mr Roach. All apart from Mr Roach accepted either participation in the conspiracy to rob or presence (said by some of the defendants to be innocent presence) in a car driven to Warburton Road, Southampton, where the robbery was intended to take place.

The prosecution case was that Mr Morgan purchased a Golf motorcar to be used in the robbery. The robbery was to take place in the middle of the night because the conspirators believed that Mr Lynam kept a firearm at the property which he was prepared to use to protect drugs and cash. That fact was emphasised by Mr St Louis KC on behalf of Mr Claffey.

In the early hours of Saturday 2 February 2023 at least four men (although the prosecution case was that it was five men) travelled in the Golf motorcar to a block of flats where Mr Lynam lived. Mr Lynam lived with his mother in a flat that was opposite a flat where Mr Mark Noke lived.

The movements of the Golf showed that the car had returned to Steep Close, which was where Mr Roach had lived with his mother who had died. There was evidence that, after her death, others were living there. There was some evidence that Mr Roach was being taken advantage of by the other persons who were living there, as Mr Haggan KC put it, in a sort of cuckooing arrangement.

There was evidence that the car left at 00:29 hours and arrived at Warburton Road at about 00:49 hours. There were five persons seen crossing the road at 00:57 hours, and there was a 999 call at 01:07 hours. We were shown a video this morning on Ms Harvey's laptop of the five persons crossing the road, which was two persons, another two persons and then a single person. We also had evidence from a photograph showing that they were going at an angle away from the property where Mr Lynam lived. Mr Haggan submitted that it was not evidence upon which reliance could properly be placed.

In any event, the men (however many there were) went to the wrong flat. Someone knocked on the door. Mr Mark Noke opened the door. At some stage he was stabbed in the chest. He managed to call 999 at 01:07 hours. He said that at least four men had knocked on his door and entered and they were wearing masks. The first man who had come in had stabbed him. The second man had an old-style gun with a barrel of 8 to 10 inches. They were asking for a man and a girl. He did not realise he had been stabbed until later. Emergency services attended after his call, but by that stage he had collapsed. They were unable to save him, and he later died.

Following the attack, CCTV evidence showed Mr Morgan's car returning to Steep Close, which was near to Mr Roach's address. A few minutes after that, a taxi arrived and took one of the co-defendants home. The Golf motorcar then headed to Mr Claffey's address at Epping Close, then went back to Steep Close and left later again.

There was a police investigation in which a number of people were arrested, including Mr Bull and Mr Wilson. They admitted their part in the conspiracy to rob. It became common ground that Mr Claffey, Mr Morgan and Mr O'Dell had travelled to the scene. Mr Claffey pleaded guilty to conspiracy to rob. The prosecution also alleged that Mr Roach had attended the scene. He denied being present. After various arrests, Mr Roach attempted to sell the Golf motorcar. He said he had taken advantage of the arrest of others so that he could sell the car to purchase drugs.

There was mobile telephone evidence showing that some of the defendant's mobile phones were in the vicinity of the deceased's flat.

There was DNA evidence found at Mr Noke's flat which had a match probability to Mr Tabone and Mr Claffey.

So far as is material to the grounds of appeal, the evidence of Mr Roach's involvement was based on a reported conversation by Crystal O'Dell that she had had with her brother Bradley O'Dell, she said a few days after the events in question. She said that her brother had said that Justin Roach was there making out that he was a pizza delivery man, and she said that Mr Roach had spoken to the man after the stabbing saying, "Are you alright, mate? Are you alright?". There was also evidence from Julia Dickinson, who had been offered the Golf motorcar by Mr Roach. She said that Mr Roach had said that he did not like the car being around and the police were after him. He had also said he was in the car when it happened, although he was not involved in the stabbing, but he was involved with the people who did the stabbing. Ms Dickinson gave evidence in cross-examination, contradicting that evidence.

There are four proposed grounds of the renewed applications which we have reordered to mirror the sequence in which they arose during the trial.

Mr Roach’s grounds are that the judge erred:

As far as Mr Claffey is concerned, the grounds are that the judge erred:

We turn therefore to deal with Mr Roach, and we are very grateful to Mr Haggan and Ms Harvey for the helpful written and oral submissions.

As to the first ground and the admission of the hearsay evidence given by Crystal O'Dell about what she said her brother Bradley O'Dell had said to her, it was submitted before the judge, and repeated on appeal, that this statement should not have been admitted pursuant to the provisions of section 114(1)(d) of the Criminal Justice Act 2003. The judge addressed the relevant factors in a ruling. As to reliability, he said this:

It was recognised that the judge had given a careful judgment considering the admissibility of the statement and the judge had referred to the difficulties which hearsay evidence may present to the accused and had addressed the relevant factors set out in section 114(2). It is apparent that in cross-examination the defence made substantial headway in obtaining material to show that Crystal O'Dell was an unreliable witness, although of course it remains open to the jury to determine whether any part of her report of the conversation was reliable. That, however, is different from showing that the judge made an error in admitting the evidence. Having considered the judge's judgment, in our judgment there is no arguable basis for showing that the decision to admit the hearsay evidence was wrong.

We turn therefore to consider the submission of no case to answer which was made to the judge and repeated on appeal to us to the effect that the judge was wrong to find that the prosecution case, taken at its highest, was such that a jury properly directed could convict on it.

