Neutral Citation Number: [2010] EWCA Crim 1981
Case No: 200901402 D2
Case No: 200901406 D2
Case No: 200901603 D2

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ WORSLEY QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/08/2010
Before :

LORD JUSTICE LAWS
MR JUSTICE CHRISTOPHER CLARKE
and
THE HONOURARY RECORDER OF MANCHESTER HIS HONOUR JUDGE ANDREW GILBART QC
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Between :

	Regina	Appellant	
	- and -		
	Mark Osborne
Wayne Collins
Anthony Osborne	Respondent	

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Mr Holland QC and Miss Henry (instructed by Pattichi, Hill & Croques) for Mark Osborne
Mr Lovell-Pank QC and Mr Inyundo (instructed by Hartnells) for Wayne Collins
Mr Lewis QC and Mr Keogh (instructed by Alexander Johnson) for Anthony Osborne

Hearing dates : 19th July 2010
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Judgment

Mr JUSTICE CHRISTOPHER CLARKE : 
1	This is a renewed application on behalf of Mark Osborne, Anthony Osborne, and Wayne Collins, for permission to appeal their convictions for the murder on 1 June 2007 of Mark Treddinick; and, in the cases of Mark and Anthony Osborne, for permission to appeal the sentences imposed upon them. Permission to appeal in respect of all of these matters was refused by the single judge.

History of the proceedings

2	On 9 February 2009 in the Central Criminal Court (HHJ Worsley QC) the applicants Wayne Collins and Anthony Osborne (“Tony Osborne”) were convicted of murder.  On 13 February 2009 the applicant Mark Osborne was convicted of murder.  On 17 February 2009 they were sentenced to life imprisonment. The minimum term specified under s269 (2) of the Criminal Justice Act 2003 was 30 years for Mark Osborne and Anthony Osborne and 32 years for Wayne Collins.  It was ordered that days remanded in custody should count towards sentence: 505 for Wayne Collins and 619 for Anthony Osborne, who was also ordered to pay £10,000 towards prosecution costs. A co-accused Terry Sherman was acquitted of murder.

3	All the applications were refused by the single judge. 

The facts

4	On 1 June 2007, shortly before 2pm, Mark Treddinick (“the deceased”) drove to Benskins Lane, near Romford.  His partner Kerry Ann Shanahan and their 4-year-old son were in the car.  When he got there he pulled in behind a white van.  As he walked towards the passenger door of the van he was shot 8 or 9 times in the lower body and legs by a masked man with a machine gun.  He died shortly afterwards.  The gunman left the scene in a stolen red Golf which was found burnt out that night at a development where Tony Osborne owned a property which was rented out. 

The prosecution case

5	The prosecution case was that Tony Osborne was a drug dealer who employed the deceased to deliver drugs to customers who would telephone him on a mobile phone supplied by Tony Osborne.  This was termed “running the lines”.  The deceased was employed to run lines for Tony Osborne and for his brother, Mark Osborne.  Believing that he had crossed them in a drug deal, Tony Osborne and Mark Osborne ordered and arranged his execution. 

6	They recruited Collins and Sherman to carry out the shooting – Collins as the gunman and Sherman as the getaway driver.  The deceased, a career criminal with convictions including drug importation (in Ireland), was lured to Benskins Lane following telephone calls with Tony Osborne in which he was offered work.  As the deceased approached the white van, Collins, wearing a balaclava which was later recovered from his home address, stepped out from the bushes, shot him 8 or 9 times and then said “That was from Mark.  You’re not so clever now.” 

7	The prosecution case centred on the mobile phone traffic between the parties.  The telephone evidence showed a pattern of calls between Tony Osborne, the deceased and Collins which the prosecution alleged showed Tony Osborne calling the deceased and then immediately calling Collins. Mark Osborne, who was in custody at the time of the shooting, had a trusted cell-mate called Karim Ali who gave evidence that Mark Osborne had a mobile phone in his cell and that he had overheard him talking to Collins after the shooting, when Collins said: “I put 10 in him.” Ali suggested that the shooting was in response to a burglary at Tony Osborne’s address in which a substantial amount of cash (c £ 50,000) and cannabis worth £ 250,000 was stolen for which the deceased was thought to be responsible.  There were also suggestions in the evidence that the deceased owed Tony Osborne £ 20,000 and Mark Osborne £ 8,000; and that Mark Osborne was furious with the deceased for delivering the wrong type of drug to him in prison; or that money had not been delivered to Mark Osborne’s girlfriend. 

The defence- 	 Mark Osborne

8	The defence case for Mark Osborne was that he was not involved in or aware of the shooting.  He did not give evidence at trial.  He relied, inter alia, upon the following: he could not have been directly involved as he was in custody at the time and there was no direct evidence that he arranged it, and in particular no evidence from Karim Ali. The mobile phone evidence did not demonstrate contact between him and his co-accused consistent with him being an organiser (in particular it did not show contact between the Osborne brothers and showed contact with Collins only the night before the murder). The evidence of the gunman saying “this is from Mark” may have been misheard or may have referred to another Mark (in particular Mark Austin, the brother of Tony Osborne’s partner, Carla) or may have been a deliberate red herring by the gunman. Evidence of his actions after the shooting, including sending a threatening text to the deceased and then panicking about it when informed of the shooting, were consistent with his assertion that he was not involved; Karim Ali had reason to fabricate his allegations. The evidence was that Mark Osborne and the deceased were on good terms before the shooting and that Mark Osborne had reasons for wanting the deceased alive in order to bring him contraband goods when in custody. 

