Burns & Anor, R v

Neutral Citation Number: [2014] EWCA Crim 595 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 201207231 B4 Royal Courts of Justice Strand London, WC2A 2LL Thursday, 6 March 2014 B e f o r e: LADY JUSTICE SHARP DBE MR JUSTICE SILBER SIR RICHARD HENRIQUES - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN ANTHONY BURNS RAYMOND WILLIAM BRIERLEY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2AY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr P Wright QC appeared on behalf of the Applicant, Burns Mr J Coffey QC appeared on behalf of the Applicant, Brierley Mr I Harris appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T LADY JUSTICE SHARP: On 22 November 2012, in the Crown Court at Liverpool, the applicants, John Anthony Burns and Raymond William Brierley, were each convicted of murder (count 1). On 23 November 2012, they were each sentenced to life imprisonment for the specified minimum term for Burns of 30 years and for Brierley of 25 years, less days spent on remand in custody. A co-accused, Scott Callaghan, was acquitted by the jury of count 1. He was convicted of one count of perverting the course of public justice and was sentenced to 8 years' imprisonment. At some time between 12.15 and 13.00 hours on 8 June 2011, Paul Morson was killed at Church Lodge, Whiston, near St Helens. Church Lodge was Brierley's home. At the trial Brierley admitted he had killed Morson, but said he acted alone and in lawful self-defence. Burns and Callaghan admitted they had been at Church Lodge in the hours leading up to the killing, and were there in the immediate aftermath, but each denied participation in the killing. Brierley said that after the killing Morson's body was wrapped in black plastic sheeting and deposited in the Manchester Ship Canal close to Runcorn Bridge. Despite an extensive search for the body it has never been recovered. Burns and Brierley both renew their application for permission to appeal against conviction and Burns also renews his application for permission to appeal against sentence after refusal of those applications by the Single Judge. Three matters are raised on conviction: firstly, it is said by both applicants that the judge was wrong to rule that hearsay statements made by Callaghan to a number of people after the killing were admissible as against them; secondly, it is said by Brierley alone that the judge was wrong to exclude evidence of threats allegedly made against him during the course of the trial itself; and thirdly, we have to consider an application by both applicants to admit fresh evidence, relating to the recent finding of money in the loft of what was Morson's home at the time of his death. The prosecution case was that there were a number of links between Burns, Brierley and Morson. Morson worked for Burns and had invested a large amount of money in his business, 1 Security; Burns and Brierley were also involved in drugs, specifically the substantial production of cannabis at Church Lodge. It was common ground that the house had been used for that purpose for some period of time and that Brierley lived in a caravan at the bottom of the garden. The prosecution said that Morson was lured to Church Lodge by the applicants and then tortured to death for the combination of his safe, which disappeared from the home he shared with his girlfriend later that day; alternatively there was a sudden outburst of violence over a drug debt and all three men participated in the killing. The motive for the murder was, at least in part, financial gain. All three defendants, particularly the applicants, were in financial difficulties, but all had money to spend or access to relatively large amounts of cash immediately afterwards. It was said Callaghan agreed to dispose of the van for £12,000 to make it look as though Morson had disappeared and then did so. There were no independent eyewitnesses to the incident that led to Morson's death. The prosecution therefore sought to rely on the hearsay evidence, including multiple hearsay evidence of what Callaghan had said about the killing to a number of different people to whom he spoke, between 8 June 2011 and the end of 2011. It was agreed between the parties that the evidence was admissible against Callaghan and that the judge should rule, at the close of the evidence, on its admissibility as against the applicants. The hearsay evidence came from five witnesses: Sophie Cowen, Callaghan's girlfriend at the time, Diane Hurley, with whom he had a brief relationship shortly afterwards, Angela Fitzsimmons, who was a friend of Diane Hurley, Anthony Callaghan, who was Callaghan's uncle, and a Police Constable Brufell. The judge ruled that except for multiple hearsay evidence, given by Angela Fitzsimmons, Diane Hurley, Anthony Callaghan and Police Constable Brufell, the evidence was admissible, that is the prosecution were permitted to rely on the hearsay evidence as against the applicants. We have heard argument on the issue today from trial counsel: Mr Wright QC for