Case No: 201501243 B1
Neutral Citation Number: [2016] EWCA Crim 751
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ MORRIS QC
T20077304
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/06/2016
Before :

LORD JUSTICE TREACY
MR JUSTICE EDIS
and
RECORDER OF BIRMINGHAM HHJ INMAN QC (SITTING AS A JUDGE OF THE CACD)

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Between:

	Regina	Appellant	
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	Triston Walker	Respondent	

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L. Mably (instructed by CPS) for the Crown
B. Richmond QC (instructed by the Registrar of Criminal Appeals) for the Applicant 

Hearing date: 23rd June 2016

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Judgment
Lord Justice Treacy: 
1.	This is an application for leave to appeal against conviction referred to the full court by the single judge.  In addition there is an application for an extension of time of a little over 6 years.  
2.	The applicant was convicted of murder on 15th January 2009 at the Central Criminal Court.  He was subsequently sentenced to life imprisonment with a minimum term of 27 years less time spent on remand.  
3.	The applicant was tried alongside his partner Simone Manning and Marlon Golding.  Both of those defendants were acquitted of assisting an offender.  A further co-accused, Lumsden, was convicted of assisting an offender.  The facts of the case show that the victim was a 17 year old female member of a dance troupe called X-squad.  Simone Manning’s sister was a member of that group and was in dispute with the other members.  This led to a violent confrontation on 20th June 2007 referred to as the “Bruce Grove Incident”.  The applicant and Simone Manning had actively taken the sister’s side.  
4.	In the small hours of 23rd June 2007 the applicant, the Manning sisters and Golding went to the Swan nightclub in Tottenham.  The deceased arrived with members of X-squad at about 3.20 am.  There was continuing animosity between the groups.  The applicant was seen making gestures and movements suggesting that he had a gun in the waistband of his trousers.  
5.	At about 5 am a fight broke out between the two groups and the applicant became involved.  He was seen by a number of witnesses to have a gun.  This was also captured by CCTV footage.  The gun was fired and the deceased was shot in the head, receiving fatal injuries.  
6.	Shortly after the shooting Golding drove the applicant and Simone Manning to an address in Purfleet.  The applicant then travelled to Oxford where he stayed for a number of weeks at an address rented by Lumsden until his arrest on 20th July 2007.  
7.	In interview the applicant admitted presence at the nightclub.  He initially lied, denying possession of the gun or shooting the deceased.  He claimed that the shot had come from behind him and blamed a man named Akim.  When shown the CCTV footage he made no further comment to questions.  By the time of trial he admitted that his original account was untrue.  His new account was that a man named Campbell had the gun and had produced it as he approached the applicant in the nightclub.  The applicant’s case was that he struggled with Campbell and managed to disarm him whereupon the gun discharged accidentally.  He had not deliberately fired the gun into the crowd.  
8.	The issues for the jury were whether they were sure that the applicant deliberately fired the gun killing the deceased and whether he had the requisite intention for murder.  
9.	The Crown’s case was a strong one.  There were witnesses who said that the applicant had threatened to use a gun during the preceding dispute at Bruce Grove.  There were witnesses who had seen the applicant with a gun in the nightclub both before and at the time of the shooting.  There was evidence of a previous incident at the club in 2006 when the applicant was said to have pulled a handgun from his waistband in the course of a dispute with the licensee.  The CCTV footage did not appear to be consistent with the applicant’s explanation at trial.  In addition, the applicant disputed all the major points of evidence implicating him, meaning that a large number of witnesses as to separate events combined to put forward a false account.  The judge gave an adverse inference direction in relation to the applicant’s change of account.  
10.	The co-accused Simone Manning, who had been present in the club gave evidence consistent with the applicant’s case.  She had not seen the shooting itself but said that the applicant had later told her it was an accident.  
11.	Marlon Golding gave evidence, both as to the events in Bruce Grove and the club, which was consistent with the applicant’s case.  In particular his evidence was supportive of the account given by the applicant in relation to Campbell and he said that the applicant had subsequently told him about the struggle with Campbell and accidental discharge of the gun.  There was a difference in the evidence of the applicant and Golding as to the point in time that that conversation took place.  Golding said it was during the journey to Purfleet, whereas the applicant described it as taking place after arrival there.  
