This judgment was handed down remotely at 10.00am on 8 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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LORD JUSTICE WARBY :
- On 30 May 2022, after a trial in the Crown Court at Ipswich, David King and his son Edward King were convicted of the murder of Neil Charles. On 24 April 2023, they were sentenced by the trial judge, HHJ Levett. David King, then aged 56, was sentenced to life imprisonment with a minimum term of 21 years less 559 days spent on remand. Edward King, then aged 20, was sentenced to custody for life with a minimum term of 19 years less the same period spent on remand.
- David King and Edward King both now renew their applications for leave to appeal against conviction after refusal by the single judge. Each application is renewed on a single ground, namely that the convictions are unsafe because bad character evidence was wrongly admitted. Edward King also renews his application for an extension of time for seeking leave to appeal against sentence, which was also refused by the single judge.
- The applications have been presented by Mr Vaughan KC and Mr Whitehorn, who came into the case for the sentencing hearing.
The facts
- Shortly before 4am on 20 June 2021, in the street near the applicants' home in Bury St Edmunds, there was a confrontation between the applicants and Neil Charles in the course of which Neil Charles sustained a fatal stab wound to his chest. The wound was inflicted by a bayonet-shaped Fairburn-Sykes dagger held by David. Edward, then aged 18, was present nearby, in possession of a 27-inch Samurai sword. The deceased was in possession of a bicycle.
- CCTV video and audio evidence from home security devices gave context to these events. It showed that just before 1am Edward had been alerted by the home CCTV system to movement on the driveway outside their address. He and his father had got up, viewed the footage, left the house and looked around the area for some 20 minutes. Text messages between them and family members showed they had been out looking for the person who had tried the door handle of a car belonging to them. CCTV of the applicants' return showed that Edward had the Samurai sword tucked into his jogging bottoms.
- At 03:48 the home CCTV system triggered again, alerting Edward to further tampering with a car and with the front door of the house. He roused his father and they viewed the footage. They then got dressed and went out again, each armed in the fashion we have mentioned. The fatal confrontation with the deceased happened less than five minutes later. CCTV recorded someone saying at 3:52, "You hurt me", another person then saying, "Get on the floor", and then an exchange in which one voice said, "I'm not a thief" and the other said, "Yes you are".
- The evidence relied on by the prosecution included the CCTV material to which we have referred and the following: (a) a CCTV audio recording made at 3:51, shortly before the confrontation, which was said to have recorded one of the applicants saying to the other the words " No. Yeah. We lost him"; (b) the expert evidence of a pathologist that the fatal wound was caused by a thrusting motion; (c) expert evidence that a wound to the deceased's leg and a cut to the rear tyre of the deceased's bike had been caused by the sword; (d) evidence that the DNA of the deceased's was found on both the knife and the sword; (e) Evidence from neighbours who arrived on the scene after the stabbing. This included evidence that a man had cried out for help but David had said not to because the man had a knife and he had already called the police; (f) statements made to the police by David and Edward that were said to be lies: David was said to have told lies about where the dagger had been left; Edward had said, among other things, that he had not gone out with his father but had stayed at home.
- The prosecution also relied on four strands of evidence which the judge admitted over defence objections, and which are controversial on this renewed application.
(1) Electronic messages exchanged between the applicants and other family members and neighbours in and after June 2019. The applicants expressed hostility and violent thoughts towards thieves and burglars in the light of a local history of burglaries and car crime, including the theft in June 2019 of all four wheels from one of the family's cars and damage caused to David's car in December 2019. The messages also suggested that David had given Edward access to shotguns, which would have been in breach of his shotgun licence. In one message, Edward made reference to two knives.
(2) Evidence that numerous knives and other weapons had been acquired and kept at the family home. Between May 2020 and July 2021 Edward, using his father's date of birth, had purchased five knives, a 19-inch Bolo machete, a 23-inch Latin machete, and the Samurai sword, this last being acquired about a month before the fatal confrontation. Photographs of weapons held at the house were put before the jury, including knuckledusters and a baton kept under Edward's pillow and a shotgun belonging to David. Edward had also had possession of at least one other machete.
