Neutral Citation Number: [2017] EWCA 1071 (Crim)

Case No: 201505661 B4
201505664 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TRURO CROWN COURT
HHJ COTTLE
T20147149
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/07/2017
Before :

LADY JUSTICE HALLETT DBE
Vice President of the Court of Appeal Criminal Division
MR JUSTICE GREEN
and
HER HONOUR JUDGE TAYLOR
(SITTING AS A JUDGE OF THE CACD)
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Between :

	R	Respondent 	
	- and -		
	DANIEL JOHN PATRICK QUINN
MICHELLE CASTERTON	1st Appellant
2nd Appellant	

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Mr N D Lickley QC (instructed by Cox Burley Solicitors) for the 1st Appellant
Mr S Laws QC (instructed by Howell Hylton Solicitors) for the 2nd Appellant
Mr P Dunkels QC (instructed by CPS Appeals Unit) for the Respondent 

Hearing dates: 27 June 2017
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Approved Judgment

The Vice President : 

Background 
1.	On 16 November 2015 in the Truro Crown Court the applicants were convicted of murder (count 1). On the same date the trial judge HHJ Cottle sentenced them to imprisonment for life with a minimum term for Quinn of 24 years and a minimum term for Casterton of 22 years. No verdicts were taken on alternatives counts of causing or allowing the death of a vulnerable adult, contrary to section 5 of the Domestic Violence Crime and Victims Act 2004 (“DVCVA”). Their co-accused Aaron Mallen was convicted of murder and sentenced to imprisonment for life with a minimum term of 25 years. Aaron Mallen initially sought leave to appeal conviction but abandoned his application. Mallen now claims sole responsibility for the murder. Another co-accused Richard Rosevear was acquitted of murder by the jury on the direction of the judge and he was acquitted by the jury of causing or allowing the death of a vulnerable person.
2.	Applications for leave to appeal against conviction were lodged by both applicants within the requisite 28 day period. Additional grounds were lodged on 17 March 2016 by Casterton and on 18 March 2016 by Quinn, following the Supreme Court judgment in R v Jogee and Ruddock [2016] UKSC 8, [2016] 2 W.L.R. 681 (“Jogee”) handed down on 16 March 2016.  These grounds were later amended and amplified at the Registrar’s invitation following the judgment of this court in R v Johnson and others [2016] EWCA Crim 1613 (“Johnson and others”).  On 15 August 2016, an additional ground was lodged on behalf of Casterton which relies on fresh evidence from the co-accused, Mallen. On 8 December 2016 Quinn lodged an additional ground, also relying on the fresh evidence of Mallen.
3.	The Registrar has referred their applications for leave to appeal against conviction and to rely on fresh evidence to the full court. 
Facts  
4.	Terry Oldham (the deceased) was a small frail man in his sixties. In 1987 he was convicted of two counts of indecent assault of a child; in 1998 he was convicted of detaining a child without authority and in 2008 he was made the subject of a Sexual Offences Prevention Order. 
5.	The applicants and co-accused lived with him at his address. Six people were crowded into a small two-bedroom terraced house.  Mallen and his partner Casterton slept in the downstairs front room that had been the deceased’s bedroom. Quinn, a close friend of Mallen’s, Richard Rosevear and Stephen Goldsmith slept upstairs in the two bedrooms. The deceased slept in the living room at the back on the ground floor through which one had to go to reach the kitchen and the bathroom. Anti-social behaviour including loud music and drug taking (in which the deceased was not involved) took place at the address. 
6.	At 06.44 on 1 April 2014 Casterton called paramedics to the house. They found the deceased’s body lying on the floor of the living room. He was not wearing any trousers or underpants. Rigor mortis was well established. The room had dog faeces on the floor and there was an overpowering smell. The paramedic noted discoloration to the deceased’s genital area and requested police attendance. The applicants were both present when the emergency services arrived and provided witnesses statements on 1 April 2014. 
7.	A broken broom handle was found in the kitchen. The broom handle had what appeared to be faecal matter on it and heavy bloodstaining on the broken end. DNA analysis established that the blood came from the deceased.  
8.	A post mortem examination took place on 4 April 2014. The deceased had extensive bruising of various ages, defensive injuries, significant fresh injuries to his genitalia, fractures to his ribs and fingers. The fatal injuries had been caused by the forceful insertion of an item into the deceased’s anus, resulting in faecal material leaking into the abdominal cavity. This caused faecal peritonitis that in turn led to multiple organ failure. 
9.	On 6 April 2014, the applicants (and co-accused) were arrested and in interview all maintained that the deceased had been ‘fine’. It was suggested that the deceased had been walking his dog and sitting up the night before his death.
Prosecution case
10.	The deceased had been routinely assaulted, bullied and intimidated into handing over his property, in his own home. He had been considered ‘fair game’ because of his previous sexual offending. Mallen was the driving force. Mallen and Quinn, encouraged by Casterton, had assaulted the deceased.  The prosecution could not identify who had inflicted the fatal wounds, but asserted the applicants had participated in the unlawful killing either as principals or secondary parties. Count 1 jointly indicted the applicants with murder; manslaughter was left as an alternative. Counts 2-5 indicted each defendant, in the further alternative, with causing or allowing the death of a vulnerable adult.
