CRIMINAL EVIDENCE – SENTENCING – CRIMINAL PROCEDUREADMISSIBILITY : BAD CHARACTER : FIREARMS OFFENCES : GANGS : JURY DIRECTIONS : POSSESSION OF FIREARMS WITH INTENT : SENTENCE LENGTH : YOUNG OFFENDERS : CRIMINAL JUSTICE ACT 2003 s.98, s.101(1)(d)
A recorder had properly directed the jury that gang-related evidence, admitted under the Criminal Justice Act 2003 s.98, went to the issue of the intent of a 19-year-old offender charged with possession of a firearm with intent to endanger life. A sentence of 11 years’ detention, although severe given the offender’s age, was not manifestly excessive or wrong in principle.
A young offender (S) appealed against his conviction for possession of a firearm with intent to endanger life.
He also appealed against the sentence of 11 years’ detention which had been imposed. He was acquitted of possessing ammunition with intent to endanger life. S, 19 at the time of the offence, had been arrested in possession of a sawn-off shotgun and cartridges. The prosecution alleged that the gun was to be used in connection with a gang dispute. It relied on evidence of S’s involvement with a violent gang, evidence that he had been the victim of gang-related violence, and gun-related images seized from his phone as showing an interest in guns beyond being a mere courier. S did not give evidence, but claimed in his defence statement that he was only a courier and not a gang member. The recorder allowed the prosecution to adduce gang-related evidence under the Criminal Justice Act 2003 s.98 on the ground that it related to the alleged facts of the offence because it went to the issue of intent. The recorder said that the evidence would also have been admissible as bad character evidence under s.101(1)(d) of the Act.
S argued that the recorder had failed to adequately direct the jury on the weight to be given to the gang-related evidence. He further argued that the sentence was too long given his acquittal on the ammunition count, and that the recorder had failed to give cogent reasons for not sentencing him as a “courier plus”.
(1) The issue for the jury was one of intention. The recorder had correctly directed the jury that the prosecution had to prove that S had intended to use the gun himself or to enable another to use it, as and when the occasion arose, to endanger life. Such an intention could be inferred from various strands of evidence, including the nature of the gun and the circumstances in which it was seized. The gang-related evidence went directly to intention and motive. Motive could be inferred from the attack on S in the context of the violent and long-running feud between particular gangs. The phone images were also admissible to show S’s interest in guns beyond that of a mere courier. Taken together, that evidence provided a proper basis for the requisite intent. The recorder’s directions to the jury were faithful to her ruling. The jury was told in simple terms that the gang-related evidence formed part of the evidence from which it was entitled to infer intent but that, even if sure about S’s link to gangs, it still had to consider whether he might merely have had the gun with intent to supply it, and that that conclusion was insufficient for a guilty verdict. The recorder had not been invited to give the sort of direction, identified in R. v Lowe (Donnette)  EWCA Crim 3047, that would have been appropriate if the evidence had been admitted under s.101(1)(d), Lowe considered. There might also be cases where the jury should be warned not to make unwarranted assumptions about a defendant because of reprehensible conduct admitted pursuant to s.98. Whether such a direction would assist the jury or should be given as a matter of fairness to a defendant depended on the facts. However, the absence of such a direction could not be criticised in the instant case, and did not lead to the conclusion that S’s conviction was unsafe. Looking at the matter realistically, there were only two possible explanations for him having a sawn-off shotgun concealed on his body at night. He was either a courier or he intended to use the gun to endanger life. It was a straightforward and simple case; the parties and the recorder had adopted an appropriately straightforward and focused approach. Given the specific purpose for which the disputed evidence was admitted, and the jury directions tailored to that purpose, there was no prospect of the jury treating the evidence as generally prejudicial and no further direction was required. The case against S was a strong one and his conviction was safe (see paras 41-48 of judgment).
(2) Although S’s previous convictions related to when he was a juvenile, he had two convictions for robbery and two convictions for possession of knives. The recorder accepted that the gun was not loaded or discharged, and made it plain that S was not being sentenced for the ammunition found. However, she had heard the evidence at trial, and was entitled to say that there was an intention for the gun to be used in a gang-related dispute, and that it was fortuitous that the police had stepped in when they had. She was conscious of S’s relatively young age, though the sentence was undoubtedly a severe one for someone of that age. The recorder’s sentencing remarks were full and well-reasoned and the sentence was neither manifestly excessive nor wrong in principle, Attorney General’s Reference (Nos 4, 5, 6, 7 and 8 of 2014)  EWCA Crim 651,  2 Cr. App. R. (S.) 51 considered (paras 49-51).
Appeals against conviction and sentence dismissed.