Lunkulu & Ors v R.

A summing up is fair if it gives the jury a coherent account of the central defence submissions and their evidential foundation. It need not reproduce every argument, especially where defendants have not given evidence.

Under Criminal Justice Act 2003, section 98 contains no necessary temporal condition. Misconduct is outside the statutory bad-character regime if it directly concerns the alleged offence, including as part of a continuing retaliatory feud that supplies its motive or context.

A judge need leave an alternative offence only where it is an obvious, evidence-based alternative that reflects the real issues. Sentencing starting points under Schedule 21 must not be applied mechanically where offenders are close in age, but differing culpability may justify substantial disparity.

Four appellants were convicted at the Central Criminal Court of the murder of Cem Duzgan, who was shot at a social club during an alleged feud between the Tottenham Turks and the Hackney Turks. Lunkulu was alleged to be the gunman; Barabutu and Makusu were alleged to have assisted him; and Arslan was alleged to have organised the shooting and assisted afterwards.

The defendants challenged the fairness and accuracy of the trial judge’s summing up. Arslan also challenged the admission of evidence concerning earlier and later firearms-related incidents, the prosecution’s decision not to call a witness, and the absence of an alternative verdict of assisting an offender. Arslan and Barabutu appealed their minimum terms, while Makusu renewed his application for leave to appeal sentence.

The central issues were whether the convictions were unsafe and whether the minimum terms were wrong in principle or manifestly excessive.

1. Convictions. Arslan’s appeal against conviction was dismissed. The renewed applications for leave to appeal conviction by Lunkulu, Barabutu and Makusu were refused. The court held that the summing up was balanced and fair. It accurately identified the central defence cases and was not required to rehearse every factual submission. The judge’s correction of the direction on Lunkulu’s liability restricted, rather than expanded, the basis on which he could be convicted.

2. Applying R v Singh-Mann and others [2014] EWCA Crim 717, the court held that a judge must give the jury a coherent rehearsal of the main defence arguments and their evidential basis. The detail and placement of that rehearsal depend on the case. A defendant who has called no evidence may rely on material elicited from Crown witnesses, but the judge need not repeat counsel’s closing speech. There was no demonstrated judicial bias, unfair comment, or improper intervention.

3. The evidence of the gang feud, including the shooting of Arslan and the attempted murders committed shortly before the index murder, was admissible under section 98 of the Criminal Justice Act 2003. Following R v Sule [2012] EWCA Crim 1130, incidents creating motive or forming part of a retaliatory pattern may be intrinsic to the prosecution case. Section 98(a) has no necessary temporal qualification. The later firearm conviction was also admissible through section 101(1)(d), since it was relevant to whether Arslan had access to firearms and participated in planning the murder.

4. The agreed feud schedule amounted to a formal admission under section 10 of the Criminal Justice Act 1967. Arslan had no basis to resile from it. His convictions were evidence that he had committed the earlier offences unless he showed otherwise; the Crown was not obliged to call witnesses to prove the underlying facts merely because he denied guilt.

5. The prosecution was not obliged to call Okan Erbasli. His uncertain recollection was of slight value and did not require the Crown to call him solely to assist the defence in attacking its case.

6. The judge was not required to leave assisting an offender under section 4(2) of the Criminal Law Act 1967 as an alternative verdict. Although arranging a taxi after the murder was admitted, that possible alternative was remote from the real issue: whether Arslan had organised the revenge killing.

7. Sentence. Arslan’s and Barabutu’s sentence appeals were dismissed, and Makusu’s renewed application for leave to appeal sentence was refused. The murder was a planned gang reprisal involving reconnaissance, a powerful firearm and the killing of an apparently uninvolved victim. Schedule 21 starting points were applied non-mechanistically. The disparity between Arslan and Barabutu was justified by their different roles, antecedents and culpability.

• Court of Appeal (Criminal Division). In [2015] EWCA Crim 1350, Arslan’s appeals against conviction and sentence were dismissed. Barabutu’s sentence appeal was dismissed. The renewed applications for leave to appeal conviction by Lunkulu, Barabutu and Makusu, and Makusu’s renewed application for leave to appeal sentence, were refused.
• Central Criminal Court. On 27 February 2014, all four defendants were convicted of murder before HHJ Morris QC and a jury. On 11 April 2014, Lunkulu, Makusu and Arslan received life sentences with minimum terms, and Barabutu was ordered to be detained during Her Majesty’s Pleasure with a minimum term.