Evidence of bullying
11.	Evidence of bullying and abuse of the deceased came from various sources, including other residents of the address, people who visited the address, local shopkeepers and neighbours. The ill treatment led to his becoming uncommunicative and withdrawn and sporting obvious physical injuries.  
12.	Steven Goldsmith returned to live at the address about two weeks prior to the deceased’s death. He knew that Quinn, Casterton and Mallen hated and abused the deceased because of his convictions. He had seen Quinn, Casterton and Mallen with papers about the convictions. Quinn had encouraged him to look at papers and had read out parts of them. Mallen had been the leader in abusing the deceased, Quinn followed him and Casterton encouraged them. 
13.	He had seen Quinn call the deceased a ‘nonce’, spit in his face and strike him to the back of the head. If he tried to intervene, Mallen told him it was “their house now”. The deceased had been prevented from leaving the address and was fed beans on toast. Casterton had remarked that “he doesn’t even deserve that”. Casterton would goad Mallen and Quinn to take it to the “next level” saying “I’d give him a right kicking.” 
14.	Mallen habitually armed himself with weapons in the house, boasted that they had made the deceased vacate his bedroom and said that they had taken control of the deceased’s bank cards. The deceased was terrified of Quinn and Mallen and flinched when they went near him. They had discussed throwing the deceased down a mineshaft. 
15.	On 28 March 2014 Casterton sent text messages to her friend April Love stating; “hurry up and come here” and “pls April, kickin off with Terry”.  That day Mallen assaulted the deceased so badly paramedics were called. The descriptions of the males present fitted Quinn and Mallen.  Goldsmith confirmed the deceased was “black and blue” after the assault and there were knuckle imprints on his face, but the deceased claimed he had fallen over.
16.	When April Love arrived, the applicants were present and the deceased had a gash to his head. In the presence of Quinn and Casterton, Mallen said he had hit the deceased because he was a paedophile and that they had seen paperwork to prove it. The deceased asked Mallen for permission to use the lavatory. Mallen told her that he had taken control of the deceased’s bank account. 
Timing and nature of death
17.	April Love visited again on the evening of 30 March 2014 to collect money owed to her by Mallen. The applicants were not in but the deceased looked nervous and as if he had been crying. He had a black eye and would not let her in. Christopher Smith (April Love’s son) went with her when she returned later. He confirmed that the deceased had two black eyes, a cut to his head and seemed scared. Quinn stated that the deceased was in the back room, that they had made him eat “dog shit” and that they had found a police charge sheet in the deceased’s safe. 
18.	CCTV footage put the deceased in a supermarket on 30 March 2014 at 20.30 at a time when he was not suffering from faecal peritonitis. The latest the fatal injury could have been caused was between 05.00 and 08.00 on 31 March 2014. The likely bracket was between 23.00 on 30 March 2014 and 05.00 on the 31 March 2014. In the fatal assault, the deceased’s legs had been forcibly held apart (indicating more than one assailant was actively involved) so that the broken broom handle could be inserted into his anus.
19.	In the early hours of 31 March. CCTV captured Mallen getting out of the passenger’s side of Casterton’s car adjacent to the cash machine at which a withdrawal was made. The deceased’s bank card was later found in Mallen’s jacket together with an ATM receipt for a cash withdrawal. Another bank card belonging to the deceased was found in Casterton’s car.
20.	Christopher Maycock went to the address at 11.00 on 31 March to collect a loan instalment. The deceased had previously paid on time but had missed his last four payments. He was let into the property by Mallen. He saw the deceased lying on the floor in the dark in a bad state moaning in pain. Mallen said he had had a fall. He asked if help had been called and was assured the emergency services were on their way. 
21.	Callum Grigg visited on the afternoon of 31 March. The applicants, Mallen and others were present. They all consumed alcohol and cannabis.  Mallen said the deceased’s room was his. Mallen told him that the deceased was a paedophile and encouraged him to hit the deceased. The deceased looked terrified and seriously ill; he had a bandage on his head. Mallen pointed to the deceased’s bandage and told him that he had elbowed the deceased in the head two days earlier causing the injury. Someone threw a wrench at the deceased which made contact. A wrench was later found by police in the house. 
22.	Elise Wilkes was another visitor during the afternoon of 31 March 2014, at about 16.30; she saw the deceased lying on a sofa clearly unwell. The room smelt. Mallen and the applicants were present. Casterton removed a bucket stating that it contained vomit. 
23.	The deceased must, therefore, have died a protracted and painful death over a period of about 24 to 36 hours, yet no medical assistance was sought prior to the telephone call on 1 April 2014. 
Lies, cover up and demeanour after the murder
24.	The applicants told numerous lies in their witness statements on 1 April 2014 and later in their police interviews, in which they stated that the deceased had been well until he had been found that morning. 
