Franklin & Ors, R. v

In joint-enterprise cases, mere presence is insufficient. Liability requires intentional encouragement or assistance and the requisite knowledge and intention for the particular offence. Where a firearm is used, a secondary party must know of it and must intend its use for the relevant criminal purpose.

Previous convictions may be admitted where they establish a relevant propensity and their admission is fair. A witness’s bad character remains subject to the strict statutory gateways in the Criminal Justice Act 2003. Adverse comment on interview silence may be made where a defendant later relies on facts which they could reasonably have been expected to mention. A procedural error in taking verdicts does not make a conviction unsafe where the verdicts disclose a coherent and properly differentiated assessment of intent.

Following confrontations between a group of footballers and a local group, Paul was shot at Harlesden railway station. Gabbidon was convicted of attempted murder. Woods was convicted of attempted murder. Salau and Franklin were convicted of possessing a firearm with intent to cause fear of violence, and Franklin was also convicted of perverting the course of justice.

After a jury trial before His Honour Judge Marron QC at Blackfriars Crown Court, the defendants challenged convictions and, in the case of Woods and Gabbidon, sentence. The appeals raised identification evidence, anonymity, joint enterprise, bad-character evidence, interview silence, jury directions and the safety of a verdict returned out of the directed sequence.

1. Disposition. Gabbidon’s renewed applications for leave to appeal conviction and sentence were refused. Salau’s renewed application for leave to appeal conviction was refused. Franklin’s application for leave and appeal against conviction were dismissed. Woods’s appeal against sentence succeeded: the detention for public protection was quashed and replaced with an extended sentence of 17 years and six months, comprising a custodial term of 12 years and six months and a five-year extension period.
2. Joint enterprise and verdict safety. The judge correctly directed that presence alone could not establish liability. A participant had to know about the gun and intentionally encourage its use. For attempted murder, the participant also had to intend that it be used to kill. For possessing a firearm with intent to cause fear of violence, the required intention concerned causing fear of violence. The jury’s premature consideration of Salau’s second count was a technical error, but did not render the conviction unsafe. Its differing verdicts coherently showed acceptance of knowledge and intent to cause fear, but not intent to kill.
3. Bad character. Franklin’s previous convictions were properly admitted under sections 101(1)(d) and 103 of the Criminal Justice Act 2003. They were relevant to propensity for violence and, in part, untruthfulness. The ruling was consistent with the guidance in Hanson [2005] EWCA Crim 824 and was not unfair. Conversely, the statutory conditions for admitting Paul’s bad character under section 100 were not met.
4. Silence and other grounds. The judge could comment under section 34 of the Criminal Justice and Public Order Act 1994 on matters Franklin advanced at trial but had not mentioned in interview when she could reasonably have been expected to do so. The identification direction, witness-anonymity rulings, summing-up, and response to the jury’s question disclosed no material error.

• Court of Appeal (Criminal Division) — by [2013] EWCA Crim 84, refused or dismissed the conviction challenges and Gabbidon’s sentence challenge; allowed Woods’s sentence appeal and substituted an extended sentence.
• Blackfriars Crown Court — His Honour Judge Marron QC presided over the jury trial in November 2011 and imposed the original sentences.