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Royal Courts of Justice

The Strand

London WC2

Friday 26th March 1999

B E F O R E :

LORD JUSTICE BELDAM

MR JUSTICE BUTTERFIELD

and

MR JUSTICE GRAY

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R E G I N A

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DEREK JONES

GARY NELSON

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR I MACDONALD QC appeared on behalf of the Appellant JONES

MR C GRIFFITHS QC appeared on behalf of the Appellant NELSON

MR R DENYER QC appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Friday 26th March 1999

LORD JUSTICE BELDAM: Astill J who was a member of the Court is unable to be present today but he has indicated that he agrees with the judgment the Court is about to give.

Shortly after 7.00 am on 1st January 1996 in Ashley Road, Bristol, Evan Berry, known as 'Bangy', was shot at close range and killed by Errol Jones with a hand-gun. Shortly afterwards Errol Jones also shot Victor Dinall, known as 'Squeaky', but he survived.

In July 1997 in the Crown Court at Bristol, before Keene J, Errol Jones was convicted of the murder of Evan Berry and attempted murder of Victor Dinall. He was sentenced to life imprisonment. Errol Jones was also convicted of a robbery, which occurred shortly before the murder of Evan Berry, and of violent disorder.

The appellants, Derek Jones and Gary Nelson, were convicted of being concerned in the murder of Evan Berry (Bangy) and attempted murder of Victor Dinall (Squeaky) and of violent disorder. They were sentenced to life imprisonment. They now appeal against their convictions with the leave of the Court given on 26th June 1998. It is contended that their convictions are unsafe because the judge admitted evidence of association with Errol Jones which was tenuous and prejudicial. Evidence which identified them at the scene of the murder was unsatisfactory.

For the purpose of the appeal the facts need only be summarised. At about 7.00 am on New Year's Day 1996 Mr Gert Leeuwerink arrived in Ashley Road in the St Paul's district of Bristol driving his BMW car. He parked outside a block of flats called Ashley Court. He was accompanied by a girlfriend and a cousin and, as he went to get out of the car, Errol Jones who had been crouching on the pavement near scaffolding outside the flats, got up and placed a hand-gun at Gert Leeuwerink's throat asking him what he had. He hit Leeuwerink three times on the head with the pistol and pulled a gold chain from his neck. Gert Leeuwerink and his passengers then went along the road a short distance to a restaurant called 'Tasties'.

At about this time Bangy, Squeaky and his brother Denzil Dinall, known as 'Roper', were walking by on the pavement in Ashley Road and one of them passed a remark to Errol Jones. The three were then confronted by Errol Jones who, to show that the gun was a real one and loaded, fired it at the pavement. The three of them then tried to move away but at the same time three black men coming from the direction of Tasties prevented them from doing so. Roper was hit by the man with the gun as he tried to move away and he then saw Errol Jones shoot Bangy in the neck and saw his brother Squeaky on the pavement bleeding from a wound. Squeaky described how Roper was chased by one of the three men and he said that he was then shot either by Errol Jones or by one of the three black men whom he thought had a second gun.

There were two other witnesses to the shootings. Wendy Bruin, a drug addict and a prostitute, said she was standing outside Ashley Court with some friends when she saw men arguing in Ashley Road. She recognised two of the men who were arguing because on four or five occasions she had bought drugs from them at a house in Denbigh Street. She recognised Errol Jones whom she said she had previously met in Manchester. Nearly 6 months later, on 21st June 1996, Wendy Bruin attended an identity parade at which, in a rather uncertain fashion, she picked out the appellant, Derek Jones, as one of the men who had been present arguing on the pavement in Ashley Road. At a later parade she failed to pick out the other appellant, Gary Nelson.

The other witness to the shooting was Brian Robinson who knew the appellants because they had been living at the house in Denbigh Street at the end of 1995. He said that he had seen the appellants, Derek Jones and Gary Nelson, together with Errol Jones shortly before the shooting and that at the time of the shooting he saw them kicking Squeaky when he was on the ground after he had been shot. He later identified Gary Nelson at an identity parade and Derek Jones at a confrontation. A firearms expert said that there were indications that more than one gun had been fired at the scene.