12.	There are two grounds of appeal advanced before us by the applicant.  Firstly, it is submitted that the proceedings against the co-accused Marlon Golding were a nullity in that he was sent for trial on the charge of assisting an offender on 22nd August 2007 but that the DPP did not give consent until 10th October 2007, prior to his first appearance at the Central Criminal Court on 29th October.  
13.	Mr Richmond relies on the decision in R v Welsh & ors [2016] 1 Cr App R 9 at [54] for the proposition that that the DPP’s consent must be obtained prior to a defendant being sent for trial pursuant to section 51 of the Crime and Disorder Act 1998.  Mr Richmond acknowledged that having regard to Welsh at [65] and [71]-[73], where more than 28 days have passed since conviction and an applicant requires an extension of time, such an extension will not be granted unless it can be demonstrated that it is necessary to cure a substantial injustice.  He states that the issue as to nullity was unnoticed by Golding’s legal team or indeed any other party to the case.  The applicant subsequently became alive to the potential issue through his own enquiries.  
14.	Mr Richmond submitted that Golding was improperly included on the indictment as a co-defendant at the trial of this applicant.  He should not have been on the indictment at all.  Although Golding’s evidence was broadly supportive of the applicant’s final case, their evidence had been contradictory in relation to the applicant’s post-shooting account of accident.  This did collateral damage to the applicant’s case and was a situation which should not properly have occurred.  If Golding had not been a co-accused it would have been a finely balanced decision as to whether to call him to give evidence.  In the circumstances the applicant was significantly prejudiced and the verdict was unsafe.  
15.	The second ground of appeal relates to evidence which the jury heard to the effect that this applicant had a conviction for assault against Simone Manning and had also been cautioned on three occasions, once for assault.  The point taken is that those elements of bad character should not have been admitted because they had no probative value with regard to the count on the indictment.  We say at once that there is no substance at all in this further ground and Mr Richmond did not seek to argue it.  The applicant had himself adduced those aspects of his bad character in the course of his evidence, presumably with a view to showing that he did not have any significant criminal record for violence.  Whatever his motivation, the judge directed the jury in summing up that they should ignore those matters in reaching their verdict.  In the context of the charge and the evidence in the case there is absolutely no prospect of the admission of those matters rendering the conviction unsafe.  We reject this ground.  
16.	In relation to the first ground, Mr Mably, for the respondent, makes three overarching submissions: firstly that the consent of the DPP was not required because, on analysis, the proceedings were instituted by the DPP, thus satisfying the requirements of section 4(4) of the Criminal Law Act 1967.  This is for two reasons: (a) a Crown prosecutor made a charging decision in accordance with the statutory charging procedure before Golding was charged and before his case was sent to the Crown Court; (b) where a person is charged as a result of a decision under section 37B of PACE the proceedings are to be regarded as having been instituted by the DPP (by a Crown prosecutor exercising the DPP’s functions pursuant to section 1(6) of the Prosecution of Offences Act 1985), and not by the police.  
17.	Where material, section 37B provides: 
“(2) the DPP shall decide whether there is sufficient evidence to charge the person with an offence; 
(3) if he decides that there is sufficient evidence to charge the person with an offence, he shall decide – 
(a) whether or not the person should be charged and, if so, the offence with which he should be charged …
(4)  The Director of Public Prosecutions shall give notice of his decision to an officer involved in the investigation of the offence.  …
(6)  If the decision of the Director of Public Prosecutions is that the person should be charged with an offence … the person shall be charged … accordingly.”
18.	Mr Mably’s second overall submission, by way of alternative, is that even if it were concluded that the proceedings in Golding’s case were not instituted by the DPP, the charging decision made by her (through a Crown Prosecutor) amounts to consent to institute proceedings for the purposes of section 4(4) of the Criminal Law Act 1967.  The charging decision involves a consideration of whether the evidence if sufficient to justify bringing a charge and whether a prosecution is in the public interest.  It also involves the selection of the appropriate charge.  The decision is notified to the police, and under section 37B(6) of PACE it must be implemented by them.  This process constitutes more than mere consent: it is the actual decision to institute proceedings and a direction for its implementation by the police.  As a matter of substance, reality and logic, the giving of consent is subsumed by or contained within that decision.  Since the charging decision in Golding’s case constitutes consent to institute proceedings any separate later consent decision in October 2007 was superfluous.  
