Case No: 201300620 C2/201300621 C2/201300618 C2
Neutral Citation Number: [2014] EWCA Crim 1586
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Snaresbrook Crown Court
HHJ KENNEDY
T201207409
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/07/2014
Before :

LORD JUSTICE ELIAS
MR JUSTICE SWEENEY
and
MR JUSTICE GREEN
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Between :

	THE QUEEN	Respondent	
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	SAMIR YUSUF
DEVANA PALMER
KURT MCLEAN	Applicants / Appellant	

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Mr S Denison QC and Mr B Maguire (instructed by CPS) for the Prosecution
Ms S Bennett-Jenkins QC (instructed by G T Stewart) for Yusuf 
Mr R Carey-Hughes QC and Mr G Green (instructed by Evans Bissett) for  Palmer
Mr R Ledgister (instructed by Imran Khan & Partners) for McLean

Hearing dates : 6th March 2014
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Judgment
MR JUSTICE SWEENEY :
Introduction
1.	On 6 March 2014 we heard the renewed applications of Yusuf and Palmer for leave to appeal against their convictions for murder, and McLean’s appeal against sentence (by leave of the Single Judge) in respect of a related offence of conspiracy to rob.  At the conclusion of the hearing we refused the renewed applications, but reserved our reasons, and reserved judgment in relation to the appeal against conviction.
Background 
2.	On 6 February 2012, shortly before the start of their first trial before HHJ Kennedy and a jury in the Central Criminal Court for the murder of Kenrick Wickham on 23 June 2011 (Count 1), Yusuf (now aged 25), Palmer (now aged 23), McLean (now aged 28) and their then co-defendant Anthony McKenzie (now aged 24) pleaded guilty to conspiracy to rob Wickham, and another man called O’Neill Miller, also on 23 June 2011, of a quantity of cocaine (Count 2).
3.	At the conclusion of the first trial McKenzie was convicted of murder, but the jury were unable to reach verdicts in respect of Yusuf, Palmer and McLean.  
4.	In due course there was a retrial before HHJ Kennedy and a jury, this time in the Crown Court at Snaresbrook. On 12 December 2012 Yusuf and Palmer were convicted of murder, but the jury were unable to reach a verdict in relation to McLean.
5.	On 17 December 2012, at the outset of the sentencing hearing, the Prosecution indicated that they would not seek a third trial in relation to McLean, and after they had offered no evidence against him a verdict of not guilty of murder was recorded in his case.
6.	Thereafter Yusuf, Palmer and McKenzie were each sentenced to life imprisonment for murder, with respective minimum terms of 26 years, 25 years and 30 years – all less time spent on remand. In each of their cases, no separate penalty was imposed in relation to the conspiracy to rob.
7.	McLean was sentenced to 92 months’ imprisonment for the conspiracy to rob – also less time spent on remand.
Reasons - renewed applications: Yusuf & Palmer
8.	As to the facts, it suffices to record that the prosecution case at the re-trial was that Yusuf, Palmer, McLean and McKenzie were all significantly involved in the supply of Class A Drugs (in particular crack cocaine), and that they had decided to take over the drugs patch run by O’Neill Miller in Kennington in South East London - by luring him into a drug deal, robbing him and shooting him dead.  Given that there was no dispute that it was McKenzie who had shot Wickham, the case was put upon the basis that the three defendants were each involved in a joint enterprise with him. 
9.	The prosecution asserted that on Wednesday 22 June 2011 Yusuf had met Miller in Kennington and had arranged the purchase from Miller of 3ozs of crack cocaine worth about £2,500. It was later arranged that the deal would be carried out in West Dulwich – where Miller was then staying with Kenrick Wickham (who was aged 36) at the latter’s flat.  
10.	McLean and McKenzie had never met before that day.  Yusuf had made three trips to the vicinity of Wickham’s flat that night – driving there on each occasion in his Audi A3. He and Palmer had gone there at shortly after 9pm; all four had gone there at around 11pm, and all four had returned at some point before 12.35 am on Thursday 23 June.  