Both the appellants gave evidence. They had been together throughout the whole of New Year's Eve before and on the morning of New Year's Day. They had been in the restaurant, Tasties, which they had left together and had then been driven away from Ashley Road and back to Wolverhampton and Birmingham. They had not been on the pavement in Ashley Road at the time of the shooting.

The Crown's case against the two appellants was always put on the basis that they were parties to a joint enterprise with Errol Jones. The Crown sought to prove that the appellants had been with Errol Jones in a club called the Millionaires Club on New Year's Eve and had seen him brandish a hand-gun in that club. One of them, Gary Nelson, had played a part with the other black men in demanding drink from the barmaid at the club, Clare Miller. She described how eventually there was a group of about twelve Afro-Caribbean men who were demanding a bottle of brandy. Eventually one or two of them pushed their way behind the bar and grabbed a bottle of Courvoisier brandy. It was a distinctive bottle for the label showed that it was intended to be used in a bar, upside-down on top of an optic. A little later she saw the same men, one of whom had a hand-gun, holding it at waist level. She was threatened by the person with the gun. Eventually the group of black men left and she did not see them again. On 2nd January 1996 she was interviewed by Detective Constable McGrath who was making enquiries into the shooting. She then described one of the principal members of the group who was demanding brandy as thin, light-skinned, Afro-Caribbean male with a short haircut, prominent ears and high cheekbones. It was a description which could well have fitted Errol Jones.

The appellants were not arrested until June 1996. In due course the trial was fixed to take place in Bristol in July 1997. On 14th June 1997 the prosecution arranged for an identity parade to take place at Kilburn Police Station in London. The appellants, who were legally advised, declined to stand on a parade on the ground that an identification made 18 months after the event would be of no value. The parade was cancelled but, in circumstances to which we will refer in greater detail, the officer in charge of the identification procedures arranged that Clare Miller should be confronted with the appellants. In these circumstances she identified the appellant Gary Nelson as one of those involved in taking the brandy bottle from the Millionaires Club. The Crown's case was that the man with the gun was Errol Jones and that the appellant, Gary Nelson, was in the same group and must have known that he had it. Both the defendants had stated and gave evidence that they were together throughout New Year's Eve and on the morning of New Year's Day. The Crown also relied on evidence of events which took place in Tasties Restaurant shortly before the shooting. The two appellants were undoubtedly in the restaurant at about that time and it was said that they were two of a group of three who sat together and who ordered three meals. Errol Jones was also in Tasties Restaurant but no one identified him as the third man sitting with the appellants. Whilst he was in the restaurant, Errol Jones got into a argument with one of the women working there, Daphne Brown. He abused her and, according to witnesses, he raised his right hand with two fingers extended in a gun-like gesture and placed them against her neck. One witness, Derek Ferron, said he asked Errol Jones to leave Daphne Brown alone and Jones then approached him, put his right hand in his pocket, as if he had a weapon there and said: "What do you want to do about it?" There was some other evidence from which it might have been possible to infer that the appellant Derek Jones had spoken to Errol Jones in Tasties. But Miss Williams, who ran the restaurant, said that the man presumed to be Errol Jones, described as the wild-eyed man, left the restaurant and that the appellant, Derek Jones, and his companion did not leave with him.

Mr Morgan, who was also in the restaurant, saw the appellants whom he knew come into the restaurant at about 6.30 am. He thought that at one stage they were with another youth and the person who had abused Daphne Brown at the counter. He described the appellant, Derek Jones, as trying to calm down the abusive man. He thought that the appellants had left before the others and about 15 minutes before Gert Leeuwerink had come in with one of his passengers who was screaming hysterically. Against the evidence of Mr Morgan, Mr Kershaw described the three men at the table and two who were on chairs near a door in the restaurant as having left together three or four minutes before Gert Leeurwink came into the restaurant.

