No: 201302466 B4 

Neutral Citation Number: [2015] EWCA Crim 1515
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday 16th July 2015

 

B e f o r e:

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LADY JUSTICE HALLETT DBE 
 
MR JUSTICE JEREMY BAKER

MR JUSTICE KNOWLES 
 
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R E G I N A 

v 

KYRONE DALEY 

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Computer Aided Transcript of the Stenograph Notes of  
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Mr Moloney QC & Mr K Missouri appeared on behalf of the Appellant

Mr W Boyce QC & Miss K Robinson appeared on behalf of the Crown
 
J U D G M E N T
1.	THE VICE PRESIDENT: Introduction On 16th April 2013, at the Central Criminal Court before His Honour Judge Kramer QC, the appellant was convicted unanimously of the offence of murder.  On 17th April 2013 he was sentenced to custody for life with a minimum term of 22 years.  His co‑accused, Sanchez Thomas, was also convicted of murder and sentenced to life imprisonment with a minimum term of 25 years.  The appellant appeals against conviction by leave of the full court.  An application for leave to appeal against sentence has been adjourned to this court.
2.	Prosecution case
3.	Amir Tufail is the younger brother of the deceased Umar Tufail.  They lived with their mother at Wharncliffe Road, Thornton Heath.  Amir knew the co‑accused Sanchez Thomas and had allegedly stabbed him during an argument.  
4.	On Sunday 15th July 2012, at about 4.30 in the afternoon, Umar, who looked remarkably similar to his brother, had just arrived back home, having been to the shops.  He had delivered his purchases and was sitting in his red Vauxhall Corsa outside his home.  A second Vauxhall Corsa, grey in colour, drew alongside.  It was driven by Thomas.  The appellant was the front seat passenger.  Thomas and the appellant were very close friends.  A shot was fired through the open front passenger window of the grey Corsa.  The bullet went straight into the side of the head of Umar Tufail.  The emergency services attended and he was taken to hospital, where he died the following day.
5.	Expert evidence provided limited assistance on whether the shooter was the front seat passenger or the driver.  A senior forensic scientist confirmed the shot came from within the grey Corsa and from the area of the nearside front passenger seat, but she could not say in which seat the person firing had been sitting.  A pathologist stated that the gun would have been at least a foot away from the victim.  
6.	Following the shooting, the appellant turned off both his mobile telephones and disposed of them, his clothing and his footwear to thwart the police investigation.  He travelled with Thomas by taxi to the home of Kyle MacDonald, where they remained for two hours or so.  He then travelled with Thomas to the home of his girlfriend, Natasha Henry.  
7.	On numerous occasions after the shooting the appellant telephoned and met up with Thomas.  He also resigned from his employment at JD Sports and obtained and partially completed an application for a passport.  
8.	The prosecution alleged that the shooting was an execution, a deliberate shot fired at almost point blank range, carried out in furtherance of an ongoing dispute between two rival gangs.  Whoever was the gunman both men in the car were fully involved in the criminal enterprise to shoot and kill Mr Tufail.
9.	Defence case
10.	Although the appellant answered no questions in interview following his arrest on 6th August 2012, he did give evidence at trial.  He denied any knowledge of the gun or of Thomas' intention.  He claimed that Thomas had agreed to give him a lift.  As they got into the car, Thomas slid something under the seat and placed a bag in the front passenger foot well.  There was no‑one else in the car.  The two men set off.  On the way, they stopped for petrol and he paid £5 towards it. To his surprise, Thomas then drove off their route and down Wharncliffe Road.  He drove slowly and said "I swear that's Rems' brother's car".  He drew alongside the red Corsa and spoke to the driver.  Thomas worked himself up into a rage and moved the car so they were virtually touching.  The next thing he saw was Thomas holding something black, which he realised was a gun.  He froze and Thomas shot Umar in the head.  This was the first he was aware there was a loaded firearm in the car.  Had he known there was a gun, he would have got out and walked away.  He would not have informed the police but he would have distanced himself. Thereafter he did as Thomas told him to distance themselves from the shooting because he was scared of Thomas. 
11.	Thomas' defence was that there was a third person in the car called Pauser and that it was he who leant forward and fired the shot through the open passenger window.  Unfortunately for Thomas' defence, CCTV footage of the grey Corsa and DNA evidence undermined this version of events.
12.	Trial Judge’s Directions on the law
13.	The trial judge invited submissions as to the law before closing speeches.  He had drafted provisional directions entitled "Murder and Joint Enterprise" and a separate document entitled "Guidance on steps to verdict".  The judge proposed two routes to verdict, one for the gunman and one for the companion.  The jury could convict the gunman of murder if he pulled the trigger intending to kill or cause really serious bodily harm, and the jury could convict the companion of murder if he was in the car with the gunman knowing the gunman had a loaded gun, helped or encouraged the gunman to fire it and intended to kill or cause grievous bodily harm.  
14.	The prosecution persuaded the judge to leave a third route to verdict, referred to as the Smith route after the decision in R v Smith (Dean Martin) and others [2009] 1 Cr App R 36.  The judge directed the jury in the following terms:  They could convict the companion of murder if satisfied that he had (i) voluntarily joined or remained with the gunman; (ii) knowing that the gunman was armed with an illegal and loaded gun; iii) assisted or encouraged him to commit an offence other than murder, in this case the unlawful possession of a firearm and ammunition; and (iv) while doing so knew there was a realistic possibility that he, the gunman, might commit murder by firing the gun.  The judge then expressly directed the jury that there must be knowing participation of some sort in what was expressly or tacitly agreed as joint enterprise, so that if the companion did not know the gunman was armed that person would be not guilty of murder.
15.	Mr Moloney QC on behalf of the appellant, has argued three grounds in detail and mentioned a fourth in passing during today’s hearing.  
16.	Grounds 1 and 2 
17.	Grounds 1 and 2 were very much intertwined. Mr Moloney believes there is a very strong case that the jury must have chosen the third route to verdict and therefore convicted the appellant on the basis of ‘parasitic accessory liability’ and has focussed almost entirely upon it.  He observed that the jury retired to consider their verdicts at 14.59 on 15th April 2013.  At 15.34 on 16th April 2013 they retired to continue their deliberations after being given the answer to this question:

i.	"We seek clarification regarding route 3, 6(1).  Does the question ask whether the companion assisted or encouraged the gunman to OBTAIN or possess the gun, i.e. did he help provide the murder weapon in the first place OR does the question ask whether the companion assisted or encouraged the gunman whilst they were in possession of the gun, i.e. they had the murder weapon already and was assisted in some way by a companion."
18.	At the time no‑one picked up on the jury's terminology. The judge understood the question to be focused on the point in time at which route 3 to verdict might be triggered.  He believed the jury wanted to know whether they should focus on the issue of the companion’s role in obtaining the gun or his role in the car after the gun had been obtained.
19.	The judge repeated his directions in full. He informed the jury that the second of the two alternatives they had posed in their question was the correct one for route 3.  He directed them to focus on the time when the appellant and Thomas were in the car.
20.	Mr Moloney, with the benefit of further reflection, now argues that the jury's question indicates confusion in the jury's mind as to route 3 to verdict, and claims the judge's answer to the question did nothing to resolve that confusion.  The confusion, he says, is highly significant because of the timing of the question. If they followed the judge’s directions, the jury should only have considered route 3 if they were not convinced of the appellant's guilt under the first two routes.  About half an hour after receiving the judge’s answer the jury returned their verdicts.  This means they must have chosen the third route: parasitic accessory liability. 
21.	We spent some time during the course of oral submissions, and counsel spent some time in preparing their written submissions in addressing that issue.  Here it was said that the crime of murder, crime B, flows from the joint commission of crime A, the possession of an illegal firearm and illegal ammunition.  Mr Moloney advanced what he conceded was a novel proposition, namely that an offence of ‘Possession’ (be it drugs, firearms etc.) is unique because it is based on custody and control.  If the Crown wished to found their case upon secondary accessory liability, it was not enough to prove that a defendant had assisted or encouraged the principal in possession of the gun, the prosecution had to go a stage further. They had to prove either that the defendant was a joint principal or that the defendant was an accessory and both the principal and he were in possession of the gun as part of a common purpose going beyond mere possession, for example, joint possession of the gun as part of a common plan to commit a robbery or to threaten.  
22.	Further, he insists, that the judge gave no guidance to the jury on how to determine whether an offence of joint possession has been committed.  He complains that neither the concept of possession, let alone joint possession, was explained to the jury.  The judge directed the jury that assistance or encouragement to the gunman to possess the gun was enough.  Mr Moloney argued that was wrong in law.  
23.	On the directions given, Mr Moloney suggested it would be entirely possible that the jury equated assisting or encouraging the gunman in his possession with joint possession as a principal. Accordingly the appellant might have been convicted on the basis of his failure to denounce the possession, as opposed to his knowing participation in a crime.  He postulated that the jury might have reached the conclusion that by remaining in the car, once he knew of the presence of the gun, and perhaps by saying, "It's your car, it's up to you", the appellant was thereby offering assistance or encouragement to Thomas in the possession of the gun. If so he was guilty of joint possession and became vulnerable to a conviction for murder.
24.	Accordingly, he argued that the judge's directions were deficient in a number of respects.  The jury should have been instructed: 
25.	That knowledge alone was not enough to establish joint possession. He referred us to the decisions in Searle [1971] Crim LR 592 and Montague [2013] EWCA Crim 1781, where the court provided examples of what level of participation might be required for the offence of joint possession. 
26.	That presence, even with knowledge, is not enough to establish possession. (See Jacobs [2002] EWCA Crim 610). 
27.	That the passenger would be under no legal duty to get out of the car in circumstances where he was aware of the presence of the gun (Jacobs).
28.	That any assistance or encouragement had to be intentional.  He relied upon a passage in Lord Kerr's dissenting judgment in Gnango [2012] 1 AC 827, which he described as uncontroversial:  