The defence	Wayne Collins

9	The defence case for Wayne Collins was that he was not involved in the shooting and that Tony Osborne was responsible for it.  He gave evidence that he was a small time career criminal who in 2007 was working with Sherman.  On 31 May he was asked by Tony Osborne to supply two vehicles, which he did, with the assistance of Sherman.  He assumed they were for some illegal purpose.  Sherman delivered a white Astra van to Benskins Lane on the morning of 1 June and a red Golf to a travellers’ site nearby in the afternoon.  Collins did not go to Benskins Lane but did go to the vicinity.  The mobile telephone traffic related to the provision of the vehicles.  He relied upon the prosecution disclosure that the machine gun used in the shooting had previously been used in a shooting of one of Tony Osborne’s employees, Stephen Oliver, in December 2006 when Collins was in custody.  Both Stephen Oliver and his girlfriend Sarah Kaye were called on behalf of Collins to give evidence about the incident and, being reluctant to do so, were treated as hostile witnesses. 

The defence	Tony Osborne

10	The defence case for Tony Osborne was that Collins was responsible for the killing and he had no knowledge of it until afterwards.  He gave evidence that he was a small-scale drug dealer who had employed the deceased for a brief period.  They were on good terms.  In May 2007 he was working at Horsemans Side, near Benskins Lane, and had a chance meeting with Collins, who was a frightening man.  Collins told Tony Osborne to contact the deceased and arrange for him to meet Collins in Benskins Lane.  Tony Osborne followed these instructions and finally a meeting was set up for 1 June, which explained the schedule of telephone contacts.  Tony Osborne met Collins and Sherman at Horsemans Side that day and then left before Collins’ meeting with the deceased.  He only found out about the shooting afterwards and then threw his mobile phone away in a panic. 

The defence 		Terry Sherman

11	Sherman’s defence was that the jury could not possibly conclude that he was the man seen by Ms Shanahan in the van; that he had no defined role to play on 1st June; and that detailed phone calls to which he was a party only an hour after the murder and his contact with a man about the sale of a stolen Range Rover were inconsistent with any involvement in the murder.

12	The issue for the jury was whether each of the defendants was involved in the murder. 

Rulings during the trial

13	On 18 November 2008, during the trial, the judge ruled on the bad character and hearsay applications by Collins (and Sherman) to admit the evidence of Stephen Oliver and Sarah Kaye concerning the shooting of Oliver in December 2006, in order to support the defence case that Tony Osborne organised both shootings.  A cut-throat defence having developed between Collins (and Sherman) and Tony Osborne, the judge ruled that the evidence should be admitted under s101 Criminal Justice Act 2003, but he was not prepared to consider the hearsay applications at that stage. 

14	On 10 December 2008 the judge ruled upon an application by Collins to admit hearsay evidence concerning the Stephen Oliver shooting, specifically police officers’ notes of conversations with Sarah Kaye.  In evidence, Kaye had denied the conversations.  The defence for Tony Osborne had challenged the authenticity of the notes and the credibility of the officers who produced them.  The judge ruled that a redacted form of the notes should be given to the jury. 

15	On 17 December 2008 the judge ruled against the defence submission that an alternative count of manslaughter should be left before the jury. (Vol III of the transcripts). 

16	We turn to consider the grounds of appeal sought to be advanced by Mark Osborne

Mark Osborne	grounds of appeal

Ground 1: no alternative verdict

17	The first ground, which is common to all 3 applicants, is that the judge should have left an alternative count of manslaughter to the jury. What we have to say in respect of Mark Osborne will apply equally in relation to the other two applicants.

18	We do not regard this as a viable point. The case for the Crown was that this was a contract killing carried out by Collins, who shot the deceased on the instructions of the Osborne brothers, using a Sten type machine gun, which with one burst of continuous automatic fire discharged ten shots of which 8 or 9 struck the deceased.  One bullet misfired. The defence of each defendant was that he had no involvement with the killing whatever.  

19	The judge would have been obliged to leave to the jury any alternative verdict of manslaughter if, on the evidence, it fairly arose. But he was not obliged to leave as a possible alternative a verdict which would not reflect, or was remote from, the real issues in the case. In our judgment, in agreement with the single judge, the suggested alternative would have parted company with reality. The evidence was that the shooting was planned, and was carried out by a gloved gunman masked by a balaclava. It involved the use of a machine gun, evidently loaded with bullets for the purpose, to fire several bullets which entered the deceased between mid thigh and chest level. The firing was, according to the evidence of the eye-witness Kerry-Ann Shanahan followed by the gunman saying “That was from Mark – you’re not so clever now”. Later, according to the evidence of Karim Ali, Collins, the gunman, reported to Mark Osborne with the words “I put 10 in him”. There was no evidence that the killer intended, or was instructed, only to frighten. In particular there was no such evidence from Collins, whom the jury must, in the light of the judge’s direction, have found was the gunman. Manslaughter was far from being a verdict which was obviously raised by the evidence.  In truth it was without evidentiary base. 

20	Reliance is placed on the evidence of Ms Shanahan as to how the gun was held. On her account the gunman approached to within a few feet of the deceased and held his gun at waist level pointing downwards more towards the legs. Transcript: Vol 4 A, pp 91F & 93F.  Thereafter when firing took place the bullets entered the deceased between mid thigh and waist level. Even allowing for any tendency of such a gun to pull upwards and to the side, it is unrealistic to suppose that the use of a sten gun in those circumstances was not intended to cause serious injury. The fact that the same gun was used in December 2006 as a frightener in quite different circumstances by what must have been a different gunman (since Collins was a serving prisoner at the time) does not alter the position. 

