R v L
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FULFORD,President of the Queen's Bench Division,SIR IGOR JUDGE,MR JUSTICE GRIGSON |
| Judgment Date | 08 July 2008 |
| Neutral Citation | [2008] EWCA Crim 1735,[2006] EWCA Crim 1155,[2006] EWCA Crim 1902,[2006] EWCA Crim 625 |
| Docket Number | Case No: 2004/3631/D1 2005/2089/B5,Case No: 2006/0080/C1,No: 200403631/D1,No: 2004/03631/D1 PRIVATE |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 July 2008 |
[2006] EWCA Crim 1155
The President of the Queens Bench Division
Mr Justice Mitting and
Mr Justice Fulford
Case No: 2004/3631/D1 2005/2089/B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Paget
BIRMINGHAM CROWN COURT
Mr Justice Goldring
Mr Nigel Rumfitt QC and Miss Halliday-Davis for Ellis
Mr T. Maloney for Gregory
Mr Anthony Barker QC and Mr G. Henson for Simms
Mr J.M. Burbidge for Martin
Mr Timothy Raggatt QC, Mr M. Duck and Mr J. Butterfield for the Crown
President of the Queen's Bench Division:
On 25 th May 2004, at the Central Criminal Court, before His Honour Judge Paget QC and a jury, Iain Davis was convicted of two counts of murder. He appeals against conviction with the leave of a single judge. This is the Davis appeal.
On 18 March 2005, at Birmingham Crown Court, before Goldring J and a jury, Marcus Ellis, Michael Gregory and Nathan Martin were convicted of two counts of murder and three counts of attempt murder, and Rodrigo Simms was convicted of the same counts of murder, and two of the three counts of attempt murder. They appeal against conviction, with the leave of the court. This will be described as the Ellis appeal.
There is no connection between the two cases. Leave was given in the Ellis appeal because it appeared that an important point about the anonymity of witnesses was a common and significant feature of both cases. The appeals were heard consecutively, and after hearing argument in both cases, we decided, with the agreement of all counsel, to address the issues in a single judgment.
The Davis Appeal
On 1 January 2002, towards the end of a New Year's Eve party in the presence of witnesses, two men, Ashley Kenton and Wayne Mowatt were shot dead. Their deaths resulted from a surge of violence by an individual who discharged a loaded gun to assassinate Kenton, against whom he entertained an apparently short-lived grudge. The second death was "accidental", in the sense that the victim, Mowatt, happened to be in just the wrong place at the wrong time when the bullet fired from the assassin's gun went through the Kenton's neck, and by way of a flimsy internal partition, entered the neck of and fatally injured Mowatt. A single bullet killed both men.
The Ellis Appeal
On 8 December 2002, Nathan Martin's brother Yohanne, was shot dead. Those responsible were believed to be members of a gang in Birmingham known as the Johnson Crew. The appellants, together with a co-accused Tafarwa Beckford, who was acquitted by direction of the judge, were members of the Burger Bar Crew. Both gangs were capable of extreme violence. The Johnson Crew and the Burger Bar Crew were, literally, deadly rivals.
Shortly after 4am on 2 nd January 2003, a party was taking place at the Uniseven Hair Salon in Aston, Birmingham. The guests included members of the Johnson Crew. A number of those attending the party happened to be standing in an alleyway at the rear of the premises. They included Charlene Ellis, Letisha Shakespeare, Sophie Ellis and Cheryl Shaw. A convoy of vehicles, which included a red Mondeo and a silver Vauxhall, drove to the scene. Shots were fired into the crowd. Sharleen Ellis and Latisha Shakespeare received fatal gunshot wounds. Sophie Ellis and Cheryl Shaw were badly injured. A man called Leon Harris, who was sitting in a car further down the alleyway, was shot at close range by a gunman who had alighted from one of the convoy of vehicles.
These shootings, and the consequent deaths and injury, were perpetrated by members of the Burger Bar Crew in revenge for the death of Yohanne Martin. The female victims were not the intended targets of the attack. Unhappily they just happened to be in the wrong place at the wrong time, victims of gang warfare on the streets of Birmingham.
