Jones & Anor v R - Firearms Conviction Upheld

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  Jones & Anor v R. [2026] EWCA Crim 418 (01 April 2026)

URL: https://www.bailii.org/ew/cases/EWCA/Crim/2026/418.html
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[2026] EWCA Crim 418 | | |
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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
| | | Neutral Citation Number: [2026] EWCA Crim 418 |
| | | Case Nos: 202303582 B4, 202304035 B4 & 202402128 B4 |
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES
HER HONOUR JUDGE SARAH PLASCHKES KC
01MP1088623

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 1 April 2026 |
B e f o r e :

LORD JUSTICE JEREMY BAKER
MR JUSTICE SAINI
and
HIS HONOUR JUDGE DREW KC
(Sitting as a Judge of the CACD)

Between:
| | JORDAN JONES | First Appellant |
| | and | |
| | DEMARE VASSELL | Second Appellant |
| | - and ? | |
| | REX | Respondent |

**Mr Hughes (instructed by Bark & Co)) for the First Appellant
Mr Surtees-Jones (instructed by (Goldkorns) for the Second Appellant
Mr Douglas-Jones KC and Mr Seymour (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 10 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 2.00 pm on 1 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
11. Lord Justice Jeremy Baker:
13. On 26 September 2023, following a trial in the Crown Court at Kingston upon Thames, Jordan Jones ("the first appellant") and Demare Vassell ("the second appellant") were convicted of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968 (count 1) and possessing ammunition without a firearms certificate, contrary to section 1(1)(b) of the Firearms Act 1968 (count 3).
15. There were three co-accused:
17. Nyron Johnson-Cross ("Cross"), having pleaded guilty to having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988, (count 4), was also convicted of counts 1 and 3.
18. Cameron Johnson ("Johnson"), having pleaded guilty to having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988 (count 5) and possessing a controlled drug of class A, contrary to section 5(2) of the Misuse of Drugs Act 1971 (count 7), was acquitted of counts 1 and 3, and Possession of a Prohibited Weapon, contrary to section 5 of the Firearms Act 1968 (count 2).
19. Shaun-Lee Martini ("Martini"), having pleaded guilty to having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953 (count 6), was also acquitted of counts 1 and 3, and Possession of a Prohibited Weapon, contrary to section 5 of the Firearms Act 1968 (count 2).
20. On 24 May 2024, after the first appellant pleaded guilty to driving whilst disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988 (count 8), the appellants and the co-accused were sentenced as follows:
22. The first appellant
23. Count 1 ? 15 years' imprisonment.
24. Count 3 ? 5 years' concurrent imprisonment.
25. Count 8 ? 3 months' concurrent imprisonment.
27. He was also disqualified from driving for 12 years and until he passed an extended re-test.
28. The second appellant
29. Count 1 ? 15 years' imprisonment.
30. Count 3 ? 5 years' concurrent imprisonment.
31. Cross
32. Count 1 ? an extended sentence of 20 years, comprised of a custodial period of 15 years and an extended period on licence of 5 years.
33. Count 3 ? 5 years' concurrent imprisonment.
34. Count 4 ? 18 months' concurrent imprisonment.
35. Johnson
36. Count 5 ? 16 months' detention in a Young Offenders' Institution.
37. Count 7 ? 1 day concurrent detention in a Young Offenders' Institution.
38. Martini
39. Count 6 ? 18 months' imprisonment.
40. The appellants appeal against conviction by limited leave of the Single Judge, and renew their application for leave to appeal against conviction in relation to those grounds upon which leave was refused by the Single Judge.
42. The first appellant's application for leave to appeal against sentence has been referred by the Single Judge to the Full Court.
44. Prosecution case
45. The prosecution's case was that the offences arose from gang-related activity following the death of Lemar Urquhart, who had been shot dead after a high-speed motor vehicle pursuit and collision in Brixton on 30 October 2022.
47. His funeral and burial took place in Wandsworth on 17 March 2023, and was attended by the appellants and Cross, who travelled to these events in a grey Mercedes G-Wagon.
