R. v M & T

On a prosecution appeal from a terminating ruling, the Court of Appeal will not interfere unless the trial judge’s conclusion was outside the range of reasonable conclusions. The appellate court must give substantial weight to the trial judge’s superior position to assess the evidence, including its cogency and the reliability of witnesses.

The existence of evidence capable of distinguishing particular defendants may justify leave to appeal. It does not justify setting aside the ruling where the judge was entitled to conclude that the evidence did not safely establish the required participation or prior knowledge.

After a six-week murder trial in the Crown Court at Bradford, Judge Moss QC ruled at the close of the prosecution case that there was no case to answer against all defendants other than Bell, the alleged shooter.

The prosecution pursued its application under section 58 of the Criminal Justice Act 2003 only against Thompson and McIntosh. It relied on Thompson’s conduct immediately after the shooting as evidence of prior knowledge and participation. It relied on McIntosh’s alleged conversation with Danielle Higginson on the following day as evidence that he had possessed, or been invited to use, the gun.

The central question was whether the judge’s terminating rulings fell outside the range of reasonable conclusions.

1. Leave was granted, but both appeals were dismissed. The Court ordered the acquittal of Thompson and McIntosh under section 61(7) of the Criminal Justice Act 2003.
2. The governing principle was that the Court of Appeal should not interfere with a terminating ruling unless the trial judge’s conclusion was outside the range of reasonable conclusions. The high threshold reflected the appellate court’s markedly inferior position to assess the evidence and the witnesses. The court followed the approach stated in R v B [2008] EWCA Crim 1144.
3. Thompson’s close and apparently unconcerned conduct after leaving the club with Bell was capable of being relied on by the prosecution. However, the judge was entitled to regard it as insufficient to support an inference of prior knowledge of the gun or participation in its use. There was no evidence of a prior plan, and the evidence supported the view that the shooting was spontaneous.
4. McIntosh’s alleged account to Higginson was equivocal and conflicted in important respects with the eyewitness evidence. The trial judge, having heard six weeks of evidence and assessed the circumstances in which Higginson’s evidence was read, was best placed to decide that it did not safely establish liability as principal or secondary party.
5. Although the evidence against these two respondents distinguished them from the other defendants and justified granting leave, it was not proper to substitute the appellate court’s view for the judge’s reasonable assessment. The appeals were therefore dismissed and acquittals ordered.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 2848, the court granted the prosecution leave to appeal under the Criminal Justice Act 2003 but dismissed the appeals and ordered the respondents’ acquittals.
• Crown Court at Bradford: On 19 November 2009, Judge Moss QC ruled at the close of the prosecution case that there was no case to answer against the respondents.