This week’s Digest considers one judgment of the Court of Appeal (Criminal Division) in which the court dismissed an application for leave to appeal against conviction and sentence; the appeal was brought on a number of grounds, but predominately concerned the learned trial judge’s handling of evidence at trial. Also included in this week’s post are the sentencing remarks of Mr Justice Picken in sentencing Jason Cooper for murder and attempted murder.
This was an application for leave to appeal against conviction and sentence on a number of grounds, mainly relating to deficiencies in the trial judge’s handling of the evidence at trial. The application failed; the judge’s handling of the evidence was, on the most part unimpeachable, and, even taken at its highest, did not undermine the safety of the conviction. Further, given the aggravating features of the case, the judge was justified in imposing a minimum term of 36 years’ imprisonment.
The applicant was implicated in a shooting which took place on 21 December 2014. The facts were that a Somali-looking man approached the deceased’s car from a Mitsubishi Shogun at the traffic lights on Derek Dooley Way in Sheffield and fired three shots. Two hit and killed Jordon Thomas and one struck Neshaun Ferguson, who survived. The assailant, with two men, proceeded to dump the car. The background was that the deceased was part of a group of males who were rivals of a Somali group of which the applicant was a member. The applicant’s defence at trial was that, at the time of the murder, he was watching DVDs with a friend. On 25 November 2015, the applicant was convicted of the murder of Jordon Thomas and the attempted murder of Neshaun Ferguson.
The applicant’s appeal was brought on a number of grounds.
Ground 1 – admission of intelligence material
Intelligence material was put before the jury in agreed facts which identified the applicant as a suspect in a number of drugs offences in connection with a group of individuals who were the subject of an organised crime investigation. The applicant submitted that this material was anonymous hearsay and, absent agreement, there was no legal basis for its admission under common law or statute (Mayers [2009] 1 Cr App Rep 30, at [113]). Further, hearsay evidence that was exculpatory of the applicant was not before the jury.
The court rejected that submission. The trial judge was confronted with the complex task of not denying one defendant the potential advantage which the intelligence presented. It was difficult to see, absent severance, which would have been difficult to justify, what other course was open to the court save admission with the diligent warnings and directions the judge gave to the jury. Accordingly, this ground failed.
Ground 2 – multiple hearsay
The jury at trial had heard hearsay evidence that the applicant had sought out the deceased with a gun the night before the incident. This was so central in illuminating the applicant in an unwelcome light and, without that evidence, the applicant would have remained one of a number playing a part in the events leading up to the murder.
The jury, in the Court’s opinion, had been properly directed on the limitations of the evidence. The evidence was relevant to the cutthroat-defence run by the applicant’s co-defendant. Further, this evidence was not unsupported; other evidence suggested that the applicant had been driving round looking for Jordon Thomas. Accordingly, ground two failed.
Ground 3 – cross-examination of the applicant
The applicant in his evidence-in-chief had asserted that he had never been in custody for murder before, and so relied on legal advice to remain silent in interview. He led his two convictions for affray and driving matters. Without giving notice to the defence, the Crown then cross-examined him at length about a previous arrest for conspiracy to murder, and other arrests. The judge directed the jury that the way in which he was cross-examined did not suggest the applicant had committed any offence of which he was not convicted, and was probative only of the applicant’s familiarity with police procedure and the advantage of remaining silent in interview.
That direction, so it was submitted, was said to be inadequate, not least of all because it came two weeks after the applicant was cross-examined, by which time the jury were sure to have formed their opinion of the applicant. Nevertheless, although this route to admission was far from desirable – it was bad character evidence and required a statutory gateway and proper application – the evidence was clearly admissible, and the subject of an unimpugnable direction couched in clear terms.
Ground 4 – the judge’s summing up
The summing up was criticised on three fronts: for an insufficiently robust warning of the dangers of hearsay, for an absence of directions on specific hearsay problems; and for an over-robust direction on the inference available from the applicant’s silence during police interview. Properly read, however, in the court’s view, the summing up was not deficient enough to imperil the safety of the conviction. Thus, ground 4 was not made out.
Ground 5 – fresh evidence
The applicant sought to adduce further evidence in relation to his defence of alibi. However, in the court’s view, this was not a case in which an alibi would materially have assisted the applicant. The Crown had never suggested that the applicant was the gunman or was present in the Shogun at the time of the murder; the case he answered did not require an explanation of his whereabouts on the night in question.
Sentence
Finally, the applicant sought leave to appeal against sentence on the grounds it was manifestly excessive. Given the aggravating features in the case – inter alia that the applicant was closely involved in the premeditation of the murder and it was a cold-blooded execution – the judge was justified in imposing a minimum term of 36 years.
Jason Cooper was found guilty unanimously of murdering his ex-partner, Laura Stewart, and of wounding David Roberts with intent to cause grievous bodily harm. It was clear to the judge that the offender was not willing to let Ms Stewart live her own life after they had broken up. On the days leading up to the murder, the offender clearly expressed his desire to kill Ms Stewart and on 12 August 2017 he attacked her with a knife in the street, stabbing her three times. David Roberts tried to pull the offender way but was stabbed. The offender remained at the scene for some minutes, kicking Ms Stewart and laughing.
The judge imposed the mandatory life sentence. The starting point was 25 years, given that the offender took a weapon to the scene of the crime with the intent to use it (paragraph 5A of Schedule 21, Criminal Justice Act 2003). Aggravating factors included: first, the brutality of the attack; second, a sustained pattern of controlling behaviour towards Ms Stewart; third, the lack of remorse; and fourth, that the jury had found the offender guilty of the offence concerning David Roberts. There was no mitigation in favour of the offender and, as such, the judge increased the minimum term from 25 to 31 years, with a sentence of 12 years to run concurrently for the crime of wounding with intent.
A juror in Scotland, who accepted a bribe, has been jailed for six years in the first prosecution of this kind. Catherine Leahy was serving on a jury in a serious drug trafficking and money laundering matter, but an investigation was started after information was passed to the Crown that money had been passed to a juror.
The full piece can be read here.
The UK government is challenging the legality of the emergency Brexit bills passed by the Scottish and Welsh parliaments after disputes surrounding their policy-making powers.
The full piece can be read here.
According to the Law Society, due to cuts in legal fees, criminal defence solicitors may become extinct in areas of England and Wales within five years. The warning comes as barristers have begun to refuse to take legal aid briefs and are planning mass walk-outs.
The full piece can be read here.