There were a number of witnesses to the events in Ashley Road. We have already described the evidence given by Roper leading up to the shooting of Bangy and Squeaky. Roper went to the taxi office with Bangy after he had been shot. He had seen four or five men who had been chasing a friend of his called Batter. Roper did not pick out Errol Jones or either of the appellants as persons involved in the events when he later attended an identification parade. Squeaky attended an identity parade at which Derek Jones was present but failed to make an identification. Batter, a man called Patrick Gale, also gave a description of events but he, too, failed to identify any person involved.

We turn to the evidence of Wendy Bruin. She had previous convictions for offences of dishonesty and was a drug addict. On New Year's Eve she had been drinking and had taken heroin but, in spite of this, she said she was aware of what was happening and saw the events in Ashley Road. She said that Squeaky, whom she recognised, was on the ground and was being kicked by one of the two men she had met previously when buying drugs in Denbigh Street. After the incident she had decided to leave the area. She attended an identity parade on 21st June 1996 and, in a hesitating fashion, picked out as No 3, Derek Jones. She identified him as the man who was arguing with Bangy on the pavement. She also said in a statement, made after the parade, that he was the man who was kicking Squeaky on the ground. She was sure that Derek Jones was involved in the incident. She failed to pick out Gary Nelson at an identification parade.

The other witness to the events in Ashley Road was Brian Robinson. He knew both the appellants. At the end of 1995 they had been living in a house in Denbigh Street owned by a man called Clubs. He had gone to Ashley Road with Clubs and as they arrived in Ashley Road and as they parked he noticed a white VW Golf double parked in the road ahead. He said he saw an Afro-Caribbean man in a brown jacket come out of Tasties and walk up the pavement followed by four others who also came out of Tasties. One of the four others, one was a light-skinned man of mixed race (Errol Jones) was walking with another man. They were followed by Derek Jones and Gary Nelson whose faces he recognised. Robinson described the shooting of Squeaky. He said he had seen Errol Jones come up behind the man in the brown jacket who was Squeaky. He reached over Squeaky's shoulder and he then heard a shot and saw Squeaky fall. He then saw Errol Jones turn and fire at someone running across Grosvenor Road. He thought this was Bangy. He described the appellants starting to kick Squeaky on the ground and when they had done so going back to Tasties Restaurant. On 2nd February 1996 he attended an identity parade at which Errol Jones was present but failed to pick him out. He did, however, pick out the appellant Gary Nelson on 16th July 1996 and at a confrontation on 14th June 1997 he identified Derek Jones.

The only other piece of evidence which suggested that either appellant was concerned in the shooting of Bangy and Squeaky was evidence of a fingerprint found on a bottle of Courvoisier brandy which was later recovered from a white VW Golf car. The bottle of Courvoisier brandy was of a similar kind to that which had been taken from the Millionaires Club and the fingerprint was identified as that of Gary Nelson. The appellant, Derek Jones, surrendered to the police in Bristol on 4th June 1996 and Gary Nelson did so in July. When interviewed, both said that they had been together on New Year's Eve and New Year's Day but denied knowing Errol Jones or being with him. They denied any involvement in the shooting of Bangy and Squeaky.

Mr MacDonald QC, for Derek Jones, and Mr Griffiths QC for Gary Nelson advanced two main grounds of appeal. The first ground was that the judge ought not to have admitted evidence of the events in the Millionaires Club on New Year's Eve. The appellants had submitted that it had little or no weight, did not identify clearly either of the appellants as companions of Errol Jones, nor was there evidence from which it was a reasonable inference that they must have seen him brandishing a hand-gun. The judge, after hearing submissions, had ruled that Clare Miller's evidence was admissible against the appellant Gary Nelson but not admissible against Derek Jones. The judge also ruled that the evidence was not admissible against Errol Jones.

Although the appellants' principal submission was that the evidence of Clare Miller of association between the appellants and the man who flourished the gun was too tenuous to provide any basis for a conclusion that they were subsequently acting together with Errol Jones in the shooting of Bangy and Squeaky, Mr Griffiths for Gary Nelson mounted a powerful argument that the judge should have excluded the evidence that Clare Miller had recognised Gary Nelson when confronted with him at Kilburn Police Station shortly before the trial. We must now say something of the circumstances of the confrontation.

