R v Nana Oppong

This is a renewed application for leave to appeal against conviction, and an application for an extension of time in which to renew an application for leave to appeal against sentence, following refusal by the single judge. The application for leave to appeal against conviction was renewed in time. The application for leave to appeal against sentence appears to have been renewed out of time (although that is not entirely clear). There seems to have been a degree of confusion on the part of the applicant's solicitors, who believed that they had renewed both applications in time. Since the delay does not appear to have been attributable to any fault on the part of the applicant himself, and we do not need to resolve any issues about whether the application was made in time in relation to the conviction, we consider that in fairness we should grant an extension of time for the other application if one is required. We should look at the application on its merits.

On 28 May 2024, following a trial in the Crown Court at Woolwich before Bennathan J and a jury, the applicant was convicted of all four charges on a four count indictment. They included the murder of a man named Robert Powell, who went by the nickname "Fox" (or "Foxy") (count 1). He was shot several times as he left a social gathering at a venue in Essex known as Hills House in the early hours of 13 June 2020. He died of his wounds the following day.

The other offences relating to that incident of which the applicant was convicted were: possession of a firearm with intent to endanger life (count 2); and section 18 wounding with intent (count 3), the victim of which was a bystander who was hit in the leg by a ricocheting bullet. The defence to those counts was that the applicant was not present at the scene of the shooting. The applicant also denied playing any part in the planning of the murder.

The final offence of which the applicant was convicted at the trial was possession of a prohibited firearm, namely, a Glock automatic pistol (count 4). That was a different weapon from the murder weapon. The evidence in relation to that offence consisted of EncroChat encrypted messages passing between the applicant and others, from which the prosecution said that it could be inferred that he was in possession of a Glock handgun. No such gun was ever recovered. The applicant claimed that what he said in those messages about guns and weapons was just him boasting, or humouring those who were enquiring of him whether he could get hold of guns.

The applicant's co-defendant at trial was a man named Israar Shah. He was convicted of murder (count 1) and possession of a firearm with intent to endanger life (count 2). A third man named Temitope Adeyinka, who was present at the scene of the murder, was extradited from Spain. He stood trial after the other two. He was acquitted of murder and of possession of a firearm with intent to endanger life, but convicted of manslaughter.

The applicant had previously pleaded guilty to one charge of conspiracy to supply a controlled drug of Class A (cocaine) over a period of three months. The evidence in relation to that conspiracy largely consisted of the data recovered from his EncroChat telephones.

The trial judge adjourned sentence on all these matters until 31 May 2024, when he passed a life sentence in respect of the murder, with a minimum term of 36 years and 111 days, and concurrent sentences on the other offences, totalling 28 years' imprisonment. Some of the sentences in relation to those other offences were ordered to run concurrently with the others in order to reflect totality. Shah was sentenced to life imprisonment for the murder, with a minimum term of 24 years and 213 days, and to a concurrent term of ten years' imprisonment for the firearms offence.

The minimum term of the life sentence imposed on the applicant of 36 years and 111 days was the equivalent of 38 years before allowance was made for the time that the applicant had spent in custody, either on remand awaiting trial or awaiting sentence.

The deceased was known to be involved in firearms and drugs. He and the applicant knew each other. They both lived in the same area of East London.

On 5/6 June 2020, there was a party in the Beckton area of East London, to which the deceased sent invitations via his Instagram account. He made it known that he would be in attendance. The deceased's mobile phone was cell-sited at the location of the party on the evening of 5 June, before it moved to another location, where an after-party was held.

On the afternoon and evening of 5 to 6 June, the applicant was sent messages on his encrypted EncroChat phone by an associate named Trevor Hamilton. Although there was no reference to the deceased by name, the messages appeared to relate to the location and movement of the deceased and also to the collection and usage of a blue Vauxhall Zefira. Hamilton also attempted, unsuccessfully, to send captures or screenshots to the applicant directly from the deceased's Instagram account. Hamilton, in turn, received messages of a similar kind from another EncroChat user, a man named Brook McCoy, who was also an associate of the applicant.

At around the same time as this was going on, a blue Vauxhall Zafira was captured on ANPR cameras moving around the area of the party in Beckton, in a fashion broadly consistent with the movement of the applicant's primary telephone number, which ends in 9364. There was also evidence that the applicant was in possession of a car key that could be used in a Vauxhall Zafira of the same age as the Zafira that was seen at the scene of the shooting.