25.	After the murder, the applicants made jokes at the deceased’s expense. Francesca Foster (an ex-partner of Mallen) was with a friend Kerry Hambly on 1 April 2014 when Casterton’s car pulled up. Mallen whispered to Kerry that the deceased had died. They went home with Quinn, Casterton and Mallen. The three were laughing at how they had fed the deceased dog food, made him take a cold bath, and given him methadone. Mallen re-enacted the position in which the body had been found whilst the others laughed. Kerry Hambly heard the applicants laugh about the injuries to the deceased’s genitals, urinating on him and making him eat dog faeces. She originally thought it had been an April Fool’s Day joke and later asked them to leave.
26.	On 7 April 2014 Quinn and Mallen were covertly recorded in a police vehicle. There was a reference to “the nonce” being dead and laughter. Mallen mentioned the fact that, by then, the police had found only one part of the broken broom handle. Quinn immediately warned Mallen not to discuss it in the police car, obviously aware of its significance.  This conversation led to the police locating the “other bit” of the broom handle.
Defence case
27.	The applicants did not give evidence but their case, as advanced, was that they had not been involved in any assault on the deceased. His injuries on 28 March 2014 were caused when he tripped and they did not know who was responsible for the fatal assault. On Mallen’s behalf, it was suggested to Goldsmith that he might have been responsible for the fatal assault on the deceased. A similar suggestion appeared in Casterton’s defence case statement. 
28.	Richard Rosevear (the acquitted defendant) admitted in evidence that he was aware of the deceased’s convictions. About two weeks before the deceased’s death, the others found paperwork about his past and began to call him a “nonce” and were nasty to him. Casterton had been ‘just as bad’ as Mallen and Quinn. They had been like ‘a pack of dogs’. He had not seen Quinn being aggressive to the deceased but had been told about an incident when he had spat at the deceased. Quinn had been loyal to Mallen and followed his lead. Whilst Rosevear was in prison Quinn and Mallen laughed at him and said he was in prison for what they had done. 
29.	The defence relied upon, inter alia, the previous convictions and pending prosecutions against various prosecution witnesses, including April Love and Goldsmith. Casterton relied upon her previous good character.
Rulings
30.	At the close of the prosecution case, the Judge ruled that there was a case to answer in respect of each applicant on the section 5 count of causing or allowing the death of a vulnerable adult (count 3 for Quinn, count 4 for Casterton) and rejected an application by Mallen that the proceedings should be stayed as an abuse of process. 
31.	Mallen’s counsel complained, boldly, that the provisions of section 6 of the DVCVA imported ‘a real unfairness’ to his trial. The presence of a section 5 offence on the indictment meant a submission of no case on the murder could not be made until the close of all the evidence. If Mallen failed to give evidence, the section provided for an “enhanced” adverse inference. In other words, by virtue of sub section 6 (2) a jury would be entitled to “draw such inferences as appear proper from the defendant’s failure to give evidence” on the charge of murder, even if there would otherwise be no case for him to answer on the murder. In the event, he did not give evidence. 
32.	The principal submission by counsel for the applicants Quinn and Casterton on the section 5 offence was that the very unusual nature of the killing meant it had not been foreseeable and thus had not “occurred in circumstances of the kind that the defendant foresaw, or ought to have foreseen” for the purposes of section 5. 
33.	The judge disagreed; he summarised the evidence of threats, bullying, verbal and physical abuse meted out to the deceased including the assault on 28 March 2014, which the applicants had helped cover up. The build-up of violence had been based on the applicants’ hatred of the deceased and his convictions. There was evidence of Quinn’s participation in a number of incidents. Casterton had been involved in the events leading up to the killing and had egged the others on to inflict greater violence.  He was satisfied a jury could therefore conclude that the targeted attack of a paedophile, as occurred, was foreseeable and rejected the submissions.  
34.	At the close of all the evidence, the judge also rejected a submission of no case advanced on behalf of Casterton on the murder count, relying on the same ‘substantial’ body of evidence.
Directions to the jury
35.	The issues as left to the jury on the murder count were whether they were sure:
Route 1 re murder (as a principal)
The defendant in question had inflicted or taken some physical part in the infliction of the injury from which the deceased died with the requisite intention. If so the defendant was guilty of murder.
If the defendant did not have the requisite intention did he/she foresee that some harm might be caused; if so the defendant was guilty of manslaughter. 
Route 2 re murder (as a secondary party)
The defendant in question played some part in the incident that led to the fatal injury by intentionally encouraging, assisting or lending support to those physically involved; if so did the defendant foresee that the persons involved might have intended to kill or cause really serious harm; if so the defendant was guilty of murder. If the defendant realised some harm might result he/she would be guilty of manslaughter. 
Appeal
36.	Three grounds were advanced by both Quinn and Casterton: 
(i) The judge’s directions on joint enterprise were fundamentally flawed in the light of the judgment in Jogee.
(ii) The judge was wrong to reject the submission of no case on the section 5 offence of causing or allowing the death of a vulnerable adult.  
(iii) Fresh evidence from Mallen undermines the safety of the conviction. 