i.	"... for parasitic accessory liability to arise, Gnango and B would have to have a common intention to commit an affray, if affray is the crime on which Gnango and B are to be said to have jointly embarked.  Whether or not a common intention is required for a joint offence of affray, it is most certainly required for parasitic accessory liability ... The essence of parasitic accessory liability is that there is a common purpose, and in the course of furthering that common purpose, the principle goes beyond what was agreed but the secondary participant foresaw the possibility of this occurring.  The sine qua non of parasitic accessory liability, therefore, is the existence of a common purpose". 

29.	We have added emphasis to the words common purpose because Mr Moloney relied upon them, claiming that there must be a common purpose over and above mere possession of the firearm which the Crown has here failed to establish.  
30.	Mr Moloney also took exception to the examples that the judge gave the jury on what might constitute participation by the companion, for example keeping a look‑out, preventing people leaving or intervening, and being present encouraging and ready to join in as and when required.  Such examples may be relevant to the standard direction on joint enterprise but Mr Moloney would have preferred the judge to choose examples ‘better tailored’ to the facts of this case. 
31.	He claimed that at most the jury may have found the appellant guilty of possession of a firearm on "a legitimate journey with no target or additional crime in mind" and this is insufficient in itself to found a conviction for murder.  He relied on another passage from Gnango.  Lord Phillips, President of the Supreme Court, and Lord Judge CJ observed at paragraph 41:

i.	"We would consider it undesirable, however, if a practice developed of relying on the doctrine of parasitic accessory liability to charge with murder parties to an affray who had not themselves intended that it would result in serious injury."

