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Peckham Boys
Neutral Citation Number: [2007] EWHC 282 (QB)
Case No: 2004/334/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 22/02/2007
Before :
MR JUSTICE FULFORD
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THE SETTING OF A MINIMUM TERM FOR ERROL O’FLAHERTY PURSUANT TO PARAGRAPHS 3 AND 6, SCHEDULE 22 OF THE CRIMINAL JUSTICE ACT 2003
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DECISION
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Mr Justice Fulford :
Background
1. I have been asked to set the minimum term as regards the mandatory life sentence that was imposed on Errol O’Flaherty, pursuant to schedule 22 Criminal Justice Act 2003 (“the Act”). He is an “existing” prisoner who had not, before the commencement of the relevant provisions of the Act, been notified by the Secretary of State as to the minimum term he should serve before release on licence.
2. Between 20 March and 4 July 2002 the defendant, Errol O’Flaherty (born 7 September 1976), was tried with others at the Old Bailey on an indictment containing three counts: murder, violent disorder and common assault. He was convicted of all three offences and the judge, HH Judge Brian Barker QC, sentenced him to imprisonment for life for the count of murder with concurrent determinate terms of 3 years custody for the offence of violent disorder and 3 months imprisonment for the common assault. His co-accused were Leon Licorish, Phillip Ryan, Mitchell Toussaint, Marlon Mason and Kimani Vassell, all of whom were also convicted of murder, and there were some convictions for lesser offences. The appeals of Ryan and Toussaint against their murder convictions were later allowed by the Court of Appeal; the appeal of this defendant was dismissed.
3. The relevant facts (partly taken from the judgment of the Court of Appeal on 10 March 2004) were these. On 21 March 2001 a young man called Marcus Hall (the deceased) and about 15 of his friends travelled from Peckham in South-East London to Luton. The group was known as “The Peckham Boys”. They had gone to Luton to hear a band called “So Solid Crew” play in a nightclub called Atmospheres. They did not arrive at the club until the concert was nearly over. It was suggested at trial that they had gone to Luton not to enjoy music but to cause trouble.
4. The Peckham boys were refused entry to the club; but by one means or another some of them managed to get in, whilst others waited outside. The event ended at about 2.00am and everyone came out into the street.
5. Atmospheres is on the corner of Flowers Way and Chapel Street. Flowers Street became blocked with cars and people. There were several confrontations and skirmishes between various groups. The first significant direct physical contact between two loose factions seems to have occurred in Chapel Street when some from Hall’s group became involved with two men from a group associated with O’Flaherty. In the latter was Jermaine James, a friend of O’Flaherty. James was pursued along Flowers Way by a number of men, one of whom was wielding a big stick. At about the same time the deceased and four or five others were chasing a man called Leon Hendrickson and another also along Flowers Way. It would seem that Hall was carrying a baseball bat.
6. Meanwhile O’Flaherty learned that Jermaine James had been seen being chased by a group of men carrying weapons. He decided to go to his aid. O’Flaherty had travelled to Luton in a stolen car. O’Flaherty looked in the boot of the car for a suitable weapon and came across a cricket bat. He claimed not to have known it was there.
7. Soon after O’Flaherty met Marcus Hall and others from his group. Hall had the baseball bat. Others in the group had weapons of one sort or another. O’Flaherty had the cricket bat. O’Flaherty wanted to know what had happened to James but his enquiry was met with abuse and a volley of beer bottles which he was able to avoid. There was an exchange of blows between O’Flaherty and Hall. It is not clear whether or not any connected. Nor is it entirely certain but seems probable that O’Flaherty backed away.
8. By this time Mitchell Toussaint had become involved. He took up a position on O’Flaherty’s right hand side and on the video he is clearly seen to be holding a claw hammer. Hall then struck further blows at O’Flaherty. O’Flaherty responded by striking out with the cricket bat. Phillip Ryan joined in by trying to hit Hall with a beer bottle. Toussaint threw the claw hammer at him. It was the prosecution’s case that Mason had a knife.