About a week before the party at Hills House, the deceased had sent out invitations to the event on his Instagram account.

Prior to the shooting, three vehicles travelled to Hills House in the early hours of the morning of 13 June 2020. They were a Ford Kuga, bearing false number plates; a blue Vauxhall Zafira; and a white Toyota Prius, which was driven by Shah. Adeyinka was a passenger in the Prius. The Prius parked directly outside the venue and the other two cars parked away from the entrance.

Undisputed cell-site evidence showed that a "burner" phone, with the SIM card ending in 2672, was in the Kuga. That phone became known as the "blue burner phone". Another burner phone, with a SIM card ending 7298, travelled in the Zafira. Both of those SIM cards had been purchased in May 2020 from a shop near the applicant's parents' address, together with two other SIM cards. They were set up and connected to the network on 17 May 2020. All four SIM cards had sequential IMEI numbers. 2672 was used for the first time on 5 June 2020. There were ten calls made from that number on 5 to 6 June, all of which were to a girlfriend of the applicant named Monica Holder. Thereafter, it was not used again until the day of the murder.

On the morning of the murder, at around 4.40 am, a lot of people were milling around outside Hills House as the police had been called to disperse the party, which had been attended by far more people than the owners of the venue had agreed with the person who had booked it. At around 4.45 am, Mr Powell (the deceased) and his two adult sons walked out of Hills House. Shortly after they parted company, the Prius drove away and the Kuga pulled up alongside Mr Powell. A gunman got out and shot Mr Powell at least eight times with a 9mm Lugar calibre semi-automatic pistol. The gunman then returned to the Kuga which was driven off. The Zafira followed close behind. The incident was over in a matter of seconds.

Both cars then drove to a nearby industrial estate. The Zafira arrived at 4.58 am and the Kuga a few seconds later. They drove to an area outside the coverage of the CCTV. The Zafira was next seen on CCTV leaving the estate shortly after 5 am. The following day, a van with two occupants entered the industrial estate and travelled towards where the Kuga had been left. The Kuga was then captured on CCTV leaving the estate with the front number plate placed in the windscreen, followed by the van, which now had a single occupant. Neither the Kuga nor the Zafira was recovered; nor was the murder weapon.

The prosecution case was that Shah and Adeyinka were acting as lookouts for the applicant and were positioned to tip him off when the deceased came out of Hills House. The applicant arrived at Hills House in the Kuga. He had control of the 2672 burner phone. He was either the gunman who shot the deceased and injured the other victim; or he intentionally encouraged or assisted the shooting and the injury to the other victim.

The evidence against the applicant was circumstantial, but there was a considerable amount of it. It included: telephone and cell-site evidence placing Shah and Adeyinka and the two burner phones at the scene of the shooting; call data and cell-site data relating to the applicant's two mobile telephones; his EncroChat messages to others discussing guns, drugs and ammunition; and evidence linking his two EncroChat "handles" with content saved to his mobile phone (ending 9364); ANPR and CCTV evidence capturing the movements of the three vehicles; and crime intelligence analysis evidence.

The applicant's 9364 phone ceased to be used at around 3.07 am on the morning of the shooting, but the burner phone (2672) then became live on the network. It started to be used around 20 minutes later. That phone was only ever in contact with three other numbers: Shah's phone; the other burner phone (7298); and the number for Miss Holder, which was called on 5 to 6 June. 7298 was only ever used on the morning of the murder and was solely in contact with 2672.

Prior to the murder, the user of 7298 made a call to 2672, which was around 22 minutes long. 2672 at that stage was connected to the mast that covered the scene of the murder. Shortly after the murder, location data showed 2672 moving away from the scene. The user of that phone made a call which lasted around eight minutes to 7298 at 4.52 am, at the time when the Kuga was heading for the industrial estate. That was the last contact between them. After the Kuga was left at the industrial estate, the 2672 number began to co-ordinate its cell-site data with the movement of the Zafira.

There was evidence that the applicant had carried out an internet search of the shop where the SIM cards were purchased; and there was evidence relating to the purchase of those SIM cards.

On 27 May 2020, the applicant had been driving his own car, an Audi, when he was stopped by the police. Nine telephones were found in the car; and a SIM card in the same IMEI sequence as the burner phones was found, still wrapped and unused. A telephone using the applicant's 9364 number was also found and seized by the police. The applicant subsequently ported that number to a new telephone. Two or three weeks before the murder, the police found cached images and a video of the deceased, as well as evidence of searches of his Instagram account on two of the telephones seized from the applicant on that occasion.

