Turner & Ors, R v

For a non-shooter to be convicted of murder as a joint participant, the jury must be sure that the defendant played a part in the offence and knew that the killer intended to kill the victim with a firearm. A direction in those terms encompasses the necessary foresight requirement.

Under section 101(1)(d) of the Criminal Justice Act 2003, a single old conviction may exceptionally prove a propensity where its facts have strong special and distinctive features. The lapse of time does not prevent admission where those features make the conviction powerfully relevant to the allegation tried.

The applicants were tried before Treacy J at Birmingham Crown Court for the murder of Gerard Tobin, firearms offences and related shotgun possession. Creighton pleaded guilty. Turner, Taylor, Karl Garside and Cameron were convicted of murder, with Turner and Taylor also convicted of further firearms offences.

They received life sentences with minimum terms. Turner, Karl Garside, Taylor and Cameron sought to challenge their convictions. Taylor and Creighton also sought to challenge sentence. The principal issue was whether the trial judge properly admitted old convictions of Turner and Taylor as propensity evidence, and whether the jury directions on joint participation in murder were adequate.

1. The renewed applications for leave to appeal were refused. The late challenge to the joint-participation direction had no merit. For a defendant who did not fire the fatal shot, the jury had to be sure that the defendant played a part in the murder and knew that there was an intention to kill the victim with a firearm. That direction necessarily covered the suggested requirement of foresight. The possible non-lethal explanation for scouting activity had also been expressly put in the summing-up in relation to the defendant who advanced it.

2. The court upheld the admission of Turner’s 1993 conviction for wounding with intent through the section 101(1)(d) gateway in the Criminal Justice Act 2003. Applying R v Murphy [2006] EWCA Crim 3408, the court accepted that a single old conviction will rarely establish continuing propensity. This was an exceptional case: the earlier violence was planned, extremely ruthless, unprovoked, directed at an unknown victim and carried out for an enforcement purpose. Those features had a strong resonance with the Crown’s allegation.

3. Taylor’s 1984 convictions were likewise admissible. Their distinctive features included a planned and violent group attack by bikers, a biker-related dispute and the use of loaded firearms. The trial judge was entitled to conclude that, notwithstanding their age and their origin in a single episode, they were probative of propensity. The summing-up gave proper warnings about the use of both applicants’ previous convictions.

4. Karl Garside’s and Cameron’s challenges depended upon Taylor’s argument and therefore also failed. The court accepted that 30 years was the correct starting point under Schedule 21 to the Criminal Justice Act 2003 for the minimum terms. There was no basis to reduce Taylor’s or Creighton’s sentences.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 2300, the court refused the renewed applications for leave to appeal against conviction and sentence.

• Birmingham Crown Court: Following the trial before Treacy J in 2008, the applicants were convicted or, in Creighton’s case, pleaded guilty to murder and associated firearms offences. Life sentences with minimum terms were imposed.