Lewis & Ors v R

Evidence of criminal-gang membership or association may be admissible under section 101(1)(d) of the Criminal Justice Act 2003 where it is relevant to a real issue, is properly grounded, and fairly demonstrates the defendant’s connection with a gang linked to the conduct alleged. The court must then exclude it if its admission would adversely affect trial fairness.

Mere presence does not establish secondary liability for riot. Deliberate presence may, however, amount to encouragement where the jury is sure that it encouraged unlawful violence and was intended to do so. In a circumstantial case, a no-case submission succeeds only where the prosecution evidence could not enable a properly directed jury to exclude realistic innocent explanations.

Following two lengthy trials in the Crown Court at Birmingham, seven appellants challenged convictions arising from a planned attack during the August 2011 disorder. A masked group set fire to the Bartons Arms to draw police officers to the scene, then fired handguns at officers and at a police helicopter.

The appellants were convicted of combinations of riot, possession of a firearm with intent to endanger life, arson reckless as to whether life was endangered, and separate firearms offences. They challenged the admission of gang-association evidence, the sufficiency of circumstantial evidence, hearsay evidence, directions on secondary liability, and their sentences.

The central issues were whether the convictions were safe and whether exceptionally long sentences for the concerted firearms offending were manifestly excessive.

1. All appeals and renewed applications were dismissed. The trial judge correctly admitted evidence of gang membership or association under section 101(1)(d) of the Criminal Justice Act 2003. The proper inquiry was whether the evidence was relevant to an important issue, whether there was proper evidence of the gang’s existence and nature, whether the evidence could show the defendant’s membership or association with a relevant violent or firearms-linked gang, and whether admission would adversely affect fairness. The evidence was potentially probative on presence, common purpose, innocent presence and firearms access. Its weight remained for the jury.

2. Experienced police officers could give evidence about gang culture, existence and insignia from accumulated knowledge and experience, even though some knowledge derived from unidentified sources. Video appearances required more than mere presence on a recording before they could support an inference of gang connection. The trial judge was entitled to find the additional material capable of doing so and to conclude that the evidence should not be excluded under section 101(3).

3. The hearsay telephone evidence concerning Lewis was properly admitted under section 114(2)(d). It had probative value when considered with the cell-site evidence. The no-case ruling was also correct. In a circumstantial case, the judge must ask whether a properly directed jury could reach guilt beyond reasonable doubt and reject competing innocent hypotheses as unrealistic; the judge does not choose between inferences properly open to the jury.

4. The route-to-verdict direction for Collins did not reverse the burden of proof. It made clear that mere presence was insufficient and that intentional, deliberate encouragement had to be proved. A jury could infer encouragement from joining and remaining with a group using unlawful violence only if satisfied that the presence encouraged others and was intended to do so.

5. The sentences reflected exceptionally grave, planned offending. Applying the firearms-sentencing questions in R v Avis [1998] 1 Cr App R 420, as supplemented by R v Sheen and Sheen [2011] EWCA Crim 2 461, the court treated loaded handguns repeatedly discharged at police officers, during organised public disorder, as potentially more serious than attempted murder. The differing roles, ages and records of the appellants were properly reflected in their individual sentences.

• Court of Appeal (Criminal Division): All appeals against conviction and sentence, and all renewed applications for permission to appeal, were dismissed: [2014] EWCA Crim 48.
• Crown Court at Birmingham: Following two trials before His Honour Judge Davis QC, the appellants were convicted of offences including riot, possession of a firearm with intent to endanger life, and arson reckless as to whether life was endangered.