Cole v R, Court of Appeal - Criminal Division, July 05, 2013, [2013] EWCA Crim 1149

Resolution Date:July 05, 2013
Issuing Organization:Criminal Division
Actores:Cole v R

Case No: 2012/02442

Neutral Citation Number: [2013] EWCA Crim 1149





Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/07/2013

Before :





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Between :

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C H Blaxland QC and D Emanuel for the Appellant

J Price QC for the Crown

Hearing dates: 18th June 2013

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JudgmentThe Lord Chief Justice of England and Wales:

  1. This is an appeal against conviction by Kevin Cole following a Reference by the Criminal Cases Review Commission (CCRC) under s.9 of the Criminal Appeal Act 1995 of his conviction in March 1998 at Preston Crown Court before Douglas Brown J and a jury of murder of John Dookie and wounding James Handyside with intent to cause grievous bodily harm. An earlier application for leave to appeal against conviction was refused by this court in February 1999.

  2. The arguments on this appeal are largely based on the contents of a document made in the immediate aftermath of the offences. In the present proceedings the document was referred to as M8. It is a record taken by the police of a telephone description given by a witness, Mrs Ellis, who was later to identify the appellant on an identification parade. M8, or the information contained in it, was not disclosed to the solicitor acting for the defendant before the identification parade. It was properly disclosed to the defence before the trial, but leading counsel decided that it should not be deployed in evidence. Mr Henry Blaxland QC is critical of both decisions. The result, he submits, was that the appellant was convicted by a jury which was ignorant of critical information which was also of importance to the advice given to the defendant by his solicitor during the course of the investigations. Accordingly, on mature further analysis of the evidence, the safety of the conviction can no longer be sustained. M8 should be admitted in evidence in accordance with s.23 of the Criminal Appeal Act 1968.

    The background

  3. John Dookie and Thomas Handyside were drug dealers who operated in the Meadow Street area of Preston. Anthony Kirk and Stephen Mellor were also drug dealers operating in another area of Preston. They began to deal in drugs in the Meadow Street area, undercutting the prices and providing greater quantities of heroin than Dookie and Handyside.

  4. In early 1997 there was a steady increase in tension and rivalry. A number of meetings took place, one on 7 February 1997 where the four men met by arrangement at the Rat and Raven public house in Preston, close to the scene where Dookie was later to meet his death, and Handyside was to be seriously wounded. During the course of this meeting Stephen Mellor and Kirk threatened Handyside and Dookie with knives. Thereafter the level of violence escalated. On 8 February Mellor had a fight with one of Handyside's supporters, Mr Osborne. Then Mellor met Handyside and a small group of others, and in the early hours of 9 February they went to the home of one of Handyside's distributors, Mr Allan. They anticipated that both Handyside and Kirk would be present. At the property Kirk threatened to kill Dookie and stabbed him in the leg, Mr Osborne was stabbed three times by him, and was struck by Mellor with a hammer. Mr Allan was slashed with a knife across the head. He was taken to hospital but after he discharged himself, he was attacked for a second time by a group of masked men who told him to tell Handyside and Dookie ``they're gonna get it''.

  5. On 13 February Kirk saw Allan again, and told him that if Handyside and Dookie came anywhere near his home again they would get done properly. Later that evening Handyside and Dookie were out driving when they saw Kirk with another youth and some girls. When he saw the car Kirk approached it, pretending that he was carrying a weapon of some kind. Dookie was driving the car, and Handyside told him to drive at Kirk and run him over. At the later trial the Crown accepted that Dookie did indeed try to run Kirk down.

  6. On 14 February Dookie spoke with Handyside, insisting that the dispute between them and Mellor and Kirk needed to be sorted out. They attempted to arrange a meeting to take place on that day at the Rat and Raven. Dookie and Handyside kept the appointment but Mellor and Kirk did not. After leaving the Rat and Raven, Dookie and Handyside saw Mellor and the meeting was rearranged for 5.45 at a nearby block of flats. The fatal incident occurred shortly afterwards.