21	The judge told the jury in the clearest terms that if they were not sure that the gunman had the requisite intent then they must acquit all the defendants. He was entitled to leave matters to the jury on that basis, which was not unfavourable to the defendants.  It seems to us inconceivable that the jury, faced with that direction, and on the facts of this case, would have decided to convict of murder because of a reluctance to acquit Tony Osborne. More importantly, since this is the relevant test, we are satisfied that there is no arguable basis for saying that the convictions for murder were unsafe because manslaughter was not left as an alternative. 

Ground 2	Direction about Collins 

22	In the case of Mark Osborne, the next ground that is sought to be advanced is that the judge should not have directed the jury that no defendant could be convicted of the murder unless Collins was convicted. The same ground is relied on by Collins; and what we have to say about it will apply equally to him. 

23	The judge told the jury that the allegation that Collins was the gunman was at the heart of the case and that, if they were not satisfied that that was so, they should acquit all of the defendants. It is submitted on Mark Osborne’s behalf that this direction placed undue pressure on the jury to convict Collins. If the jury were to be deprived of the ability to decide that someone other than Collins was the gunman, they would be tempted, if they wished to secure that Tony Osborne did not escape conviction, to decide that Collins was the killer. 

24	The effect of that is said to be threefold. 

25	Firstly, it is said to make the conviction of Collins unsafe in which case the evidential links between Mark Osborne and Collins relied upon by the prosecution could not safely be relied upon by the jury.

26	Secondly, since the only means by which Mark Osborne could have played a role in organising the shooting was via Collins, the lack of safety of any conviction of Collins would also render unsafe the conviction of Mark Osborne. 

27	Thirdly, it is submitted that the judge should have indicated that he was proposing to sum up in this way (something which came as a complete surprise to all counsel) prior to the time when the defendants had to make decisions as to the employment of cut throat defences, and not, as happened, at the close of all the evidence. By then Tony Osborne and Collins had conducted lengthy cut throat defences in which each sought to blame the other for the murder whilst exonerating themselves.

28	Collins gave evidence that he had been asked to provide Tony Osborne with two vehicles for some nefarious purpose. He had provided the red Golf, and the white van which appeared in Benskins Lane, which was obtained by Sherman; his partner in crime. On 1 June, in accordance with Tony Osborne’s instructions, Sherman drove the white van to Benskins Lane leaving the ignition key in it and the red Golf was driven by Sherman to a travellers site about 1 km away from Benskins Lane, where it was driven away by a traveller. He was never in Benskins Lane. The balaclava discovered at his home was one he used to wear with his motorcycle helmet. He had nothing to do with the shooting and had not called Mark Osborne up and said “I put ten in him”. Sherman gave evidence to the same effect. On this account, if Tony Osborne was responsible for arranging the murder, it was with a different gunman. 

29	Tony Osborne gave evidence at trial that he had made arrangements for the deceased to come to Benskins Lane; but had done so on behalf of Collins who said that the deceased owed money to someone (Sherman, as he later learned: Vol 4B, 108}, and who wanted to meet the deceased. Tony Osborne denied any knowledge of a plan to shoot the deceased and said that he had not been in Benskins Lane.  He said that Collins had told him that Sherman had shot the deceased –  Vol 4B, 116

30	If - so it is submitted on behalf of Mark Osborne - the judge had made his intentions clear earlier, those acting for Tony Osborne, armed with the knowledge that he would be acquitted if Collins were acquitted, might have made entirely different decisions about introducing material prejudicial to Collins, and if no cut throat defence had been launched by Tony Osborne then those acting for Collins would have been able to consider whether they wished to introduce material prejudicial to Tony Osborne. These are not, of course, considerations bearing on Mark Osborne’s position. What is submitted does bear on his position is that, if the cut throat defence as between Collins and Tony Osborne had not been developed, then Mark Osborne could have chosen to give evidence without the risk of inevitably being attacked by one or other or both of the co-defendants. 

31	On behalf of Collins it is submitted that the judge’s direction was inappropriately prescriptive. It did not allow the jury to take an alternative and sensible approach of considering the organisation of the shooting before the identity of the shooter and left them with no sensible room for manoeuvre (unless they convicted Collins). This was almost certain to have led to real pressure to convict Collins, an unsympathetic career criminal.  It also emasculated Collins’s cut throat defence  since, if they accepted that Collins’s defence was or might be well founded they would find themselves having to acquit Tony Osborne, a serious criminal with established links to the drug world and with links to the gun that had killed the deceased. 

32	Since the judge’s approach in this respect was favourable to Tony Osborne he makes no complaint about it.

33	We do not accept these arguments. 

34	Collins was right at the heart of the Crown case, which always was that he was the gunman. If the jury were not satisfied that he was the gunman, then the basis of the Crown’s case would be fatally undermined. In that event the evidence of his reporting to Mark Osborne that he had put 10 bullets into the deceased would signify nothing (other than that Ali was a liar). The judge recorded that the prosecution had accepted that their case against the defendants other than Collins was established by reference to each of the defendants’ dealings with and connections to Collins. (We were told that that became their case, after the judge had indicated how he proposed to sum up, but, whether that is so or not, that is what their case to the jury was). If Collins was not the gunman the Crown’s case was unsustainable: see the contentions set out in paras 24 and 25 above. In those circumstances the judge was entitled to take the approach which he did.