(3) As against Edward, the prosecution relied on a conviction for using threatening behaviour whilst holding that other machete. That offence was committed on 17 July 2020 when Edward was 17. The knife was seized from the family home on 19 July 2020. Edward pleaded guilty on 2 November 2020 and was sentenced to a referral order.
(4) As against David, the prosecution relied on evidence from a neighbour called Tom McKeag that in February 2020 David had confronted him in an exceptionally aggressive and intimidating manner about his actions the previous day, of pushing back the wing mirror of Edward's car. McKeag said that his action had caused no damage. David did not suggest that it had but kept stating he should not have even touched their car and behaved towards him in a terrifying way.
- The prosecution case was that the two applicants had left their house and gone out into the street together with the shared intention of hunting down and inflicting unlawful violence on the person who had been tampering with their car and front door during the night-time hours. They were passionate about their cars and had formed and demonstrated an entrenched hostile intent towards anyone interfering with them.
- The defence case was that the applicants had left the house intending lawfully to detain the burglar, without any intention to cause serious harm. In a 999 call David told the operator that there had been an attempted theft, he had apprehended the thief but the thief had run off. He said the deceased had rushed at him whilst he was holding a knife in his hand. David said something similar to officers at the scene. He gave evidence to the jury to like effect. He said his aims were to protect his son, drive away the thief and/or lawfully to detain the thief if possible. The deceased had used his bike to assault David, whereupon he had taken the knife out of his pocket to deter a further attack. The deceased had come at him, and he had not intended to cause serious harm. David said that Edward had not been present at the start of the confrontation. He also gave evidence addressing the messages, the weapons and the encounter with McKeag.
- Edward, in interview, had told police that he had not stabbed the deceased and that forensic evidence would support that position. Edward did not give evidence.
The conviction applications
Grounds of appeal
- The written grounds of appeal for each applicant are that "the learned judge permitted the prosecution to admit ... bad character evidence" which, considered separately and cumulatively, "had an overwhelmingly and unfairly prejudicial effect on the trial as a whole" such that the convictions are unsafe. The reference to "bad character evidence" is to each of the four strands of evidence we have mentioned.
- Mr Vaughan KC, who has presented both the conviction applications, has argued that this evidence should have been analysed methodically and carefully within the statutory framework provided by the Criminal Justice Act 2003, and the three-stage test identified by this court in R v Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169. The trial judge failed, he says, to conduct any such analysis and the grounds on which the judge admitted the evidence remain unclear. A proper step-by-step analysis as set out in Hanson is said to expose the weaknesses in the arguments for admitting the evidence. In the result, the trial was "consumed" by the bad character evidence which shifted the focus from the events of 20 June to a series of extraneous matters and so unfairly prejudiced the applicants' position that the conviction should be quashed.
- In relation to the messages, Mr Vaughan has submitted these were not only distant in time from the relevant events they were also evidence of mere thoughts, not deeds. He has referred us in this context to the case of R v Fox (Charles Frederick) [2009] EWCA Crim 653. Mr Vaughan has argued that the impact of the images of the family "arsenal" was highly prejudicial but there was no evidence that any of the weapons had ever been used. Edward's conviction fell short of showing any violence let alone a propensity towards it. The McKeag incident amounted only to aggressive shouting without any violence. In that context Mr Vaughan has referred us to R v Osbourne [2007] EWCA Crim 481. He has also emphasised the need to consider the question of prejudice in the light of the family relationship between the two applicants and the fact that they were alleged to have acted together as part of a joint enterprise. Each applicant is said to have been equally prejudiced by the bad character evidence.
Assessment
- We will consider each of the four categories of evidence in turn, but we make these preliminary observations.
