Calvert & Ors, R v

Witness-anonymity directions must be treated as a measure of last resort and remain subject to review throughout the trial. A review is required if the factual basis for the directions is displaced so that the proceedings may become unfair when viewed as a whole.

Under Criminal Appeal Act 1968, section 23, fresh evidence will not ordinarily be admitted where it could reasonably have been investigated and deployed at trial, or where it amounts to a convicted defendant changing an unsuccessful trial strategy. In fixing murder minimum terms, the court must give proper weight to the offender’s age, absence of intent to kill, relative role and the totality of separate offending.

Four applicants renewed applications for leave to appeal convictions returned on 26 June 2014 at Bradford Crown Court before Globe J and a jury. Calvert, Lowther and Woodhead were convicted of murder and possessing a firearm with intent to endanger life. Feather was convicted of murder and acquitted of the firearms counts.

The prosecution alleged that the applicants were involved in a firearms attack and a later acid attack which caused Barry Selby’s death. The applicants challenged witness-anonymity directions for two recognition witnesses and the refusal of submissions of no case to answer. Feather and Calvert also sought to adduce fresh evidence. All renewed applications against sentence were before the court.

1. The court refused the renewed applications for leave to appeal against conviction. It granted leave to appeal against sentence and allowed those appeals by reducing the minimum terms.

2. The trial judge’s anonymity directions under sections 88 and 89 of the Coroners and Justice Act 2009 were unobjectionable. He had examined the underlying material, applied the statutory conditions, preserved essential areas of defence questioning and gave fair directions to the jury. Anonymity is a measure of last resort and fairness remains paramount. The court accepted that a judge must revisit the matter if the original basis for anonymity is displaced so that the trial may become unfair in the light of the proceedings as a whole. Although parts of the prosecution case fell away, other evidence improved, including Anne-Marie Haigh’s eventual identification of Lowther. Nothing required the original directions to be reconsidered.

3. The refusal to withdraw the cases from the jury was justified. The evidence permitted a reasonable jury, applying the criminal standard, to infer that Calvert, Lowther and Woodhead were involved in both incidents. The same handgun and vehicle, the background hostility, association evidence and identification evidence supplied a sufficient evidential basis. The identification evidence concerning Woodhead was also capable of being left to the jury, having regard to the supporting circumstances identified by the judge.

4. The proposed fresh evidence was not admitted. Feather’s proposed expert evidence concerned CCTV timing points that had already been contested at trial and did not undermine the important evidence placing his car in the relevant area. Calvert’s proposed material was either the product of a tactical decision not to call evidence, inadmissible multiple hearsay, unreliable, internally inconsistent, or capable with due diligence of being obtained before trial. Applying section 23 of the Criminal Appeal Act 1968, admission would not be in the interests of justice. The appellate process does not ordinarily permit a defendant to have a second attempt after an unsuccessful trial strategy.

5. The original minimum terms were too long. The court substituted minimum terms of 32 years for Calvert, 27 years for Lowther, 27 years for Woodhead, and 20 years for Feather. The court took account of the seriousness and totality of the two incidents, but also the applicants’ ages, their differing roles and the absence of an intent to kill. Time on remand continued to count towards sentence.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 890, the court refused the renewed applications concerning conviction, but granted leave and allowed the appeals against sentence by reducing the minimum terms.
• Crown Court at Bradford (Globe J): On 26 June 2014, a jury convicted the applicants of murder; Calvert, Lowther and Woodhead were also convicted of possessing a firearm with intent to endanger life. Feather was acquitted of the firearms counts.