General background – Gun Crime
These cases are not untypical. There is compelling evidence of an alarming increase in gun-related crime (see Crime in England and Wales 2003/2004: Supplementary Volume 1; Homicide and gun crime, published in January 2005). In an earlier case which we were asked to consider in argument, R v Bola, unreported, 18 June 2003, Hughes J summarised the evidence then before him in a case where a woman was summarily executed in a drug related feud.
"Since April 2002 there have been no less than thirty seven people injured on the streets of Nottingham in shooting incidents. Not domestic incidents, on the streets. Three of them have been fatalities….. The fear of gun crime has an adverse effect on the public who live in the areas of Nottingham where such things occur and particularly has had a considerable impact on the ability of the police to investigate crime. He says, and I have absolutely no reason to doubt, indeed I am confident that he is right that the experience of the police is that after an incident of this kind witnesses are frequently content to come confidentially to the investigators to tell them what they know, what they saw, to give them leads and help about what the background may be and sometimes to name names, but that such witnesses are to a very large extent frightened to be identified as co-operating with the police and unwell, as a result, to give evidence. They fear similar incidents, and they fear retribution, either from those whom they accuse, or, more generally, from those who take the stance at co-operation with the authorities is anathema…the evidence…is entirely consonant with the experience of anybody who has practiced in the criminal courts in the last few years. It describes a situation which all of us know obtains not even or mainly in Nottingham but in several major cities in England….. "
These observations are entirely consistent with the judicial experience of each member of the court.
In the Davis appeal there is undisputed evidence from a detective officer who has specialised in murder investigations for the last seven years, and in particular, gun related violence. He said:
"Most people opt not to co-operate and do not get involved. Doors are not opened, arranged meetings result in a witness not turning up, telephone messages go unanswered and messages left at home addresses/work, although discrete are ignored. This is not a problem that exists on an occasional basis…..it is a problem that exists in practically every investigation in one way or another. Such problems exist on a daily basis. I have spoken to witnesses about a reluctance to give evidence. The common factor between all of them is fear.
They are in fear of their lives and that of their families and friends. There is a very real danger to such persons of death or serious injury, either to prevent them from giving evidence, or to punish them for giving evidence and to send a warning to those who may be thinking of assisting the police. This risk I know and the witnesses know, is not necessarily at the hands of the defendants themselves, but at the hands of the associates of the defendant. If the defendant is in custody, it is often the associates who are the physical threat.
In many but not all cases, the witness knows of the defendant and their associates. They know they have easy access to firearms and the "ease" with which they are prepared to use them."
In summary, quite apart from the ghastly callousness involved in the use of firearms to kill, and the devastation suffered by the families of the deceased, it is not an exaggeration to point out that, whether they are aware of it or not, these gun carrying criminals are challenging the rule of law itself. One common feature of both these cases, and many others like them, is the absence of any or any significant attempt at concealment. People are gunned down in busy crowded areas. Although the offences are witnessed, those who use their guns expect to escape justice. They anticipate that the guns which have been used to kill will also serve to silence, blind and deafen witnesses. Without witnesses, justices cannot be done.
Dealing with it generally, there are in principle, two ways to address these problems. The first is a witness protection programme. However in reality, and certainly for the individual of good character, with established roots, this kind of programme is unacceptable. It requires a complete change of identity, and home, and work, not only for the witness himself or herself, but for his family, and a likely permanent separation between them, and other members of their extended family, and a subsequent life which is dominated by the need for continued security, and constant supervision of that security by police officers. This process is grossly invasive of the right of the witness and his family to private and family life. It is likely to be appropriate when the identity of the witness is already known to the defendant, and may be suitable for the professional criminal who has decided, for reasons of his own, to give evidence against his former colleagues and who is treated as a "supergrass". The alternative to the witness protection programme is for appropriate steps to protect and reassure the witness about the process leading to and the giving of evidence. This includes voice modulation, and screening, and other special measures, and witness anonymity. It is this last feature of possible steps to protect witnesses, and their lives and the lives of their families, that is engaged...
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