(1) First, we note the proposition implicit in the grounds of appeal we have quoted that all the non-conviction evidence under review was evidence of reprehensible behaviour or a tendency towards reprehensible behaviour so that all the evidence under consideration was of bad character within the meaning of section 98 of the 2003 Act.
(2) Secondly, the judge gave detailed rulings on the Crown's bad character applications in which he addressed each of the questions raised by s 101 of the Act and s 78 of the Police and Criminal Evidence Act 1984 (PACE). His decision was that all the evidence was admissible and should be admitted under s 101(1)(d) as relevant to one or more important matters in issue between the prosecution and defence. He referred to a number of authorities. These did not include Hanson, but that is not of itself a fatal flaw.
(3) Thirdly, we are satisfied that in assessing the relevance and weight of the material and any prejudice that might result from its admission the judge was not required to consider each strand in isolation. He was entitled if not bound to have regard to its cumulative effect and impact. That is the submission made by the prosecution in its Respondent's Notice, and it is also the way the case has been argued on behalf of the appellants.
(4) Fourthly, the issue of prejudice must be assessed in the light of the directions given by the judge to the jury which are not the subject of any renewed ground of appeal.
(5) Finally, to determine whether any prejudicial impact the bad character evidence may have had undermines the safety of the conviction we must consider it in the context of the evidence as a whole.
(1) The messages
- The judge held that these were relevant to a number of important issues between the prosecution and defence including, in particular the applicants' states of mind when they went out into the street shortly before 4am that morning (that is to say, whether they were intent on causing really serious harm or had peaceful intentions involving the lawful apprehension of the offender) and whether the violence that ensued involved aggressive or defensive conduct by them. The judge rejected the defence submission that the messages should be ruled out as being no more than "hyperbole" or, put another way, just talk, observing that the significance of the messages was an issue for the jury.
- We have considered the message contents. They show both applicants expressing the view that the police were ineffective in dealing with car crime and other crime locally. They include, by way of illustration, messages from Edward to his father in June 2019, that if he saw the people who had stolen the wheels from his mother's BMW "I'm fucking beating the cunts", and "I'm going to stab them". When Edward wrote to his father that he would kill one of the culprits, David replied that he would be sleeping with a loaded shotgun. In other messages David spoke of cutting off the balls of wrongdoers and stuffing them in their mouths. He messaged his wife saying, "scum needs to die". When the bumper of David's car suffered minor damage in December 2019, Edward wrote that a knife should be put to the throat of the wife of the person who did it. These are just examples of very many messages expressing violent intentions in graphic terms.
- We have not drawn any assistance from Fox, where this court held that a private notebook showing "dirty" sexual thoughts two years before the commission of the child sex offences with which the appellant in that case was charged was not evidence of bad character within the meaning of the 2003 Act. The present case must be reviewed on its own facts. The applicants' own written argument describes the messages as evidence of "non-conviction, non-criminal but reprehensible behaviour". Rightly so, in our opinion. In our judgment the message contents were plainly capable of bearing on the important issues identified by the judge. The jury could properly conclude that they showed, as the prosecution alleged, an entrenched mindset: that the applicants had a deep loathing of thieves and saw themselves as vigilantes who were willing to use unlawful violence, even lethal violence, to deal with what they saw as a plague of crime with which the police were failing to deal. The judge was clearly right as to the nature and relevance of this material.
- In our judgment the judge was plainly entitled also to conclude that the probative value of the evidence was enough to outweigh any risk that its admission would work unfairness. In reaching that conclusion it was necessary for him to bear in mind, as he did, the distance in time between some of the messages and the fatal encounter, and the absence of evidence that the applicants' violent thoughts had led to actual violence before the night in question. But he was obviously also entitled to the view that the messages must be seen in context, having regard to the other strands of bad character evidence relied on.