11.	It was a central assertion of the Prosecution case that on the third occasion the four men had with them a loaded handgun and silencer (to which we shall refer hereafter as “the gun”).  McLean had taken a cycle mask and a pair of heavy duty handcuffs with him.  A balaclava was also taken.  Yusuf had then made phone calls from his car in the hope of luring Miller out to do the deal, whilst the other three lay in wait nearby.  McLean had worn the mask.
12.	In the result, at about 12.50 am, Wickham (rather than Miller) had come out with the drugs (in fact 1oz, not 3ozs) and joined Yusuf in his Audi – sitting in the front passenger seat.
13.	The prosecution asserted that the other three had then emerged from where they had been hiding and had got into the back of the car, after which the car had been driven off – with a fierce struggle going on inside it as Wickham, realising what was afoot, fought for his life.
14.	After a short drive the car had stopped in a quiet alley and Wickham had been removed from it and executed by McKenzie who, using the gun, fired three bullets into him at point blank range - one in the back of the head and two in the back of the neck.  
15.	The four assailants had driven off in the Audi and the gun had been disposed of en route to Clapham. There the car had been seen by police officers, chased and stopped – with all four men trying to escape. However, eventually, they had all been arrested.
16.	As at the first trial, the defence of Yusuf, Palmer and McLean was that it was Wickham who had brought the gun to the car, and McKenzie (acting on a venture of his own) who had taken the gun off Wickham and murdered him. It was McLean’s case that it was him who, shortly before the murder, was the person heard by a witness to shout out: “No, no, no” at McKenzie.
17.	Against that background the Prosecution asserted from the outset of the retrial that the only issue was who had first had possession of the gun – i.e. was it taken there by the defendants in the car to be used to kill, or may it have been Wickham who had it and it was taken from him and used by McKenzie? If it was the defendants then, subject to other matters, the prosecution said, it was open to the jury to convict of murder. If it may have been Wickham who took the gun to the car, then each of the defendants was not guilty.
18.	McLean’s evidence was to the effect that the plan (which was instigated by Yusuf who was one of his best friends) was to rob Miller of his drugs without violence and as quickly as they could do so.  There was no question of a weapon.  When he had got back into the car at the scene he had not seen Wickham’s hands, and had not heard anyone say that Wickham had a gun.  There was a lot of fighting in the car until Wickham and McKenzie ended up outside it, at which point he saw that McKenzie had a black hand gun (he did not notice if it had a silencer) which he was pointing at Wickham.  It was at that point, and because he did not want McKenzie to shoot, that he had shouted out: “No, no, no”.  Nevertheless, McKenzie had shot Wickham dead. 
19.	In due course the judge provided draft written Directions and a draft written Route to Verdict to counsel. Thereafter, with counsel’s help, the Directions and the Route to Verdict were perfected. No complaint was, or could have been, made before us about the perfected versions.  They each made very clear that, before the jury could convict a defendant, they had to be sure that:
i)	The gun was brought to the scene in the Audi by Mckenzie or one of the defendants.
ii)	The defendant whose case they were considering knew that the gun was in the Audi before Wickham got into the car.
iii)	The defendant whose case they were considering knew that the gun would be used to kill Miller (or Wickham as it turned out to be) or to cause him really serious harm or
iv)	The defendant whose case they were considering anticipated that the gun might be used to kill or to cause really serious harm.
20.	The grounds of appeal were based upon two additional passages in the summing up.
21.	The first passage, at Transcript Volume I(a) p29H-30H, arose after the judge had completed the written Directions and had read out the first two questions in the Route to Verdict, at which point he said:
“Put the handout on one side for the moment while I simply say to you this. If you reach this stage in your deliberations, you will be able to draw upon the appreciation which each of you gained during your two careful examinations of the Audi of the amount of internal space within that motor car.
You will no doubt decide whether you think it possible that one of McLean, Palmer, Yusuf or McKenzie might physically have been able to have in his possession a weapon of the configuration and size of that which you have seen in the car when the others were within it without those others being aware that it was there. The Crown say that is impossible. Each of these defendants say that his lack of knowledge of its presence is a fact.