   On behalf of Casterton two further grounds were advanced: 
(iv) The judge was wrong to reject the submission of no case on the murder count.
(v) The judge made unfair and unduly prejudicial comments to the jury on the applicant’s failure to give evidence. 

The Jogee ground: exceptional leave
37.	Counsel first addressed the question of exceptional leave. The case of Jogee was heard by the Supreme Court in October 2105 and judgement reserved. Although some trials in which the issue of joint enterprise was raised were adjourned until after the judgement was published, this trial went ahead in November 2015. The applicants sought leave to appeal in time on non Jogee grounds. The Registrar held back a number of applications for leave pending the judgment in Jogee, on the basis they may raise a similar issue as that raised in Jogee and their applications for leave were not therefore determined by the single judge. When the Jogee judgment became available the applicants applied to amend their grounds. The impact of the judgment in Jogee was considered by this court in Johnson and others. Counsel for the applicants, supported by Mr Dunkels QC for the prosecution, relied on paragraphs 24 to 28 and paragraph 84 of Johnson and others in support of the proposition that the applicants either do not require exceptional leave or, if they do, it should be granted. 
38.	They understood the court in Johnson and others to distinguish between applications for leave to appeal made in time on non Jogee grounds that have been determined before a Jogee ground is added and those that have not been determined before a Jogee ground is added; so that applicants in the former category require exceptional leave and those in the latter category do not.  They gave as examples the applications of Terrelonge and Burton considered in Johnson and others at paragraphs 26 and 27 and paragraphs 73 to 84.  
39.	At paragraph 84, of the judgment, the court concluded that it would be ‘unjust’ to require the applicants Terrelonge and Burton to show more than the convictions were unsafe. We were invited to take a similar course to that adopted for Terrelonge and Burton and apply solely the test of safety of the conviction. 
40.	It was accepted that a distinction can be drawn between the applications of Quinn and Casterton on the one hand, and Terrelonge and Burton on the other, in that counsel for Quinn and Casterton did not raise the issue with the trial judge. At the time the judge summed the case up to the jury, all parties were aware of the possibility of a change in the law on joint enterprise in relation to secondary parties, but they did not consider it appropriate to ‘reserve the question of the correctness of the Court of Appeal decision in Jogee’. Had they done so the judge would have given their submissions ‘short shrift’. Accordingly, they maintained it would be wrong to treat their lay clients differently from the way the court in Johnson and others treated the applications of Terrelonge and Burton. 
Jogee ground: the merits
41.	Counsel then turned to the merits of the application. The written route to verdict provided the jury with an alternative second route to conviction which introduced foresight into the consideration for the mens rea for murder. This was a misdirection of law following Jogee. If, as Mallen has now confirmed, Mallen inflicted the fatal injuries, it is probable that the applicants were convicted as a secondary party and convicted via the second route containing the flawed direction. There was no evidence the applicants were directly involved in the murder and no forensic evidence to link them to it. Others in the house at the time of the murder were either not prosecuted (Goldsmith) or acquitted (Rosevear) 
Submission of no case to answer on the section 5 offence of causing or allowing the death of a vulnerable adult
42.	Although this ground appeared in both the applications for leave to appeal, Mr Lickley QC for Quinn decided to abandon it during argument. Mr Laws QC for Casterton pursued it. Because the applicants appeared by video link and Mr Lickley was not in a position to obtain his lay client’s instructions on the point, we decided we should consider the ground in respect of both applicants. 
43.	The first hurdle that counsel had to surmount was that neither applicant was convicted of a section 5 offence and therefore a complaint based on its continued presence on the indictment was fraught with difficulty. Nevertheless, Mr Laws contended that its presence on the indictment meant that the trial on the count of murder proceeded in a significantly modified way and adversely to the applicant. 
44.	Section 35 (3) of the Criminal Justice and Public Order Act 1994 introduced the drawing of adverse inferences from a failure to give evidence at trial in these terms: 
“Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” 
Section 38 (3) of the same Act, where relevant, provides:
 “A person shall not …. have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 35(3).” 
45.	In R v Cowan [1995] 3 WLR 818] 1996 1 Cr App R 1 the court, over which Lord Taylor CJ presided, was concerned with the proper interpretation and implementation of section 35. Noting the provisions of section 38 (3), the court gave as one of the reasons for upholding the provisions of section 35 that the jury must be satisfied that the prosecution had established a case to answer before drawing any inferences from silence. 
46.	However, section 6 of the DVCVA provides, where relevant:  
“(1)Subsections (2) to (4) apply where a person (“the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (“the section 5 offence”).
(2)Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—
(a)of murder or manslaughter, or
(b)of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,
even if there would otherwise be no case for him to answer in relation to that offence. 
(3)The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5 offence is dismissed).
(4)At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).”