(2) The weapons
- This evidence was not confined to a far-distant period in time. It showed that over a period of many months leading up to the date of the fatal encounter Edward had displayed a keen, persistent and active interest in the acquisition and possession of bladed articles. That interest continued even after Edward's conviction. These were not household items but weapons designed to cause personal injury. The photographs put before the jury showed weapons – including David's dagger - that were in the applicants' home at the time of their arrest, available for use, and included some photos that had been shared during the messaging. The judge evaluated this aspect of the evidence item by item. He took a scrupulously careful and measured approach which in our view cannot fairly be impugned. So far as David is concerned, there was evidence to support the view that he tolerated his son's interest in violence.
- In our judgment this evidence was capable of demonstrating an obsessive and unhealthy interest in weapons, given practical effect by the use of deception to acquire some of them and by keeping the weapons available in the home. Taken together this was reprehensible behaviour. It had an obvious bearing on whether the threats made in the messages were just talk or credible and sincere and, more generally, on the issue of the applicants' intentions and states of mind at the material time. The judge was entitled to leave it to the jury for their consideration.
(3) Edward's conviction
- We do not consider it arguable that this strand of the bad character evidence should have been excluded. The important issues between the prosecution and Edward King included the state of mind with which he left his home in the early hours of the morning in possession of a 27-inch Samurai sword and specifically whether his intentions were protective or defensive. The issues also included the intent with which, at the scene of the fatal encounter, he wielded the sword in such a way as to cut the deceased and his bicycle tyre. The fact that some months earlier Edward had not only taken a machete into a public place without good reason but also brandished it in a threatening manner had probative value on those issues.
- What is more, the conviction is not to be seen as an isolated matter. It was capable of lending colour to the evidence about the messages and about the weapons acquired and held at the family home. It was capable of supporting the view that these weapons were not held as collectors' items but with a view to being taken out and used.
(4) The evidence of McKeag
- This strand of evidence relates exclusively to David King's case, and the jury were directed accordingly. The case of Osbourne is far removed. That was a case of murder by repeated stabbing in the context of drug-dealing. The appellant, who was a close friend of the deceased and had no history of violence, had shouted at a domestic partner over childcare issues. The court held that that could not be regarded as reprehensible behaviour in the context of that case. In the context of the present case the conduct of which McKeag gave evidence may have amounted to a criminal offence and was in any event rightly treated as reprehensible.
- This evidence was admitted by the judge as relevant to the issue of why the applicants left their home that night in possession of lethal weapons. Again, we regard this strand of evidence as capable of fleshing out by way of evidence of conduct in a real-life situation the picture that emerged from the messages, of an exceptionally high degree of protectiveness towards vehicles and a correspondingly high level of aggression towards those who interfered with or even touched them.
- Looking at the position overall, our conclusion is that all the evidence we have discussed was of relevance to issues that were central to the case the jury had to consider. In our judgment each strand had real and significant probative value when considered in isolation. Viewed in combination that value was enhanced as several of the strands were mutually supportive. The judge was not bound to exclude the evidence pursuant to s 101(3) of the 2003 Act or s 78 of PACE. We are not persuaded that it is arguable that the trial was unfairly skewed as a result. The judge's decision as to the way in which the evidence was put before the jury was an exercise of judicial discretion with which we see no grounds to interfere. We agree that the messages were graphic. But any risk of unfair prejudice could be and was adequately catered for by the judge's directions to the jury.
- Two further matters are to be noted by way of context. First, the judge gave the jury a good character direction in respect of David King who had no previous convictions or cautions and who also adduced a wealth of evidence of his positive good character. Secondly, the agreed facts before the jury included a good deal about the bad character of the deceased, who was a recidivist burglar who carried tools and had been in possession of bladed articles on more than one on occasion.
- In all these circumstances we are satisfied that the convictions are not arguably unsafe and the renewed applications in respect of conviction are therefore dismissed.
The sentence application
- We turn to Edward King's renewed application for leave to appeal against sentence. This was filed in December 2023, 196 days out of time. As the single judge noted, part of that period of delay appears to result from an administrative error on the part of this applicant's legal team. An intention to seek leave to appeal against sentence was manifested in September 2023. The previous delay remains unexplained. But the single judge did not dismiss the application on that account alone. She addressed its merits and we shall do the same.
