Case No: 200403994 C4
Neutral Citation Number: [2005] EWCA Crim 2513
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ MOSS Q.C.
T20037231
Royal Courts of Justice
Strand, London, WC2A 2LL

Monday, 31 October 2005
Before :

LORD JUSTICE KENNEDY
MR JUSTICE COLLINS
and
MR JUSTICE JACK
- - - - - - - - - - - - - - - - - - - - -
Between :

	R		
	- and -		
	Edward Lloyd Green		

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr S. S. Beharrylal  for the Appellant
Mr B. Altman and Mr. C. Hehir for the Crown

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Kennedy : 
Introduction.
1.	On 9th February 2003 Jason Gibson, a drug dealer in a north west London housing estate, was fatally wounded by stabbing when confronting Roy Junior Scott (otherwise known as Legal Blacks), and this appellant (otherwise known as Eddie Boo).  It was the prosecution case that the victim was stabbed with a knife taken by Scott and the appellant from the nearby flat of Kelly Closier, and that the appellant robbed the deceased of his mobile phone, which the deceased had used for drug dealing purposes.  Both Scott and the appellant denied the offences, and blamed each other for the death.  There were at the trial no eyewitnesses to the killing, but it was accepted that the deceased’s phone was found in the appellant’s car.  There was also evidence of phone contact between Scott and the appellant before and after the incident, and that a mobile telephone handset containing the SIM card from the deceased’s mobile phone had been used in or near the appellant’s home address later that evening.
2.	In mid 2004 Scott and the appellant were tried at the Central Criminal Court on an indictment which contained three counts.  In count 1 they were both charged with murder.  In count 2 the appellant alone was charged with robbery, and count 3, alleging theft, was an alternative to count 2.  On 11th June 2004 the appellant was convicted on counts 1 and 2 as charged, but Scott was acquitted of murder and convicted of manslaughter.
3.	In this appeal, for which leave has been given by the single judge, the issue which arises is whether in the light of the verdicts returned in relation to Scott, having regard to the evidence, and the way in which the case was presented on behalf of the Crown, the verdict returned on count 1 in relation to the appellant can be allowed to stand.  In the grounds of appeal it is said that “the acquittal of Scott for murder introduces an element of unreality into the convictions of the appellant” and in opening the appeal before us Mr Beharrylal for the appellant described the verdicts as inexplicable.
The Law.
4.	The law which we have to apply is not a matter of dispute.  In McCluskey (1994) 98 Cr App R 216 Henry J, giving the judgment of the court, said at 220-
“The general rule in this Court is that where the jury convict on one count but acquit on another, this Court will quash the conviction on grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the cause could arrive. (See the unreported decision of Devlin J in Stone [1955] CLR 120, CCA formally adopted by this Court in Durante (1972) 56 Cr App R 708, 714).  But in the case of Trundell (unreported, 28th June 1991) it was emphasised that the fact that two verdicts were shown to be logically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe.”
5.	In Bell, 15th May 1997 unreported, where the jury convicted on three out of six counts of indecent assault, all of which depended on the evidence of one complainant, Rose LJ said in this court at page 5 of the transcript -
“There have recently been a number of appeals to this court based on allegedly inconsistent verdicts, and it is perhaps therefore worth emphasising that it is axiomatic that, generally speaking, logical inconsistency is an essential pre-requisite for success on this ground:  see Durante and Warner, unreported, 17th February 1997.
There are, of course, exceptional cases of which Cilgram [1994] CLR 861 provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe.”
6.	In Guest 23rd January 1998 unreported, where the facts were broadly similar, Buxton LJ observed at page 4 of the transcript that a person’s credibility is not necessarily a seamless robe.  But, as Mr Beharrylal reminded us, the jurisdiction of this court is a wide one founded on section 2 of the Criminal Appeal Act 1968, and as Lord Bingham CJ said in R v Criminal Cases Commission ex parte Pearson [1999] 3 All E R 498 at 503a -
“The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition.  In some cases unsafety will be obvious, as (for example) where it appears that some one other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by serious unfairness and the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation.  Cases however arise in which unsafety is much less obvious: cases in which the court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done (see R v Cooper [1969] 1 All E R 32 at 34).  If, on consideration of all the facts and circumstances of the case before it, the court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the court will consider the conviction unsafe.  In these less obvious cases the ultimate decision of the Court of Appeal will very much depend on its assessment of all the facts and circumstances.”