32.	Mr Moloney submitted it must be undesirable to extend parasitic accessory liability to the facts of this case and convict a man of murder who did not intend to commit any crime, let alone one of violence, beyond the joint possession of a firearm.  Even in what he called the “foundational case of parasitic accessory liability”, Chan Wing‑Siu [1985] AC 168, the Privy Council did not envisage the doctrine being extended that far.  At 177D‑E Sir Robin Cooke observed:

i.	"Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences ..." 
33.	Mr Moloney interpreted those remarks to mean that they were limited to criminal enterprises such as robbery undertaken whilst carrying dangerous weapons, not criminal enterprises whose beginning and end was the possession of the weapon.  Expanding the doctrine of parasitic accessory liability to include this appellant in this case would, he argued, cause enormous injustice and real public concern.
34.	Ground 3 
35.	This ground was based on what is said to be a factual misdirection by the judge. In his summing‑up the judge reminded the jury that the appellant had said that had he known of the presence of the firearm, he probably would not have told the police and he probably would not have got out of the car. This was based on the following passage from Mr Boyce’s cross‑examination of the appellant: 
36.	Q: "Would you have got out, gone to a police station [to report]?".  
37.	A: "Probably not no".  
38.	In re‑examination, the following questions and answers were recorded:

a.	Q.  And you were asked if you would have reported Sanchez's comments to the police if you had found the firearm and you said no?  

b.	A: Yes, that's correct.  

c.	Q: Would you have done anything?  

d.	A: I would have got him [sic] out of the car and I would've left him.  I would've distanced myself from him."