If you were to come to the conclusion that it might have been physically possible for one of them to have concealed such an item in secret, then you may think a second question arises. That is whether that defendant would have chosen to keep that secret from the others or, indeed, whether he would have it found it a secret, impossible in all the circumstances, to keep. Those of course are matters for you.”
22.	The second passage, at Transcript Volume I(a) p33B-D, arose after the judge had completed the Route to Verdict and after he had summarised, in a few sentences, the types of evidence that the jury had heard and had made reference to the admirable quality of the closing speeches, at which point he said:
“Yet you may think that notwithstanding the minute examination of so many parts of the events of that night, the issues in this case are reflected in the Route to Verdict and the potential guilt of all or any of these defendants have at their heart a question of seven very short English words, ‘Who brought the gun to the car? Who brought the gun to the car?’”
23.	It was not disputed before us that the delivery of the seven words was done in a staccato manner and with emphasis.
24.	No complaint was made at the time about either passage.  The grounds of appeal of Yusuf and Palmer were, nevertheless, as follows:
Yusuf
(1)	The judge erred in departing, during directions of law, from a document agreed by all parties.
(2)	Such a departure was without any notice to counsel, or without giving counsel an opportunity to ventilate opposition to the proposed course.
(3)	The judge erred in directing the jury that the criminal responsibility for murder in a secondary party could be founded on the determination of a single factual issue as to who brought the gun to the car.
(4)	The judge exceeded the proper ambit of judicial comment when he speculated as to the state of the knowledge of a defendant about the possession of a weapon in a way which amounted to an invitation to speculate.
(5)	The judge effectively withdrew from the jury the second limb of a defence to murder based on the secondary party’s state of mind.

Palmer
(1)	The judge erred in directing the jury that the criminal responsibility for murder in a secondary party could be founded on the determination of a single factual issue as to who brought the gun to the car.
(2)	The judge wrongly made comments in his summing up which suggested that the applicant’s subsidiary defence in the event of a finding that McKenzie had brought the gun to the car was untenable.
25.	Miss Bennett-Jenkins QC (on behalf of Yusuf) and Mr Carey-Hughes QC (on behalf of Palmer) argued to the broad effect that the two passages were extraordinary departures from what counsel were lead to, and entitled to, expect, and that they amounted to an impermissible invitation to speculate and an inappropriate narrowing of the issues in the case to one. 
26.	However we concluded, in agreement with the Single Judge, that:
(1)	Whilst, taken in isolation, the passages might suggest that there was only one critical fact for the jury to decide (i.e. whether they were sure that one of the defendants or McKenzie had brought the gun to the scene), the passages had to be seen in the context of the summing up as a whole and, in particular, in the context of the written Directions and the Route to Verdict, which both made clear that that was the first of a number of issues that the jury had to address.
(2)	Taken as a whole, the summing up made abundantly clear that even if the jury were sure that one of the defendants (or McKenzie) had brought the gun to the scene, no one could be convicted of murder unless the jury were sure that he knew that the gun was in the Audi before Wickham got in, and they were sure that he knew that the gun would be used to kill Miller (or Wickham as it turned out to be) or to cause him really serious harm or, alternatively, that he at least realised that the gun might be used to do so.
(3)	Hence the judge’s comments on the facts, as he made clear that they were, did not amount to an impermissible departure from the agreed Directions and Route to Verdict – let alone to a direction that criminal responsibility for the murder could be founded on the determination of a single factual issue, or the withdrawal of the second limb of the defendants’ defence.
(4)	If the jury were sure that one of the defendants (or McKenzie) had brought the gun to the scene, then the matters to which the judge referred in the first passage were plainly relevant to the consideration of the further issues that the jury had to decide.  The passage did not amount to an impermissible invitation to speculate and was not unfair.
(5)	In any event, the evidence against the applicants was strong, and there was no realistic prospect of success in the argument that their convictions were unsafe.
27.	It was for those reasons that we refused the renewed applications.
Appeal against sentence: McLean
28.	It is of significance to note that:
(1)	The only offences alleged on the indictment were murder (Count 1) and conspiracy to rob (Count 2).