9. The incident then moved on from Flowers Way and into Park Street West, where Hall was chased. Hall ended up in the middle of that street on the ground surrounded by a number of men, including by this time Licorish and Vassell. The judge observed that the evidence supported the conclusion that Licorish joined in something that with which he was not involved and he engaged in gratuitous violence towards a defenceless man (who received fatal injuries), by at least kicking him. More generally, Hall was kicked, struck with a weapon and probably stabbed. O’Flaherty advanced to within a few feet of the prone body. He was still holding the cricket bat but is not seen to use it again and was the first to move away from the scene. It was common ground that Ryan and Toussaint did not enter Park Street West.
10. By this time Hall had received fatal injuries. There were a number of stab wounds to his back, three of which penetrated the lung. There were slash wounds to his face and he sustained a fractured skull with subarachnoid and subdural bleeding. He was taken to hospital where he was pronounced dead. The whole episode lasted no more than two minutes.
11. There were other incidents of violence during this incident involving others that are irrelevant to the issues I must consider.
12. On 21 April 2001 O’Flaherty was arrested on suspicion of murder. He said “I know nothing about that”. He said he had been hit on the head twice and had picked up the cricket bat which someone had left there. He had got a lift home and had thrown his leather jacket away. He denied he had hit out at anyone. He was interviewed for a second time after he had seen some of the video and agreed that it appeared that he had hit someone. However, he could not recall hitting anyone. He said he did not know how he had come by the bat but he accepted the bat had made contact with the back of somebody and that his previous account had been untrue. He said he did not know who had had the hammer. He denied he was close to Mason (who was alleged to have stabbed Hall) and had not seen him for about two months.
13. Later, he said he did not touch the deceased in Park Street West, that he had just come round the corner, walked over and said “Just stop it”. He said he did not recognise anyone in Park Street West and that after he and the deceased had squared up to each other in Flowers Way he had run up the street from instinct and was just following the crowd. He denied causing any of the stab wounds, cuts or injuries to the head.
14. Ryan was arrested on 26 April. He said he did not know who was fighting and that after getting something to eat had got a lift away from the scene. Later he said he had walked through the crowd until he reached the front and then stood watching. He agreed he had seen weapons but did not know who was holding them. He agreed he recognised O’Flaherty and denied that he (Ryan) had been involved in any fighting in Flowers Way.
15. To begin with Toussaint made a witness statement, which he later acknowledged was inaccurate, as to the clothing he had been wearing, leaving the club alone and seeing a group chasing two men. He said he had not been wearing his contact lenses. When interviewed under caution he declined to make any comment.
16. In his interview, Mason said he could remember very little of the evening. He did not know Atmospheres nor could he remember what the event was to which he had gone. He denied that he could be seen on the video or that he was the man wearing a white shirt and jacket. He was not the man who could be seen bending over the deceased’s body with a knife in his hand.
17. Vassell denied being in either Flowers Way or Park Street West and said “no comment” when asked if he knew any of his co-accused.
18. Licorish (who surrendered at Bedfordshire Police Station some months after the incident) admitted being in the group that chased the deceased. He said that the deceased had fallen over that that a number of people had hit him. He said that he had kicked him two or three times in the legs but had not intended to cause him serious harm.
19. It follows the jury were sure that the injuries inflicted during the part of the attack of the attack in which O’Flaherty participated materially contributed to his death, whether or not he was present when the fatal stabbing took place.