49. Unbeknown to them, a dashcam fitted to the vehicle recorded their conversation which concerned the presence of a loaded firearm within the vehicle during the period leading up to the burial.
51. Following the burial, the appellants and the co-accused drove to Nandos on Northcote Road in the Mercedes motor vehicle. They arrived at about 5.12pm and left at about 5.45pm.
53. Thereafter, at about 6.10pm, armed police stopped the Mercedes motor vehicle, which was being driven along Heathfield Road in Wandsworth.
55. The first appellant was the driver of the motor vehicle, the second appellant was the front seat passenger, Cross was sat in the middle of the rear seat, whilst Johnson and Martini were sat either side of him.
57. After the appellants and the co-accused had been removed from the motor vehicle, a 9mm parabellum calibre Browning Hi-Power self-loading pistol was recovered from the middle of the rear seat. It was loaded with 14 bullets, with one bullet in the breech and the gun was ready to fire. Each of the co-accused was found to be in possession of a knife.
59. It was the prosecution's case that the appellants and the co-accused were jointly in possession of the loaded gun with intent to endanger life, by using it either to attack rival gang members who might attend the event, or to respond to an attack by members of a rival gang which was believed to be responsible for the death of Lemar Urquhart.
61. In the course of opening its case to the jury, the prosecution adverted to the earlier conversation concerning the presence of a loaded firearm being in the Mercedes motor vehicle, and stated that,
63. "Whether that is the same gun being handled/discussed in the car prior to the church as was later recovered in the back seat at 18.10hrs, only those actually involved in that process and who saw the gun could actually say. The gun in the car is not seen on any video, only spoken of on the audio track. But regardless of whether it is the same gun, you may conclude that these comments are highly relevant to the question whether later at 18.10hrs the defendants were all together in joint possession of the gun".
64. Prosecution evidence
65. In order to prove that the occupants of the Mercedes vehicle were in possession of the loaded gun with intent to endanger life, the prosecution relied upon the following evidence:
67. i. The order of service for the deceased's funeral, burial and wake, on 17 March 2023, prominently featured " ClapTown " which was the name of the gang of which Lemar Urquhart had been a leading member. The funeral was due to take place at St Anne's Church at midday, the burial at Wandsworth Cemetery at 2pm and the wake at Wandsworth civic suite at 5pm.
68. >
69. ii. The first appellant was closely associated with Lemar Urquhart, and on the day of his funeral, the first appellant was the driver of the Mercedes G-Class, G63, 4-litre, V8, Bi-Turbo motor vehicle which had been hired on the previous day using a false name.
71. iii. An expert in gang-related activity provided his opinion, based upon their previous convictions and intelligence, that the second appellant and the co-accused were members of ClapTown, which was involved in a culture of serious violence in the area around Clapham Common and Clapham High Road.
73. iv. The second appellant had been shot outside a property associated with Lemar Urquhart on 5 August 2019. Although a rival gang had posted videos boasting about the shooting on social media, the second appellant had not engaged in or supported a prosecution arising from the shooting.
75. v. Audio recordings of conversations between those present in the Mercedes motor vehicle on 17 March 2023 were recovered from a dashcam which had been placed inside the vehicle. Although, the dashcam only recorded visual images to the front exterior of the vehicle, it continuously recorded audio sounds from within the vehicle. The recordings had been transcribed and PC Halpin gave evidence that there were numerous slang references to firearms during the course of those conversations.
77. > > a. Before 11.05am the first appellant was the driver and sole occupant of the Mercedes motor vehicle, during which period he spoke on the phone about having a loaded firearm with him in the vehicle, which he anticipated delivering to someone called " Rise ". However, he appeared to be unable to do so, due to the presence of police in the area.
78. > > >
79. > > b. Between 11.05 ? 11.09am, after the first appellant collected Cross, who sat in the rear seat of the vehicle, they discussed the presence of the firearm in the vehicle, as the first appellant had not been able to drop it off with Rise.