When the appellants declined to stand on the identification parade which had been arranged, the inspector in charge of the identification procedure decided that the witness should be confronted with the appellants. Derek Jones objected and put a garment over his head and generally refused to co-operate. Three police officers then used a degree of physical force to make his face visible, to restrain him and, at one point, to close his mouth. There was a continuing struggle throughout the confrontation during which Clare Miller looked through a viewing panel.

Before the judge Mr MacDonald had submitted that there was a clear breach of Code of Practice D which itself was sufficient to rule out evidence of Clare Miller's identification of Derek Jones. The events we have described were recorded on a video and were not in dispute. Gary Nelson, who was waiting in a room nearby, had heard the commotion, including shouting by Derek Jones, when he was being made to confront the witness. The inspector in charge told Gary Nelson that, if he did not consent to a confrontation quietly, reasonable force would be used to compel him to do so. Gary Nelson then agreed to be confronted and was identified.

In his case Mr Griffiths submitted that the threat of force was unlawful and in breach of Code D and that Keene J ought to have ruled that evidence of identification made in these circumstances inadmissible. In the absence of any identification the evidence of Clare Miller of the events of New Year's Eve did not connect Gary Nelson with any violent events in the Millionaires Club.

Mr Denyer, for the prosecution, had submitted that the evidence of events in the Millionaires Club was relevant to show links between Derek Jones and Gary Nelson to the group who were part of the incident involving the flourishing of guns on New Year's Eve. The judge accepted a submission that it was permissible for the police to use force to bring about the confrontation to ensure that the process was not frustrated and that the Code permitted such force. The judge held that there was no breach of Code D but that, even if there had been such a breach, he did not think it was of significance. However, he considered that Clare Nelson's identification of Derek Jones, in circumstances in which he was moving about and struggling, being held by three police officers who from time to time interfered with her view, was not sufficiently reliable to provide a basis for allowing Clare Miller's description of the events in the Millionaires Club to be given in evidence against him.

He did, however rule that Clare Miller's evidence was admissible to prove Gary Nelson's involvement. He admitted her identification of Gary Nelson as a person she had described as being part of the group of men, one of whom had flourished the hand-gun. The judge held that there had been no breach of paragraph 2 of Code D but even if there had been it would have lacked significance.

Mr Griffiths had taken a further objection. Gary Nelson's legal advisers were entitled to a copy of the first description given by an identifying witness and this had not been provided. It was only later that they discovered that Clare Miller had been interviewed by Detective Constable McGrath on 2nd January and had given the description which tallied with the features of Errol Jones. She had only purported to identify one of those involved and consequently, in the light of her earlier description, her identification was unreliable.

After the judge had made his ruling, Mr MacDonald and counsel for Errol Jones further submitted that the admission of evidence of the events in the Millionaires Club against Gary Nelson would be highly prejudicial, particularly to Derek Jones who was with Gary Nelson in the club and had admitted to being so. The judge, in a further ruling said, that he had already paid regard to that prejudice when he gave his ruling. In all the circumstances he considered that the probative value of the evidence was not outweighed by the prejudice to the other two defendants. In any event he felt that any prejudice could be satisfactorily reduced by the conventional directions given where evidence is before the jury which is relevant to the case against one defendant but not to the case against another.

We propose first to deal with the submissions that evidence of identification of Gary Nelson at the confrontation at Kilburn Police Station on 14th June 1997 should not have been admitted. Mr Denyer QC for the prosecution sought to justify the use of force in the confrontation by reference to the provisions of the Police and Criminal Evidence Act 1984 and the Codes of Practice made by the Secretary of State under the Act.

The requirements for confrontation are contained in Code of Practice D and Annex C to that Code of Practice. Paragraph 2.13 of the Code of Practice provides:

"If neither a parade nor a video identification nor a group identification procedure is arranged, the suspect may be confronted by the witness. Such a confrontation does not require the suspect's consent but may not take place unless none of the other procedures are practicable."