35	We cannot regard the judge’s approach as emasculating the cut throat defences put forward by Tony Osborne and Collins, both of which involved the gunman being someone other than Collins.  If the jury thought that either of those defences were or might be well founded, the judge’s direction afforded them free rein to give effect to them. The defences, which were fairly set out in the summing up, were matters to which the jury would necessarily have had to have regard in deciding whether the prosecution case was proved. 

36	The judge did not compel the jury to look exclusively at Collins; what he did was to direct them that they could not convict unless satisfied that he was the gunman; and told them that they should consider his guilt or innocence first. That was an entirely logical direction. Nothing in the judge’s clear and careful summing up supports any suggestion that the jury was put under pressure to return a verdict against Collins even if they were not sure that he was the gunman (quite the reverse) and we see absolutely no reason to suppose that the jury felt under any such pressure, either consciously or unconsciously. . 

37	We also do not accept that the judge was bound to inform the parties how he intended to sum up at any earlier stage than he did nor that there was anything unfair in his not having afforded the defendants an opportunity to tailor or curtail their cut throat defences accordingly. Whether, and, if so, to what extent, they would or might have done so, if pre-advised, is a matter of pure speculation. 

Ground 3	-	The identity of “Mark”

38	The third ground on which Mark Osborne seeks to appeal is that the late disclosure of material relating to the possible identity of “Mark” in the statement “This is from Mark” and a ruling of the judge which is  characterised as “preventing full deployment of material disclosed” rendered his conviction unsafe. 

39	The prosecution opened the case and conducted it on the basis that “Mark” must be Mark Osborne and asked “who else in the circumstances could Mark be, but Mark Osborne?” 

40	Two weeks before trial the defence made a specific request for disclosure of material identifying candidates for “Mark” other than Mark Osborne. The prosecution’s response was that there was nothing to disclose. In fact there was material relating to what became known as the Romford shooting i.e. a shooting which took place in December 2006. The effect of that material (if proved) was, as far as concerns Mark Osborne, as follows. Tony Osborne was supplying cocaine to Oliver in 2006 so that he could “run the lines” for him. Both Tony Osborne and Mark Austin (known as Sizzle) were involved in those dealings with Oliver (Mark Osborne did not appear to be involved). Oliver fell out with his suppliers. In 17 December 2006, as a result of that falling out, Oliver’s premises were shot at by a man using the same sten gun which was used to kill the deceased. Oliver told the police that when he fell out with Tony Osborne the deceased had taken over his role working for Tony Osborne. 

41	The witnesses who provided this information were called. But they declined to substantiate it and were, with the leave of the judge, allowed to be treated as hostile.  

42	We agree with the single judge that it is regrettable that the prosecution made late disclosure. But in the end evidence of the matters to which we have referred was before the jury. They must necessarily have been satisfied that the Mark referred to was Mark Osborne. This was not surprising given that the message “I put 10 in him” (which tallies with what the gunman had in fact done) was said to have been relayed from Collins to Mark Osborne. We are not persuaded that the late disclosure of this material provides any arguable basis for saying that the convictions were unsafe. Complaint is made that the information about the Romford shooting had not been disclosed when Ms Shanahan was called; but no application was made to recall her when it came to hand. Nor was information about Mark Austin available when Ms Kaye was cooperating with Sherman’s solicitors.  Since, however, she denied to them that she had ever spoken to the police in the terms alleged, it seems to us most unlikely that she would ever have produced any information of assistance to the defence.  

43	On 23 October 2008 disclosure was made of a police debrief of Karim Ali noted on 28 February 2008 in the contact logs. The note indicated that he told police that “this friend has told him a male called Mark Wells Willes or Willis has said he knew who had the gun now or where it was … we asked him who this Mark was and he stated he did not know”. This double hearsay account from Ali linked a “Mark” to the location of the weapon in February 2008. Checks had been made unsuccessfully to identify this Mark by checking police computer data bases but, we are told, no attempt had been made to identify this Mark through the unidentified friend of Ali who had given him this information.  The judge declined to allow cross-examination of the police officer who had made the notes in the log, and whom the Crown did not propose to call, as to this second Mark, and as to whether the police had pursued reasonable lines of inquiry to establish whether there were other candidates for the Mark of whom Collins spoke. He did so on the ground that such evidence was not sufficiently probative and would amount to speculative and satellite litigation. In our judgment he was entitled not to require the prosecution to adduce the evidence of the relevant police officer for him to be cross examined on hearsay evidence of information derived by Ali from an unidentified friend of a barely identified Mark who was said to have knowledge of who had the gun over 9 months after the murder. 

Ground 4		 Karim Ali’s evidence 

44	The fourth ground relied on is to the effect that there were unsatisfactory elements relating to (a) the admission of the evidence of Karim Ali and (b) the directions given to the jury about Ali’s evidence. It is plain that Karim Ali was an important witness for the prosecution; and that the jury would have to make up their minds whether he was, on what mattered, a witness in whose evidence they could believe, or, as was submitted, thoroughly untrustworthy such that no real credence could be given to what he said. Our attention has been drawn to the fact that before he gave evidence at trial Ali had given inconsistent accounts, upon which he was not cross examined lest they become evidence at the trial, including one which he later abandoned when he said that he had heard Mark Osborne having a conversation with Tony Osborne on Wednesday 30th May 2008 during which reference was made that he was prepared to pay £ 10,000 for someone to kill the victim. 