47.	Where a section 5 offence appears on the indictment, therefore, section 6(2) allows for inferences to be drawn in determining whether a defendant is guilty of murder, manslaughter, even if there would otherwise be no case to answer.  By the judge finding a case to answer on the section 5 count of causing or allowing a death the applicants complain that they have been ‘deprived’ of the protection afforded by Cowan. If the judge had removed the count from the jury, he would have given the standard direction on the drawing of adverse inferences, as recommended by the Judicial College. This would have included the direction that the jury had to be sure the prosecution had established a case to answer (or a strong enough case to call for an answer) before they were entitled to draw an adverse inference. In fact, the judge directed the jury in these terms: 
“The first three defendants .. chose not to go into the witness box. This was a decision they were perfectly entitled to take. However, as you heard me say to each defendant in turn through his counsel, you the jury, may draw conclusions from that decision adverse to any one or all of them if you considered it fair and proper to do so. … A defendant has a right to remain silent and not to go into the witness box. The fact that he chooses to remain silent cannot, on its own, prove guilt. The burden of proving guilt of the defendant remains throughout upon the prosecution. You must not convict any of the three defendants wholly or mainly on the basis they did not give evidence. 
On the other hand, what are the consequences that do or may flow from the decision to remain silent? It means that there is no evidence before you capable of contradicting, undermining or explaining the evidence called by the prosecution. ……. You must only reach an adverse conclusion if you are sure the only sensible explanation for silence is because he or she has no answer to the prosecution case or none that would stand up to examination.” 

48.	In any event, the applicants suggest there was insufficient evidence that the applicants were or ought to have been aware that there was a significant risk of serious bodily harm. The evidence did not establish that the act that caused death (the insertion of a broom handle into the deceased’s anus) occurred “in circumstances of the kind” (for the purposes of s.5 (1) (d) (iii)) of the Act) that the applicant foresaw or ought to have foreseen.
49.	Reliance was placed on R v Khan [2009] 4 ALL ER 544 in which the court observed in argument that “poisoning” would not be “circumstances of the kind” when the killing had involved very serious violence. The fatal assault or assaults left the deceased badly bruised with broken ribs, defensive injuries to his hands, substantial injuries to his groin and internal injuries, all of which were very different from the kind of likely assault about which the applicants may have been aware following the 28 March incident involving a single blow with the elbow. 
Fresh evidence from Mallen
50.	Fresh evidence from the co-defendant Mallen has become available. We were invited to receive it under section 23 of the Criminal Appeal Act 1968 as credible evidence that affords a ground of appeal and to find that it renders the convictions unsafe.
51.	In a statement provided to the applicants’ solicitors, Mallen stated he is solely responsible for the deceased’s death. He denied an intent to kill the deceased but accepted an intent to cause really serious bodily harm. He described his motivation for the assault as being the deceased’s convictions for sexual offending. 
52.	Although the applicants were in the house at the time of the murder, he claims the house was quiet. He alone had used a chair leg to strike the deceased in his genitals and stamped on him.   He made the deceased stand, told him to remove his trousers and said “You are going to get what you gave those kids”. The deceased removed his trousers and Mallen snapped the broom handle in two over his leg. He pushed it into the deceased’s anus as far as he could, about 10 inches, and thrust it in and out 6 to 7 times.  He then used the broken end and thrust it into the deceased’s anus as far as he could, about 15 inches. The deceased begged him to stop. Mallen says he told him: “if you wake my Mrs you’re going to get it worse” and “is that what those kids said, did they ask you to stop?”. He then punched the deceased to the face as he lay on the sofa. He returned to bed where, he insists, Casterton, his partner, was still asleep. 
53.	The next day Quinn and Casterton realised that the deceased was unwell and asked Mallen what was wrong with him to which he replied he did not know. That afternoon he encouraged others to assault the deceased. Nobody did but someone threw a spanner at him. He realised the deceased’s health was deteriorating and ‘took care’ of him. Nobody else knew what he had done. He did not summon medical help because he feared police involvement. When Casterton washed the deceased that evening, there was no bleeding from his anus. After he and Casterton returned from a visit to a public house, Casterton fed the deceased. On 1st April 2014 the deceased’s lifeless body was discovered. 
54.	He accepted that he assaulted the deceased, before the fatal attack, elbowing the deceased in the head and causing a cut on 28 March and that he had been assaulting the deceased “for a while...giving him the odd slap and calling him a ….paedophile” but insisted he “only really had a go at Terry when I was on my own with him”.
55.	At the time of the trial, he did not believe the applicants would be convicted and did not, therefore, make any admissions earlier. However, he claimed he had told his trial solicitor he would plead guilty if the case against Quinn  and Casterton  was not pursued.
56.	We turn to the additional grounds pursued by Casterton. 
The judge erred in refusing a submission of no case to answer on count 1 (murder). 
57.	On the facts, the ruling was wrong in law as it then stood. Post Jogee the ruling was wrong in law. The judge concluded the count could be left to the jury on the basis the applicant was “at the very least” a secondary party. He must have been focussing on the mens rea then required namely foresight and that, post Jogee, is not enough. 
58.	The prosecution accepted it had to prove the applicant was in the room when the fatal assault occurred and that Casterton had either participated in or encouraged what had taken place. There had been no direct evidence against her and the circumstantial evidence available had been insufficient to allow the case to go to the jury.   