39.	Both Mr Boyce and Mr Moloney, for perfectly understandable reasons, misremembered Mr Boyce's entire question.  They believed he had restricted his question to the one: ‘Would you have reported the gun to the police?’ Mr Moloney was, therefore, concerned about the way in which the judge left this evidence to the jury. He informed the judge that the appellant had said in cross‑examination that he probably would not have told the police about the gun.  He insisted, supported by Mr Boyce, that the appellant had not been asked about getting out of the car.  
40.	The judge then called the jury back in, as he thought, to correct the misdirection.  He told the jury that in cross‑examination the appellant had said that he knew about the gun, he probably would not have got out of the car and he probably would not have told the police, and in re‑examination he had said he would have got out of the car.  
41.	Mr Moloney was not satisfied.  He again invited the judge to amend the direction because he considered it to be important to the issues in route 3.  The judge refused to do so because he felt the difference between what Mr Moloney was asking him to do and what he had already done was insignificant and the summary that he had given reflected his note of the evidence.  
42.	Mr Moloney maintains that this was a misdirection of fact which is highly significant: it had central relevance to the issue of whether the appellant was in joint possession of the firearm.  The jury were incorrectly told that the appellant would have willingly travelled in a vehicle that contained a loaded firearm when his evidence was that he would have got out of the car. The jury may have noticed an inconsistency on a highly material matter; an inconsistency that they may have taken as a lie. Consistency is an important feature of credibility and the judge undermined the appellant’s consistency and therefore credibility on a false basis. 
43.	Ground 4 
44.	Somewhat belatedly, Mr Moloney sought leave to add an additional ground of appeal, namely that where “encouragement to a joint enterprise” is alleged, the judge should direct the jury not to convict unless they are sure that the defence knew the use of a fatal weapon was a “real probability”.  He acknowledged that he had no arguments to advance under the present state of the law and he did not seek to develop this ground in his oral submissions.  He wished "to preserve the position of the appellant whilst awaiting the decision of the Supreme Court in Jogee". For those who are unaware, the Supreme Court will be considering an appeal in which the issue of the appropriate scope of the doctrine of joint enterprise may arise for determination.
45.	Conclusion
46.	We are indebted to Mr Moloney and Mr Missouri for their submissions, and to Mr Boyce and to Miss Robinson for their very full response.  We do not need to refer in detail to the latter, but it was of great assistance.  
47.	Our conclusions can be summarised as follows:  
(i)	The judge's directions on the law were sufficient.
(ii)	This was an appropriate case in which to leave open to the jury a verdict on the basis of parasitic accessory liability. 
(iii)	Any misdirection, if there was one, on the facts was not significant in the overall context of the summing‑up.
(iv)	Ground 4 is simply not arguable on the present state of the law.
48.	Grounds 1 and 2
49.	We are concerned only with the judge’s directions on the third route to verdict, parasitic accessory liability.  We were not persuaded that route 3 was necessarily the route chosen by the jury but for the purposes of the appeal against conviction, we are prepared to accept that it may have been. 
50.	In our view, the judge’s directions on route 3 cannot be criticised. The judge left the route to them expressly on the basis that the companion knew the gunman was armed with an illegal loaded firearm and foresaw that he might use it to kill with murderous intent; nevertheless, he remained with the gunman and he encouraged him in its possession; the gun was then used to murder. Such a direction is in line with the relevant definitions of parasitic accessory liability in Gnango and its formulation follows Smith (Dean Martin).  
51.	It is true that the judge did not specifically and in one sentence direct the jury that mere knowledge of the existence of the firearm was not on its own sufficient to establish joint possession, that the companion was under no legal duty to get out of the car, and that encouragement had to be intentional, in the way that Mr Moloney now wishes. It is also true that he did not separate out the concept of ‘possession’ and ‘joint possession’. But what he did do was set out in clear terms the elements of the offence and the findings of fact the jury must make to convict the companion. His directions, taken as a whole, were clear: the elements were cumulative and ‘passive participation’ namely knowledge of the existence of a firearm and voluntary presence would be insufficient to support a guilty verdict.
52.	The examples the judge gave of what might properly amount to assistance or encouragement were pertinent because they were ways in which Mr Boyce had argued the appellant may have helped the gunman. The appellant may have been there as a look out so that it was no coincidence that the shooting occurred in broad daylight on a residential street at a time when there were no witnesses.  We are satisfied the judge did tailor his directions and his examples to fit the facts of the case.
53.	As far as the jury's question is concerned, we are not persuaded that it indicates any confusion.  The use of the word "they" may have been referring to an individual and the use of the word "possession", as Mr Moloney appeared to concede, may well have been used loosely.  We believe the judge was correct in his interpretation of the question. The jury wanted to know whether they should focus on the obtaining of the gun or on what happened in the car when considering route 3.  The judge's answer was clear: the relevant time was when the two men were in the car and the weapon was in the car.
54.	In any event, as Mr Boyce observed, there was ample evidence that the appellant had embarked upon a joint venture of possession of the loaded firearm and knowingly and voluntarily aligned himself with the gunman. He had a close and long‑standing friendship with Thomas, he got into the car at the same time as Thomas placed the firearm and the ammunition into it, he knew there was a feud with Amir and that Thomas desired revenge, he and Thomas tracked the route taken by the victim for several miles, going out of their way to do so, they arrived on the same street within a matter of seconds or minutes of the victim and they ensured that the murder scene was free from potential witnesses. The appellant continued to associate with Thomas after he had witnessed, at close quarters, a cold blooded execution and they both then went to some lengths to cover their tracks. Finally, he told a large number of significant lies, including lies in relation to a memory card associated with his telephone, upon which there were images of a hand pointing a gun at someone's head.  
55.	In truth Mr Moloney’s complaint is not so much about the judge’s directions but about the very existence of parasitic accessory liability and its extension to cases involving possession of weapons. We reject the argument that ‘possession’ is a unique offence so that to found parasitic accessory liability the prosecution must go further and establish that both the gunman and the companion are joint principals in a criminal enterprise and or involved in a criminal enterprise above and beyond that of possession of the gun.  There is no support for this novel proposition, either in the authorities or in logic.  The examples given in Searle were merely examples of how, on the facts of that case, those involved might be said to be in joint possession of drugs. Montague is a very different case, as Mr Boyce pointed out, because the offence itself required not only possession of articles, but possession of articles with intent to use them to further fraud.  
56.	Further we reject the assertion that the principle of parasitic accessory liability should not be applied to cases involving possession of deadly weapons. Far from extending the principle too far, as it seems to us, this is exactly the kind of offence to which the principle (as long as it exists) should be applied. On the jury’s verdict the appellant lent himself to a criminal enterprise knowing a lethal weapon was to be carried and foreseeing it might be used to murder, as it was, and in his presence. 
57.	Whether or not the individual members of the court would have chosen to add a third route to verdict, of one thing we have no doubt, and that is that the judge was entitled to leave it on these facts. The significant feature of this case is that it involves a loaded gun.  It should be remembered that the jury has rejected the appellant's case that he first knew of the gun when it was taken out and fired.  They were satisfied that he was involved in a joint enterprise to shoot, or at the very least that he was involved in a joint enterprise to possess a loaded and unlawful firearm which was used to murder just as he had foreseen it might be.  This was not some separate frolic of Thomas' own.  The killing was very much linked to the crime of possession.  There was here proved a joint unlawful venture from which the murder flowed.  If, as Mr Moloney claims, (but about which we have our doubts) the prosecution could not prove that the victim of the murder or the time and place of the shooting had been identified, it would not undermine the appellant’s parasitic accessory liability.  This appellant is in a very different position from those postulated by Mr Moloney who are either entirely innocent or have involved themselves in some low level criminal enterprise that they could never have foreseen would lead to murder.  
58.	Ground 3
59.	In respect of the third ground, again we have our doubts as to whether or not there was an error in the direction.  If there was, we note that when Mr Moloney first raised it, he considered it to be “a very small matter”, and it was only as his submissions developed that its importance seemed to grow.  Further and most importantly, the judge summed up accurately the rest of the appellant's evidence on his knowledge of the existence of the firearm and what he would have done had he known of its existence elsewhere in the summing up.  The judge reminded the jury that had he known of the firearm, the appellant claimed he would have left Thomas immediately.  The part of the summing‑up to which objection is taken must not be read in isolation but in the context of the summing up as a whole. 
60.	If there was an error, therefore, it was neither significant, nor material.  It certainly does not undermine the safety of the conviction.
61.	Ground 4
62.	The present state of the law is clear: the prosecution do not have to prove the encourager knew that the use of a lethal weapon was a real probability.  We refuse leave.
63.	For all those reasons, the appeal against conviction is dismissed. 
64.	(Submissions followed on sentence)