81. > > c. Between 11.09 ? 11.41am, after the first appellant collected the second appellant who sat in the front passenger seat, all three of them spoke about a firearm being in the vehicle. They spoke about another firearm being in the possession of " S ", and that if he had not had possession of it, they could have had two firearms with them. During this part of the recording, there were sounds which were consistent with the cocking of a 9mm parabellum calibre Browning Hi-Power self-loading pistol. They also discussed wiping off fingerprints.
83. > > d. Between 1.41 ? 2.12pm, after the appellants and Cross attended the funeral, they travelled in the vehicle to the burial. During this period they referred to the presence of a firearm being in the vehicle. The second appellant reminded Cross that he had shown him how to cock-back the firearm, and concern was expressed that he should be careful when doing so as the appellants were sat in the front of the vehicle. Reference was made to the fact that the police had stopped a taxi with one of their associates in possession of a firearm.
85. > > e. Between 4.58 ? 5.13pm, after the appellants and Cross attended the burial, the appellants and the co-accused travelled in the Mercedes vehicle to Nandos.
87. > > f. Between 5.58 ? 6.11pm, after the appellants and co-accused left Nandos, they got back into the vehicle and discussed where the wake was being held. During this period, they were listening to the song " Talibans ", the video for which depicts young males wielding firearms, and referred to them as " serious big boy machines ".
89. vi. At 12.30pm on 17 March 2023, armed police had stopped a Kia Niro Uber taxi which was being driven to the funeral, and in which Chuckiel Simms was a rear seat passenger. He was found to be in possession of a 9mm parabellum calibre Browning Hi-Power self-loading pistol and a magazine containing 6 live bulleted cartridges. A video recording of this event was recovered from a red coloured iPhone which was found on the rear seat of the Mercedes motor vehicle after it had been stopped by the police. The phone also depicted images of the appellants and Cross sat in the Mercedes vehicle at various times on 17 March 2023.
90. >
91. vii. At 6.11pm on 17 March 2023, armed police forced the Mercedes motor vehicle to stop by boxing it in on Heathfield Road in Wandsworth. The first appellant was extracted from the driving seat, and the second appellant from the front passenger seat. Cross was extracted from the rear middle seat, Johnson from the rear near-side seat, and Martini, was extracted from the rear off-side seat. The loaded firearm was seized from the rear seat, and knives were found in the possession of the rear seat passengers.
93. viii. A firearms expert identified the weapon seized from the rear seat of the vehicle, as a loaded 9mm parabellum calibre Hungarian FEG model PJK-9HP self-loading pistol, which was a commercial copy of a Browning Hi-Power self-loading pistol.
95. ix. Following his arrest on 17 March 2023, the first appellant provided a written statement in which he denied knowledge of the firearm within the Mercedes motor vehicle. Thereafter he declined to answer questions during his police interviews.
97. x. The second appellant declined to answer questions during his police interviews.
98. Defence case
99. The first appellant provided two Defence Statements in the second of which he admitted that he had been present at Lemar Urquhart's funeral on 17 March 2023, and had then attended the burial. Thereafter, he had intended to travel to the wake, but stopped on the way at Nandos. It was after leaving Nandos that the Mercedes vehicle which he was driving was stopped by the police.
101. He denied any knowledge of the firearm which was found by the police on the rear seat of the vehicle. It was suggested that various prosecution witness statements revealed that there was a large-scale police operation taking place on 17 March 2023, and that one of those targeted by the police was Martini, who was believed to be in possession of a firearm, and that this was the reason why the Mercedes vehicle was stopped by armed police, after he had got into the vehicle when it was parked outside Nandos.
103. It was asserted that the schedule of unused material was incomplete, and that any intelligence which was capable of supporting the assertion that the firearm was in the possession of others, rather than the first appellant, should be disclosed.
105. The first appellant did not give evidence at trial. Although no positive explanation was put forward in relation to the audio recordings of the conversations which had taken place between the occupants of the Mercedes motor vehicle on 17 March 2023, it was not admitted that the slang language referred to firearms, and it was pointed out that after the Mercedes vehicle had driven away from the burial there were no references to any firearms.
