Davies, R (On the Application Of) v The Criminal Cases Review Commission, Court of Appeal - Administrative Court, November 14, 2018, [2018] EWHC 3080 (Admin)

Resolution Date:November 14, 2018
Issuing Organization:Administrative Court
Actores:Davies, R (On the Application Of) v The Criminal Cases Review Commission
 
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Neutral Citation Number: [2018] EWHC 3080 (Admin)

Case No: CO/5956/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 14/11/2018

Before:

LORD JUSTICE IRWIN

MR JUSTICE KERR

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Between:

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Ms Felicity Gerry QC, Mr Jim Duffy (instructed by Duncan Lewis Solicitors) for the Claimant

Ms Sarah Clover (instructed by The Criminal Cases Review Commission) for the Respondent

Hearing dates: 25 October 2018

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Lord Justice Irwin:

Introduction

  1. This claimant seeks to challenge the decision of the Criminal Cases Review Commission (``the CCRC'') not to refer his conviction for murder to the Court of Appeal (Criminal Division). The Claimant was convicted by a jury in the Bradford Crown Court on 5 August 2009, following a retrial of his case. He was sentenced by Langstaff J to life imprisonment with a minimum term of 35 years custodial term.

  2. Edward Simpson was battered to death in his home in Bradford in the course of a planned robbery. The Claimant was not present, but was an active organiser of the crime. He was convicted on the basis of joint enterprise. Langstaff J directed the jury according to the then understanding of the law, namely that it was sufficient for guilt that a defendant was party to the joint enterprise (in this instance of robbery) and foresaw that as part of that joint enterprise serious injury might be inflicted on the victim. As is well known, the Supreme Court in R v Jogee [2016] UKSC 8 ruled that the law requires intention, not merely foresight, on the part of a defendant before he may properly be convicted. It follows that in giving the direction he did, Langstaff J unwittingly misdirected the jury. All that is agreed.

  3. The essential issues here are the impact of that misdirection in this case, how it should have been viewed by the CCRC, and the approach of the Court to decisions by the CCRC.

  4. The Claimant has already pursued an appeal before the Court of Appeal in 2010, reported as R v Daniels and Others [2010] EWCA Crim 2740. That appeal was advanced on different grounds and was rejected. As we shall see, there was one important error of fact in that report, which in my view was important in the grant of permission to seek judicial review.

    The Evidence at Trial

  5. There remains no issue for present purposes that the Claimant was party to the plan to rob the deceased of a substantial sum of money, and of drugs. Indeed it is accepted there was overwhelming evidence of his organising role in the enterprise.

  6. The following critical points of evidence are summarised or quoted from the summing-up of Langstaff J to the jury. Page references are to the internal preparation of the summing-up.

  7. An important feature of this case was that evidence was given for the Crown by a man known as Sonny Stewart. He had been one of those involved in the robbery plan. The Crown accepted a plea of guilty to manslaughter in his case, dropped the murder charge and adopted him as a witness pursuant to Section 73 of the Serious Organised Crime and Police Act 2005. It was this aspect of the case which was the focus of the appeal in 2010. The Court of Appeal concluded that this matter had been properly handled and rejected the submission that the convictions were unsafe on this ground.

  8. Cell site evidence was ``consistent with'' the Claimant and Stewart being ``together all night'' on the evening of the robbery (p.31). Stewart and the Claimant had ``... more or less grown up together. They were very close...'' There was evidence of very frequent contact between them over the ten or eleven days before the robbery (p.44). Evidence of the planning discussion was that the Claimant was ``enthusiastic'' about the suggestion of robbery, which had come from the co-defendant Johnny Daniels (p.45). Stewart then said:

    `` ``They must have had a conversation in between when I wasn't around, because it was like it was down to two people to rob. They said that the 50 grand had come from a kid called Teddy. Johnny Daniels said it was what he was owed, so he went round and took it. It had been owed to him for protection. Daniels said that Teddy Simpson was worth robbing, `He's got money. More than I robbed him of, plus a shipload of drugs coming in as well'''. And Daniels, thought Stewart, seemed to know Teddy Simpson. He thought it would be quite easy to get the money from Teddy Simpson. ``And there was supposed to be a couple of hundred grand in the house, plus the drugs when they came''. And he said the decision was made about Edward Simpson.