45	As we have said, in his evidence Ali claimed that there was a call from Collins to Mark Osborne after the deceased had been shot in which Collins told Mark Osborne that he had “just put 10 in him”, and Mark Osborne said “you just cost me £ 8,000 and my brother £ 2,000 and they laughed… and Mark Osborne said that he deserved it and had it coming to him”. 

46	When he was cross examined it was suggested to Ali that he was fabricating evidence in order to advance his position by avoiding deportation to Somalia and in order to secure assistance with gaining parole. He was asked by counsel for Defendants other than Mark Osborne about the occasions relating to other cases when had had withdrawn evidence or threatened to lie or refuse to answer questions in court unless his demands were met. However he was not cross examined on behalf of Mark Osborne about earlier previous statements (in the sense of things said)  in this case, which Mr Holland for Mark Osborne submits were inconsistent and contradictory. In re-examination the prosecution asked him whether, despite requests to withdraw his evidence he had ever said that his account was untrue and he said that he had not. In the absence of the jury the prosecution were invited to withdraw the question on the basis that it was clear that Ali had given more than one account and that not all of his accounts could be true.  It was submitted that the answer elicited from him suggested that he had given a single consistent account which was never retracted or contradicted.  The judge did not require the question to be withdrawn or retracted. 

47	The matter was taken a stage further when the police officer who had dealt with Ali was called to give evidence and was asked “In all contact with Karim Ali in all his different moods, has he ever said to you that what he has said about [the deceased] is not true?” to which the officer answered; “At no stage, no”.

48	Counsel for Mark Osborne could have applied at that point to cross examine Ali on his previous statements or could have asked the officer about them; although we can well understand why he would have been reluctant to do so.  In any event he did not do so. Nevertheless it seems to us arguable that a situation should not have been allowed to develop, and to continue uncorrected, where Ali, a vitally important witness, was presented to the jury as a witness who had given to the police a consistent account throughout, and that the conviction is unsafe on that account. We propose, therefore, to give Mark Osborne leave to appeal his conviction on this point.   

49	Complaint is also made that the summing up was defective because on the first day – Vol 4, 78 D-E - the learned judge said that the prosecution claimed that those involved in the shooting overlooked the possibility that Mark Osborne’s “boasting of active involvement in the killing” and Collins’ claim in a phone call “to have put ten in him” would be reported to the police.  This is said to have been inappropriate because Ali had never claimed that Mark Osborne had told him that he had actively participated in the shooting; the prosecution had argued that if Ali was fabricating evidence, it was notable that while describing Collins admitting to the shooting he had not directly implicated Mark Osborne; and the defence had suggested in closing that the effect of Ali’s evidence all related to what he and Mark Osborne had found out after the shooting. 

50	On the second day of the summing up – Vol  4A 34E – the judge gave the jury a warning of the special need for caution in approaching Ali’s evidence and of the reasons why that was so. He also made it clear, following a discussion with counsel, that his use of the expression “boasting” was his phrase and that it was for the jury to decide whether that description was appropriate: Vol 4A 48D.  

51	The jury knew that Ali had at one stage made a statement withdrawing his allegation.  The judge also reminded the jury that Ali had told what appeared to be a barefaced lie in relation to Mark Osborne speaking to him in the cells (“You’re a dead man walking”). He referred the jury – Vol 4B 86F – to the lengthy submissions the defence had made about Ali’s untruthfulness and unreliability. 

52	We do not regard the summing up as defective in relation to the learned judge’s treatment of the evidence of Ali. If the jury accepted his evidence it was open to them to conclude that Mark Osborne had indeed been boasting about his involvement by laughingly saying in effect that Collins’ putting 10 bullets in him was costing him a lot but that he deserved it. In any event the judge told the jury that they must judge for themselves whether his characterisation was apposite.

53	We propose, therefore to grant permission on ground 4 limited to the contention that the verdict was unsafe because of the evidence given in re-examination by Ali and by the police officer about Ali’s previous statements.   

Ground 5 – arguments referred to in the summing up without indicating the points to the defendants before speeches.    

54	Complaint is made that on a number of occasions the judge introduced new arguments favourable to the prosecution which had not been advanced by the prosecution nor identified before defence speeches and which were not characterised by him as his own comments – rather than those of the prosecution. By so doing, it is said, the jury was left with the impression that the defence had not met part of the prosecution case in defence speeches and therefore had no answer. 

55	The matters in question are these: 

(i)	the suggestion that if Ali’s evidence was to be believed Mark Osborne was boasting of his active involvement in the shooting, when the prosecution had pointed to the lack of direct evidence  from Ali of Mark Osborne’s participation, they arguing that if he was going to fabricate evidence he would have fabricated such direct evidence; 

(ii)	the comment that the text sent to Mark Osborne at 16.55 on 1st June threatening to do the deceased when he got out may have arisen because Mark Osborne may not have known the timing of the shooting, in circumstances where the prosecution had conceded that it was odd that he should send such a text if Mark Osborne knew that the deceased was to be shot, and when the defence had relied on that concession arguing that if there was an explanation consistent with guilt then the prosecution would have advanced it and 

(iii)	the judge’s invitation to the jury to consider schedule four [Vol 4 62F] and the calls made by Mark Osborne on 28th May to the deceased and a call made between Mark Osborne and Collins on 28th, when the defence had sought to emphasise the absence of any suggestion from Ali that he had heard Mark Osborne making arrangements relating to the shooting in advance. 