Burns, supported by Mr Coffey QC for Brierley and from Mr Harris for the Crown. Mr Wright submits the judge was wrong to permit the hearsay evidence to be considered by the jury as part of the evidence against the applicants. It is not suggested, as we understand it, that the judge misdirected himself as to the law, or that he failed to follow the structured approach to the admission of hearsay evidence identified by this court in R v Riat and Others [2013] 1 Cr App R 2. Further, the directions given to the jury on the hearsay issue were agreed with counsel in advance. However, he says the judge failed to give sufficient weight to the relevant factors identified in section 114(2) of the Criminal Justice Act 2003, and in the result his decision was out with the range of reasonable decisions and/or not one that the judge could sensibly have made. It was not in the interests of justice, as the judge found, for this evidence to be admitted. Mr Harris submits that the judge applied his mind correctly to the legal issues which arose. His decision was not "marred with legal error" (see Sefton) and the directions were sculptured to meet the particular factual requirements of this case. We have considered those arguments, the judge's ruling and what are said to be the unusual features of this case, that is, in particular, the exculpatory nature of the statements made by Callaghan, their contradictory aspects in certain respects, as they are said to be, and the prosecution's reliance on part only of those statements as being true. We have also considered a number of authorities, to which our attention has been drawn. These are in chronological order: R v Taylor [2006] EWCA (Crim) 260, R v McLean and Others [2008] 1 Cr App R 11, R v Y [2008] 1 Cr App R 34, R v Z [2009] 1 Cr App R 34, R v Thakrar [2010] EWCA (Crim) 1505, Sefton, and Riat. Having done so, we have come to the view that the matters raised by this application on this ground merit full argument on appeal and accordingly we give leave on this first ground. We turn then to the second ground. Brierley's case at trial was this. He had not met Morson until minutes before he killed him; he knew nothing of a cannabis business until a few months before June 2011 believing he had let his house to a respectable SMITH BERNAL WORDWAVE tenant; he was only prepared to tolerate that business in the belief that it was going to be removed. Brierley told Morson to remove the plants. Morson then attacked him and he killed Morson in lawful self-defence. Burns then told Brierley that Morson was a well-known and high profile criminal. Brierley had not told the police about the killing, had lied in various witness statements and interviews, had disposed of the body in the dead of the night the day after the killing, with the assistance of two unnamed men, out of fear of retribution. Towards the end of the trial the prison service decided to move Brierley to a different prison because of apparent fears for his personal safety. Counsel for Brierley sought to adduce this evidence to support Brierley's explanation for his actions following the killing. The judge refused to allow that evidence to be adduced. He said that even if these matters were genuine they occurred some 18 months after the killing and were not so closely related either in time, or to the people said to be behind the contemporaneous threats, so as to be relevant. Mr Coffey submits, albeit briefly, that the judge's ruling was wrong. He says that even though the source of the threat was not known his evidence should have been admitted as it was capable of adding substance to the evidence already given of Brierley's fears. We do not agree and refuse leave on this ground. The issue for the jury to which this evidence was said to be relevant was Brierley's state of mind on 8 June 2011 and during the period when he tried to cover up the death. According to Brierley, as we have said, the source of information about this was Burns. Evidence on that topic was conceded to be admissible and indeed was admitted. The evidence the judge excluded did not fall into this category. A tenuous hearsay threat made at the end of the trial, 18 months after the killing, was not relevant to Brierley's state of mind at any material time, nor could it logically lend substance to his explanation. It could not possibly satisfy the criteria for admissibility in section 114(2) of the Criminal Justice Act 2003, nor, in the circumstances, would it have been in the interests of justice to admit it applying section 114(1)(d). In any event, it was rightly excluded, in our view, as irrelevant. The third matter we have to deal with on conviction is the application to adduce fresh evidence. In view of the conclusion we have reached on the first ground, we refer the issue to the full court. We also refer Burns' renewed application for permission to appeal against sentence to the full court as well. LADY JUSTICE SHARP: Mr Harris, Mr Wright and Mr Coffey, it will be necessary, it seems to us, for us to give certain