Sentencing remarks
- The approach of the sentencing judge may be summarised as follows. Having heard the evidence at trial he was sure that the defendants took the dagger and the sword out with them with the intention of hunting down, injuring, and causing at least really serious harm to the culprit who had tried to break into their cars. Father and son had acted together with a common intention. Accordingly, the fact that it was David not Edward who physically carried the murder weapon to the scene and used it to carry out the stabbing did not provide a ground of distinction between the two cases. Both fell within paragraph 4(1) of Schedule 21 to the Sentencing Act 2020. The statutory starting point in determining the minimum term was therefore 25 years, rather than the 15-year starting point prescribed by paragraph 5 of Schedule 21. The judge noted that Schedule 21 provided guidance which was not to be applied rigidly. But he said there was nothing in the evidence or submissions to steer him unequivocally away from that starting point.
- The judge rejected a submission that for some period of time the applicants had acted lawfully. He was satisfied that the murder was carried out by way of revenge on someone the applicants perceived had done something wrong to them and their vehicles. The offence was aggravated by a significant degree of planning or premeditation, Edward's obsession with weapons, and his previous conviction. In mitigation, the defendants' intention had been to cause serious bodily harm rather than to kill, though the distinction was a fine one on the facts of the case. This applicant's age however led to a significant reduction taking the minimum term down to one of 19 years.
- The judge said the same result would be arrived at if, contrary to his conclusions, the case fell outside paragraph 4(1) the starting point was 15 years pursuant to Schedule 21 paragraph 5. On that assumption the aggravating factors would include taking the sword to the scene with the intention that it be available for use as a weapon. Balancing that and the other aggravating factors against the mitigating factors already mentioned the minimum term would increase by at least 4 years.
Grounds of appeal
- There are two grounds of appeal. The first is that the judge gave insufficient credit for the applicant's age and lack of maturity. Mr Whitehorn, who has presented this aspect of Edward's case, has advanced two main lines of argument in support of this ground.
- Mr Whitehorn relies on passages in the sentencing remarks in which the judge referred to paragraph 5A of Schedule 21. That paragraph, inserted by s 127 of the Police, Crime, Sentencing and Courts Act 2022, increased the starting points for offenders who were under 18 at the time of the offence. Before the amendments, the starting point for an offender aged 17 at the time of the offence was a minimum term of 12 years. For such an offender, convicted on or after 28 June 2022, the starting point is now a minimum term of 23 years for a case within paragraph 4 of Schedule 21, and 14 years for a case within paragraph 5. Edward did not fall within these new provisions for two reasons: he was 18 at the time of the offence and he was convicted before the provisions came into force. Mr Whitehorn's submission, as developed at the hearing before us, is however that these provisions should have exerted downward pressure on the starting point which would otherwise apply, whereas in the event the judge wrongly treated them as a reason to increase that starting point.
- Mr Whitehorn's second submission is that in arriving at the appropriate minimum term the judge failed properly to assess Edward's maturity and therefore failed to give it proper weight as a factor in his decision-making. The evidence in the trial – and in particular Edward's "flippant" behaviour in interview and the immature content of his messages – demonstrated that this applicant had proven himself to be below the level of development that one would expect for somebody of his biological age.
- The second ground of appeal is that the minimum term should have been reduced on account of this applicant's secondary role in the offending and his specific and more limited role in the murder. In support of this ground of appeal Mr Whitehorn has not only pointed to the fact that this applicant did not strike the fatal blow. He has also relied on evidence given at trial that the cut to the deceased and his bike tyre could both have been caused by a single sweep of the sword. There was, he has said, "an alternative scenario" to the one advocated by the Crown.
- We have reflected on these submissions.