56	It seems to us that the points made by the judge were perfectly valid observations; and we think it unrealistic to suppose that the jury would have decided that there was no answer to them, not because they were valid, but simply because of any failure by counsel specifically to respond them. It was, in any event, made plain that the facts were entirely for the jury whatever observations the judge might make.

Ground 6

57	The sixth ground relied on is to the effect that notes which the jury sent and the length of the jury’s deliberations indicate a substantial risk that the jury had convicted Mark Osborne unsafely. The jury were undoubtedly in retirement for a long time. They retired at 1222 on 23 January 2009. They returned verdicts on 9 and 13 February 2009. The verdict in respect of Mark Osborne was delivered in 13 February and was unanimous.

58	We do not regard this history as indicating that the conviction was or may have been unsafe. The jury were obviously very conscientious. There is nothing to suggest that the time that elapsed put pressure on any of them to convict contrary to their wishes or inclination. We have carefully considered the jury notes and the judge’s response to them. With one possible exception, we see nothing in the judge’s response to the notes which was unsound or would arguably suggest that the convictions were unsafe. 

59	On 6 February 2009 he was asked for a more rigorous definition of participation and how this related to a defendant’s foreknowledge of the shooting if any. It was suggested on behalf of Mark Osborne that the judge should give a further direction in the form of a substantial draft which was produced. The judge declined to do so and reiterated the directions he had given earlier on murder and joint enterprise without expansion. In our judgement he was entitled to take this course, those directions being accurate ones. 

60	On 11 February the jury sent a further note which read:

“IF we find that we are sure that a defendant ordered the ‘really serious injury’ of Mark Tredinnick (which led to his death) BUT this defendant did not know the specific detail of how and/or when it was to occur, is this sufficient to prove continued participation in the murder?”

61	To this the judge gave this answer: (IV I page 17) 

“If you are sure that the defendant you are considering ordered the really serious injury of Mark Tredinnick, which led to his death, then you must be sure that the defendant knew, by the time of the shooting, 1, that Collins was to carry out the assault. Two, that he would have a loaded gun with him when he did so and 3, that he might use that gun with intent either to kill or to cause really serious injury. Then he would be guilty of murder”.

	       There was nothing wrong with this response.

62	On the afternoon of Thursday 12 February 2009 the jury asked to be reminded of both the prosecution and defence cases. Unfortunately both counsel who had appeared throughout the trial were unable to be present on that occasion (as the court had been forewarned) and Mark Osborne’s interests were temporarily represented by another counsel. He was unfamiliar with the details of the case. The judge declined to adjourn the matter until the next day. Temporary counsel was able to communicate with trial counsel telephonically for assistance as to the points that need to be referred to and he gave the learned judge details of those matters.  

63	Complaint is made that the judge’s summary of the defence points was inadequate. The force of this submission is diminished by the fact that when he had completed his summary the judge asked whether he had missed any headline points and it was not suggested that he had. 

64	Nevertheless it seems to us that there is some force in the suggestion that the summary was inadequate and that, in one respect, the judge turned the defence submission on behalf of Mark Osborne on its head. In the judge’s summary (Vol IV J 35G) he suggested that Mr Holland, on behalf of Mark Osborne, was saying that Mark Osborne would not want to speak freely to Ali. In fact Mr Holland’s point was the reverse, namely that the absence of evidence from Karim Ali of Mark Osborne planning the killing, when he had been otherwise so free of speech, indicated that he had not been the instigator of the killing. 

65	We have come to the conclusion that we should give leave to Mark Osborne to appeal on ground 6 insofar as that ground alleges that the conviction is unsafe because the judge failed adequately to summarise the defence points, as specifically requested by the jury. We do not think it necessary to recite all the respects in which it was contended before us, partly in writing and partly orally, that the summation was defective. Our intention is to permit the appellant to advance all of his complaints under this part of ground 6.  

Ground 7     - 	wrongful reception of Ali’s evidence

66	This is a complaint that Ali was called to give evidence when subject to oppression and when he could change his account without sanction. It formed the basis of an unsuccessful application to stay proceedings on the ground of abuse of process. We do not think there is anything in this point.  The possibility that Ali might be no more than a liar acting for his own ends was well before the jury. 

Ground 8	Wrongful introduction of Tony Osborne’s Defence Case Statement

67	It was part of Mark Osborne’s defence that the evidence did not support the prosecution case that Mark Osborne and Tony Osborne dealt in drugs together; and this lack of common dealing undermined the case that the two brothers were acting together in arranging the shooting of the deceased. When Tony Osborne gave evidence the prosecution introduced part of a Defence Case Statement apparently prepared on behalf of Tony Osborne which included an assertion that it was part of Tony Osborne’s defence that he collected money owed to Mark Osborne arising from Mark Osborne’s drug dealings. Objection was taken to this and after argument it was held that the document should not have been introduced; the document was withdrawn from the jury and they were told to disregard it.

68	We are wholly unpersuaded that, in a trial such as this, the verdict may be regarded as unsafe because of the introduction of a document such as this which was withdrawn from the jury and which they were expressly told to disregard.

Ground 9 – dilatory disclosure 

69	The penultimate ground relied on is that the prosecution made significant disclosure well after the trial commenced, which hampered the defence both because of its amount and its significance.  In relation to this the single judge said:

“In a long and complex trial such as this it is not surprising that there may be delays in disclosure or other incidents which give rise to dissatisfaction on the part of a defendant. It seems to me that your counsel and solicitors were in fact well able to deal with these points and I am not persuaded that they give rise to any arguable ground of appeal. The Judge rightly directed the jury not to hold it against you that you and your legal representatives had been obliged to contend with the difficulties about which your counsel addressed the jury”.