19.	Mr Mably’s third submission was that acceptance of either of his first two submissions would mean that the proceedings against Golding were not a nullity.  Were the court to hold otherwise so that the charge against him was improperly joined and tried on the indictment involving the applicant, there is no tenable basis upon which it could be argued that the conviction is unsafe.  If Golding’s charge was a nullity that would not bear on the validity of the charge against this applicant.  Moreover the evidence against this applicant was exceptionally strong.  Insofar as Golding’s position affected that of the applicant, his evidence supported the applicant’s case in all material respects that includes supporting the applicant’s account given after the event that the shooting had been an accident. The inconsistency of detail as to that was not a significant matter in the context of the case.  Accordingly any nullity of the proceedings against Golding would not bear on the safety of the applicant’s conviction.   
20.	The relevant chronology in Golding’s case is that he was initially arrested on 27th June 2007 and bailed to 5th July.  He was further bailed to 21st August.  In the interim, a Crown prosecutor made a charging decision on 4th August 2007.  In so doing he employed the threshold test set out under the Code for Crown Prosecutors issued by the DPP under section 37A of the Police and Criminal Evidence Act 1984.  This also encompassed a consideration of the statutory charging procedures set out in section 37B of PACE which provides that when a case is referred by police to the DPP, the DPP shall decide whether there is sufficient evidence to charge and if he does so it is for the DPP to decide which offence shall be charged and then to notify the police of his decision.  The provisions of section 1(6) and 1(7) of the Prosecution of Offences Act 1985 mean that every Crown prosecutor is for these purposes to be treated as being in the shoes of the DPP.  The charging decision of 4th August 2007 was recorded on an MG3 document.  
21.	As a consequence of this when Golding reported to his bail on 21st August 2007 he was charged by the police with the offence of assisting an offender.  On the following day the case was sent by the magistrates’ court to the Central Criminal Court.  
22.	On 29th August the case was reviewed in accordance with the Full Code test once the police had submitted the full charging file.  Thereafter on 10th October 2007 a separate written consent was confirmed by a Crown prosecutor.  
23.	We have seen the MG3 document relating to the charging decision of 4th August 2007.  It shows that on that date a prosecutor delivered face to face advice on charging to the police.  The prosecutor indicated that he had seen CCTV footage and applied the threshold test.  He said there was a clear case to answer and specified the offence of assisting an offender as a charge in relation to Golding.  There was thus a clear charging decision notified to the police for them to implement.  It is true that the form included a section entitled “DPP consent” under which was entered the words “not appropriate”.  Mr Richmond contended that this showed that the prosecutor on 4th August had not consented to the institution of proceedings.  He supported this submission by the fact that a different Crown prosecutor had expressly given consent in relation to Golding on 10th October.  
24.	We have reviewed the documentation in relation to Golding and also that concerning his co-accused Manning and Lumsden.  It is right to say that there are some apparently anomalous entries on the face of the documentation but we are entirely satisfied that on 4th August a Crown prosecutor considered the evidence, and made a charging decision which he then communicated to the police.  We return later to the question of whether this constitutes a consent to the institution of proceedings in the light of Mr Richmond’s submissions that it does not.   
25.	Mr Richmond’s submissions are essentially based on 10th October as representing the date of the DPP’s consent.  If he is correct in this then the decision in Welsh shows that where an indictable only offence is involved the appropriate consent must be obtained prior to a sending to the Crown Court under section 51 of the 1998 Act.  Sending in this case took place on 22nd August.
26.	In this context we note that both Welsh and the earlier decision of this Court in R v Lambert [2009] 2 Cr App R 32 were decided after this trial had concluded in January 2009 and are decisions on the question of when proceedings are instituted in the light of modern attempts to streamline the criminal justice system.  Earlier decisions such as R v Elliott [1985] Cr App R 115, and R v Whale & Lockton [1991] Crim LR 692 applied the principle that proceedings were instituted when the accused came to court to answer the charge.  In the case of an indictable only offence under older procedures that would not take place until arraignment at the Plea and Case Management Hearing.  Whale & Lockton was relied on by the Crown prosecutor in giving the consent of 10th October.  Therefore it appears that at the time which these proceedings were concerned matters proceeded on a basis consistent with the law as it was then understood prior to elucidation in Lambert and Welsh.  In this context see [61]-[70] of Welsh from which it is clear that the modern procedural arrangements call for a re-appraisal of the point by which consent must be given.  As was stated in R v Bull (1994) 99 Cr App R 193 at page 206:
“When considering the question whether proceedings have been instituted by a specified person or by or with the consent of a specified person it is essential to  have regard to the particular procedure adopted in the given case.”