(2)	As indicated above, McLean (and the others) pleaded guilty to conspiracy to rob shortly before the first trial.
(3)	The central issue in McLean’s case at the retrial was whether it was proved that he was a party with McKenzie to a joint enterprise to kill or to cause really serious bodily harm.
(4)	In accordance with the judge’s directions, the critical matters of which the jury had to be sure were that it was McKenzie or one of the defendants who had brought the gun to the scene; that McLean knew that it was in the car before Wickham had got in; and that he knew that the gun would be used to kill Miller (or Wickham as it turned out to be) or to cause him really serious harm; or that he anticipated that the gun might be used to kill or to cause really serious harm.
(5)	The guilty verdicts in relation to Yusuf and Palmer showed that the jury had concluded that the gun had been brought to the scene by McKenzie or by one of them.
(6)	At the start of the sentencing hearing on 17 December 2012 the prosecution offered no evidence against McLean in relation to the murder, and a verdict of not guilty was entered accordingly.
(7)	By virtue of s.17 of the Criminal Justice Act 1967 that had the same effect as if McLean had been tried and acquitted of the murder on the verdict of a jury.
(8)	In the middle category of the Sentencing Council’s Definitive Guideline in relation to street robbery or ‘mugging’, robberies of small businesses, and less sophisticated commercial robberies, a starting point of 4 years’ custody (with a range of 2-7 years) applies if a weapon is produced and used to threaten, and/or force is used which results in injury to the victim, whereas in the top category a starting point of 8 years custody (with a range of 7-12 years) applies if the victim is caused serious physical injury by the use of significant force and/or use of a weapon.
29.	Before sentence, the Prosecution provided a Note as to the provisions and principles involved.  
30.	The Prosecution asserted in the Note, and in opening the plea, that the verdicts in the cases of Yusuf and Palmer meant that the jury were satisfied that they were aware of the gun and its intended use. The significant difference in McLean’s case, the Prosecution observed, was his evidence that he shouted: “No,no,no” shortly before the murder, which would disassociate him from it.  Nevertheless the Prosecution submitted that it was open to the judge to conclude, if he was sure that it was the case, that McLean knew, for the purposes of the conspiracy to rob, that one of the others involved was armed.  In that event, it was submitted, he should be sentenced for a conspiracy to commit robbery at the highest level of seriousness - involving a loaded firearm, and in the context of the trade in Class A drugs.  Whilst the Sentencing Council Guideline for offences of robbery applied, they could be departed from if necessary, said the Prosecution, to reflect the intended use of the firearm. The Prosecution accepted that, if the judge was not sure that McLean knew about the gun then, under the Definitive Guideline, and given that some violence was anticipated, the robbery fell into the middle category in the Guideline thereby attracting a starting point of 4 years’ custody.  It was further submitted that whichever starting point was applied, there were a number of additional aggravating features.
31.	The judge was reminded of Tovey 14 Cr. App. R. (S.) 380 to the broad effect that, when there is any doubt as to the jury’s factual findings, the Court must give the defendant the benefit of that doubt.  
32.	In passing sentence, the judge said:
“……..Your backgrounds provide the backdrop to the events of 23 June, but I make it entirely clear that I do not in any way sentence you today for any offence of which you have not been convicted……..
 In the case of you, Kurt McLean, two juries could not agree as to your knowledge that such a weapon might or would be used with that intent.  The Crown have today in accordance with usual legal practice, offered no evidence against you and you have already heard me say that the entry of not guilty to the allegation of murder is to be made.
My attention has been drawn to the 1993 decision in R v Toby (sic).  The Crown (sic) heard that you shouted: “No, no, no”, when McKenzie aimed the gun at Wickham.  I am not going to speculate as to the effect that that evidence had upon their deliberations. They may well have concluded that at that moment you did not wish the gun to be fired, they may have concluded that your later participation in the plan and the friendship of Palmer and McKenzie, from which you were apparently excluded, may have made your understandings different, but speculation is unhelpful.  They may well have concluded that you had not at any stage wished or anticipated that the gun would be fired at any other human being.  Any doubt in relation to that is of course doubt of which you must have the benefit.
