R v Josh Craig Hawthorn & Anor

Hearsay from a dead witness may be admitted under section 116 of the Criminal Justice Act 2003 where the statutory conditions and fair-trial safeguards are satisfied. In a joint participation case, directions should identify the defendant’s intentional involvement in the specific act; a separate departure direction is unnecessary where the jury is clearly directed on that issue.

For a no-case submission based on circumstantial evidence, the question is whether a reasonable jury, properly directed, could exclude all realistic possibilities consistent with innocence, assessing the evidence cumulatively. For murder for gain, Schedule 21’s 30-year starting point may apply to a secondary party, subject to the facts, degree of participation and mitigation.

Youssef Wynne and Josh Hawthorn renewed applications for permission to appeal against convictions and sentences imposed after their joint trial before Dove J. Wynne had been convicted of murder and other offences arising from four ammonia attacks. Hawthorn had been convicted of murder and robbery arising from the final attack.

Wynne challenged the admission of hearsay evidence, the absence of a departure direction, and his 33-year minimum term. He also sought an extension of time. Hawthorn challenged the decision that there was a case to answer, relying on innocent explanations for telephone calls and messages, and challenged his 22-year minimum term, including the use of a 30-year starting point for a secondary party.

Disposition. All renewed applications for permission to appeal were refused. Wynne’s application for an extension of time was also refused.

1. Wynne’s conviction applications. The hearsay evidence concerning an earlier assault was properly admitted under section 116 of the Criminal Justice Act 2003. The source was dead, the statutory conditions were satisfied, and the evidence was supported by two accounts, photographs and Wynne’s Defence Statement. The safeguards identified under section 114 were sufficient to secure a fair trial.
2. The judge gave a legally correct and fact-specific direction on joint participation. The jury had to be sure that Wynne intentionally instructed, assisted or encouraged the particular acts, including the use of ammonia, and, for the murder, that he intended death or really serious injury. A lengthy direction concerning departure from a pre-arranged plan was unnecessary. There was no evidential basis for alternative verdicts.
3. Wynne’s 33-year minimum term was not manifestly excessive. The murder occurred during a robbery, so the 30-year starting point under paragraph 3(1)(a) of Schedule 21 to the Sentencing Act 2020 was available. The other attacks and their consequences justified a term above that starting point. The trial judge was entitled to make findings about drug dealing and drug taxings, supported by the evidence.
4. Hawthorn’s conviction application. The no-case test, summarised in R v G and F [2012] EWCA Crim 1756 and refined in R v Masih [2015] EWCA Crim 477, asks whether a reasonable jury, properly directed, could exclude all realistic possibilities consistent with innocence. The prosecution case is taken at its highest. The calls and messages before and after the murder had to be considered together. Their timing, urgency, repetition and content provided a rational basis for rejecting ordinary drug dealing as an innocent explanation and inferring participation in the murder and robbery.
5. For sentencing, secondary participation in a murder for gain may attract the 30-year starting point in Schedule 21, subject to the facts and degree of participation. The judge was entitled to start at 30 years and reduce it to 22 years for Hawthorn’s lesser role and substantial mitigation. Fearon [2021] EWCA Crim 1706 was distinguished because it concerned a spontaneous robbery and a 15-year starting point.

• Court of Appeal (Criminal Division): In [2026] EWCA Crim 1058 , the court refused Wynne’s and Hawthorn’s renewed applications for permission to appeal against conviction and sentence. It also refused Wynne’s application for an extension of time.
• Crown Court: Before Dove J, Wynne and Hawthorn were convicted and sentenced to minimum terms of 33 years and 22 years respectively.