70	We agree with the single judge.

Ground 10 		Cumulative effect

71	Lastly it is submitted that the cumulative effect of the points to which we have referred makes the conviction unsafe. Since we propose to grant leave in respect of two individual points it is not necessary for us to decide on their cumulative effect. 

Conclusion

72	Accordingly we propose to give leave to Mark Osborne to appeal his conviction limited to the matters referred to in paragraphs 5 and 6 above. 

Sentence

73	The learned judge imposed the mandatory sentence of life imprisonment with a minimum term of 30 years. It is submitted that the judge ought to have accepted that Mark Osborne did not share any intention to kill but simply foresaw the use of the gun with at least an intention to cause serious bodily harm. He did not necessarily know, it is said, the full details of the plans being made; the jury’s notes, and the directions given in consequence, show that the conviction could have been on the basis that Mark Osborne ordered that the deceased should seriously be harmed knowing that a loaded gun was to be carried which might be used but without any specific intent that he be killed. Further the gunman left the deceased alive saying that he was from Mark. 

74	We agree with the Single Judge that the trial judge was in far the best position to decide the factual basis for sentence. He was entirely satisfied that there was a clear intention to kill. That conclusion was fully open to him and is not open to challenge. In those circumstances a 30 years minimum term was a perfectly proper sentence. 

75	Accordingly we do not propose to give Mark Osborne permission to appeal the sentence.

Wayne Collins – grounds of appeal

76	The first intended ground of appeal is that the judge was wrong to direct that none of the defendants could be convicted if Collins was not. The second intended ground of appeal is that the judge failed to leave to the jury a manslaughter verdict. For the reasons already given we do not regard either of these as tenable grounds of appeal. 

77	It is also submitted as a third putative ground that, because of the judge’s direction that none of the defendants could be convicted if Collins was not, the summing up was unbalanced, and unduly focused on Collins. We do not accept that. We have read the summing up. It is not in our view arguably unbalanced or unduly focussed on Collins.

78	None of these grounds persuades us that the conviction of Collins was arguably unsafe. We do not give him permission to appeal it on any of them.

79	It seems to us, however, that he should be entitled to argue that the conviction is unsafe on either of the bases upon which we have given Mark Osborne permission to appeal against conviction. Even though the second ground related to the judge’s summary of the points made in defence of Mark Osborne, it appears to us arguable that, if that ground is well founded, it may enure for the benefit of Collins.

80	We would, accordingly be prepared to give Collins leave to appeal his conviction on both grounds. 

Anthony Osborne  -  grounds of appeal against conviction

81	Tony Osborne did not urge on the judge that he should leave manslaughter to the jury; but now relies on it as a point which, if good, enures to his benefit as well. However, for the reasons which we have stated, it is not, in our view well founded. 

82	The grounds on which Tony Osborne seeks to rely in any appeal against his conviction are that the judge erred in (a) admitting the evidence of Sara Kaye; (b) in ruling that the hearsay notes of Ms Kaye’s alleged conversation with DC Necati were admissible as evidence of the truth of their contents (c) in admitting the evidence of Steven Oliver and (d) in admitting evidence relating to “Operation Iferow”. 

83	On 17 December 2006 the gun which was used to shoot the deceased had been used in a drive by shooting of the car and home of Steven Oliver. The gunman cannot have been Collins because he was then in prison. It cannot have been Mark Osborne either since he was also in prison. The crime had been investigated under the operational name “Iferow”. Collins maintained that the fact that the gun used to kill the deceased was the same gun as had been used by a different gunman was evidence which supported his defence that he was not the gunman who killed the deceased. 

84	This led to the prosecution disclosing (in mid October 1998) material from DC Necati and other officers to the effect that Steven Oliver and his then partner Sarah Kaye had told the officers [in visits on 29/5/08 – DCs Necati and Bartle and 8.10.08 - Necati and Perkins: Vol  IV C page 15]  that Oliver had worked for Tony Osborne running drugs lines, having become involved after falling behind on mortgage payments- Vol 4C, page 12ff ; that they had fallen out; that Oliver owed Tony Osborne  £ 20,000, and that they thought that the shooting had been a warning from Tony Osborne. 

85	Collins (with Sherman’s support) successfully applied for this evidence to go in as evidence of Tony Osborne’s bad character. He then called Steven Oliver and Sara Kaye and the police officers (DC Nescali and Bartles and Sergeant Perkins) to whom they had both spoken and the solicitors’ clerk (Mr Frederick) to whom Oliver had spoken. DC Necati and other officers had visited Sarah Kaye on two occasions and compiled notes, which referred to Steven Oliver being involved with Tony Osborne in cocaine drug dealing. 

86	When they came to give evidence Oliver and Kaye flatly denied that Tony Osborne had anything to do with the shooting of their home. Sara Kaye denied that to her knowledge Oliver and Tony Osborne were in any way involved in drugs.   She was allowed to be treated as a hostile witness and denied that she had said what was stated in the notes of her interview with police on 29 May 2008.  

87	Oliver said that he was not involved in drug dealing with Tony Osborne and that the shooting of the deceased had nothing to do with him. He denied having ever referred to involvement in cocaine with Tony Osborne and the December shooting. He denied that, when questioned by Mr Frederic, he adopted the Necati précis notes, to which we are about to refer. He, too, was allowed to be treated as hostile.

