R v Kray
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WIDGERY,LORD JUSTICE FENTON ATKINSON,MR. JUSTICE JAMES |
| Judgment Date | 22 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Crim J0722-1 |
| Docket Number | Nos. 1661/69; 1662/69; 1663/69; 1664/69; 1665/69; 1666/69; 1667/69; 1668/69 1669/69 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 July 1969 |
[1969] EWCA Crim J0722-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Widgery
Lord Justice Fenton Atkinson
and
Mr. Justice James
Nos. 1661/69; 1662/69; 1663/69; 1664/69; 1665/69; 1666/69; 1667/69; 1668/69
and
1669/69
MR. J. PLATTS-MILLS. Q.C. and MR. I. LAWRENCE appeared on behalf of the Applicant Ronald Kray.
MR. P. WRIGHTSON, Q.C. and MR. M. SHERBORNE appeared on behalf of the Applicant Reginald Kray.
MR. D.H. VOWDEN, Q.C, and MR. A. ROSE appeared on behalf of the Applicant Charles Kray.
SIR LIONEL THOMPSON appeared on behalf of the Applicant Cornelius Whitehead.
MR. W. FORDHAM, Q.C. and MISS P. COLES appeared on behalf of the Applicants Christopher and Anthony Lambrianou.
MR. W. DENNY appeared on behalf of the Applicant Ronald Bender.
MR. C. LAWSON, Q.C. and MR. I. RICHARD appeared on behalf of the Applicant Frederick Foreman.
MR. R. FRISBY, Q.C. appeared on behalf of the Applicant John Barrie.
MR. K. JONES, Q.C. and MR. J. LEONARD, Q.C. and MR. CRESPIN appeared on behalf of the Director of Public Prosecutions.
These applications arise out of a trial lasting forty days at the Central Criminal Court before Mr. Justice Melford Stevenson and a jury. They concern two alleged murders, one of George Cornell on the 9th March 1966 and the other of Jack McVitie on the 29th October 1967.
The case for the Crown was that the twin brothers Ronald and Reginald Kray were the leaders of an association of men with criminal records operating in the East End of London and known locally as the Kray "firm". The Crown did not attempt to particularise the activities of this so-called firm, but in the course of the trial witnesses spoke of its having demanded money by menaces from shop and club proprietors, the menaces consisting of threats of physical violence.
On the evening of the 9th March 1966 the twin brothers Ronald and Reginald were drinking with a number of their associates in a public house called The Lion, from which Ronald Kray and the applicant Barrie drove to another public house nearby called The Blind Beggar where, according to the barmaid, Ronald shot Cornell in cold blood whilst the latter was drinking with others in the bar, Barrie firing another gun at random to divert attention from Ronald Kray. Ronald Kray and Barrie returned to The Lion, whereupon several witnesses spoke of an immediate exodus of the Kray twins and their friends (some eight in number) to another public house called The Chequers in Walthamstow. The Crown alleged that Ronald Kray and Barrie thereafter went into hiding, and that Reginald Kray had taken a leading part in organising both the flight to Walthamstow and the subsequent concealment with a view to protecting his brother and Barrie.
McVitie disappeared at the end of October 1967, and his body has never been found. The Crown alleged that he was killed with a knife in a basement flat at number 97 Evering Road, N.16 by Reginald Kray with the active assistance of Ronald Kray and others.
McVitie was seen shortly before midnight on the 29th October at the Regency Club, owned by John and Anthony Barry, which was often used by members of the Kray firm. The witness Hart, who turned Queen's Evidence, said that he arrived at the Regency Club with the Kray twins and Bender and heard Reginald Kray tell Anthony Barry that he intended to kill McVitie that night. Hart saw a gun in Reginald Kray's hand. Hart further testified that Anthony Barry protested that he did not want the killing to take place at the club, whereupon a party was arranged at 97 Evering Road with a view to McVitie being decoyed to that address.
The Kray twins left for Evering Road and, according to the Crown's case, Anthony Lambrianou was instructed to wait at the Regency Club to get McVitie drunk and bring him to the party. Meanwhile the gun and a knife said to have been produced by Bender were left in the possession of Anthony Barry, who was later instructed by Hart to take the gun to Evering Road, which he did.