27.	If there was a failure to give or obtain the necessary consent before proceedings were instituted then there is no doubt that the subsequent proceedings would be a nullity – see R v Christopher Welsh (Jr) [2016] 1 Cr App R 8 at [14] and [15] and R v Pearce (1981) 72 Cr App R 295.  However if a count on an indictment is a nullity for want of consent that defect does not nullify other counts on the indictment or the overall proceedings.  The indictment as a whole is not invalidated, only the count or counts improperly joined – see R v McGrath [2013] EWCA Crim 1261 at [33].  Mr Richmond did not argue to the contrary but submits that if the operative decision is that of 10th October, it came too late.  
28.	Section 4 of the Criminal Law Act 1967 deals with assisting offenders and subsection (4) provides: “No proceedings shall be instituted for an offence under subsection (1) above except by or with the consent of the Director of Public Prosecutions”.  It follows from that that section 4(4) is satisfied if the proceedings are instituted by the DPP or if the proceedings are instituted with her consent.  It seems to us that as a matter of statutory construction if the DPP institutes the proceedings the requirements of the subsection are satisfied and there is no need for a separate consent to be given.  Consent is only required if some person other than the DPP such as the police institutes the criminal proceedings.
29.	Since the statutory charging scheme at section 37B of PACE was introduced by the Criminal Justice Act 2003 following the recommendations of Auld LJ’s Review of the Criminal Courts, it is the DPP through Crown prosecutors who determines the charge and arguably initiates the prosecution.  It seems to us that, having regard to the terms of section 37B cited above, a Crown prosecutor who has decided that there is sufficient evidence to charge and who has identified the relevant offence and notified the police of his decision has either instituted proceedings personally in which case no separate act of consent is necessary or, alternatively, has required the police to charge the offender, in which case  notification of the decision constitutes the giving of consent.  We are satisfied that the actions of the prosecutor on 4th August described above constitute consent.  To consider the evidence, determine the charge and then inform the police that they must charge an accused with that offence necessarily connotes consent to the charge.  
30.	We therefore conclude that the prosecutor’s action of 4th August 2007 amounted to the necessary consent.  This being a leave application, it has not been necessary for us to determine whether that giving of consent also constitutes the institution of proceedings as Mr Mably’s first submission contended, or whether proceedings were instituted by notification of the charge to Golding on 21st August 2007 when he was re-arrested after surrender to bail (see section 15(2)(c) of the 1985 Act), or whether his sending to the Crown Court on the following day pursuant to the 1998 Act amounted to the institution of proceedings in the light of Welsh.  Welsh is a decision concerned with the requirement for the Attorney General to consent to the institution of proceedings under the Criminal Law Act 1977.  It may be that in a future case that issue might need to be resolved.  
31.	However in the present case, the parties adopted the approach that on any view, if consent had been given on 4th August, it would have been a valid consent given at a relevant time with the consequence that there was no question of nullity in relation to the proceedings against Golding.  We did not receive any submissions on the point raised in the preceding paragraph.
32.	The later act of a Crown prosecutor on 10th October in purporting to give a consent which would have been valid as the law was then understood, is to be regarded as mere surplusage in the light of a previously valid consent having been given or obtained.  Since we hold that there was no nullity involved, there can be no complaint about joinder of Golding, so that the assertion of unfairness to this applicant falls to the ground.  
33.	Even if we had been persuaded that Golding’s proceedings were a nullity we do not think that there is any arguable case that the applicant’s conviction is unsafe.  We regard the strength of the evidence against this applicant as having been particularly robust.  Moreover, the evidence given by Golding was broadly supportive of the applicant’s case as indeed was the evidence given by the co-accused Manning.  In the context of the case as a whole we see no substance in the suggestion that Golding’s presence materially undermined the applicant’s case.  To the extent that the Crown could point to a discrepancy in their accounts relating the applicant’s explanation of accident, this is not a factor that could render the verdict unsafe.  In those circumstances where there has been no substantial prejudice caused to the applicant we decline to grant an extension of time since it has not been shown that one is necessary to cure a substantial injustice.  For the reasons given we also dismiss this application relating to conviction.