107. The second appellant provided a Defence Statement in which he denied knowledge of the firearm which was found in the rear of the Mercedes vehicle when it was stopped by the armed police on 17 March 2023.
109. It was admitted that the second appellant had accompanied the first appellant to the funeral of his friend Lemar Urquhart and thereafter to the burial. It was asserted that they had stopped to get some food at Nandos, en route to the wake, and that they were accompanied by three other individuals who were not known to him. It was after this, that the armed police stopped the Mercedes vehicle and the firearm was found on the rear seat.
111. The second appellant did not give evidence at trial. It was not admitted that the slang language recorded by the dashcam referred to firearms. In any event even if a firearm had been present in the Mercedes vehicle on the morning of 17 March 2023, it was possible that this had been removed from the vehicle when the occupants had attended the burial, and that either Johnson and/or Martini had thereafter, without the knowledge of the others, brought a different firearm into the Mercedes vehicle which had been found by armed police when they subsequently stopped the vehicle.
113. Disclosure
114. Those instructed on behalf of the defence sought to challenge the adequacy of the schedule of unused material which had been provided by the prosecution.
116. It was submitted that the schedule only referred to material which had been generated by the investigation into the arrests of the appellants and their co-accused, " Operation Gaghay ". It was submitted that, because it was alleged that the possession of the firearm arose in the context of gang revenge for the death of Lemar Urquhart, the schedule ought to have included items generated from " Operation Wormlaw " being the investigation into the death of Lemar Urquhart, and " Operation Fishjet ", being the investigation into the wider aspects of criminality arising from his funeral, including the arrest of Chuckiel Simms.
118. It was submitted that the decision by the police to stop the Mercedes motor vehicle was based on intelligence that Martini was believed to be an individual who was in possession of a firearm, and that the prosecution's written disclosure, dated 22 August 2023, that, " Regarding events on 17.3.23 police held no intelligence that any of the defendants [Cross] , [Johnson], [the first appellant] and [the second appellant] were in possession of or seeking to be in possession of a firearm ", was inadequate.
120. On behalf of the first appellant, Mr Hughes made an application for specific disclosure of any unused material which might suggest that the firearm seized from the rear seat of the Mercedes vehicle, was not the same as any firearm which may have been discussed by the occupants during the course of the morning, and had been brought into the vehicle by one of its occupants later in the day.
122. Mr Hughes submitted that in the absence of further disclosure, the first appellant could not have a fair trial and that the prosecution should be stayed as being an abuse of the process of the court.
124. The prosecution submitted that, apart from the latter issue in relation to which they had provided a sufficient written response, the defence had not identified any matters arising from the other two police operations which were of potential relevance to their cases. Moreover, not only was the material generated by Operation Wormlaw not of relevance to the issues in the present case, but having reviewed the material generated by Operation Fishjet, there was nothing further to be disclosed under the Criminal Procedure and Investigation Act 1996 ("CPIA 1996").
126. The judge provided three written rulings in relation to disclosure, two dated 23 August 2023, and a third ruling dated 5 September 2023, all of which were preceded by two on notice ex parte sensitive material hearings, under rule 3.11 of the Criminal Procedure Rules 2025,("CPR 2025"), which took place on the 22 August 2023 and 5 September 2023.
128. Prior to the first of the two closed hearings taking place the judge had requested the prosecution to review the material generated by Operation Fishjet, and that having done so, she accepted the prosecution's assurance that they had complied with their statutory obligations.
130. In this regard, whilst the judge accepted that the police seizure of a similar firearm from the vehicle being driven by Chuckiel Simms earlier in the day, was of relevance and admissible as evidence to go before the jury, it did not follow that the remaining material emanating from the investigation into that offence could reasonably be thought to undermine the prosecution case or assist the defence.
132. Moreover, bearing in mind the limited nature of the issues in this case, namely the extent of the appellant's and co-accused's knowledge of the loaded firearm on the rear seat of the Mercedes motor vehicle, and the intention with which they had it in their possession, the judge accepted that any unused material generated by the separate investigation into the death of Lemar Urquhart would not be disclosable.