directions in order to progress the appeal and to give the full court some further assistance. We have in mind, first of all, transcripts of the evidence of the witnesses in question, that is the five witnesses I have mentioned. MR HARRIS: I think in connection with the ground that has been referred to the full court the court would be assisted by transcripts of Faye Lacey's evidence and Dale Conway. LADY JUSTICE SHARP: As well? SMITH BERNAL WORDWAVE MR HARRIS: Yes, in addition. LADY JUSTICE SHARP: Very well, we will so direct. Secondly, it seem us to us that the Crown and the appellants should separately produce skeleton arguments starting from scratch. There are a number of skeleton arguments which are before the court at the moment, but we think it would be of assistance to the court if the skeleton arguments now to be produced focus on only the ground upon which permission has been given, and expand in any way that is material on that ground. MR WRIGHT QC: Yes, my Lady. A skeleton that would incorporate the fresh evidence point also. LADY JUSTICE SHARP: Yes. We do not think that it should be done by simply putting the current skeletons together, because, certainly speaking for myself, they could be produced in a more helpful form. MR JUSTICE SILBER: You will have the transcripts as well. MR WRIGHT QC: Certainly. My Lady, Just on the topic of transcripts (forgive me for interrupting) bearing in mind the nature of the ambit of the ruling made by the learned judge at trial, which was of course post the evidence that was given by Callaghan, may we invite you to consider that it is appropriate that there be a transcript of Callaghan's evidence also? By that route we can demonstrate what account he gave on oath, as opposed to the accounts in the out-of-court hearsay statements. LADY JUSTICE SHARP: Yes, very well. We will also direct that although the transcripts, as we have said, are going to be produced for the full court, the parties should produce an agreed summary of the evidence of each witness from whom the transcripts have been directed. That is just for the hearsay witnesses, not for Callaghan or Lacey. MR WRIGHT QC: Just the hearsay witnesses, certainly. LADY JUSTICE SHARP: What about the time for producing the skeleton arguments and the order in which they are to be produced? MR JUSTICE SILBER: Should the appellant produce it first to say exactly how their case is now going to be put, so the respondent then knows what the background -- MR WRIGHT QC: Certainly, upon receipt of the transcripts, then I would hope to be able to produce a skeleton within three weeks of receipt of the transcripts in this case. LADY JUSTICE SHARP: The Crown produce one -- MR HARRIS: Twenty one days thereafter, please, my Lady. LADY JUSTICE SHARP: Are there any other directions that need to be given? SMITH BERNAL WORDWAVE MR WRIGHT QC: My Lady, so far as today is concerned for the applicant, as he then was, there was no representation order in existence for today's proceedings for today's purposes. May I invite you to consider granting such a representation order for today, for a representation order for the appeal and the preparation of the appeal? For today's purposes may I invite you to consider granting that representation order for leading counsel? There are documents that have been drafted in the case, as you will see from the material before you, by Mr Nolan prior to today's hearing. It is a matter for the court as to whether there is therefore granted a representation order in respect of this application for leading and junior counsel. May I invite you to consider, having regard to now the directions as to the consideration of the material in this case, whether it is appropriate on the appeal for there to be a representation order for leading and junior counsel, or for leading counsel only? MR HARRIS: My Lady, perhaps this does not concern the prosecution, but in fairness it was our intention to have Queens Counsel and junior here today and it will be for the substantive hearing. MR COFFEY QC: May I say I am in precisely the same position as my learned friend, Mr Wright. LADY JUSTICE SHARP: I had assumed that Mr Wright was speaking on your behalf. MR COFFEY QC: I always assume that Mr Wright is speaking on my behalf. LADY JUSTICE SHARP: We are going to rise for a moment. LADY JUSTICE SHARP: There will be a representation order for those who have appeared today, a representation order for leading and junior counsel for the hearing of the appeal. (Adjourned) MR WRIGHT QC: Thank you, my Lady. LADY JUSTICE SHARP: So far as the time estimate is concerned, it seems to us that the hearing of the appeal will take a day. MR WRIGHT QC: No more than that, but a day, yes. LADY JUSTICE SHARP: Mr Harris? MR HARRIS: I certainly agree, yes. I do not know whether your Ladyship proposes to, or whether it is considered we ought to, try and fix a date now? No, I see my Lady shake her head. I will sit down. Thank you. LADY JUSTICE SHARP: Is there anything else? MR WRIGHT QC: No. SMITH BERNAL WORDWAVE