However, I find as a fact that you knew that the gun was in the car.  I have listened to the evidence in this case on two occasions.  The car is of a size where it would, in my judgment, have been impossible for you to be unaware that a gun and silencer of the size seen, was within it.
This was in my judgment a conspiracy to effect robbery, to which a loaded firearm was in fact taken……”.
33.	Hence it appears that the judge concluded that, for the purposes of the conspiracy to rob (as well as, unbeknown to McLean, the murder) the gun was taken to the scene, and McLean knew that it had been.  Any more subtle finding would have had relatively little impact on sentence.
34.	It was against that background, and in light of the other aggravating features present (i.e. the robbery was carefully pre-planned, it was at night, a team of four was involved, McLean took a mask with him and wore it, he also took heavy duty handcuffs, the victim was lured to Yusuf’s car and was subjected to violent restraint, and the purpose was to steal crack cocaine with the likelihood that a turf war would result), balanced against the mitigating features of McLean’s age and the fact that he had not previously been involved in an offence of violence, that the judge identified a notional sentence after trial of 11 years’ imprisonment and, applying a discount of 30% for the plea, thus imposed the sentence of 92 months’ imprisonment (less time spent on remand) to which we have already made reference.
35.	Two grounds of appeal were advanced:
(1)	The Judge was wrong to find as a matter of fact that the appellant had knowledge of a firearm when embarking on the robbery. As the prosecution chose not to add a firearms count to the indictment, the jury never considered his knowledge of such in relation to any offence other than murder. The jury’s uncertainty as to guilt on the murder count clearly showed that his knowledge of a firearm was not made out and thus he was not party to the joint enterprise to kill. In the absence of a count specifically charging him with possession of the firearm, the Judge was deprived of the jury’s view as to his knowledge of the firearm in furtherance of the robbery.
(2)	In the circumstances he should have sentenced the appellant on the basis that he was not aware of the gun. Had he done so he would have been sentenced at Level 2 of the Guidelines to a much lower sentence.”
36.	In support of these grounds a number of authorities were relied upon – in particular French 4 Cr. App. R. (S.) 57, Guy 93 Cr. App. R.108, Eubank [2002] 1 Cr. App. R. (S.) 4 and Murphy [2003] 1 Cr. App. R. (S.) 39.
37.	Those authorities, and in particular Eubank and Murphy, deal with the  need to include a firearms count when it is disputed that the offender was in possession of a firearm or imitation firearm during the course of the commission of another offence (Eubank), or knew that another was (Murphy).  In the absence of such a count, the sentencing judge should not determine in a Newton hearing that the offender was in possession of the firearm or imitation firearm, or knew that another was.  As Lord Woolf CJ said at para.9 of the judgment in Eubank:
“…..Before a defendant is convicted of such a grave offence, he is entitled to have a verdict of a jury.  If the Crown are going to invite the judge to come to the conclusion that the offence was committed with a firearm then the appropriate course is to include a count on the indictment to make the position clear…….. We would refer to the previous decision of this Court in Edward Charles French ….. which accurately sets out the position in the headnote reflecting the judgment of the then Lord Chief Justice…”
38.	On McLean’s behalf Mr Ledgister argued, inter alia, that:
(1)	The focus of the prosecution case at the re-trial was to invite the jury to conclude that the gun had, to the knowledge of each defendant, been taken to the scene to be used to kill or to cause really serious harm.
(2)	The prosecution had never contended at the re-trial that McLean (or anyone else) had brought the gun to use it to threaten their intended victim in order to rob him of drugs.
(3)	McLean’s plea to conspiracy to rob was tendered on the basis that he had no knowledge of the presence of a firearm – the presence of such knowledge would have been inconsistent with his defence to murder.
(4)	If, following the second disagreement and the offering of no evidence on the charge of murder, the prosecution wished to submit that McLean had been aware of the presence of the gun, the proper course should have been to apply to add a count under s.17(2) (possession of a firearm at the time of committing a specified offence) or s.18 (carrying a firearm with intent to commit an indictable offence) of the Firearms Act 1968, and to seek the verdict of a jury upon it.
