Yusuf & Ors, R v

Alleged misdirections in a summing up must be assessed in the context of the summing up as a whole. Clear written directions and a route to verdict may show that judicial comments neither reduced the issues to one factual question nor invited speculation.

Where disputed knowledge or possession of a firearm during another offence would amount to a firearms offence, the prosecution must charge that offence and obtain a jury verdict. A sentencing judge cannot use a Newton hearing to make that finding. An acquittal having the statutory effect of a jury acquittal under the Criminal Justice Act 1967 reinforces that constraint.

Yusuf and Palmer sought renewed leave to appeal against murder convictions obtained at a retrial before HHJ Kennedy at Snaresbrook Crown Court. They contended that two oral passages in the summing up improperly narrowed the issues concerning joint enterprise and knowledge of a gun.

McLean had pleaded guilty to conspiracy to rob. Two juries had failed to reach a verdict on his murder charge, after which the prosecution offered no evidence and a not-guilty verdict was entered. At sentence, the judge found that McLean knew a loaded firearm had been taken to the robbery and imposed 92 months' imprisonment. The central sentencing issue was whether that finding could lawfully be made without a firearms count having been put to a jury.

1. The renewed applications by Yusuf and Palmer were refused. The challenged passages had to be read with the summing up as a whole, including the agreed written directions and route to verdict. Those materials made clear that proof that a defendant or McKenzie brought the gun to the scene was only the first issue. A murder conviction also required proof of the individual defendant's prior knowledge of the gun and of the required knowledge or anticipation concerning its use. The judge's comments about the confines of the car were relevant to those further issues and did not invite impermissible speculation.
2. McLean's sentence appeal was allowed. The recorded acquittal of murder had, by section 17 of the Criminal Justice Act 1967, the same effect as a jury acquittal. The sentencing judge was not merely assessing facts of the conspiracy to rob. He effectively treated the murder trial as a Newton hearing and found McLean guilty, on a joint-enterprise basis, of at least an offence under section 17(2) of the Firearms Act 1968.
3. That was impermissible under the principles explained in Eubank [2002] 1 Cr. App. R. (S.) 4 and Murphy [2003] 1 Cr. App. R. (S.) 39. If the prosecution wished to pursue McLean's alleged prior knowledge of the gun for sentencing the robbery conspiracy, it had to seek the addition of an appropriate firearms count for determination by a jury.
4. Without that finding, the court sentenced on the basis that no firearm was known to have been taken for the robbery. The applicable guideline category was the middle category, but the extensive aggravating features justified a notional sentence outside its normal range. The proper notional sentence was eight years' imprisonment; after the 30% guilty-plea reduction, the substituted sentence was five years and seven months' imprisonment, less time spent on remand.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 1586, renewed applications by Yusuf and Palmer for leave to appeal against murder convictions were refused. McLean's appeal against the sentence for conspiracy to rob was allowed, and a sentence of five years and seven months' imprisonment was substituted.
• Crown Court at Snaresbrook: At the retrial before HHJ Kennedy, Yusuf and Palmer were convicted of murder on 12 December 2012. The jury did not reach a verdict on McLean's murder charge. After the prosecution offered no evidence, he was acquitted of murder and was sentenced to 92 months' imprisonment for conspiracy to rob.
• Central Criminal Court: At the first trial, McKenzie was convicted of murder, but the jury did not reach verdicts in respect of Yusuf, Palmer and McLean. All four defendants had previously pleaded guilty to conspiracy to rob.