Under paragraph 2.14, a confrontation must be carried out in accordance with Annex C. Annex C provides:

"Confrontation by a witness.

(i) The identification officer is responsible for the conduct of any confrontation of a suspect by a witness.

(ii) Before the confrontation takes place the identification officer must tell the witness that the person he saw may or may not be the person he is to confront and that if he cannot make a positive identification he should say so.

(a) Before the confrontation takes place the suspect or his solicitor shall be provided with details of the first description of the suspect given by any witness who is to attend the confrontation...

(iii) The suspect shall be confronted independently by each witness who shall be asked: 'Is this the person?' Confrontation must take place in the presence of the suspects solicitor, interpreter or friend unless this would cause unreasonable delay.

(iv) The confrontation should normally take place in the police station either in the normal room or in one equipped with a screen permitting a witness to see the suspect without being seen. In both cases the procedures are the same except that a room equipped with a screen may be used only when the suspects solicitor, friend or an appropriate adult is present or the confrontation is recorded on video."

Mr Denyer relied on the provision contained in Code C, which provides for the Practice for the Detention, Treatment and Questioning of Persons by Police Officers. Under Code C, Conditions of Detention, paragraph C8.9 says:

"Reasonable force may be used if necessary for the following purposes:

(i) To secure compliance with reasonable instructions including instructions given in pursuance of the provisions of a Code of Practice; or

(ii) To prevent escape, injury, damage to property or the destruction of evidence."

Mr Denyer then referred to section 117 of the Police and Criminal Evidence Act which provides:

"Where any provision of this Act-

(a) Confers a power on a constable; and

(b) Does not provide that the power may only be exercised with the consent of some person other than a police officer,

the officer may use reasonable force if necessary in the exercise of the power."

We note, for example, the powers given to a Police Constable by the Act under sections 1 and 2, sections 16, 18 and 19 concerning entry and search, the power of arrest and search contained in Part 3 of the Act and the powers given to custody officers at police stations. We also note, for example, that in section 61 there is power to take fingerprints without consent and in section 63 to take non-intimate samples without consent. In our view section 117 is not to be interpreted as giving a right to exercise force whenever the consent of a suspect to a course of action taken under the Act by a constable is not required. Code D with its Annexes is made by the Secretary of State under the powers given to him by section 66. There is no express or implied power to authorise a constable to use force in a Code of Practice. On the contrary, it is to be presumed that any such power is exclusively contained in section 117. The mere fact that the Secretary of State has included in Code C, paragraph 8.9, a requirement that reasonable force may be used to secure conditions of detention does not in our view authorise the use of force, reasonable or otherwise, to bring about a confrontation. Indeed it is difficult to see why there should be any need for force, having regard to the conditions under which a confrontation is permitted to take place.

We consider that there was a breach of the Code of Practice in threatening Gary Nelson with force if he did not comply and a further breach in failing to provide the first description given by Clare Miller, the witness.

Whilst breaches of the Code do not in themselves preclude the admission of evidence obtained after such a breach, nevertheless it is provided by section 67 (11), that if any provision of the Code appears to be relevant to a question arising in the proceedings, it shall be taken into account in determining the question. The manner in which an identification procedure is conducted is an important aspect of the procedure. We think that in the present case the judge ought to have taken into account the breaches of the Code which had been drawn to his attention. We further think that, in all the circumstances of the case, the evidence of the identification of Gary Nelson ought to have been excluded and with it the evidence of the events in the Millionaires Club which we consider had little, if any, value in proving that at the time of the shooting of Bangy and Squeaky the appellants were acting in concert with Errol Jones.