The applicant served two Defence Statements. In the first he said that he was at the home of his former partner, Carleen Knight, at Campbell Road in London on 12 to 13 June 2020. They were having a party to celebrate their son's 18^th birthday. The applicant said that he had given his son a Mercedes car as a birthday present. Celebrations went on for most of the day up to the night. People came to the house throughout that period, and both Adeyinka and Shah attended the party. Whilst the applicant said that he could not be precise as to the timing of his movements because of the passage of time, he had collected the Mercedes from the bodyshop which had been carrying out some modifications to it, and had driven it to Campbell Road.

He left that address after some hours and got a lift to Wapping, where he went to an address within walking distance of the address of a man named Adam Penney. He spent some time at that address with a woman he had arranged to meet the night before, when they were both at another gathering. He did not identify the woman; nor did he give any detail of the address to which he went. He did not say that he was unable to provide that information. He said in his statement that he then went to his mother's address and then to that of his sister, following which he returned to Wapping. In the morning, he went to the barbers which, due to Covid restrictions, was in a private residence. He denied any involvement in the murder; and he denied that the 2672 number was his number. Nothing was said in relation to either the EncroChat or the firearms offence.

Although the applicant did not say in his Defence Statement who it was who drove him to Wapping, it was common ground at trial that he was driven there by Shah in a white Toyota Prius. An Addendum Defence Statement was served which related to the phone to which the 9364 number had been ported, which the applicant said was registered to his sister. However, that statement supplied no further details of the matters referred to in the earlier Defence Statement.

At trial, the applicant gave evidence that he left the party after midnight and was driven to Admiralty House in Wapping by Shah in the Prius. He was then taken by an acquaintance named Henry to Scarborough Street to meet a female named Rakeesha Sanford, with whom he spent the night. He did not return to Wapping until 7.30 am on 13 June 2020. That morning he met his brother, who was driving his sister's BMW, and they then drove to their parents' home to collect Monica Holder,

The prosecution said that the applicant had deliberately withheld the details of the address in Scarborough Street and the name of the woman he met there in order to ambush them.

The sole ground on which leave to appeal against conviction is sought is that the trial judge erred in admitting evidence of a previous conviction from 2012 of perverting the course of justice in 2010, as “bad character” evidence under section 101 of the Criminal Justice Act 2003, gateways (d), (f) and (g), on the basis that none of those gateways was properly applicable, or alternatively that the judge should have excluded the evidence on the ground of unfairness, pursuant to section 101(3) of the Act.

The 2012 conviction arose out of an incident at which the applicant was present at another fatal shooting at a social gathering. On that occasion two men were shot dead by a man named Michael Smith. Smith was subsequently shot and wounded by another man. The applicant and Adeyinka took Smith to hospital in Adeyinka's car and left him at the Accident and Emergency Department. When he was interviewed as a witness, the applicant told the police that he did not witness the shooting; that he did not know the identity of the gunman (Smith); and that he did not know the identity of the man they had driven to hospital.

The applicant was charged with murder in relation to those shootings. The jury were unable to agree on the murder charge at both the first trial and at a retrial, but at the retrial the applicant was convicted of perverting the course of justice in respect of the lies he told to the police about Smith. Ms McAtasney KC, who appears with Mr Gordon in the best traditions of the Bar, pro bono, on behalf of the applicant, told the court that at that earlier trial, in the course of his evidence to the jury, the applicant had admitted that he had told lies to the police on that previous occasion and had given an explanation for those lies, but notwithstanding that explanation, he was convicted by the jury.

The Crown had made two previous applications to adduce the evidence relating to the 2012 conviction, and indeed evidence of a subsequent conviction in 2015 for attempting to cause grievous bodily harm with intent, as bad character evidence. The first application was made at the inception of the trial; and the second was made at the close of the prosecution case. Both of those applications were rejected by the trial judge, although he left open the possibility that a further application might be made, depending on how the defence case was put, and in particular on the evidence of the applicant. In the event, the application was renewed and was allowed on 13 May 2025, when the applicant had finished giving his evidence in chief, but cross-examination had not yet commenced.

