R v Terrence Bristow and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,AND |
| Judgment Date | 13 September 2013 |
| Neutral Citation | [2013] EWCA Crim 1540 |
| Docket Number | Case No: 201202899 B3 201202902 B3 201202900 B3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 September 2013 |
[2013] EWCA Crim 1540
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Lewes Crown Court
HHJ Scott-Gall
T20117183
T20117274
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
Mr Justice Hamblen
and
Mr Justice Nicol
Case No: 201202899 B3
201202953 B3
201202902 B3
201202900 B3
Terrence Bristow represented himself
Mr C Nelson QC & J Fitzgerald (instructed by Registrar of Appeals) for Marcus Bristow
Mr C Nelson QC & E Fowler (instructed by Registrar of Appeals) for Paul Dunn and Lee Delay
Miss C Laing QC & Miss M Wellfare (instructed by Crown Prosecution Service) for the Respondent
This appeal by leave of the Single Judge is concerned with the question of the liability of burglars to be convicted of manslaughter where the death of a property owner occurs during the course of a burglary.
On 10 th April 2012 in the Crown Court at Lewes after a lengthy trial these four appellants were convicted of Count 1 – conspiracy to commit burglary, Count 2 – manslaughter and Count 3 – conspiracy to pervert the course of justice. Two other defendants, Leek and Payne, were convicted on Counts 1 and 3. Payne was acquitted on Count 2, manslaughter. The jury could not agree in Leek's case on Count 2; it was then ordered to lie on the file.
Terrence and Marcus Bristow, whom the judge regarded as the prime movers, were each sentenced to a total of eleven years imprisonment, made up of six years on Count 1, nine years concurrent on Count 2, and two years consecutive on Count The appellants Delay and Dunn were each sentenced to a total of seven years imprisonment, represented by four years on Count 1, five years concurrent on Count 2, and two years consecutive on Count 3.
In the case of the Bristow brothers there is an application for leave to appeal against sentence, essentially on disparity grounds, before the court.
The Offences
The deceased, Julian Gardner, ran an off-road vehicle repair business from premises at Bush Barn Farm, Silverhill, East Sussex. At any time a large number of vehicles would be stored there, together with numerous valuable tools and spare parts. Mr Gardner lived on the farm, about a hundred yards from the workshops in a building known as Lower Barn. The workshops lay between the main farmhouse and that building, which was screened by trees.
There were certain features of the geography upon which the Crown placed particular reliance in seeking to make its case on manslaughter. The only vehicular access point to the scene was via a secluded track coming off the main A21 road. That track initially passed a residential property near to the junction occupied by a witness, Jean Maddox. Further down the track was the farmhouse, a very substantial property occupied by the mother of the deceased and two lodgers. Still further down that track, towards the workshops, there was the locked metal gate. The burglars in making their way to the workshops where the burglary took place, bypassed the metal gate by driving through a ditch to the side of it in a four wheel drive Cherokee Jeep, which the Crown alleged had been purchased with a view to committing the offence.
The only escape route from the scene of the burglary would be via the single track. The burglary would involve the use of heavy vehicles, either brought to and/or removed from the scene, at night in poorly lit conditions, driving from the workshops at the far end of the track. At the workshops, the vehicles would have to manoeuvre in a confined space. Those matters are not in dispute.
On leaving the workshops by way of escape, the burglars simply drove into and through the metal gate, in contrast, so the Crown alleged, to the bypassing of the gate on entry which must have been done to avoid arousing the attention of anyone.
The primary defence of these appellants was that they were not involved in any burglary on the night in question, and so were not guilty of any count. The Bristow brothers, unlike the other accused, gave evidence to the effect that they had not been at the scene. Clearly those denials and alibis were rejected by the jury, but the question arises as to whether there was sufficient evidence of manslaughter in the case of these appellants to be left to the jury, and whether directions given by the judge in summing-up were appropriate. Those issues were extensively canvassed at trial alongside the primary defence, which was that some other criminal gang must have committed the burglary and allied offences.
