Osborne & Ors, R. v

A trial judge must leave an alternative verdict of manslaughter only where it fairly arises on the evidence. The judge need not leave a remote alternative that does not reflect the real issues at trial. In a joint trial, a direction that all defendants must be acquitted unless the alleged gunman is proved to be the gunman may be proper where the prosecution case against the others depends upon that allegation.

Former inconsistent statements of witnesses properly called and treated as hostile may be evidence of their truth under section 119 of the Criminal Justice Act 2003. Leave to appeal may nevertheless be warranted where the presentation of a central witness’s evidence, or an inadequate response to a jury request, makes conviction arguably unsafe.

Mark Osborne, Anthony Osborne and Wayne Collins were convicted at the Central Criminal Court of the murder of Mark Treddinick. Each received life imprisonment. Mark Osborne and Anthony Osborne received minimum terms of 30 years, and Collins received a minimum term of 32 years.

The prosecution alleged a planned killing in which Collins was the gunman and the Osborne brothers arranged the shooting. Each defendant denied involvement or advanced a case inconsistent with the prosecution’s account. Following refusal of permission by a single judge, the defendants renewed applications to appeal against conviction. Mark and Anthony Osborne also sought to challenge sentence or costs.

The central questions were whether the judge’s directions, evidential rulings, disclosure issues and summing up made any conviction arguably unsafe, and whether the sentence and costs challenges were arguable.

1. Permission to appeal was granted in part. Mark Osborne was granted permission to appeal his conviction on two limited grounds: the arguably misleading presentation of Karim Ali as having maintained a consistent account, despite earlier inconsistent accounts; and the adequacy of the judge’s summary of Mark Osborne’s defence after the jury requested a reminder. Collins and Anthony Osborne were also permitted to advance those two grounds because, if made out, they might benefit them.
2. The court refused permission on the proposed manslaughter ground. Manslaughter did not fairly arise on the evidence. The prosecution case was of a planned machine-gun killing and each defence was one of complete non-involvement. There was no evidential basis for an intention merely to frighten or cause lesser harm.
3. The direction that no defendant could be convicted unless Collins was proved to be the gunman was proper. The prosecution case against the other defendants depended on Collins being the gunman. The direction did not prevent the jury from accepting either cut-throat defence, because either would have required acquittal.
4. The court rejected Anthony Osborne’s challenges to the evidence concerning the earlier shooting. That evidence was properly admitted as bad-character evidence under section 101 of the Criminal Justice Act 2003. Witnesses who had made relevant prior statements could properly be called, and, if the conditions were met, treated as hostile. Once proved, their former inconsistent statements were evidence of their truth under section 119. The jury could determine each defendant’s case on all the evidence; this was not a misdirection: Robinson [2006] 1 CAR 480.
5. No permission was granted to Mark Osborne to appeal his 30-year minimum term. The sentencing judge was entitled to find a clear intention to kill. Permission was granted to Anthony Osborne to appeal the £10,000 costs order because its evidential foundation was arguably insufficient.

• Court of Appeal (Criminal Division) On renewed applications after a single judge had refused permission, the court granted limited permission to appeal against conviction to each defendant and granted Anthony Osborne permission to challenge the costs order.
• Central Criminal Court In February 2009, HHJ Worsley QC convicted the three defendants of murder and imposed life sentences. Minimum terms were set at 30 years for Mark and Anthony Osborne and 32 years for Collins.