7.	We were also referred to George and Gould [2005] EWCA Crim 1095 and Gill [2005] EWCA Crim 1252 as useful recent applications of the proper approach to allegedly inconsistent verdicts identified in the earlier authorities to which we have referred.
8.	We were also reminded by Mr Altman, for the Crown, that an accessory before the fact or secondary party can properly be convicted of murder even though the principal has only been convicted of manslaughter (see Howe [1987] 85 Cr App R 32 and Hui Chi-Ming [1992] 94 Cr App R 236).  In the light of the authorities it is clearly necessary in this case to look at how the case was opened, how the evidence emerged and how at the end of the hearing the case was presented to the jury before we can turn to the two ways in which the Crown now contend that the verdicts can be reconciled.
Opening and Evidence.
9.	The case was opened on the basis that the killing of Jason Gibson was a joint enterprise and amounted to murder “whoever in fact used the knife and stabbed him to death”, but prosecuting counsel went on to observe -
“You may in due course conclude that the weight of the evidence points inexorably to it being Scott who actually stabbed Gibson leading to his death.”
The evidence, as it emerged, provided powerful support for that observation.  
10.	As often in a case of this kind the evidence contained a lot of detail, not all of which can be reconciled, but for present purposes we can begin with the evidence about the acquisition of a knife.  Kelly Closier, who was the sister-in-law of the deceased, and a former girlfriend of the appellant, lived with her boyfriend Dennis Edwards at 43 Edington, which was on the second level of a block of flats near to the home of the deceased.  Tracey Stinton, a former girlfriend of Scott, was one of her neighbours, and both women say that they were together at Kelly’s home on the evening of Sunday 9th February 2003 when Scott called.  Kelly said that he left to buy cigarette papers and soon returned with the appellant.  He then asked if she had something sharp which would cut through wire.  She said she had, and pointed to the drawer in which knives and forks were kept.  He took out a knife and then asked the appellant if it would cut through wire.  The appellant said that it would, and Scott took possession of a black handled knife with a blade about 4 to 5 inches long.  Both men then left. 
11.	That account of how Scott acquired a knife was supported by Tracey Stinton, who had spoken to Scott on the phone and offered to cook for him on that day.  She said she heard Scott ask Kelly if the knife would cut wire, and then both men left.  Dennis Edwards was not said to have been present when the knife was acquired, because he had gone out for cigarettes, but he confirmed that Scott arrived before he left, and Sandra Closier, the mother-in-law of the deceased, saw Scott and the appellant leaving Kelly’s block of flats as she arrived.  Scott did not acknowledge her, which she thought odd, but the appellant did acknowledge her and seemed normal and relaxed.
12.	Scott in evidence admitted going to Kelly’s flat, although he did not admit any encounter with Sandra Closier, and he denied taking, or even having any conversation about, a knife.  He could not explain why Kelly, Tracey and Sandra should have told lies about him.
13.	The appellant also admitted going to the flat but he denied seeing or hearing anything said about a knife, and he said that he was never in the kitchen together with Scott.
14.	Initially Kelly Closier and Tracy Stinton did not say anything to the police about the knife.  Kelly Closier said that was because she was scared of both Scott and the appellant, but on 25th March 2003, as a result of seeing that the widow of the deceased continued to be distressed, she said what she knew.
15.	Claire Gibson, the widow of the deceased, had separated from him in December 2002, in part because of his drug dealing, but contact between them continued, and on 9th February 2003 they exchanged the SIM cards on their mobile phones.  She next saw him in Allcroft Road (outside the Edington block of flats) when she was in her car on the way to the launderette.  He was with Scott and the appellant, and she stopped the car and spoke to them.  Her husband said he was hungry, and asked her to get him some food from Macdonalds, which she agreed to do.  Scott said that he wanted to talk to her, but she said it was too cold to get out of the car and went off.  That was all in essence accepted by both the Scott and the appellant, and at that stage there seems to have been no overt animosity.