20. The judge identified as aggravating features that he was a leader who had armed himself and was looking for trouble. He was part of the pursuing group and after the killing his only concern was his own escape. By way of mitigation, it was accepted that he possibly only intended to inflict grievous bodily harm and he had received some provocation because the deceased had delivered several blows to him early on. He has three relevant previous convictions: in January 1995 he was fined £100 for possessing an offensive weapon in a public place; in October 1995 he was sent to a Young Offender Institution for 18 months for robbery; and in May 1997 he was sent to a Young Offender Institution for 2 years 4 months for attempted robbery;
21. In passing sentence the judge wholly appropriately observed that the case was a tragedy for everybody who has been touched by it. After what had been meant to be an evening of enjoyment, Marcus Hall died a sudden, brutal and totally unnecessary death at the hands of the six defendants and two others. Although the killing was not premeditated, weapons were readily at hand to enforce “respect” or to “teach a lesson”. The deceased had got his blows in first but the tide soon turned. The defendants had a willingness to use deadly weapons or to join knowing that they were being used without or without consideration of what was going on in order to cause serious bodily harm and they had no consideration for Hall’s condition or welfare.
22. The judge recommended a tariff of 12 years. He had spent 14 months and 27 days in custody prior to trial.
These Proceedings
23. In representations on behalf of O’Flaherty for the purposes of setting his tariff, reference is made to his version of the events leading up to Marcus Hall’s death which must have been – certainly in part – rejected by the jury. I am reminded that the incident arose spontaneously; it is suggested that at the beginning O’Flaherty intended to act in solely self-defence (and to defend others) against Marcus Hall and the “Peckham Boys” and that he opportunistically seized a weapon that was to hand. Furthermore, it is urged that he did not have an intent to kill. It is suggested he did not know that one of his companions was armed with a knife, and that he was not a leader or even present when the really serious injuries were inflicted. It is submitted the evidence reveals that he only hit Hall with the cricket bat after he had been hit twice with a baseball bat. It is said that the evidence is indicative of the cricket bat having not caused any real injury.
24. O’Flaherty has not requested an oral hearing and no victim impact statement for the purpose of setting the tariff has been received from the victim’s family.
25. In determining the seriousness of this offence I have paid careful regard not only to s. 269 (5) (which came into force on 18 December 2003) but also to the trial judge’s recommendation. Furthermore, I have been careful not to impose a term which is greater than that which under the practice followed by the Secretary of State before December 2002 the Secretary of State would have been likely to have set. This murder was committed on 21 March 2001 (i.e. before 31 May 2002) and as a result the best guide is Lord Bingham CJ’s letter of 10 February 1997. In summary, under that indication 14 years is the starting point for an “average” unexceptional offence. I have weighed the mitigating and aggravating factors set out in that document, as well as the general principles set out in Schedule 21 of the Act.
26. In passing sentence, the judge stated as follows:
“You are 25. You are a man who has age and experience. In my view you are a leader. You armed yourself and you were looking for trouble. My view is you deliberately sought to exert your dominance and to engage in violence. You were injured but you determined to extract revenge and to teach Marcus Hall a lesson. You were content to let your friends do the chasing but you were not far behind. I don’t accept that you did anything stop going round the corner and in due course you were quick to dispose of your weapon.”
27. The mitigating factors in this case are O’Flaherty’s relative youth, the possible absence of an intention to kill, and the lack of any pre-meditation. There were no particular aggravating features. I have been provided with letters from O’Flaherty and from the defendant himself. He now expresses remorse, seemingly genuinely, for what occurred, and he particularly regrets his separation from his two children.12 years is two years below the usual starting point at the time for a murder of this kind committed at the time of this offence (and three years below the current starting point of 15 years). The defendant has a number of previous convictions that indicate he has, at least to an extent, a predisposition to violent crime. The judge was uniquely well-placed in a multi-handed case of this kind to determine the real culpability of this accused, and he determined that the defendant was a leader, who was determined to exert his authority and to extract revenge for the blows delivered to him by he deceased. Although O’Flaherty was only involved for a short period during this swift incident, he was armed and the judge was entitled to conclude that he played a significant influence over the events that led to the death of Marcus Hall. Even allowing for the spontaneous nature of the attack and the lack of an intent to kill, the tariff of 12 years recommended by the judge following a trial was entirely appropriate in my view, and is not greater period than that which the Secretary of State before December 2002 would have been likely to have set. .
28. Accordingly, I set the tariff at 12 years and from that term the period of his remand in custody, namely 14 months and 27 days is to be deducted.