We have read the judge's careful and measured written ruling. We have also read the legal directions which he gave to the jury in respect of the evidence, and an explanation for why he gave the directions in the form he did, which he put into a separate document which was uploaded to the Digital Case System. The legal directions to the jury in respect of the evidence are not the subject of complaint, as Ms McAtasney very fairly accepted this morning in the course of her oral submissions.

The judge admitted evidence of: (a) the background to the conviction, where the applicant had been present at a shooting; (b) the fact of the conviction; and (c) the fact that he had stood trial and had been disbelieved on oath. In the event, the Crown limited themselves to introducing (b) and (c). There was an important issue between the prosecution and the defence, namely, whether the applicant had given a truthful account of his whereabouts on the morning of the murder.

In his ruling, the judge referred to the fact that the applicant's evidence at trial supplied much of the information that was missing from his Defence Statements, including the name of the person whom he said he was with at the time of the shooting, and the address at which he said he spent the night. He had also now dealt in detail with the EncroChat messages. The judge said that the applicant had repeatedly told the jury that the EncroChat messages had been edited to make them look incriminating of him, and that the various phone records and extracts in the jury bundle and a timeline document had been deliberately presented in a misleading way to build a case against him.

In her oral submissions this morning, Ms McAtasney said that this was not a fair way of describing what had happened. The EncroChat did not contain all of the communications and the applicant was entitled to point that out. However, the substantive criticisms he made had been in relation to corrections to the timeline which was relied on by the prosecution, and in many cases they were totally fair criticisms of that timeline, because there were calls which had to be inserted within it which the defence then had to go back over. There was also a map which was missed out. Ms McAtasney submitted that the criticisms which were made of the timeline were valid ones, and it could therefore be seen why the applicant had a sense of grievance about it, which only became worse. By way of example, she referred to evidence of a telephone call made on the applicant's normal mobile phone to his former partner, Ms Knight, which lasted for some eight minutes, at the time in May when the blue burner phone was first activated. The applicant was in a different cell-site location when he made that telephone call, and therefore whoever it was who activated the blue burner phone could not have been him. Therefore, not all of the evidence in relation to the blue burner phone associated itself with the applicant. This was important but the entry had been omitted from the timeline.

Ms McAtasney also referred to the applicant's previous conviction for perverting the course of justice. She said that there was no alibi involved on the previous occasion and that the applicant had not created any sort of false impression of his understanding of the criminal justice system, because the jury knew that he had a conviction for the drugs offence and that he had pleaded guilty to that. Nor did he make any bones about the fact that he had been involved in criminal activity. Ms McAtasney submitted that so far as the criticisms made of the prosecution in relation to the timeline and the EncroChat evidence were concerned, it was not the kind of attack on the Crown or any Crown witness which was sufficient to meet the requirements of gateway (g) in the statute. She distinguished a case that was relied on by the prosecution on its facts, because in that case the officer in charge of the case had been accused in cross-examination of telling lies. That was not the situation in the present case.

The Crown have served a very substantial Respondent's Notice in which they have quoted extensive extracts, not only from the judge's written ruling as to why he admitted the evidence, but also from his legal directions to the jury. It is unnecessary for the purposes of this renewed application to repeat those rulings, or to quote from them at length. They are part of the record and can be seen by the applicant.

The judge clearly placed a very great deal of store on the impression that the applicant had made on him when he gave evidence in the witness box. He specifically rejected submissions made by the defence that the applicant had done no more than to take issue with the inaccuracies in the evidence. He described the applicant’s assertions about the deliberate editing of the documents as “repeated and calm” and having witnessed his evidence he said he had no doubt that these were planned comments by the applicant, at times addressing the jury directly.

In our judgment, the judge's ruling was both fair and balanced. He went to great lengths to ensure that only the minimum amount of evidence of bad character would be adduced, so as to minimise any prejudice that might have been caused to the applicant. This court is not in as good a position as the trial judge was to evaluate the impression that the applicant was capable of giving to the jury, or of what he did and said in the witness box. The judge was plainly of the view that there was the kind of attack being mounted on the prosecution that safely brought the matter within gateway (g). It was unnecessary for the evidence to be adduced under more than one gateway, although in all the circumstances, having read all of the material, we are fully satisfied that the judge was entitled to admit the evidence under the other two gateways that he did.