We are thus of the opinion that evidence was admitted which ought to have been excluded. The question we next have to determine is whether, having regard to the remaining evidence, we are satisfied that the convictions are unsafe. Mr MacDonald mounted a sustained attack on the credibility and on the reliability of the two principal witnesses to the events at the time of the shooting, Wendy Bruin and Brian Robinson. Mr Denyer, for the prosecution, points out that there are aspects of the evidence of both those witnesses which suggested that they were reliable for they had mentioned the appellants by name, they both knew them and it was a fact that both of the appellants were in Tasties Restaurant shortly before the shooting and were seen by others to leave at about the time the shooting took place. Brian Robinson's account of the shooting of Squeaky was in fact refuted by evidence of the firearms expert who said that the handgun which shot him must have been discharged at a greater distance than Robinson had described.

This Court cannot say what impact the evidence of the events at the Millionaires Club and Clare Miller's identification of Gary Nelson would have had upon the jury. It seems probable that they must have accepted the evidence of Wendy Bruin and Brian Robinson of the appellants' participation at the scene. But how far the jury were influenced by the earlier events no one can say. However, where evidence which ought not to have been admitted has been heard by a jury and is capable of influencing them, we consider it would not be safe to allow a conviction to stand which may have been based in part on evidence which should have been excluded. Mr MacDonald and Mr Griffiths submitted that no jury, properly directed, could on the evidence of events at Tasties Restaurant, and on the evidence of Wendy Bruin and Brian Robinson properly have convicted the appellants. Mr Denyer, on the other hand, submits that the evidence could properly lead to the conviction of the appellants as secondary parties to the shooting of Bangy and Squeaky and to their conviction for violent disorder. He invites the Court to order that the case against them be retried. We accept Mr Denyer's submission though it will be for the prosecution ultimately to decide whether the prosecution will be in a position to call evidence from the witnesses concerned. Accordingly we allow these appeals and order that the cases against the Appellants should be retried.

In deciding whether we should order a retrial, we have had regard to the very serious nature of the offences. The fact that the retrial will not cause unfairness or oppression to the appellants; we take into account the submissions of the unreliability of the evidence, and the time which has passed since the trial. But overall, we consider that the interests of justice do require the case to be retried and accordingly we direct that a fresh indictment be preferred for the three offences of which the appellants were convicted, within 2 months of the date of the order of this Court.

MR DENYER: My Lord, we will give an indication of course within those 2 months as to whether in fact, we will pursue the retrial or not.

LORD JUSTICE BELDAM: Yes, have you any submissions?

MR HALL: My Lord, I have no submissions.

LORD JUSTICE BELDAM: Could you ask Gary Nelson to come back. Mr Denyer, how long do you think it will be before you can give an indication?

MR DENYER: I can give that indication within 28 days, my Lord.

LORD JUSTICE BELDAM: If the Crown do not pursue the retrial, then of course the appellants would be entitled to be released.

MR DENYER: My Lord, yes.

LORD JUSTICE BELDAM: There seems to be no application for bail pending your decision but, would the ordinary position be that you would give your indication and then an application should be made for their release to the Crown Court?

MR DENYER: That is what would happen, my Lord. Obviously, if we decide not to pursue a retrial they should be released forthwith.

LORD JUSTICE BELDAM: Do you agree, Mr Hall?

MR HALL: My Lord, yes, if the Crown give an indication within 28 days. I do not think I am in a position, at this stage, bearing in mind your Lordships' ruling to make an application for bail.

LORD JUSTICE BELDAM: I imagined that might be the case. Mr Jones and Mr Nelson, you have heard the decision of the Court. It is that you should be retried but, you will know within 28 days whether that retrial is to take place. I am asked to state where the retrial should be held.

MR DENYER: At this stage, it would be appropriate for your Lordship to say Bristol, though I quite see if we do pursue the retrial, there may be an application for a change of venue. In our submission, that can be dealt with by a High Court Judge in Bristol.

LORD JUSTICE BELDAM: Certainly. Do you apply for legal aid for the retrial?

MR HALL: My Lord, yes.

LORD JUSTICE BELDAM: I thought you might. Is there any other order I should make?

MR HALL: I was junior, we had leading counsel.

LORD JUSTICE BELDAM: The legal aid certificate will encompass the same representation as you had at the trial. Thank you.