Barrington & Ors, R. v

Earlier incidents may be admitted as background evidence to explain an accused’s motive, even though they involve uncharged wrongdoing, where they make the charged events intelligible. Such material may be used only for its proper limited purpose and not as proof of its contents or against co-accused. Severance remains exceptional where clear directions can fairly confine the evidence.

A circumstantial case should go to the jury if it could properly exclude an innocent explanation; a speculative possibility does not prevent that course. In sentencing, previous good character ordinarily warrants a reduction in a serious but non-exceptional violent-disorder case. A disputed allegation of firearm use should not aggravate sentence where the Crown could have obtained a jury verdict on it by a separate count but did not do so.

Six defendants were convicted at Leicester Crown Court of conspiracy to commit violent disorder arising from a planned confrontation between groups of young men in Leicester. The disorder ended in gunfire and injuries. Four defendants appealed against conviction. They challenged, among other matters, the admission of earlier events said to show one defendant’s motive, the refusal to sever trials, the use of co-accused material, hearsay rulings, and the sufficiency of circumstantial telephone evidence.

Four defendants also appealed against sentence. The principal sentencing issues were the allowance for previous good character and whether one appellant could be sentenced on the basis that he had used a firearm when no firearms count had been left to the jury.

1. Appeals against conviction dismissed. Lord Justice Rix delivered the judgment approved by the court. The May 2000 material was relevant and probative of Sherriff’s possible motive for the later confrontation. It was sufficiently connected to the September disorder and was admissible as contextual evidence under the approach in R v Pettman (unreported, 2 May 1985). Its lapse in time did not prevent it from serving that limited purpose.

2. The material was not admitted to prove the truth of allegations against Francis or any other co-accused. The judge repeatedly directed the jury that it was evidence only of Sherriff’s state of mind and possible motive. Those directions, together with the limited role of the evidence, eliminated any material unfairness. This was not the exceptional case in which severance was necessary.

3. The challenges to Richards’s conviction failed. The unedited reference in Mulji’s interview to a green Rover had substantial probative value in Mulji’s case and created, at most, slight prejudice to Richards. The proposed evidence concerning Kasuji’s telephone use was hearsay. Richards’s later interview was properly read as referring to knowledge contemporaneous with the events, rather than knowledge first acquired after them.

4. Williams’s telephone records made a case to answer. A jury could properly conclude that the calls close to the shooting evidenced participation. The suggested innocent explanation that he was acting as a peacemaker was wholly speculative. The correct question was whether a properly directed jury could exclude a reasonable innocent explanation, consistently with R v Galbraith (1981) 73 Cr App R 124.

5. Sentence appeals allowed in part. A three-year starting point was justified for a premeditated and organised violent disorder. However, Francis and Richards were of previous good character. In a case of this gravity, but not one at the most serious level, that mitigation required a reduction. Their three-year sentences were quashed and substituted with sentences of 27 months’ detention.

6. Mulji’s sentence appeal was dismissed. The trial judge was entitled to reject a lesser-role distinction, particularly in light of the conspiracy conviction and Mulji’s previous conviction for carrying an offensive weapon.

7. Neal’s five-year sentence was quashed and replaced with three years’ imprisonment. The Crown could have charged firearm use so that the jury could resolve the disputed allegation. As no such count was preferred and the jury’s factual basis was unknown, it was wrong to sentence Neal on the basis that he had used a gun.

• Court of Appeal (Criminal Division) — by [2003] EWCA Crim 980, dismissed the conviction appeals; reduced the sentences of Francis and Richards; reduced Neal’s sentence; and dismissed Mulji’s sentence appeal.
• Leicester Crown Court — on 27 March 2002, before HH Judge Hammond and a jury, convicted the appellants of conspiracy to commit violent disorder and imposed the challenged sentences.