134. In relation to the application for specific disclosure of any intelligence relating to the police decision to stop the Mercedes motor vehicle, the judge accepted that the written disclosure statement which the prosecution had made as to the lack of intelligence that the appellants, Cross and Johnson were in possession of or seeking to be in possession of a firearm, was sufficient. The judge noted that the prosecution did not intend to place this disclosure statement in evidence before the jury, and decided that the defence should be prevented from doing so until she heard further argument at a later point in the trial.
136. Furthermore, in relation to the application for specific disclosure of any unused material which might suggest that the firearm seized from the rear seat of the Mercedes vehicle, was not the same as any firearm which may have been discussed by the occupants during the course of the morning, but had been brought into the vehicle by one of its occupants later in the day, the judge accepted the prosecution's assurance that it had fulfilled its duty to review the material and its decision that there was no further material to be disclosed.
138. In these circumstances, the judge was satisfied that the accused could receive a fair trial and refused the application on behalf of the first appellant to stay the trial as an abuse of process.
140. Subsequently, the judge returned in her third ruling to the issue as to whether the prosecution disclosure statement, relating to the intelligence concerning the police decision to stop the Mercedes motor vehicle, could be placed in evidence before the jury. It was submitted by all, save those instructed on behalf of Martini, that the lack of intelligence that any of the other occupants in the vehicle were either in possession of or was seeking to be in possession of a firearm, was not only relevant to their cases but would support their lack of knowledge of the firearm being in the Mercedes motor vehicle when it was stopped by the police.
142. The prosecution opposed the application, and submitted that it was not probative of any issue which the jury had to determine.
144. In her third ruling on disclosure, the judge noted that police intelligence may come from many different sources and determined that just as the presence of intelligence is inadmissible to prove an accused's guilt, the absence of such intelligence had no probative value in relation to the issues which the jury had to determine in this case, namely the extent of the accused's knowledge that the firearm was present in the vehicle prior to the police seizure and the purpose for which they were in possession of the firearm.
146. Counsel's closing addresses
147. In the course of its closing address to the jury, the prosecution referred to the circumstantial nature of the evidence against the accused, and pointed out that earlier in the day,
149. "Those in the car are actually talking about a taking a gun to elements of the funeral. If they were taking a gun to any of the elements of the funeral, you may conclude, members of the jury, that they would have wished to have that gun kept with them throughout the course of the whole day. Of course, the day's events had yet to conclude by the time that the gun was recovered".
150. However, and reflecting the way in which the case had been opened to the jury, the prosecution observed that,
152. "But regardless of whether or not that is the same gun you, we would suggest, will find those comments and that speech, and those sounds highly relevant to the question whether later, at 6.10 in the evening, those defendants party to these conversations, party to those remarks, those noises, were all together, knowing that there was a gun in the car".
154. On behalf of the first appellant, Mr Hughes also averted to the circumstantial nature of the evidence, and suggested to the jury that they approach their task by considering whether they could exclude all realistic possibilities consistent with innocence, and whether they could be sure that there was no other circumstance that would weaken or destroy an inference of guilt. He went on to suggest that the way in which the prosecution had presented its case, meant that the jury could not be sure when the firearm had been brought into the Mercedes vehicle, and suggested that the firearm may have been brought into the vehicle by others without the knowledge of the first appellant.
156. On behalf of the second appellant, Mr Surtees-Jones, adopted the observations made on behalf of the first appellant, and in any event did not concede that the conversation which took place earlier in the day concerned the presence of a loaded firearm in the Mercedes vehicle.
158. Summing-up
159. In the course of her summing-up, the judge provided the jury with written directions of law, together with a route to verdict, none of which is the subject of criticism, save the direction relating to the jury's approach to circumstantial evidence.
161. In the route to verdict, the judge directed the jury that they had to be sure, inter alia, that the accused, whose case they were considering, was in possession of the firearm which was seized by the police from the rear seat of the Mercedes vehicle.