16.	After Claire Gibson had departed her husband was stabbed.  Scott and the appellant were the only two witnesses who gave evidence as to how that happened.  According to Scott, he on behalf of Kelly and Tracey challenged Jason Gibson about drug dealing in front of children.  Jason denied that he did so.  Jason at the time was drinking from a guinness bottle.  He raised as if to hit Scott, who managed to grab it, take it out of his hand and toss it aside.  Jason then put his hand into his right pocket.  Scott feared he was reaching for a weapon, so he too put his hand into that pocket and got a cut on his finger.  Jason withdrew his hand holding a pointed knife with a blade four to five inches long.  Scott had hold of his hand and was trying to prise open his fingers to take the knife from him.  The appellant then came over.  According to Scott he had been Jason’s bodyguard.  The appellant asked what was happening.  He was behind Scott, on his right side.  Scott twice saw his hand in the air with a shiny object.  Jason lost his grip on the knife, and Scott dropped that knife to the ground.  Scott thought something had happened to Jason to cause him to let go of the knife, but was not aware that he had been stabbed.  Jason said that “what’s that for?” and Scott walked away in panic with the appellant, who asked him where he was going and told him to get into his car, which Scott did.  The appellant at that stage, according to Scott, had a knife in his right hand.
17.	The appellant said that when he came out of the block of flats, into which he had gone after Claire Gibson left, he heard Scott saying “Jason, you taken man for a pussyhole”.  He looked and saw Scott holding Jason by his right arm.  Jason had his hand across his face.  Scott walked away.  Jason complained to the appellant that Scott “took my one thousand dollars and wants a war with me”.  The appellant did not think that Jason was seriously injured, and did not want to get involved with the police, so he walked away and got into his car.  Scott then came up and asked for a lift down the road.  The appellant agreed, and it was common ground that they left the scene together in the appellant’s car.
18.	Dennis Edwards saw Jason on the floor, and Jason asked him to call his wife, Claire, which Dennis Edwards did.  He had to return to the flat to get her telephone number from her sister Kelly, and he also got some water for Jason who had a relatively superficial facial wound, and a less obvious and much more dangerous stab wound to the trunk near to the neck.  When Claire returned she asked Jason who had done it, and, according to her, he said “Legal done it”.  That was confirmed by Sandra Closier who said she was with Claire holding Jason’s hand, and both women then repeated what Jason had said.  That repetition was heard by Kelly and Tracey from the flat balcony, but Dennis Edwards said that Claire was saying that Legal had done it before she reached her husband.
19.	Certainly Claire seems to have believed at that stage that Scott was responsible because when PC McDonagh arrived she was shouting “Blacks did it” and he heard her on the phone apparently accusing Scott of having done it and telling him to return.  That phone call was overheard by a number of people.  According to Kelly, Claire said “I know you did it. Jason told me”, and according to PC Griffiths Claire said “people saw you do it”.  Claire said that Scott denied doing anything to Jason, but he did not return.
20.	Scott and the appellant differed as to what happened as they drove off in the appellant’s car.  According to Scott he did not ask the appellant about the knife which had been in the appellant’s right hand, but the appellant said “you don’t want to watch that” meaning to take no notice of that.  “He just got a little stab”.  Scott said that he received at least four phone calls on his mobile phone whilst in the appellant’s car.  The first was from Claire Gibson suggesting that he wanted to speak to her.  She then rang again asking again “what have to you done to my husband?  I hear Eddie Boo has done something to him”.  No one other than Scott suggested that Claire Gibson ever attributed the knifing to the appellant.  Scott said he told Claire that he would call her back because he did not want to say anything in the presence of the appellant.  The next call was from a police officer, and Scott did not dispute the evidence of Inspector Gardner who said that Scott promised to return to the scene but did not do so.  He simply got out of the car at a red traffic light in the Finsbury Park area and ran off and bought cannabis.  Next day Claire telephoned him -
“She told me Jason had died.  She was kind of upset.  I spoke to her not for too long.  I said I wanted to meet her to speak to her.  She sounded like she would come and meet me, but she never.  I wanted to explain and tell her what happened, but I didn’t speak to her again.  I said I was a witness to what had happened.  I had never done nothing to her husband.”
The appellant said that after Scott had asked for a lift in his car he got in, and the appellant asked him what had happened between him and Jason.  Scott replied “man should stab up these types of pussyholes and leave them to die”.  The appellant said, “you’re joking”.  The appellant agreed with Scott that Scott left the car in the Finsbury Park area.  The appellant said that when he reached home he collected some food from the passenger side of the car and found a mobile phone under the floor mat.  He took it out but dropped it on the stairs as he carried it.  It fell apart and he put the chip into a phone he already had.  He did not know who the phone which he had found belonged to because three people had been in his car that day, Scott being the last.  The expert evidence at trial indicated that Jason’s phone found its way to the appellant and was used by him or those associated with him, a fact which the appellant’s evidence at trial sought to explain.  The appellant said that he spoke to Scott by phone on that Sunday evening at about 10 pm.  Scott then said that Claire had phoned him and told him that Jason was dead, and that the appellant had “stabbed up Jason”.  That was not something which the appellant mentioned to the police.  