    The way that he put it was this. ``The logistics were not discussed in my presence. I think Daniels wanted Davies to do it. Davies didn't want to. He thought there ought to be someone else to do it. Jigger didn't really want to do it, that was clear at the meeting''. But he then went on to say, well, it has been over two years ago. ``Daniels was on a tag. He couldn't leave the house, he couldn't do it. He didn't want to tell Daniels that, he told me, he approached me. He added ...'', I am sorry, ``... he asked me did I know anyone who wanted to do it''.'' (p.45)

    ``Jigger'' is the Claimant's nickname.

  9. There was then an important piece of evidence, indeed evidence which Ms Gerry QC for the Claimant says is absolutely critical. After discussion of the presence of CCTV at Simpson's house, the location of the CCTV tapes and of the money in the house, Stewart's evidence went on as follows:

    ``They said that Teddy Simpson was a shiverer. `If you look intimidating, got presence about you, he'll give it to you straight away. You don't have to do much or use any violence'. It was left like that after the second meeting.'' (pp.45/46)

  10. Once the robbery had been planned in outline, it will be understood that part of the arrangement then was that the robbery would be actually carried out by men from Leeds, recruited from outside Bradford. These men transpired to be Decosta Daniel, Witten and Cameron and were referred to at the trial as ``the Leeds men''. The Claimant was said to have rung Daniels and Stewart a number of times, anxious that the Leeds men should be recruited and the robbery planned.

  11. There was a further piece of evidence from Stewart, later in the sequence of events before the robbery. ``Sticker Lane'' is a reference to Simpson's address:

    ``But that phone call is very close to the CCTV footage of the cars driving past, the two of them driving past Sticker Lane, in the course of which Stewart says that Davies pointed out Sticker Lane to the men behind and made a phone call to that effect. Well, they went to Fenby Avenue. They parked up, says Stewart. He said Anthony Davies got out, he said to them ``'Right, you know what to do. You don't need to hit him, just threaten him. Threats will be enough. Make sure you get the tape, ring when you're in the house'. Then he got back into my car, the Laguna, we turned round and we drove back to Sticker Lane and then to 21 Hope Avenue, my house''. So Stewart, Davies, Mumtaz Ali, on his account, going to 21 Hope Avenue, leaving the Leeds men in Fenby Avenue about to drive down Sticker Lane and into 310, and there to do what it is said, if this account is right, is a robbery in which the threat of force is enough.'' (p.72)

  12. There was an issue at trial concerning the Claimant's movements during the evening. The Crown case was that he was with Stewart throughout most of the night and was fully engaged in the communication about matters as they developed.

  13. There is no dispute that the robbers took an imitation firearm and a large adjustable wrench to the scene. Simpson was beaten with the wrench, causing very severe, and in due course fatal, injuries. However, he did not die immediately.

  14. The defence case was that, unexpectedly Simpson did not quickly give in, but in fact produced a knife immediately as the incursion took place. Those defendants who gave evidence argued it was the production of the knife that led to the violence. A knife tip was found on the hall floor just behind the back door (pp. 121/122). There was one defensive injury found on the body of the deceased, a cut to his little finger (p. 126). The defendant Cameron was said to have been cut by the knife used by the deceased, although he declined to go to hospital that night.

  15. The violence was extreme. There was impact splatter of the deceased's blood in the hallway. The marks suggested to the forensic scientist that Simpson had been hit in the hallway, while Simpson was in a kneeling position. He was then dragged into the kitchen, dragged from the kitchen back to the hall and into the lounge (p.78). On and around the sofa in the lounge were blood stains and blood mixed with water. The evidence suggested to the expert that Simpson's face had been pressed into a cushion (p.78), suggesting stifling or suffocating him (pp.78/79). Inside the cushion cover was ``thick heavily-clotted blood'', and the cover had a knot around the bottom of it. The outside of the cushion was wet. This suggested the cushion cover had been placed over the head of the deceased, the neck had been ``narrowed with the ligature'' and water poured over the deceased's head inside the cover (p.79). The state of the sofa suggested a lot of water had been used.

  16. The stains on the wrench linked it directly with the blows to Simpson. Bloodstains near a child's ball pool in the sitting room suggested another direct blow to Simpson's head there.

  17. During the robbery, another man called Folkard arrived at the premises. He had arranged to visit Simpson, and went to the house but got no answer to his knock or to a phone call. He then went back to the door. His evidence was then summarised as follows:

    ``And...

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