88	DC Necati had made hand written notes of the meeting on 29 May followed by a 3 page typed précis. When DC Necati was called to give evidence Counsel for Tony Osborne made what the judge described as a full frontal attack on the credibility of the officers investigating the murder. The suggestion was that the handwritten notes and typed précis were fabricated. Collins then applied successfully for the notes of the meeting of 29 May to be adduced. The judge – in a ruling of 10 December 2008 - allowed them to be admitted, redacted so as to remove multiple hearsay, together with a 1 ½ page summary of the original 3 page précis (which eliminated multiple hearsay) so as to allow the jury to determine whether they could rely on the testimony of the police officers.  The officers gave evidence in accordance with the notes. 

89	Collins also called Mr Frederic, the solicitor’s clerk, who gave evidence that he had visited Oliver in prison and Oliver had adopted the précis notes compiled by DC Necati of what Sara Kaye had said; that Oliver had told him that the deceased got what he was supposed to get and that the deceased had taken over his line. .  

90	In the light of all this Tony Osborne successfully applied to adduce bad character evidence against both Collins and Sherman. This included evidence of Collins’s possession in 2004 of a firearm and bullets of the same type as were used in the shooting of the deceased and of his involvement in a stabbing at the Bilet road roundabout in April 2007.

91	Mr Lewis submits that the defence of Collins should not have been allowed to call Ms Kaye in the knowledge that she would not give any evidence of assistance to them but purely in order to put a previous conversation and the notes thereof to her. Nor should the judge have allowed the hearsay notes of Ms Kaye’s alleged conversation with DC Necati to be admissible and capable of consideration by the jury as to the truth of their content. Nor should the judge have admitted the evidence of Steven Oliver. 

92	Further the evidence in relation to “Operation Iferow” should not have been admitted. The prosecution did not rely on it; it was highly prejudicial to Tony Osborne; and the evidence was poor in quality being derived from the prior statements of hostile witnesses, who contradicted it. It meant that Tony Osborne did not have a fair trial. If such evidence was to be adduced on behalf of Collins and Sherman, the case against Tony Osborne should have been severed. 

93	In our judgment the learned judge was entirely justified in admitting, first – as he did on 18 November 2008 - the evidence of Oliver and Kaye (as told to the police), on the footing that it had substantial probative value in relation to an important matter in issue between the defendants Collins/Sherman and Tony Osborne, namely whether Tony Osborne was behind the shooting in December 2006 and, therefore, likely to be behind the shooting of the deceased. In the first instance he declined, rightly, to allow hearsay evidence of what those two witnesses had told the police and required them to be brought to court, by compulsion if necessary. 

94	In circumstances where Oliver and Kaye had made statements to the police to the effect which we have summarised, it was, in our judgement, perfectly open to Collins to call them for the purpose of eliciting the evidence that they appeared to have given to the police; and, if the necessary conditions were fulfilled, to treat them as hostile if they contradicted their former statements. They could be treated as hostile if they had shown themselves reluctant to tell the truth at the instance of the person who called them. It was no bar to calling them and to their being treated as hostile that they were expected to resile from what they had formerly said. If their previous inconsistent statements were proved they would be evidence of the truth of what was said: section 119 of the CJA 2003.. To bring the witnesses to court was the correct procedure – in order (a) to see what they would have to say; (b) for the judge to determine whether they should be treated as hostile; and (c) in order that the jury might hear their disavowal of any previous statement. Collins was also entitled to adduce the evidence of the police officers as to what Kaye and Oliver had said; and the judge was entitled to allow the jury to see the notes and précis in order to evaluate the suggestion that they had been fabricated. 

95	The judge indicated in his written directions to the jury that they could use the evidence called by one defendant against another in favour of the party calling it as reflecting upon the credibility of the other defendant; but that when considering the prosecution’s case against each defendant they should disregard the evidence called by one defendant against another. In fact when he summed up orally the judge did not give that direction but in effect allowed the jury to determine the case in respect of each defendant on all the evidence before them. It is accepted that this was not a misdirection – see Robinson [2006] 1 CAR 480 – and it avoided the mental gymnastics in which the jury might have had to indulge if the judge had stuck to the original direction. 

96	There was no basis upon which the judge could have declined to admit the evidence simply on the ground that the evidence was prejudicial to Tony Osborne. Nor was it incumbent on him to order severance; it was practically essential for the jury to hear all the relevant evidence against and for all the defendants.

97	Looking at the matter overall there is nothing which arguably goes to show that the conviction of Tony Osborne was unsafe on any of the grounds on which he has sought to rely. 

98	We would, however, be prepared to give him leave, as in the case of Collins, on the two grounds on which we have granted leave to Mark Osborne.  

Sentence	-	the costs order

99	Tony Osborne also appeals against the costs order of £ 10,000 upon the basis that it was made without any proper financial information, the only information being, it is submitted, that given by counsel that there were no funds available at the time of sentencing, such funds as had existed at the time of arrest on 4th June 2007 having been dissipated on the living expenses of his partner and her two children; and the equity that had previously existed in Litton Court have been extinguished by the fall in property values. 

100	In our view it is arguable that this order, non compliance with which will affect the length of time in which Tony Osborne remains in custody, was excessive as being made without sufficient evidentiary foundation. We propose to grant leave to appeal it.  

101	To that extent only we shall grant permission to appeal and, for that purpose, any necessary extension of time.