Roy Smith and Stuart Layden - Convictions for Murder Quashed

[Ian Church, 40, had been drinking with a group of friends when he was set upon outside the Bricklayers Arms in Great Yarmouth in the early hours of 5 May 2012, he suffered head injuries and died in hospital on 7 May 2012. Roy Smith, Stuart Layden, and Kelly Taylor were convicted of murder in April 2013 at Norwich Crown Court.]

1.The appellants, Roy Smith, Kelly Taylor and Stuart Layden, were convicted at Norwich Crown Court on 11 April 2013 of the murder of Ian Church. Taylor and Layden were acquitted of assaulting Peter Blake causing him actual bodily harm. These appeals are brought with leave of the full court. Each of the three appellants advances a common ground of appeal namely that the judge should have acceded to submissions that there was no case to answer in respect of the murder count. The judge rejected that submission, which also encompassed the assault count. Layden advances a second ground, namely that the judge's summing up on the identification issue that arose in his case was inadequate.

2. There were five defendants on the indictment. The other two were Todd Esherwood and Tony Smith. Both were convicted of the murder of Ian Church. Esherwood sought leave to appeal against conviction and sentence and Tony Smith sought leave to appeal against sentence only. Their applications for leave were refused on paper and not renewed.

Facts and Evidence in Outline
3.The appellants had spent the evening of 4 May 2012 drinking in a snooker club in Great Yarmouth and elsewhere before ending up at the Bricklayers Arms. Roy Smith, Kelly Taylor, and Tony Smith are siblings. The Bricklayers Arms has a late licence and so was open into the early hours of 5 May. There was extensive evidence that all in the group of which they were part had been drinking during the evening. Prior to the events which led to Ian Church's death there had been two other incidents of violence involving members of the group, although none of these three appellants had been involved. Ian Church and Peter Blake had also been drinking. After midnight in the Bricklayers Arms Peter Blake had an encounter with Esherwood in which Peter Blake was assaulted. This was reflected in a separate count on the indictment on which Esherwood was convicted. After this incident, Peter Blake left the public house but then returned about half an hour later with Ian Church. They came armed with a baton and machete respectively. On their arrival at the Bricklayers Arms Peter Blake smashed its windows. The prosecution case was that the five defendants, together with others, erupted onto the street. The total number of people involved was estimated by various witnesses at 10 or 15.

4. The count alleging actual bodily harm against Taylor, Layden and Tony Smith related to the prosecution case that they chased Mr Blake away from the Bricklayers Arms and attacked him. Ian Church had remained close to the Bricklayers Arms. The prosecution case was that he was then set upon by the group, which included Taylor, Roy Smith and Layden. Each took an active part. This was prosecuted as a joint enterprise collective attack upon Ian Church during which he was beaten and kicked repeatedly. He sustained severe head injuries from which he died two days later, not having regained consciousness. None of the defendants remained at the scene to await the arrival of the police.

Were there cases to answer?
20. At the end of the prosecution case submissions were made on behalf of all three appellants that it was unsafe to leave their cases to the jury. All relied upon the second limb of Galbraith [1981] 1 WLR 1039. The well known passage from the judgment of Lord Lane CJ reads:

"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty - the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, take at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury" (per Lord Lane C.J. at p. 127)

33. Whilst the appellants Taylor and Layden argue that no jury could have convicted on the evidence as it was at the end of the prosecution case, we conclude that the highest at which the argument could realistically be put was that this was a borderline case of the sort referred to by Lord Lane in Galbraith. The decision was for the judge and will not be disturbed unless it was one to which, on the evidence available, he could not reasonably have come. In Taylor's case there was unequivocal evidence that she had taken part in the attacks upon both victims, based upon a description from a witness standing nearby who knew her well. In Layden's case the evidence identifying him as being involved in the attack on Peter Blake and then Ian Church was less strong. Although he accepted he came out of the Bricklayers Arms at the outset and set off after Peter Blake, he denied any violence. Shelley Wright did not know him in the same way as she knew Taylor and there was the contradiction regarding his headgear. But the additional evidence to which we have referred supported the prosecution case. We do not overlook the context of these events, namely that the group had been drinking over the course of a long evening and that this was the fourth occasion on which violence had broken out. We have mentioned two others but there was a third about which the prosecution called evidence in support of its case that the group as a whole was behaving in a threatening and increasingly violent way as the evening wore on.

35. We are unpersuaded that the judge's conclusion was wrong. Both Taylor and Layden had cases to answer. We shall return to the question whether the judge summed up appropriately on the identification issue in Layden's case.

Identification relating to Layden and the Summing Up
43. The judge did not regard this as an identification case so far as Layden was concerned and thus did not give a Turnbull direction relating to Shelley Wright's identification of his involvement.

46. Mr Potts submits that at no point in the summing up did the judge engage on the task required by Turnbull in an identification case of explaining to the jury the particular features of Shelley Wright's recognition evidence, in particular the few occasions on which we she had previously seen him, that she did not know him, had not spoken to him and her fixing upon the cap as the feature she associated with the conduct of the man she was describing. He submits that to give a Turnbull direction for Roy Smith but not for Layden was likely to have given the jury a false sense of security in relying upon Shelley Wright's identification of him as being involved in the violence. Finally, he submits that to characterise her error regarding the cap which Layden was wearing as not being of great significance was to minimise a central problem with her evidence. If the man she described as engaging in unlawful activity was wearing a white or cream Burberry baseball cap, that man was not Layden.

47. In our judgment there is substance in these submissions. The attack on Shelley Wright's evidence of identification of Layden as being involved in the unlawful attack was more than a minor identification problem of the sort considered by this court in Oakwell 66 Cr.App.R CA and Curry and Keeble [1985] Crim. L.R. 737, which might relieve the trial judge of the need for a detailed consideration of Turnbull issues.

48. In the general warning about the recognition evidence, the judge did not deal with the relatively tenuous nature of Shelley Wright's previous knowledge of Layden (see paragraph [14] above) nor remind the jury that she had given evidence that it was the cream cap that she fixed upon. The first of these points is expressly referred to in Turnbull and the second was a particular weakness of the evidence of the sort which Turnbull envisaged must be drawn to the jury's attention. In respect of Shelley Wright's evidence of recognition there was no warning of the sort suggested in Turnbull about the special need for caution, the reasons for it or that a mistaken witness can be a convincing one. The jury was not reminded that even in a recognition case mistakes are sometimes made. We agree that these shortcomings were exacerbated by the clear contrast with the caution the jury was directed to apply to the identification evidence in Roy Smith's case; and the reference to the colour of the cap as not being of great significance, when it was central to the argument about the weakness of Shelley Wright's evidence that Layden was involved in the violence, rather than just being there.

49. Lord Widgery made clear that a failure to follow the Turnbull guidelines would be likely to result in the conviction being quashed. We are satisfied that Layden's conviction is unsafe and must be quashed.

Conclusion
There was a case for Taylor to answer. Her appeal against conviction will be dismissed. The case of Roy Smith should not have been left to the jury. His appeal against conviction will be allowed and his conviction quashed. There was a case for Layden to answer but his appeal against conviction will be allowed for the reasons we have given. We will hear from the relevant parties in writing on the question of a retrial in his case.

http://www.bailii.org/ew/cases/EWCA/Crim/2015/431.html