Case No: 2009/5668/B2
Neutral Citation Number: [2010] EWCA Crim 1152
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
H.H.J. BYERS
T/2008/7534
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/05/2010
Before :

LORD JUSTICE HOOPER
MR JUSTICE ANDREW SMITH
and
MR JUSTICE DAVID CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :

	Ashley Dwayne Bucknor	Appellant	
	- and -		
	The Queen	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr. D. Spens QC and Mr. Manoj Rupasinghe appeared for the Appellant
Mr. N.J. Atkinson QC appeared for the Respondent

Hearing date: 19th May 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE HOOPER : 
1.	At the conclusion of the hearing we announced our decision to allow the appellant’s appeal against his conviction for murder, quash the conviction and order a retrial. After ordering a retrial we learnt that four other persons said to be involved with the appellant in the murder are being tried for the murder in October.
2.	We now give our reasons. 
3.	The appellant was convicted in the Crown Court at Woolwich (HHJ Byers) on 28th September 2009 of the murder of Ryan Bravo, a young man quite innocently caught up in gang warfare. At an earlier trial the jury could not agree on a verdict on the charge of murder but had convicted the appellant of possession of a firearm. 
4.	The ground of appeal concerns a ruling made by the trial judge that evidence from a Bebo “page” and a “YouTube” “page” was admissible and also concerns his subsequent direction to the jury about that material. We announced our conclusion during the course of argument that the material was inadmissible and that the direction did not cure the problem. Mr Atkinson QC then submitted to us that the jury would necessarily have reached the same verdict even if the inadmissible material had not been before the jury. 
5.	For the purposes of this appeal we can take the facts shortly. 
6.	On 6th August 2008 Ryan Bravo and his brothers Alex and Perry Kiffin had spent the evening at their cousin’s house.  They left to go and buy some milk at Costcutters.  As they entered the store, 2 people (named by the Crown as being Ben Ngamen and Ola) barged in front of them.  Those two people were the targets of a rival gang known as Organised Criminals (“OC”) following a shooting of a member of the OC gang, known as “Troopz”, earlier that day in a park known as Myatt’s Field. The targets received no injuries, the innocent Ryan Bravo was shot dead by mistake.
7.	Three mopeds, two with pillion passengers, were driven to Costcutters. When the mopeds arrived on the scene, the lead bike upon which the appellant and another was riding, was over taken by the 2 other mopeds.  They made a circle around the Costcutters. Two or three of the five persons on mopeds were, so it seems, carrying guns. The deceased was shot by one of the five and the gun which caused the fatal wound was later recovered from an estate nearby. It was the prosecution’s case that the appellant was armed with a gun, that he fired it once in the direction of the targets and that the gun then jammed. There was challenged evidence from a bystander to support that case. CCTV evidence showed that three mopeds and five men were involved and that the appellant was a pillion passenger. The whole incident took only about a minute before the mopeds drove off.
8.	The appellant accepted that he was a pillion passenger on one of the mopeds. The defence case was that the appellant did not have a gun, was not involved in the shooting and that his presence had been innocent. He gave evidence to support that account.
9.	The issue for the jury was whether or not the applicant was participating in the shooting with knowledge that at least one of the group had a gun with which he intended to kill or cause grievous bodily harm.  If the jury were sure that the appellant himself was armed at the time of the shooting, than a conviction was inevitable.
10.	The prosecution relied heavily on what happened about 10 minutes after the shooting. Police officers gave evidence that they had seen a group of 5 people, including the appellant, running and tried to stop them.  The appellant had a helmet half on and was carrying another.  The decision to stop them had been made on the basis that street crime was prevalent in the area, particularly the theft of mopeds.  Due to the group fleeing, a police dog was deployed.  The dog brought the appellant down.  When asked by officers why he was running he replied “people are after me”.  He was asked why he was wearing latex gloves and did not reply.  He was found to be wearing a bag around his neck, containing a gun.  As a result he was arrested and cautioned to which he replied “I have fucked up, haven’t I?” He was taken to the police station and had his hands swabbed.  Another person was creating a fuss in the cells.  Officers observed to the appellant that he seemed very relaxed to which the appellant replied “There is no point in me behaving like him.  I might as well face up to the next 3 to 4 years”.  A tear rolled down his cheek.  The officer asked him if he could not get out of his current lifestyle.  The appellant replied “They want me dead.  Why do you think I have a gun”.  The officer asked him if he had heard about the earlier shooting in Myatt’s Field.  The appellant replied “Yeah, that was my friend”.  