163. In relation to the jury's approach to circumstantial evidence, the judge provided a very brief summary of the evidence relied upon by the prosecution, and the evidence provided by Johnson and Martini. Thereafter, she directed the jury that,
165. "You must decide which, if any, of the pieces of evidence you think are reliable and which, if any, you do not. You must then decide what conclusions you can fairly and reasonably draw from any pieces of evidence you do accept, taking these pieces together. You must not however engage in guesswork or speculation about matters, which have not been proved by any evidence. Finally, you must weigh up all the evidence and decide whether the prosecution have made you sure the defendant, whose case you are considering, is guilty".
166. Submissions
167. Four grounds of appeal were advanced on behalf of the appellants:
169. i. Firstly, that the judge was wrong to refuse disclosure of material capable of showing when and by whom the firearm was brought into the vehicle.
170. ii. Secondly, the judge was wrong to prohibit any questions pertaining to these matters.
171. iii. Thirdly, that the prosecution disclosure strategy resulted in relevant material either being hidden on the sensitive schedule or not scheduled/considered at all. The court was wrong to refuse the defence application seeking assistance and/or stay the case in the alternative. The judge was wrong to prohibit any cross-examination of the disclosure officer as to the disclosure process in the case.
172. iv. Fourthly, the judge refused to provide any direction as to the need for the jury to exclude reasonable possibilities, including the issue as to whether the reasonable possibility of the firearm being brought into the vehicle by someone other than the appellants and without their knowledge.
173. The Single judge, having conducted three ex parte sensitive material hearings, under r.3.11 CPR 2025, on 10 June 2024, 21 June 2024 and 4 November 2024, refused leave to appeal in relation to the first three grounds of appeal, observing that it was not arguable that the judge made any error in refusing any of the defence requests for disclosure, in particular as to police intelligence, or that she was wrong to refuse to allow cross-examination about police intelligence, including the written disclosure made by the prosecution dated 23 August 2023, as the judge's decisions were correct in law and the absence of intelligence referred to in the written disclosure was not a fact which would have assisted the jury. Furthermore, the prosecution approach to the unused material did not give rise to any arguable ground of appeal, and the judge was entitled to accept the prosecution's assurance that they had complied with their disclosure obligations.
175. However, the Single Judge granted leave to appeal in relation to the fourth ground, so as to enable the Full Court to consider the adequacy of the direction concerning the jury's approach to circumstantial evidence.
177. At the commencement of the hearing of the appeal, we indicated to counsel that, just as the Single Judge held ex parte sensitive material hearings under r3.11 CPR 2025, so too had we in accordance with r36.2, on 10 March 2026. We heard a second one immediately following the hearing of the appeal on 11 March 2026.
179. In oral submissions before us, neither Mr Hughes, nor Mr Surtees-Jones, dwelt on the first two grounds, acknowledging that, having seen material relating to the written disclosure made by the prosecution dated 22 August 2023, this court would be in a position to determine for itself the extent to which the judge had been entitled to refuse the request for further disclosure and/or to cross-examine witnesses about it.
181. However, Mr Hughes provided us with extensive submissions concerning the third ground of appeal, pointing out that the prosecution's case was that the appellants were in possession of the loaded firearm so as to enable them to use it against rival gang members who may attend Lemar Urquhart's funeral. In these circumstances it was submitted that the events surrounding his death were potentially relevant and disclosable to the defence in this case. Moreover, that events earlier in the day of the funeral were also potentially relevant and disclosable, and that the prosecution's original approach to disclosure appeared to have been limited to material generated by Operation Gaghay which only dealt with events following the police stop of the Mercedes vehicle.
183. It is pointed out that the disclosure test contained in section 3 of the CPIA 1996 requires the prosecution to disclose material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused. Moreover, as this court pointed out in R v Akle [2021] EWCA Crim 1879, with reference to H & C [2004] 2 AC 134, for the purposes of disclosure, " the parties' respective cases should not be restrictively analysed " and prosecutors should resolve any doubts in favour of disclosure.