The judge put the evidence of Ms O'Dell in the context of other evidence of association. The judge referred to the evidence of five men, including the video which Mr Haggan says is irrelevant and does not take the matter any further forward. That analysis is really for the jury. The judge summarised Ms Dickinson's evidence over a number of pages and a number of refinements and inconsistencies and disavowals of the evidence. The judge had noted when ruling on the submission of no case to answer that it was permissible for the jury to accept Crystal O'Dell's first version of events, particularly in the light of the fact that it had become apparent to her that she had created difficulties for her brother. The judge did apply the correct test and there was some evidence from Ms Dickinson that Mr Roach had said that he was in the wrong place at the wrong time. True it is that Ms Dickinson had made concessions in cross-examination and refuted earlier evidence, but again the jury had to look at the whole of her evidence to decide what was true and reliable. Applying the test under Galbraith limb 1, namely that the prosecution case taken at its highest was such that a jury properly directed could not properly convict on it, in our judgment there was sufficient evidence for the jury to consider and assess to decide whether or not Mr Roach was present and had any part in the criminal activities that took place that evening.

We note that, after the submission of no case to answer, there was substantial evidence given at trial, which did identify that Mr Roach was present. We accept that if the submission of no case to answer should have succeeded, then that further material would not have been capable of making the conviction safe. For the reasons we have given, however, we refuse leave to appeal to Mr Roach.

We then turn to Mr Claffey's renewed application, and we are grateful to Mr St Louis and Mr Butler for their helpful written and oral submissions.

We deal first with the failure to permit Mr Claffey to adduce evidence about the opinion of Dr Krljes, a psychologist instructed by the prosecution, that Mr Morgan (a co-defendant who was running a cut-throat defence against Mr Claffey) had exaggerated his lack of understanding and comprehension of proceedings in order to get an intermediary, having, it is said, persuaded another psychologist of the need for the intermediary. That was capable of undermining Mr Morgan's credibility and was 'bad character' evidence within the meaning of misconduct.

The judge had determined that Mr Morgan's credibility was an important matter in issue between Mr Claffey and Mr Morgan. That was because they were running a cut-throat defence and blaming each other for the events of the evening. The judge accepted that Dr Krljes's opinion was capable of being of some, albeit limited, relevance in relation to the issue. The judge said:

The first issue for us to deal with on the renewed application was the submission that the evidence did not come within the provisions of section 98 of the Criminal Justice Act 2003 and in particular 98B, because it was said that it was "evidence of misconduct in connection with the investigation or prosecution of that offence". It was pointed out by Mr St Louis that the judge had made a cryptic reference, to the psychological report in the sentencing remarks. In our judgment the question of whether or not a defendant can have an intermediary cannot sensibly be described as evidence of misconduct "in connection with the investigation or prosecution of the offence". The reason that misconduct which relates to the commission of the offence is exempted, relating to the alleged offence or the investigation or prosecution, is because it is all part and parcel of the original offence and there is no need to go through the hoops in the Criminal Justice Act to get it admitted. It would be stretching the words beyond their proper width to characterise attempting to get an intermediary for a defendant to give evidence as being in connection with the investigation or prosecution of the offence.

That is not the end of the matter, because it being bad character evidence, an attempt was made to adduce it pursuant to section 101(1)(e) of the Criminal Justice Act 2003. So far as is relevant, in criminal proceedings evidence of the defendant's bad character (namely, Mr Morgan's attempt to mislead a psychologist) is admissible if, but only if (and so far as is relevant) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. It was relevant to the important matter in issue, which was Mr Morgan's credibility, but the question is whether it had substantial probative value. It has been said that the test of 'substantial probative value' is used deliberately in order to avoid trials going down different rabbit holes and becoming involved in satellite issues. In our judgment the judge was entitled: to take into account all of the other matters about Mr Morgan’s credibility; to note the dispute between the psychologists, which was bound to give rise to at least some satellite issues (albeit we accept Mr St Louis's submission that it would be resolved by two psychologists giving evidence and further cross-examination of Mr Morgan); and to find that however that was resolved, it could not have substantive probative value. This is particularly so in circumstances where there were other matters in relation to Mr Morgan's credibility, including, importantly, his previous convictions.

That takes us to the final point which was made on behalf of Mr Claffey, which was self-defence. The judge refused to leave that as an issue at the end of the trial. It was not a promising basis to seek a direction on self defence that it was common ground that the party (whoever it was) who had killed Mr Noke had gone to the wrong flat, which was occupied by a wholly innocent and uninvolved man when the relevant drug dealer was in an adjacent flat. Whether self defence was anyone's case is not relevant, because such a direction should be given if it arises on the evidence, even if it is not relied on by a defendant.

It is clear that self-defence involves subjective elements as to what a defendant honestly believed, and objective elements can be taken into account to assess whether or not there is a genuine belief, even if it is unreasonable. A genuine but unreasonable belief may be enough if it is honestly held. There was evidence from Mr Morgan, albeit not accepted by Mr Claffey (but that matters not, because the jury might have accepted it) to the effect that Mr Claffey had said, "I haven't meant to do it". It was said by Mr St Louis that that justifies leaving self-defence because there was the possibility that it might have meant that it was an accident, but it also might have meant that Mr Claffey had been confronted by Mr Noke, Mr Claffey had genuinely believed (as it turned out wholly wrongly) that Mr Noke was in fact Mr Lynam, and that he was armed, and might therefore have reacted instinctively to act in self-defence. That, in our judgment, involves speculation upon speculation. Even giving the widest latitude to defendants to ensure that all matters relevant to a jury are properly before them, there was no basis for the defence of self-defence to be left for the jury. It was not necessary for Mr Claffey to have given evidence to raise the issue, but there did need to be more than speculation.

Therefore, for all those reasons, and notwithstanding the obvious skill and effort that has gone into making these points, we refuse leave to appeal. We are very grateful to counsel who were appearing pro bono.