Assessment
- We do not consider it arguable that the judge erred in his approach to the amended starting points introduced by the Act of 2022. By enacting those amendments Parliament expressed a clear intention that sentences for murder by those under 18 should rise substantially. But, as we have noted, the uplifted starting points were doubly inapplicable to the sentencing of this applicant. We are unable to see how they could have served to reduce the starting point that would otherwise be appropriate for him. The judge would have been wrong to let them influence his decision in an upwards direction. Having carefully reviewed what he said we see no grounds for believing that he did so.
- The judge's remarks referred to the numerous categories of minimum term that are now prescribed by Schedule 21. He said that only two of these were relevant for his purposes, meaning thereby paragraphs 4 and 5, the starting points for which are, as we have said, 25 and 15 years respectively. The judge described this, correctly, as a "considerable difference". He asked himself whether or not he was "able to make some further allowances" in favour of Edward.
- It is clear to us that in this passage the judge was reminding himself of the point made in many of the authorities, that the categories and starting points prescribed by Schedule 21 should not be applied in an inflexible or compartmentalised fashion but in a way that properly reflects the justice of the particular case. It was in this context that the judge mentioned the amendments made by the Act of 2022. We are satisfied that he did so only to exclude the uplifted minimum terms from consideration as irrelevant.
- The judge did however recognise the need for what he called "a significant reduction" on account of Edward's age. In assessing the extent of that reduction, he had regard to the provisions of the Sentencing Council guidelines on Sentencing Children and Young People, noting that although these did not apply directly they did provide guidance. He referred to well-known authority for the proposition that reaching the age of 18 does not represent a cliff-edge for the purposes of sentencing, and that the judge must take account of the youth and maturity of a young adult offender: R v Peters [2005] EWCA Crim 605, [2005] 2 Cr.App.R.(S.) 101. Edward had declined to co-operate in the preparation of a pre-sentence report. Having presided over the trial, however, the judge was well placed to reach a conclusion on this applicant's true level of maturity and the extent to which it reduced his culpability and should affect his sentence. On the face of his remarks, the judge concluded that these factors merited a reduction in the minimum term of at least six years, if not more. We see no basis on which this court could interfere with his findings or with his conclusion on these issues.
- Turning to the second ground of appeal, the judge addressed the issue of how sentencing judges should approach cases of this kind, where a murder is committed with a knife taken to the scene and two or more offenders are convicted on the basis of joint enterprise. That issue has been discussed in a number of decisions of this court. The judge cited R v Kelly (Marlon) [2011] EWCA Crim 1462, [2012] 1 WLR 55 [16] and referred to R v Height [2008] EWCA Crim 2500, [2009] 1 Cr App R (S) 656. He concluded that the tenor of the authorities is that there is no distinction of principle to be drawn between the person who actually wields the fatal blow and those who accompany him, knowing that he has a weapon, and acting in concert with him. Although in such a case the culpability of the offenders may differ, both are responsible for what occurred.
- We do not consider the judge arguably erred in this respect. He found as a fact that Edward took part in a joint enterprise with his father to cause at least really serious harm with a bladed article, in the knowledge that not only he but also his father was in possession of such a weapon. On that footing, the judge was correct to find that there was no distinction of principle to be drawn between the two when it came to identification of the starting point. We are satisfied that in arriving at his end point the judge took into account the specific facts of the case as he found them to be, and made a proper assessment of this applicant's role in the offending. We do not consider the contrary is arguable.
- These conclusions mean that there would be no purpose in extending time. We therefore refuse that application.
Addendum
- We add only this. The sentencing judge expressed the minimum term as one of 19 years less 559 days spent on remand. In doing so he followed what was then the standard practice, sanctioned by authority. Since that time, this court has said that sentencers should not only announce these matters but should also go on to do the arithmetic and to calculate and announce the resulting minimum term: see R v Sesay [2024] EWCA Crim 483 [2024] 1 WLR 4084 at [12]. It is therefore appropriate for us to carry out that task. We calculate the minimum term as 17 years and 171 days. We direct that this figure be added to the record.