11.	Another officer gave evidence that he had reviewed the appellant’s detention.  He took the appellant to get some fresh air.  The appellant said to him “The officers weren’t even supposed to be there.  Right time, right case”.
12.	Mr. McHardy (firearms expert) gave evidence that samples from the appellant’s clothing provided moderate support for the suggestion that the appellant had recently handled a gun or been close to one being fired.  The firearms residue could also have come from the inside of the bag in which a gun was found.  He could not say whether the appellant had fired the gun himself.
13.	The defendant answered no questions in interview.
14.	The appellant gave evidence that he did not have a gun and did not know anyone who did.  He denied knowing that there was going to be a shooting.  He agreed that his street name was “Hustlar” (spelt with an “ar”).  He had been given this nickname when he was younger due to his being very good at pool.  He gave details of his upbringing and confirmed that he had been convicted of stabbing a man in 2005.  He had been 16 at the time.  He had been involved in an argument with this man.  He had not had a knife in a plastic bag, but had been wearing latex gloves at the time of the stabbing to make people think that he might draw a weapon from the bag.  He had been acting in self-defence when he stabbed the man.
15.	He agreed that he had been a member of the OC gang since 2004/2005.  He had stopped being a member whilst he had been in prison. The gang had been based in Myatts Field. Being a member had made him feel like he was someone.  The age group of the gang was 16-30.  His time in prison had given him time to think.  He had lost a lot of friends to gang violence, all of them shot.  He realised that he did not need to be a gang member to make something of his life.
16.	He described his movements on 6th August 2008.  He had left his father’s house that evening.  He was wearing a black t-shirt, jeans, trainers and a grey bandana.  He had worn the grey bandana as it showed that he was not part of a gang.  He had not heard of “Brooklyn” or the “DFA” or knew that they wore grey bandanas.  He had ridden a pedal bike to meet friends in Aberfeldy House.  None of them were members of a gang.  He had been talking with a friend, Lorenzo, in a car at about 9pm.  10-15 minutes later, 3 bikes arrived on the estate.  The riders took off their helmets.  He recognised them as people he had grown up with.  As he was fearful of reprisals, he refused to name the riders.  One of them (described as “B”) had been a member of the OC gang and had a reputation for violent crime.  “C” was also a member of the OC gang and had a similar reputation.  “A” and “D” were not members of the OC gang.  “D” was a friend of his.  The riders were 3-5 years older than the appellant.  He had last seen them in 2005.  He got out of Lorenzo’s car and associated with them as he had not seen them for 3 years.
17.	The four riders told him that they were going to meet some girls in the Old Kent Road.  They asked him if he wanted to join them.  They had a spare helmet.  They talked about Jayden who had the street name “Troopz”.  He had been shot that afternoon.  The appellant knew him.  The riders did not know who had shot him, but B and C said that they would harm, and possibly shoot, the perpetrator.  They were adamant that they did not know who the shooter had been.  When the mopeds had arrived A and B had been on moped 1, C and D had both been solo riders.  The appellant asked if he could have a ride on moped 3 and then rode it around the estate.  He noticed the moped had a loose exhaust.  When he returned to the others he asked if anyone had any tools.  C had some.  The appellant put on a pair of latex gloves and tightened the exhaust.  The group then gave him a helmet and they went to meet the girls. 
18.	They rode to Red Lion Row.  The appellant thought they would head off to the Old Kent Road from there.  He saw someone running on Westmoreland Road, crossing Red Lion Row.  The 2 mopeds in front turned left into Westmoreland Road and followed into Camberwell Road.  Moped 1 mounted the pavement.  Moped 2 was on the road, close to the pavement.  He saw that C had raised his arm and had a dark object in his hand.  He could not see moped 1.  He heard a popping sound a couple of times.  He thought that a shooting was taking place.  They drove off.  He had been a passenger on the scooter.  He had no weapon.  He noticed the other man had a gun.
19.	They returned to the Ramsey Estate.  Moped 1 and 3 (which the appellant was riding) pulled up.  The appellant got off and asked what had happened.  B said that someone had drawn a gun on them and tried to shoot them.  C came over and gave him a bag, telling him to meet him the other side of the estate.  The appellant suspected that there was a gun in the bag, but was worried about the consequences if he refused.  He put the bag over his head and zipped his top up over it.  He had the bag and began running.  He was frightened of being caught because he was in breach of his licence and had a gun in the bag .
20.	He became aware of the police and being chased by a dog.  The dog caught him.  PC Barnard dealt with him.  The appellant said to Barnard “You people are after me”.  Barnard asked him about the latex gloves.  He did not recall answering any of Barnard’s questions.  When he was asked about the bag he thought there had been a gun in it.  He said that he had “fucked up”.  He thought he was going back to prison and said he might as well face up to 3-4 years referring to the sentence that he might receive.  He was crying and upset.