59.	The murder occurred within a time frame of late Sunday night to Monday morning. The medical evidence left open the question of whether the injuries were inflicted at the same time. There was no evidence of direct involvement by the applicant for example no incriminating remarks made. The case against her was effectively put on the basis she had previously encouraged violence against the deceased, bore the deceased ill will, was present in the house at the time of the fatal assault, lied to cover up the fatal assault and must therefore have participated and or encouraged the principals. Yet other evidence suggested she was not a party to violence against the deceased, for example, her bringing a friend to the house and sending her text messages alerting her to the possibility of violence on 28 March.  
Improper and prejudicial judicial comment regarding the applicant’s failure to give evidence 
60.	Having given the direction on adverse inferences to be drawn from the failure to give evidence, to which we have referred the judge returned to the topic three times more during his summing up to direct the jury that although the defendants were not obliged to give evidence, they were entitled to ask why the defendants had not given evidence as potential witnesses to what happened on the fatal weekend. In the context of a sensitive and ‘finely balanced case’ his comments were said to be unduly prejudicial to the applicant. 
61.	The passages about which complaint is made appear at pages 20 and 21 of the summing up. At page 20 G the judge reminded the jury that: 
“Apart from the limited assistance provided by Rosevear, none of the other occupants of the house, with the exception of Steven Goldsmith, have come forward to help you with what happened during the course of rest of that weekend. Of course, as I have told you, they do not have to but the fact remains you are left to piece together from the evidence that is available what happened……. You may think it is unlikely to be the case that the defendants are unable to help you, as all of them were living in the house that weekend. They do not have to but you may think they could and chose not to and you have every right to ask why…………
At page 21 F he continued: 
“All the defendants had been present in the house throughout the events covered by this case. Apart from Rosevear, none of them wished to share with you the experience of the months leading up to the weekend on which Terry died and, more importantly, the events of that weekend and the Monday. Of course, as I have said, they do not have to but, equally, you are entitled to ask ‘Why not?’.”

Conclusions
Jogee ground
62.	First, we consider the question of leave. In Jogee, at paragraph 100, the Supreme Court stated: 
“where a conviction was arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to CA out of time. The court has power to grant such leave, and may do so if substantial injustice can be demonstrated…” 

63.	Adopting that approach, the court in Johnson and others distinguished between those appeals brought in time and those brought out of time. For appeals brought in time, the test for this court is solely one of safety (see paragraph 7). For appeals brought out of time exceptional leave is required (see paragraph 10) and an applicant must demonstrate that a substantial injustice would be done; a high threshold. Under the heading “Other cases” at paragraphs 24 to 28 the court in Johnson and others considered specifically appeals or applications for leave to appeal that were pending. The judgment refers to three types of case: 
(i) An application for leave made in time on non Jogee grounds and determined and then a Jogee ground added later, where exceptional leave is required (paragraph 25). 
(ii) An application for leave made in time on non Jogee grounds but not determined and a Jogee ground added later, as for example the appeals of Terrelonge and Burton (paragraphs 26 and 27). 
(iii) An in time appeal on Jogee grounds by one defendant and a co-defendant seeks leave to appeal out of time on similar grounds, where exceptional leave is required by the co-defendant but he is likely to meet the substantial injustice test (paragraph 28).
64.	Thus, although the court identified three different categories of applicant, it made clear that applicants in categories (i) and (iii) both require exceptional leave. We understand the scope for confusion about the requirement for exceptional leave for those in category (ii). In paragraph 27 the court did not state in express terms that exceptional leave was required and later at paragraph 84 used the expression it would be ‘unjust’ to require the applicants to show more than the conviction was unsafe. However, paragraphs 26 and 27 should be read together and with paragraph 84. At paragraph 84, the court explained that it had reached its conclusion on the basis of safety of the conviction. It was the court’s view that “ although leave would have been required to argue the Jogee ground, it would in the circumstances of the case have been granted if the applicants had shown the conviction was unsafe”. This was because: “trial counsel had done what was open to them to reserve the correctness of the law at the trial. Thus, the court made clear that exceptional leave was required for a category (ii) applicant but the court would have granted leave in the exceptional circumstances of that particular case. Terrelonge and Burton had in effect lodged a Jogee ground of appeal in time. 
65.	The circumstances in which exceptional leave is required were considered more recently in R v Agera and others [2017] EWCA Crim 749. The applicants in Agera had lodged non Jogee grounds of appeal in time that were refused by the single judge. Post the Jogee judgment but before the hearing, one of the applicants sought to add a ground based on the trial judge’s directions on joint enterprise. The court had no hesitation in concluding that exceptional leave was required. Although the court was not concerned with an application for leave to appeal that had not been determined, as we are, it roundly rejected the assertion based on the decision in Chapman [2013] EWCA Crim 1370 that amendment to an in time appeal should be allowed out of time on the basis of a change in law between the filing of a notice of appeal and the hearing.  We respectfully endorse the general approach in Agera and for the reasons given by Sir Brian Leveson, President of the Queen’s Bench Division.