  7. Cole lived in Liverpool. He was not a Preston man, and this territorial dispute was not really his argument. However he was an associate of Kirk. Kirk and Cole were in contact by pager and telephone on 13 and, frequently so, on 14 February. The first relevant call in the evening of 13 February was when Cole tried to contact Kirk by his pager, and then through a mobile phone belonging to Parson. The considerable activity next day included an occasion when Kirk rang Cole back from a call box in the shopping centre. By 5.34 Cole had travelled to Preston and was keeping very close company with Kirk and Mellor. This was proved beyond doubt by photographs which came from a video in Healds supermarket. Healds is a short walking distance away from the scene of the attack on Dookie and Handyside. The Crown's case was that Cole's arrival in Preston that afternoon was not accidental or coincidental. He had come to support Kirk and Mellor and that is why he was with them just a few minutes before the attack. As well as proving that Kirk and Mellor and Cole were close together at a critical time, the images from Healds show the sweater or top then being worn by Cole. The upper clothing shown on the video did not coincide with the description of it later to be given by the identifying witness, Mrs Ellis.

  8. At 5.44 Kirk and Mellor went to the block of flats but refused to go up into them, and used the intercom to suggest a meeting at the Rat and Raven public house. Dookie and Handyside went to the Rat and Raven but found that it was closed. The four men agreed to go to another local public house, the Variety.

  9. The attack on Dookie and Handyside took place in St Peters Street. Handyside was struck on the head with a baseball bat, and knocked to the ground where he was stabbed in the right buttock. He gained himself a little time by giving his attackers the impression that he was carrying a gun, and with that he was able to move away towards the Variety public house. As he made his way there he saw Kirk going towards Dookie. The last Handyside saw of Dookie was Dookie backing away with his hands held out wide, facing Kirk who was moving towards him. Dookie was fatally stabbed. He was later found in Warwick Street, a short distance away from the scene The murder weapon was recovered. It bore fibres from Dookie's jacket, and the gloves worn by Kirk at the time of the attack. The Crown's case was that Kirk was responsible for the fatal stabbing of Dookie, and that as the investigation proceeded, he sought to distance himself from it.

  10. A variety of different witnesses saw what happened to Mr Dookie. One witness, who knew Kirk, Mellor, Handyside and Dookie, described how five or six males came from different directions to attack them. Another witness saw four or five people kicking Dookie as he lay on the floor. In reality, so far as this appeal is concerned, nothing turns on this area of evidence, but it does serve to underline how a confusing situation can result in confusion among eye witnesses.

  11. More important, there was no eye witness or scientific or indeed any other evidence which directly linked Cole with the attack on Dookie. The Crown's case was that he was one of the gang of assailants, who broke away and followed Handyside the short distance from the scene of the attack to the Variety. There was some differences between eye witnesses about whether it was one or two of those attacking Dookie who broke off to follow Handyside, and it is quite unrealistic for us now to seek to attempt to reconcile them. As Handyside reached the Variety, he stumbled on a step and fell. Whether one or two had been following him, he was physically attacked by only one individual. He felt someone stab him in the back. He turned and looked at his assailant. The assailant said, ``you scumbag'' or ``you shit bag'' in what he described as an Irish accent. He, of course, knew Kirk well, and he never incriminated Kirk and remained adamant that the man who chased him to the door of the Variety was not Kirk: the last he had seen of Kirk as he fled the scene was Kirk going towards Dookie. Notwithstanding many criticisms which can fairly be addressed to Handyside's credibility, it is difficult to see, and no one has suggested any reason why, if Kirk was involved in the attack on him, he should fail to incriminate him. The evidence which linked Kirk to the fatal use of the knife against Dookie provides very strong support for Handyside's evidence that as he was running away from the scene, Kirk was confronting Dookie just before the fatal stabbing took place. When he was first interviewed Kirk, too, repeatedly denied any involvement with the attack on Handyside at all, asserting that he had run away in the opposite direction, but during a later interview, he changed his story completely and said that he had followed Handyside and exchanged insults with him at the Variety before running in the opposite direction. Even then he denied carrying a knife or stabbing him.

  12. A number of witnesses saw the attack on Handyside. They provided descriptions which, unsurprisingly, were not in identical terms. One...

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