21.	He denied telling police that “They want me dead.  Why do you think I have a gun?”.  He denied this to them when it was put to him in interview.  He had answered “no comment” in interview on the advice of his solicitor.
22.	We turn now to the material which we decided was inadmissible.
23.	After the murder an officer had searched the internet and found a BEBO page. The material included a number of photographs of the appellant which, he was to say in evidence, he had taken of himself after he had left prison. The photographs had been digitally placed on the page by someone in such a manner as to portray the appellant as a member of the OC gang the members of which engaged in serious criminal violence.  The appellant was referred to as “Hustla” (without the final “r”) and at one point the site associated the appellant with the text “Soon touch road” and the digit “3” apparently associated with him.  The prosecution did not have any evidence of the IP address from which the material was uploaded. 
24.	The whole BEBO page, consisting of 46 separate “pages”, was copied for the jury. 
25.	On the page was a hyper link to a YouTube page which portrayed the OC gang as violent.  There was no picture of the appellant on the YouTube page. The YouTube page recorded on a DVD was shown to the jury.
26.	Before looking at the ruling we turn to what the judge said about the material to the jury:
Now, ...  I want to give you a direction in relation to the Bebo and the OC website on YouTube.  As far as the OC or the YouTube material is concerned, it is simply background to the OC gang.  As far as the Bebo material is concerned, you have heard that on that website, which you have seen and which you have copies of, material is shown which may depict ‑‑ it is a matter for you whether it does ‑‑ this defendant in a somewhat tough light.  The defendant denies any knowledge of that material except some photographs which were taken by him on his cousin's phone.  
You decide when you are looking at that Bebo material whether it is his website and whether he put the entries on it, whether it be at the beginning or at some stage.  If he did not or may not have done, then ignore the material because it cannot help you.  If, however, you are sure it is his website or that at the very least the material on it is there to show him in a tough light and was put there by him, then you may use it to help you if you think it is fair and right to do so in determining whether his presence at the scene that night was accidental in the way that he has described and therefore innocent.  (Emphasis added)

27.	In the ruling on the BEBO material was “plainly admissible” the judge had said:
If this defendant was, and the jury are satisfied that he was, the author of all or some of the material upon that website then it is plainly admissible in this case.  If the jury come to the conclusion that he may not have been involved in the compilation of that website, they are still entitled to receive that evidence as part of the general background to the case.
28.	The judge considered section 78 of the Police and Criminal Evidence Act 198 and said that it was important that the jury receive the evidence.
29.	In his ruling on the YouTube material he had said:
I am satisfied that as part of the background, as I ruled earlier, that this evidence should go before the jury.  They will receive careful directions upon it, but it is plainly admissible and therefore they will receive it.
30.	Mr Spens submits that the jury did not receive the careful directions which the judge had said he would give.
31.	The appellant had given evidence denying any involvement in or knowledge of the material both on the voir dire and in evidence before the jury. In evidence to the jury he said that he was not on the “YouTube” video and had not been involved in making it.  The “Bebo” material had not come from his website.  He had not been involved in its creation.  He did not know of the website before his arrest in August 2008.  He had not accessed it and did not have a password to access it.  The first he was aware of it was when it appeared in the Crown’s paperwork.  The photographs showed him at his grandmother’s house and were taken shortly after his release from prison in February 2008.  He had taken them with his cousin’s telephone.  No one else had been involved in taking them.  The word “3” meant “free” from prison.  “Soon touch road” meant that he would soon be coming home.  He spelt his street name “Hustlar” with an “AR”.  He took the jury through other initials that appeared on the website.  He was not responsible for what appeared on the website.
32.	Mr Spens QC submitted in his skeleton argument that no jury could properly be sure that the BEBO page was the appellant’s page or that he had made the entries and that the judge was wrong to leave it to the jury to reach the conclusion which we have underlined above. (If it was the appellant’s page then it seems likely that the material would be hearsay but admissible as a confession and perhaps also if he had agreed to its inclusion on the site.) Mr Atkinson, after some deliberation, accepted that Mr Spens was right. That alone makes the conviction potentially unsafe.
33.	Mr Spens further argued that both the BEBO and YouTube material were hearsay evidence and could not be admitted otherwise than through one of the gateways. At the first trial there had been a voir dire as to the admissibility of the material and, so it appears, the appellant’s cousin, known as Young Hustla, had given evidence that the BEBO site was his site. We have not seen a transcript of that voir dire nor of the voir dire at the second trial in which we are told the appellant gave evidence denying knowledge of the site and which led to the challenged ruling.