21.	The appellant was the first to be arrested.  That occurred on 13th February 2003, four days after the killing.  There was evidence to show that in the interval both men had been in contact with each other by phone, and when arrested he asserted his innocence.  Knives were found in the back of his car, and under the floor carpet.  He said one had been used to cut a rope when his car had been towed, but he did not know how the other knife had got to where it was. In evidence he maintained his stance that he did not carry knives. After arrest he was interviewed, and when charged he again protested his innocence.
22.	Scott was not arrested until 26th February, nearly a fortnight later.  He had moved to his girlfriend’s home in Ilford and in evidence he said that he went there mainly to avoid the appellant because “he was driving and he could see me at any time”.  When arrested he said -
“I didn’t know he had been stabbed.  He pulled a knife on me and we scuffled.  Me panicked when the policeman rang me.”
At his interview his solicitor read a prepared statement, and Scott then answered questions.  In evidence he agreed that he told lies about his departure from the scene, and his subsequent contacts with the appellant.  He said -
“I was trying to distance myself from Edward Green and I didn’t want to say that I had been in his car.  I didn’t kill Jason Gibson.”
23.	The appellant said that at some prior to 4th December 2003, when both men were remand prisoners at Belmarsh Prison, Scott sent two men awaiting trial for murder to ask him to talk to Scott and to reason out the case and fix it up.  He refused and told his solicitor, who wrote to the Governor asking for the appellant to be transferred to another prison.  That was not done at that stage but on 4th December 2003 the appellant and Scott went to court in the same prison van and when Scott saw him he said -
“Boy Green you’re getting on my blood clot nerves.”
Scott then told everyone in the van that the appellant was a grass.  When the van reached court the appellant told his solicitor what had occurred, and on the next day the appellant was moved to Brixton Prison.  According to Scott he did not send anyone to speak to the appellant, and there was no incident in the prison van, but he accepted that the appellant was transferred to another prison.
Trial Conclusion and the Summing-up.
24.	At the end of the case prosecuting counsel when addressing the jury said -
“On the evidence you have heard it could only have been one of these two who used the knife to stab Gibson not once but twice.  There are no other candidates and you should not look for them.
You may have concluded on the evidence that it was Scott who stabbed Gibson while Green was there as his ready and willing assistant.  You can be sure that they were in it together, and each knew what was to be done.”
So the case was never presented by the Crown on the basis that the appellant was the knife wielder, even though counsel sensibly did not close off that possibility.  
25.	The trial began on 17th May 2004, and the judge began his summing-up on Monday 7th June, concluding it at 2.30 pm on the following day.  The jury then deliberated until about 4.30 pm, but the court could not sit on either of the following two days, so deliberations were not resumed until Friday 11th June.  A majority direction was given at 3.15 pm on that day, and verdicts were returned 15 minutes later.
26.	This was not an easy case to sum-up, and no complaint has been made to us about the summing-up, but there was a lot of law for the jury to remember, and the evidence was not easy to distil.  Legal directions had to be given, and were given correctly in relation to murder, manslaughter, robbery, joint enterprise, self-defence, lies, the rule against hearsay and a dying declaration, and good character, but nothing was reduced to writing in the form of a series of questions or a note which the jury could take with them. In a case of this complexity, and in particular in a situation where it was known in advance that the deliberations would be interrupted, we consider that to be regrettable.  The questions asked by the jury, to which we will come in a moment, show how valuable a written aide-memoire might have been.  It is also worth remembering that the preparation of an aide-memoire does tend to result in both counsel and the judge considering with some care how best and in what order to tackle the legal and factual issues in the light of the evidence as it has emerged.  
27.	Furthermore in presenting the evidence it is often helpful, in a case like this, to present it, as we have attempted to present it, in chapters, arranged in chronological order, each chapter drawing together all of the evidence in relation to a particular aspect of the history before moving on.  Our presentation is incomplete because for present purposes we have not, for example, found it necessary to refer in detail to the expert evidence in relation to mobile telephone calls, or to the contents of the interview records, but at the appropriate stages in the narrative the jury could have been referred to that evidence, which they had before them in writing.  The straightforward witness by witness presentation used in this case meant that the jury never had drawn together, with the authority of the judge, the contrasting evidence from the lay witnesses and the police officers and the defendants in relation to, for example, the telephone calls made by Claire Gibson to Scott after the stabbing.  That we regard as regrettable.  