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65.	Ground of Appeal against sentence 
66.	THE VICE PRESIDENT:  We now turn to the application for leave to appeal against sentence.  
67.	The appellant is now 21.  In 2009 he was cautioned for offences of criminal damage and assault.  In 2010 he received a referral order for a public order offence.  
68.	The ground of appeal, as advanced by Mr Moloney in writing, is that the judge sentenced the appellant on the basis that he was culpable by way of route 2, rather than route 3.  This interpretation, Mr Moloney argued, was at clear odds with that of the jury. Mr Moloney submitted that there could be no doubt that the jury must have convicted of route 3, in which case he was convicted on the basis he was in joint possession of the firearm with Thomas and foresee a possibility that Thomas might use the firearm with intent to kill during the journey.  The judge was bound to honour that factual finding in sentence and, had he done so, he would have significantly reduced the culpability of the appellant and this would have resulted in a substantial reduction in sentence.  He reminded us of the decision in Cairns [2013] EWCA Crim 467, in which the court re‑stated the recognised principle that a judge must honour the verdict of a jury after trial.

69.	Conclusion on sentence 
70.	We considered those submissions before coming into court and Mr Moloney has not put anything further before us this afternoon.  This is not a case where the jury has clearly followed one less culpable route.  In any event, the evidence showed that this appellant lent himself to a criminal enterprise knowing that a potentially murderous weapon was to be carried, foresaw it might be used with intent to kill or cause grievous bodily harm and, far from disassociating himself, stayed with the gunman, even as the gunman became angrier and angrier, and encouraged the gunman in possession of the gun.  He was involved in a gangland execution.  The consequences for those who become involved in this kind of offence are severe.  As young as this appellant was, we are satisfied that there is no arguable basis for concluding that the sentence imposed upon him of custody for life with a minimum term of 22 years was in any way excessive.  Therefore the application for leave to appeal against sentence is also refused.