34.	There seems no doubt that a statement made on a BEBO page by (presumably) the account holder of the particular profile may be  a hearsay statement within the scope of Chapter 2 of the Criminal Justice Act 2003 if the statement satisfies  provisions of section 115. That section provides that for the purposes of Chapter 2 a statement is:
any representation of fact or opinion made by a person by whatever means; [including] a representation made in a sketch, photofit or other pictorial form, 
if:
the purpose, or one of the purposes, of the person making the statement appears to the court to have been—
(a)   to cause another person to believe the matter, or
(b)   to cause another person to act ... on the basis that the matter is as stated.
35.	In this case it seems likely that the account holder was representing as fact or opinion that the appellant was at the time a member of the OC gang 
36.	In order to be admissible, the judge had to be satisfied that it was, by virtue of section 114(d), in the interests of justice to admit it. Similar considerations apply to the YouTube page. 
37.	The judge was reluctant to accept the argument of Mr Spens that section 114 applied but said that, if it did apply, he was satisfied that the material was admissible. 
38.	He said in his ruling on the BEBO material:
I have been asked to consider section 114.  If the jury came to the conclusion that they could not be sure that this was the defendant's handiwork, then they would be bound to come to the conclusion that it was hearsay evidence and consequently 114 comes into play, so says Mr Spens.  If Mr Spens is right, then I have to consider whether it should be before the jury.  I have come to the conclusion as I have stated already that a fair trial can still take place.  
I have considered section 114 (1) and I also considered section 114, sub‑section 2 and the provisions outlined (a) to (i). I have come to the conclusion this evidence is receivable by the jury and accordingly it will be.
39.	He reached a similar conclusion about the YouTube material.
40.	If the BEBO and YouTube material were hearsay (as it appears they were on the available evidence) and if the appropriate gateway would be section 114 (as it appears to be), section 114 then requires the judge to have regard to a number of factors, the first one of which is concerned with the issue for which the statement (on the assumption that is true) is said to have probative value. Mr Atkinson agreed in the course of argument before us that the relevant issue was whether the appellant was innocently at the scene of the shooting. If, contrary to his assertion that he had ceased being a member after he had gone to prison, he was in fact a member at the time of the shooting that was strong evidence to prove that his presence was not innocent.  
41.	Given that the central issue in the case was whether the appellant was innocently at the scene the BEBO material was very damaging to the appellant’s case.
42.	Amongst other things the judge, on the facts of this case, had to consider how reliable the maker of the statement was (sub-paragraph (e)).  The judge did not identify the maker. Without identifying the maker it may be unclear how many levels of hearsay are involved. 
43.	Nor did the judge consider the reliability of the maker of the statement that the appellant was a member of the OC. As Moses LJ said in Musone [2007] EWCA Crim 1237.
26. ... In considering admissibility, reliability is a matter for the judge.  If it appears to the judge that the maker of the statement is unreliable that is a powerful indication that the statement should not be admitted in the interests of justice.  The fact that that unreliability can be demonstrated to the jury, if the statement is admitted, does not seem to us to be a legitimate consideration in deciding whether to admit the statement or not.  If it were, then the more the maker of the statement was obviously unreliable, the more likely it would be that the statement would be admitted.  That is not an effect envisaged by section 114.
44.	Furthermore it seems to us on the facts of this case that the judge should have considered how reliable the statement was.  He should also have asked whether the prosecution could call the maker of the statement and if not why not. 
45.	In our view the judge did not approach section 114 as he should have done. In any event, as we have said, his direction to the jury invited them to reach conclusions which no reasonable jury could have reached.
46.	We turn now briefly to the question whether the jury would necessarily have brought in the same verdict had the material not been before the jury. We note that this was a second trial following a disagreement. The jury retired on a Thursday afternoon, deliberated all day Friday and brought their verdict in on the following Monday in the afternoon. On the Friday afternoon the YouTube material was played again at their request in open court, with the foreman asking for the CD to be paused twice so that the images (so it seems) could be studied more carefully. The foreman also asked for the CD to be repeated at one point. The jury had the BEBO material in their room with them during their deliberations.
47.	Mr Atkinson conceded that he was in effect asking this court to conclude that the account given by the appellant of what happened at the time of the shooting and shortly thereafter was so incredible that no jury could have acquitted the appellant.  We take the view that we would be usurping the function of the jury to reach that conclusion in the circumstances of this case.