In due course McVitie went from the Regency Club to 97 Evering Road in the company of the Lambrianou brothers and was there brutally murdered by Reginald Kray with the knife, the gun having failed to fire. Following the killing the Kray twins left, and their associates disposed of the body and cleaned up the flat to remove all traces of the affair. That is a very brief summary of the Crown case in these matters.
Separate committal proceedings were held in respect of each murder, and two indictments were laid. Instead of proceeding on these indictments, however, a voluntary bill was preferred which charged the various applicants as follows:- Count 1, Ronald Kray and Barrie with the murder of Cornell; Count 2, Reginald Kray with being an accessory after the fact to this offence; Count 3, Ronald Kray, Reginald Kray, the Lambrianou brothers, Bender and Anthony Barry with the murder of McVitie; and Count 4, Charles Kray, Foreman, Whitehead and one Donaghue as accessories after the fact of the murder of McVitie. Donaghue pleaded guilty to Count 4 and Anthony Barry was acquitted on Count 3: the remainder were convicted as charged.
The defence of Ronald Kray and Barrie on Count 1 was a denial of any association with the murder of Cornell. They admitted that they had been drinking at The Lion and that they had later gone to The Chequers at Walthamstow, but explained that they did this on hearing that the murder had been committed and for fear of being suspected of complicity. Reginald Kray gave no evidence on either Count 2 or Count 3.
On Count 3 Anthony Barry admitted the substance of the Crown case against him, but contended that in taking the gun from the Regency Club to Evering Road he had acted under duress. Ronald Kray gave no evidence as to his movements on the night of the 28th/29th October but denied any knowledge of the murder of McVitie. The remaining accused on this count also denied any knowledge of the murder, though some admitted having been in the Regency Club that night, and Bender admitted having been to 97 Evering Road.
I now turn to deal with the applications of Ronald Kray and Reginald Kray for leave to appeal against their convictions. Two complaints common to these applications were (a) that the Judge wrongly refused applications made before the trial began and repeated later that separate trials Counts should be held on Counts 1 and 2 and Counts 3 and 4 respectively; and (b) that the applicants were prejudiced by the manner in which Anthony Barry was allowed to develop his defence of duress. Both applicants contend that the joinder of the two offences of murder in one indictment was contrary to law, or, alternaitvely, that the Judge wrongly exercised his discretion to continue the trial without severance and thus gave rise to a miscarriage of justice.
It was accepted in argument before us that the joinder of these offences was contrary to law unless authorised by Rule 3 of Schedule 1 of the Indictments Act 1915, which is in these terms: "Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character." Counsel for Ronald Kray contended that two murders cannot amount to a "series" of offences since a series, he says, involves at least three components. Mr. Wrightson (for Reginald Kray) did not support this argument, but he contended that Rule 3 was no more than a consolidation of earlier rules of practice which did not sanction the joinder of offences unless they arose out of the same facts or were part of a system of conduct, which was not here alleged.
The Court does not accept either of these arguments. It may be true that the word "series" is not wholly apt to describe less than three components, but so to limit its meaning in the present context would produce the perverse result that whereas three murders could be charged in the same indictment two could not. The construction of the Rule has not been restricted in this way in practice during the fifty years which have followed the passage of the Act and it is too late now to take a different view.
On the other hand, offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the Rule is not restricted to such cases. Thus in R. v. Clayton-Wright (1948 2 All England Reports 763) the accused was convicted on four counts, namely, arson of a vessel; arson of the same vessel with intent to prejudice the insurers; attempting to obtain money by false pretences from those insurers in respect of a policy on the vessel; and attempting to obtain money by false pretences from insurers by falsely pretending that a mink coat had been stolen from his motor car. On appeal it was unsuccessfully contended that the fourth count was improperly joined. Lord Goddard, Chief Justice, said (at page 765): "One test which the learned judge applied was to consider whether or not the evidence with regard to the mink coat could be given in evidence on the other charges. He came to the conclusion that it could, and, in the opinion of the court, he came to a right conclusion. … That was one ground, but the main ground on which the court holds that there was no misjoinder is the following. The charge contained in...
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