Paul Dwyer [2019] EWCA Crim 1266

The applicant was convicted of wounding with intent and false imprisonment and sentenced to an extended sentence of 18 years comprising 14 years’ imprisonment. Four co-accused were acquitted on all counts.

The victim was driving his car when he was struck and hemmed in by two other cars, six men in balaclavas got out and set upon him, he was struck with a solid implement, dragged from the car and put in the boot. The police were alerted and after a short chase the car was crashed, and the victim was found in the boot. The prosecution case was that the applicant was correctly identified as part of the gang carrying out the joint attack and then falsely imprisoning him in the boot as part of a carefully planned joint enterprise. He was said to have arrived in a Focus and left in the Audi. The defence case was that he arrived at the scene with friends who were to assist the complainant following earlier calls. Being outnumbered he fled the scene in the Focus.

In support of the appeal against conviction it was contended that the judge erred in failing to give a Turnbull direction. The issue was whether the applicant was one of the males who got out of the Audi when it crashed. If he was it destroyed the value of his innocent explanation for presence at the scene. The Crown argued there was no visual identification as such as the officer did not see the males face and it was not essential for the prosecution case that the jury found he was one of the men who got out of the Audi.

Held: the judge did address identification in his summing-up, the directions were clearly sufficient to alert the jury to the need for care. The forensic and other circumstantial evidence against him was very strong even if he was not the second man in the Audi. Permission was refused to appeal conviction.

The submission in respect of sentence was that the judge wrongly found dangerousness, the starting point for the determinate sentence was too high and the licence period too long. The Court did not agree, the judge sentenced within the range properly open to him and was “entitled to infer dangerousness from the facts of the offences which irresistibly pointed to deep involvement in drug related gang violence.” He was also clearly justified in setting the extended licence period at 4 years. Leave was refused.