66.	Accordingly, the principles are clear. Exceptional leave is required for out of time appeals or applications based on a change of law, even if the change of law ground is added to the original grounds of an in time appeal or application, and whether or not the application has been determined by a single judge. Although we sympathise with the argument advanced by Mr Laws that trial counsel, aware of the Jogee point, did not feel able to advance it before the trial judge before the law was changed, we see no basis in law or logic for distinguishing between applications for leave to appeal based on a change of law that have been determined by the single judge and those that have not. We are satisfied that the applicants require exceptional leave and must satisfy the substantial injustice test. 
67.	We now apply that test to the facts of this case. In the light of the judge’s directions, the jury’s findings indicate that they were sure, at the very least, of the following: 
(i) the applicants played some part in the incident that led to the fatal injury being inflicted by intentionally assisting encouraging or lending support to the person or persons who physically inflicted the fatal injury; and 
(ii) the applicants foresaw that the person or persons involved in inflicting that injury might intend to kill or cause really serious injury to the deceased. 
68.	As far as Quinn is concerned there was evidence of his having been a principal participating in the attack on the deceased with the broom. He had shown hostility towards the deceased because of his being a sex offender, spat in his face, called him a ‘nonce’ and hit him over the back of his head with his knuckles saying they had made him eat ‘dog shit’. Hostility of such a specific kind was reflected in the targeting of Mr Oldham’s genitalia and anus in the fatal assault. Quinn was undoubtedly in the house at the time of the fatal assault and the jury found that he was present at the fatal assault. It was a prolonged attack. The evidence suggested at least two people were involved in the fatal assault, with one forcing Mr Oldham’s legs apart so that the broom handle could be repeatedly inserted. The attack caused serious multiple injuries to Mr Oldham including extensive bruising around the whole pubic area and genitalia and four broken ribs, in addition to the internal injuries from the insertion of both parts of the broken broom handle in turn. Any one present and lending support to such an assault must have intended, at the very least, that those using the broom handle would cause the victim grievous bodily harm. 
69.	On the same day as Mr Oldham was found dead, Quinn laughed about how they had fed him dog food and dog faeces, had urinated on him, given him a cold bath and about the fact he was dead. The covert recording of Quinn and Mallen is also significant. Again, they were heard laughing at the fact that Mr Oldham was dead and express reference was made to the broom stick, in terms that suggest both knew of its significance in the death of Mr Oldham. Furthermore, Rosevear, gave evidence that when he was at Exeter prison in December 2014, Mallen and Quinn were laughing and said that he, Rosevear, was in prison for what they had done.
70.	Turning to Casterton, similar considerations apply: the jury must have found that the applicant was present at the brutal and prolonged attack. She participated in and or encouraged the fatal assault foreseeing that the principal, if it was not her, would cause grievous bodily harm with intent. Casterton too had shown hostility towards Mr Oldham because of his being a sex offender, and that hostility was reflected in the targeting of his genitalia and anus. Casterton had previously encouraged the others to greater levels of violence. 
71.	We are satisfied that Jogee compliant directions in both cases would have made no difference to the jury’s verdicts. The crime in which Quinn and Casterton were involved was a crime of violence at the upper end of the spectrum described in paragraph 21 of Johnson and others. The substantial injustice test has not been met and we decline to give exceptional leave. For the avoidance of doubt, had we been prepared to give leave and consider solely the safety of the conviction, our conclusion would be the same.  
Submission of no case on the section 5 offence of causing or allowing the death of a vulnerable adult
72.	We have no doubt the judge was obliged to leave the section 5 offence to the jury. First, it provided a proper alternative to the murder and manslaughter charges in the event that the jury was not satisfied there was sufficient evidence of participation in the fatal assault. Second, there was ample evidence to support the section 5 offence.  This was a small house and Mr Oldham’s condition must have been obvious to all present. At the very least, the applicants ignored the clear risk to Mr Oldham of serious physical harm at the hands of Mallen, were aware of Mr Oldham’s condition after the fatal assault, and allowed him to die a slow and excruciatingly painful death. If Mallen was the perpetrator of the unlawful act, as he now admits, it occurred in circumstances that were properly left to the jury for them to determine if it was foreseeable. The judge would have been failing in his duty had he withdrawn the section 5 count on the basis of insufficiency of evidence. 
73.	Third, the judge stated in express terms that he was conscious of the possible impact upon the applicants of leaving the section 5 offence on the indictment and had he been persuaded that there was any unfairness to the defence, he would have removed the count from the jury. He was not so persuaded and we endorse his approach. Parliament enacted section 5 specifically to deal with this kind of situation where members of a household conspire to create a wall of silence to hamper a proper investigation into a death. Fourth, and finally on this topic, the judge’s directions on adverse inferences provided sufficient safeguards for the applicants and to address the principal concerns of the court in Cowan. 
Fresh evidence from Mallen. 
