R v Sheldon Pommell

In a secondary-party attempted murder case, jury directions are sufficient where they address the defendant’s knowledge that the principal had a gun, the shared intention that it be used to kill, and the defendant’s encouragement or assistance. A separate direction on procuring or a free-standing causation requirement is unnecessary where procuring is not the prosecution’s case. Evidence of an earlier acquittal is generally irrelevant to later events and cannot bolster a witness’s credibility where that witness did not testify at the earlier trial. Verdicts on distinct offences need not be consistent. A facilitator may be the prime mover, and a sentence within the guideline range will not be manifestly excessive merely because the shooter received a different sentence.

Following a retrial at the Crown Court at Woolwich, the applicant was convicted of attempted murder. The jury could not agree on a separate count of possessing a firearm with intent to endanger life. He was sentenced to 26 years’ imprisonment. A single judge refused leave to appeal.

On renewal, the applicant challenged the exclusion of evidence that the shooter had been acquitted at an earlier trial, the fairness of the summing-up, the directions on assistance and encouragement, the consistency of the verdicts, and the refusal to admit fresh evidence. He also challenged the length of sentence.

Applications refused. The court refused leave to appeal against conviction and sentence and refused leave to adduce fresh evidence.

1. Evidence of the shooter’s earlier acquittal concerned an alleged transfer of the firearm before the nightclub incident. It was not legally relevant to the later shooting. Nor could it enhance the shooter’s credibility, because he had not given evidence at the earlier trial.
2. The jury directions were adequate. The relevant questions were whether the applicant knew that the shooter had a gun, shared the intention that it be used to kill, and encouraged or assisted the enterprise. The prosecution case was based on secondary participation by assistance or encouragement, not procuring. Directions on command and causation, or directions appropriate to a procuring charge, were therefore unnecessary.
3. The verdicts were consistent. A finding that the applicant encouraged or assisted the attempted murder did not conflict with the jury’s inability to reach a verdict on the separate possession count. The proposed fresh evidence did not satisfy the criteria under section 23 of the Criminal Appeal Act 1968 and did not cast doubt on the safety of the conviction.
4. For sentence, the relevant question was whether the sentence was manifestly excessive. A person who assists or encourages the shooter may nevertheless be the prime mover or main motivator behind the attempted murder. The sentence of 26 years was within the guideline range, below the starting point, consistent with the applicant’s assessed culpability, and not inconsistent with the different sentence imposed on the shooter.

The court doubted that the sentencing judge was entitled to take into account the applicant’s possession of the gun when the jury had not convicted him of that offence, and considered speculation about the absence of a verdict unhelpful. That observation did not make the sentence arguably manifestly excessive.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 291, the renewed applications for leave to appeal against conviction and sentence, and for leave to adduce fresh evidence, were refused.
• Single judge: Leave to appeal against conviction and sentence was initially refused.
• Crown Court at Woolwich: Following retrial, the applicant was convicted of attempted murder on 4 November 2021. The jury could not agree on the firearm-possession count. He was sentenced to 26 years’ imprisonment on 26 January 2022.