The Single Judge confined leave to appeal to Count 2, manslaughter. There is no renewed application before us in relation to Counts 1 and 3. We therefore proceed on the basis that these appellants were guilty of those offences. In relation to Count 1, conspiracy to burgle, the judge had specifically directed the jury only to convict a defendant if he was present and participating in the burglary.
The burglary at the workshops took place on the night of 10 th to 11 th October 2010. It is clear that a team of at least six burglars was involved. They arrived in at least two vehicles and left in a minimum of three vehicles, the third vehicle being a Land Rover taken from the workshops. It is clear that a number of events took place simultaneously during the course of the burglary. They included trying to force a strong room containing expensive tools, moving two Land Rovers and a trailer, loading a trailer with quad bikes removed from a storage container, and moving tyres from a workshop. The overwhelming likelihood is that Mr Gardner intervened while the burglary was taking place.
His body was found by a friend the following morning on the forecourt outside the workshops. The post mortem showed very extensive injuries, including fractures of the pelvic bone, both cheekbones, both jaws, a number of ribs, a vertebra in the neck, and an extensive skull fracture. The pathologist's conclusion was that death had been caused by the deceased being struck and/or run over by one or more of the motor vehicles at the scene. DNA in a blood stain found on a wing mirror from the Cherokee Jeep matched that of the deceased, and glass recovered from his head was consistent with having come from the same vehicle.
Mr Hill, a forensic examiner, also found evidence at the scene consistent with a collision between the jeep and Mr Gardner's Land Rover, and signs of dragging on the body more likely to have been caused by the Land Rover than the Jeep. He was not able to identify a definitive scenario leading to Mr Gardner's death. He could not say which of the two vehicles, or indeed whether a combination of them, had caused death. However, his evidence taken together with that of the pathologist, attributed death to a collision as the most likely scenario. The pathologist suggested that there were two impacts: one when Mr Gardner was standing and knocked to the ground (the fractured neck vertebra indicated this), and the second when a vehicle passed over him whilst he was on the ground. All the injuries could possibly have been caused by one vehicle, but it could not be ruled out that they had been caused by two. The evidence showed that the Land Rover and the Cherokee Jeep were the only two vehicles to leave the workshop area.
There was no evidence as to who was the driver of either vehicle or indeed as to who was an occupant of either vehicle at the time of the fatal incident. There was no eye witness evidence, and the defence involved a complete denial of presence at the scene.
As already indicated, there was sufficient evidence against each appellant to implicate him in the burglary by being present at it, and also in the cover up which took place immediately after the escape from the farm by burning out vehicles and stealing a lorry.
The Crown's Case
The prosecution case on Count 2 was one of unlawful act manslaughter. The unlawful act was alleged to be the burglary of the farm, which was committed as a joint enterprise. Although the Crown could not say who was driving the vehicle or vehicles that had struck Mr Gardner, they asserted that each appellant took part in the burglary and in doing so, in the particular circumstances, foresaw a real possibility that somebody intervening at the scene might suffer harm as a result of the carrying out of the burglary, including harm caused during their escape from the scene. The presence of residential farm buildings would have alerted the appellants to the risk of being caught in the act of burglary, which would result in the need to escape promptly from the scene in vehicles along the single track.
In those circumstances a reasonable bystander would, the Crown submitted, recognise the risk of some harm being caused to a person intervening at night, in the dark, in a relatively confined space, where powerful vehicles were involved, and there was only one route of escape from the workshops. In this context, it is worth recording that the jury went on a view of the scene as well as having many still images provided.
The Judge's ruling and directions
At the close of the Crown's case submissions of no case to answer were made to the judge. He rejected them, holding that there was sufficient evidence to go to the jury. In so holding, he held that there was sufficient evidence for the jury to find that the burglary was carefully planned and that there must have been a reconnaissance which had enabled the burglars on the night promptly to find items of value in different places. The burglary could be...
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