74.	In light of Mallen’s current account, and in particular his reference to what he told his trial lawyers, the court enquired of the parties whether any steps had been taken to ask him if he would be prepared to waive privilege. We understand that the appellants’ solicitors had not asked that question and were advised by their professional body it would be improper to do so because of a ‘potential conflict of interest’. We find that advice surprising. We do not see the conflict of interest in an applicant’s solicitor, an officer of the court, asking a witness if he would be prepared for enquiries to be made of their trial solicitors about his account, provided of course the solicitor warned the witness he was not obliged to waive privilege and could have independent legal advice if he chose. Without a waiver of privilege the court is unable to conduct as thorough an assessment of a witness’s current account as it would wish. In the future, if an applicant seeks to rely upon a witness’s fresh evidence in these circumstances and there is any doubt about the proper course to take, we recommend that the solicitors alert the Registrar and seek his advice.  
75.	We are left in the position, therefore, that the applicants seek to rely upon the evidence of a witness who has given previous accounts of the same incident and asserts he advised his trial solicitors he was guilty and prepared to plead guilty if the applicants were discharged. It would have been helpful for the court in assessing his credibility to know what he has said in the past about the incident, his role in it and the role of the applicants. We must proceed on the basis of proper inference.
76.	We infer that the first time Mallen provided his new account was, at the earliest, in May 2016 when he gave it to Casterton’s solicitors for the purposes of her appeal and that until that time, his instructions to his solicitors and counsel were that he played no part in the murder. He has now abandoned his own attempt at an appeal. There is therefore a major hurdle in the path of the applicants, namely that their witness has nothing to lose by giving his present account and potentially stands to gain the acquittal of his very close friend and of his girlfriend.  
77.	There is therefore a major hurdle in the path of the applicants, namely that their witness has nothing to lose by giving his present account and potentially stands to gain the acquittal of his very close friend and of his girlfriend. 
78.	In R v Mackin [2007] EWCA Crim 1844, at paragraph 33 the court declared: 
"'It is obvious…that in the ordinary course of events this court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be so easy for criminals to seek to share out the responsibility so as to get one of them off. On the other hand, there is nothing in the decided cases which in any way affects this court in receiving such evidence in a proper case…' 
'As a general proposition if a friend or relative comes forward after a trial and conviction of the offence and claims to have committed the offence having stood by and allowed the trial to go ahead without imparting that information previously, the appellant in such a case would have a very high hurdle to surmount in persuading the Court that the new witness is giving evidence that is credible.'" 

79.	The applicants did not come close to surmounting that very high hurdle of persuading the court the witness’s evidence was credible. Putting to one side the fact we did not have the benefit of disclosure of his previous instructions, we did not find Mallen’s account on paper in any way convincing. Having heard from him de bene esse, we did not find him his account to us credible, save for where he described the brutality of the attack on Mr Oldham and his motivation. 
80.	Mallen has lied frequently and whenever it suited his purpose. He lied to the police and paramedics and others immediately after the discovery of Mr Oldham’s body. He lied in a witness statement taken by the police on 1 April 2014.  He lied in his interviews under caution. Although he did not give evidence during the trial, his defence case was conducted on the basis that the prosecution witness, Goldsmith, had killed Mr Oldham and this allegation was put on his behalf to Goldsmith, a man he now accepts had nothing to do with the murder. We believe he also lied to us when he claimed he instructed his solicitor he was guilty and handed him handwritten notes to that effect, which his solicitor threw away without passing on to counsel. We have no doubt he lied about the timing of the visit with Casterton to the ATM machine as before the fatal assault, in an attempt to exculpate her, about Mr Oldham’s having stayed virtually silent during the excruciatingly painful attack and about his not discussing what he had done with the applicants. It was no coincidence, as he claimed, that they all told the same story. 
81.	We decline to receive the evidence. 
Submission of no case on the murder count.
82.	The provisions of s.6 (4) of the DVCVA 2004 meant that the question of whether there was case for Casterton to answer on the count of murder could not be considered until the end of all the evidence.  By that time there was ample evidence, as the judge observed, that “at the very least” the applicant was a secondary party; evidence that the applicant intentionally encouraged or assisted with the requisite intention and, with that guilty knowledge, lied to cover up the murder. This was strengthened by Casterton’s failure to give evidence. The judge rightly left the count of murder to the jury.
Judge’s comments
83.	The Judge gave the relevant directions as to the applicant’s failure to give evidence. The further references to the fact that the applicants had not offered any account of what had happened in the house in the days leading up to Mr Oldham’s death were reasonable comments to make. This was a case where the defendants were in the house at the time that Mr Oldham was assaulted and during the time he gradually succumbed to the painful effects of faecal peritonitis, yet each maintained in witness statements and interviews that he was in normal health throughout that time and until he was found dead, and none gave evidence to inform the jury as to what had been happening in the house and how Mr Oldham was.
84.	In any event, in the context of a full and very fair summing up, the comments by the judge were not unduly prejudicial and did not make the conviction unsafe.
85.	For all those reasons, we reject the applications for leave to appeal against conviction. 
86.	Finally, we should like to express our gratitude to all counsel for their very helpful and focussed submissions.