In his legal directions, the judge very clearly explained to the jury not only why he had allowed that evidence to go before them, but how they should deal with it. He said this:

Although complaint was made by Ms McAtasney of the prejudice that the admission of the evidence caused to the applicant – it was said, for example, that there was no way in which the damage could be repaired through re-examination without making matters worse for the applicant, by introducing the circumstances in which the lies had been told on the previous occasion – we are satisfied that those directions to the jury were ample to cure any prejudice that might otherwise have been caused.

The judge's overall rulings were impeccable. He went far and beyond what was required to make sure that the applicant's trial was fair.

We are satisfied that the conviction is safe. Accordingly, we refuse the renewed application for leave to appeal against conviction.

We turn to the renewed application for leave to appeal against sentence. The judge, as we have said, was faced with having to sentence the applicant not only for a murder but for a number of other very serious criminal offences. In relation to the other matters, we have already referred to the fact that he passed concurrent sentences which totalled 28 years' imprisonment. He took into account the principle of totality and he carefully avoided any double counting.

However, when he fixed the minimum term of the life sentence for murder, the judge had to reflect the overall criminality involved. He was scrupulous in making sure that he did not double count for the fact that the murder was committed by the use of a firearm. That in itself meant that the starting point for the minimum sentence was one of 30 years.

As we have said, before time served in custody was taken into account, the judge took a sentence which he elevated from the starting point to one of 38 years' imprisonment. That is the equivalent of a 12 year uplift for a determinate sentence, because when a judge is setting a minimum term for life imprisonment, he is required to take account of the fact that it is the equivalent of two thirds of a normal determinate sentence. Accordingly, we need to stand back to see whether that uplift was arguably manifestly excessive.

The judge identified a number of aggravating features, amongst which was the statutory factor of significant planning and premeditation, of which this case was (as the prosecution put it) an "archetypal example". There had been earlier aborted attempts to find and kill the victim. A number of messages passed between the various people who were involved in the planning of the murder. There were three vehicles involved, plus the van which was used in order to do the tidying up afterwards. That meant that there were at least three other people involved in the murder, and possibly more, depending on who it was who collected the van.

There was a degree of sophistication involved in the criminal offending: EncroChat secure telephones had been employed in the early stages; there was intelligence gathering in relation to the movements of the deceased; burner phones were used at the time of the murder itself; false number plates were used on the car; important evidence was destroyed after the murder; and the gun was never recovered.

The sentence had to reflect the fact that not one, but two female bystanders were hit in the leg by bullets. The injury to the victim who was the subject of the charge of wounding with intent (count 3) was fortunately not permanent or life-changing, but it was nevertheless sufficiently serious for the charge to be one of wounding with intent to cause grievous bodily harm.

The judge referred to the fact that the applicant's actions directly traumatised innocent bystanders. The two adult sons of the deceased, although they had parted company from their father and did not actually see him being shot, rushed to his side in the immediate aftermath of the shooting and immediately witnessed the impact that it had upon him. The bystanders were too frightened to give evidence at the trial.

The applicant also had an extensive criminal record. The offending was committed against a backdrop of serious wholesale drug supply and the offer to supply firearms to others. The antecedent history could not be viewed in isolation. As the judge put it, the applicant's history of violence and involvement in drug dealing suggested a pattern of dangerous criminal behaviour.

It is submitted that, nevertheless, despite all of those features, and despite the fact that the judge had to reflect the overall criminality which, in addition to the murder, merited a sentence of 28 years' imprisonment, the elevation of the life sentence by eight years was too great.

In particular it was said that no or insufficient regard was had to mitigation. The mitigation prayed in aid included the applicant's good conduct in prison; the fact that he has a relatively young family; and his age. He is 45 years of age. At one point it was suggested that this was effectively the equivalent of a whole life sentence. But as was pointed out in the course of exchanges between the court and counsel this morning, that would mean that somebody who committed exactly the same offence but was ten years younger, would merit a similar sentence, but that the applicant would not because he was in his 40s. The logic of that is impossible to defend.

Standing back, looking at the sentence and at the way in which it was structured by the judge, we can find absolutely no fault with it. As the Crown said in the Respondent's Notice, the judge took great pains to ensure that all of the aggravating features were properly taken into account. The mitigating features would not have made a substantial or significant difference to the sentence, taken as a whole. We are satisfied that there is no arguable basis for contending that the sentence is manifestly excessive. Accordingly, for those reasons, the renewed application for leave to appeal against conviction is refused.

We thank both counsel for coming to argue the case as well as they possibly could have done in all the circumstances.