Smith & Ors, R. v

A person who voluntarily joins a cohesive gang pursuing a confrontational unlawful objective may be liable for murder and attempted murder even though the prosecution cannot identify the gunman or prove that person gave encouragement at the moment of firing. Liability may arise where the jury is sure that the participant knew the gang carried loaded guns and realised that, in the likely confrontation, a gun might be used with intent to kill or cause really serious harm.

Police recognition from CCTV requires safeguards capable of objective scrutiny. A contemporaneous record should identify the officer’s initial reactions, doubts, failures to recognise and the features said to support recognition. In sentencing armed gang murder, youth and maturity may justify a substantial reduction from the statutory starting point.

Six appellants were convicted at Birmingham Crown Court of murder and three attempted murders following a shooting outside a Birmingham nightclub. The prosecution could not prove who fired the thirteen shots. It alleged that the appellants were voluntary participants in a group that had travelled together, attempted to force entry into several nightclubs and carried loaded handguns.

The appeals challenged the sufficiency of the evidence of participation, the admission and treatment of gang, identification, firearm-residue and bad-character evidence, and the adequacy of directions on withdrawal, CCTV recognition and lies. Four appellants also appealed their minimum terms for murder. The central question was whether participation in the armed group could establish responsibility for the shooting without proof of an individual role at the moment the guns were fired.

1. Conviction appeals dismissed. The evidence did not identify, save possibly in Smith’s case, who shouted encouragement, covered their face or surrounded the gunmen. That absence would have been fatal if the alleged joint venture had been confined to firing with intent to kill. The Crown’s alternative case was, however, properly available.

2. The jury could find that the appellants voluntarily joined a cohesive, hostile group whose common purpose was forcibly to enter nightclubs while armed with loaded handguns. It could infer that each participant knew of the guns and appreciated the real possibility that they would be used with lethal intent in a likely confrontation. On those findings, participation in the armed gang activity established criminal responsibility for the murder and attempted murders, without proof of an individual act immediately before the firing.

3. The prosecution nevertheless had to exclude the possibility that the firing was spontaneous. A participant who did not realise until too late that the gunman was armed would not be guilty. The judge’s direction that a person who realised what was about to happen could disassociate by running away or calling on others to leave was sufficient on the evidence.

4. The judge properly admitted the Johnson Crew allegation as probative of the asserted armed-gang activity and could treat Smith’s tattoo as some propensity evidence. The proposed fresh identification evidence for Carter was not credible and was refused. The Court also held that Christie’s prior firearms convictions were capable of supporting both knowledge of the guns and his presence in the group under Criminal Justice Act 2003 provisions.

5. The Court warned that recognition by police officers viewing CCTV must be recorded so that its reliability can be objectively assessed. WPC Smith’s recognition evidence would, standing alone, have been unsafe because the procedure and record were inadequate. Other evidence, including clothing and telephone records, nevertheless made Christie’s conviction safe.

6. No Lucas direction was required for Wilkins. The Crown relied on proof of his presence, not on his false denial of presence as separate evidence of guilt.

7. Sentence appeals allowed in part. The 30-year starting point and the rejection of mitigation based on an unidentified gunman were correct. But Smith’s and Parchment’s relative youth justified reductions in their minimum terms to 25 and 27 years respectively. The remaining sentence appeals, including the concurrent 15-year attempted-murder sentences, were dismissed.

• Court of Appeal (Criminal Division): By this judgment, [2008] EWCA Crim 1342, dismissed all appeals against conviction. It allowed the sentence appeals of Smith and Parchment only to reduce their minimum terms.
• Birmingham Crown Court: Before Mitting J, the appellants were convicted on 2 December 2005 of murder and three attempted murders. Life sentences with 30-year minimum terms were imposed for murder, with concurrent 15-year sentences for attempted murder.