(5)	In accordance with the authorities cited in paragraphs 36 & 37 above, it was impermissible to treat the re-trial for murder as the equivalent of a Newton hearing in relation to the conspiracy to rob, and to make findings of fact which amounted, on a joint enterprise basis, to a conviction of an offence under the Firearms Act 1968.
(6)	In any event, the findings of fact made were not open to the judge.  The jury’s disagreement was as consistent with their not being sure that McLean knew that one of the others had brought the gun, as it was with them not being sure that he shared the requisite intention or anticipation.
(7)	By whichever route, the sentence had thus been imposed on an inappropriate factual basis and was too high.
(8)	The offence fell within the middle category in the Definitive Guideline and sentence should have been imposed accordingly.
39.	On behalf of the Respondent, Mr Denison QC submitted, inter alia, that:
(1)	The Prosecution had taken a strategic decision that it was inappropriate to add a firearms charge for consideration by the jury at either murder trial.
(2)	To have done so would have added unnecessary complication in relation to the charge of murder itself – the more so if the firearms charge was confined to the conspiracy to rob.
(3)	Nevertheless, having presided over both trials, the judge was in the perfect position to form a view in relation to the facts of the conspiracy to rob.
(4)	The verdicts in relation to Yusuf and Palmer meant that the jury must have been sure that either one of them or Mckenzie had brought the gun to the scene.
(5)	The other circumstances of the case demonstrated that McLean must have known that to be the case - in particular the fact that one of McLean’s best friends had organised the robbery; there was pre-planning which included McLean bringing handcuffs (obviously to restrain the victim); there was no reason why the other three should have knowledge of the gun to the exclusion of McLean; they had all travelled together to the scene at least twice in a small car; and the gun was large
40.	We can quite understand why, at trial, the prosecution decided not to indict for any firearms offence.  It would indeed have added unnecessary complication and/or distracted from the central issue in relation to murder.  However, following the second disagreement and the offering of no evidence against McLean in relation to the murder, the judge was led into error, as follows:
(1)	He was not invited to consider the significance of the fact that the entering of a verdict of not guilty in relation to the murder had the same effect as if McLean had been tried and acquitted of the murder on the verdict of a jury, and (given that the first step in proof of murder was proof of prior knowledge of the gun) thus to consider the significance of the obvious tension between that and a finding that he had had prior knowledge of the gun.
(2)	What he was invited to do was not to form his own view as to the facts of an offence of which McLean had been convicted by the jury (which would obviously have been permissible), but instead to treat the trial as the equivalent of a Newton hearing on a charge which had not been tried by a jury and to find McLean guilty (on a joint enterprise basis) of an offence under, at least, s.17(2) of the Firearms Act 1968 (which, in light of the authorities cited above, was clearly impermissible).
41.	Thus, whilst it may also be debated whether, in the particular circumstances of this case (with the other three, but not McLean, intent on murder with the gun) it was open to the judge to be sure that prior knowledge was in fact proved, sentence was based on a finding which, in law, the judge was not entitled to make.  If the prosecution wished to pursue the allegation of prior knowledge of the possession of the gun for the purpose of the conspiracy to rob, then they were required to apply to add a count to reflect that.  What the outcome of that would have been we cannot say.
42.	Hence we must consider what the correct sentence should have been, absent knowledge that, for the purposes of the robbery, a firearm was taken to the scene.  It will be recalled that both sides submitted that, in those circumstances, the middle category in the Definitive Guideline applied – albeit with the addition of numerous aggravating features.  Whilst we have some hesitation as to whether the Definitive Guideline applied at all, we nevertheless propose (like the Judge) to sentence upon the basis of it.  In our view the aggravating features wholly outweigh the mitigating features to the extent that a notional sentence after trial outside the normal range is required.  In our view the correct notional sentence is one of 8 years imprisonment.  From that must be deducted 30% for plea - making a final sentence of 5 years and 7 months’ imprisonment.
43.	In the result we quash the sentence imposed on McLean and substitute for it a sentence of 5 years and 7 month’s – less time spent on remand.  To that extent, his appeal is allowed.