Jury Questions.
28.	After retirement the jury asked two questions relevant to the appeal.   On Tuesday 8th June, soon after they retired, they asked -
“If one person caused injury without intent to murder and one person intended to murder, would we say guilty and not guilty or murder and manslaughter?”
There was also a factual supplementary question with which we need not now be concerned.  The main question was discussed with counsel, and the judge re-iterated his directions in relation to murder, manslaughter, joint enterprise, and the right to return separate verdicts.  He also told the jury how they would be questioned by the clerk when they returned their verdicts, so as to enable them to return the verdicts at which they had arrived.
29.	The second question was asked on Friday 11th June when the jury asked -
“If we find both colluded to carry out an attack on Mr Gibson, but not to murder him.  If a murder occurs as a result of the attack would both parties be guilty of murder?”
That we find a worrying question.  Clearly it is not well expressed.  As the judge noted the word “murder” at the beginning of the second sentence needs to be replaced by some other word, such as death or killing, but even after that has been done the question does seem to reveal an inability to get to grips with legal directions already given.  So the judge went over the ground again, on this occasion emphasising the need to be satisfied as to the existence of the requisite intent before a verdict of murder can be returned.
30.	A little later, after asking for and receiving directions in relation to a majority verdict, the verdicts were returned.
Submissions.
31.	As we indicated at the beginning of this judgment, Mr Beharrylal submitted to us that in the light of the Crown’s presentation and in the light of the evidence the verdicts were irreconcilable and inexplicable.  It was the prosecution case that Scott obtained and wielded the knife.  In those circumstances to find that the appellant alone intended to do at least serious harm cannot be acceptable.
32.	Mr Altman pointed out that in this case the jury was faced with cut-throat defences.  None of the authorities in relation to irreconcilable verdicts deal with that situation, and there were matters which told against the appellant, such as the fact that he ended up with possession of the deceased’s valuable mobile phone.  Only the appellant faced the count of robbery, but  Mr Altman frankly admitted that, if he had drafted the indictment both defendants would have been charged with robbery, because it was always the prosecution case that, like the killing, the robbery was part of the joint enterprise.
33.	Mr Altman suggested two ways in which the verdicts could have been reconciled -
(1) The jury may have concluded that it was the appellant who stabbed Jason Gibson, as alleged by Scott (after having taken possession of Jason’s phone), and that although Scott knew the appellant had the knife and intended to use it to cause some injury he did not himself intend, or realise the appellant intended, anything more serious.
(2) Alternatively the jury might have concluded that even if Scott wielded the knife he may not have had the requisite intent for murder, whereas they were satisfied that the appellant robber did have that intent.
Conclusion.
34.	Mr Altman’s suggestions do show that the verdicts cannot be described as logically inconsistent.  However, the attempted reconciliation does not properly take into account the evidence and the manner in which the case was presented to the jury.  As we have demonstrated, the evidence overall was consistent with Scott having been the wielder of the knife and so having stabbed the deceased.  In those circumstances, it is impossible to understand how the jury could rationally have decided that the appellant had the necessary intent to establish murder whereas Scott did not.  The two questions asked by the jury show that they were struggling with the concepts of joint enterprise and intent in the context of murder and manslaughter.  We cannot help wondering whether they were to a degree misled by the unfortunate failure to include Scott in the robbery count.
35.	In the circumstances, we are satisfied that, while not at least in theory to be regarded as logically inconsistent, the verdicts were ones which no reasonable jury who had applied their minds properly to the facts of the case could reach.  In other words, we regard the conviction of the appellant on Count 1 of the indictment as unsafe.    Clearly the jury found, and were entitled to find, that both defendants were involved in the killing, and that both had at least the necessary intention for manslaughter.  Mr Beharrylal did not seek to persuade us otherwise.  Accordingly the appeal will be allowed to the extent that the verdict returned in relation to count 1 will be set aside, and replaced by a verdict recording that the appellant, like his co-accused, was not guilty of murder but was guilty of manslaughter.
Sentence.
36.	The sentence imposed in relation to count 1 falls with the conviction.  We invited Mr Beharrylal to assist us as to what should be the sentence if the appeal against conviction were to succeed.  He did not seriously challenge the proposition that in relation to that count both defendants should be dealt with in the same way, and that is our conclusion.  On count 1 of the indictment the appellant’s sentence will therefore be one of 8 years imprisonment.  The sentence in relation to count 2 is unaffected, and remains to be served concurrently.