185. It was submitted that the issues which had been raised in this case included whether any firearm which the appellants had been in possession of earlier in the day had been delivered to someone during the course of the burial, and if so, who had thereafter brought the firearm which was subsequently seized by the police into the vehicle. It was submitted that in the absence of disclosure of any material relating to these matters, the prosecution had failed to fulfil its obligations under the CPIA 1996.
187. In relation to the fourth ground, Mr Hughes informed us that in reliance upon R v Masih [2015] EWCA Crim 477, he had invited the judge to give a direction to the effect that, before convicting the appellants on the basis of circumstantial evidence, they would have to exclude all realistic possibilities consistent with their innocence.
189. Mr Hughes accepted that such a direction was not mandatory, but submitted that the judge's failure to provide such a direction in this case amounted to a misdirection, and rendered the convictions unsafe.
191. Mr Surtees-Jones, in succinct submissions, echoed those presented on behalf of the first appellant. In relation to the fourth ground, he, like Mr Hughes, acknowledged that no alternative written direction had been submitted to the judge in the course of the trial, save for the inclusion of a reference to the jury having to exclude all realistic possibilities consistent with innocence. However, he too submitted that the absence of such a direction in this case, rendered the convictions unsafe.
193. On behalf of the respondent, Mr Douglas-Jones KC, who did not appear below, submitted that there was no arguable merit in the first three grounds. He pointed out that before the judge declined the requests relating to specific disclosure and/or any questions relating to when and by whom the firearm had been brought into the vehicle, she had conducted a series of r3.11 ex parte sensitive material hearings, and would therefore have been in a position to properly consider whether there was any relevant material concerning these matters, and the sufficiency of the prosecution's written disclosure statement dated 22 August 2023.
195. Furthermore, it was submitted that the prosecution's approach to disclosure in general was correct. There was no reason to believe that material arising from the investigation into the death of Lemar Urquhart was of relevance to the events taking place at his subsequent funeral, and that having reviewed the material generated by Operation Fishjet, there was nothing which required to be disclosed under section 3 CPIA 1996.
197. In relation to the fourth ground, Mr Douglas-Jones pointed out that leave had been granted, at least in part, based upon the assertion, made on behalf of the appellants, that the prosecution had conceded that the jury could not be sure that the firearm found by the police in the Mercedes vehicle was the same as that which may have been discussed earlier in the day. He pointed out that this was not the way in which the prosecution had presented its case to the jury, rather it had been presented on the basis that whilst its primary case was that the firearm discussed earlier in the day was the same one which the police seized from the vehicle later in the day, even if the jury were not sure that it was the same gun, then the circumstances surrounding the appellants' presence in the vehicle, and in particular their earlier conversations as recorded on the dashcam, were such that the jury could be sure that they were in possession of the firearm found in the rear seat of the Mercedes vehicle.
199. Furthermore, not only was a Masih type direction not required to be provided to the jury, but a more tailored legal direction had not been sought by the appellants. It was submitted that this was not surprising as if it had been, the result was likely to have been counterproductive to the appellants, as it would have exposed how little merit there was in the defence case, bearing in mind the significance of the dashcam conversations earlier in the day.
201. Discussion
202. As this court has pointed out on previous occasions, the importance of proper compliance with the provisions of the CPIA 1996 to the conduct of a fair trial cannot be over-emphasised. Moreover, although both the defence and, of course, the trial judge has an important role to play in the process, the primary duty rests upon the police and the prosecution.
204. As reflected in the Attorney General's Guidelines on Disclosure, part of that process requires the prosecution, at any early stage, to consider its strategy and approach to disclosure in any particular case, and to set that out in a Disclosure Management Document. It is the prosecution's approach to disclosure which lies at the heart of the criticism made on behalf of the appellants in the third ground of appeal.
206. At one point during the course of the proceedings, it appeared as though it may have been suggested on behalf of the appellants, that the decision to have separate operational names for different aspects of the police enquiries into the events emanating from Lemar Urquhart's death, or at least to confine the ambit of disclosure within these separate operations, was deliberately designed to limit the extent of disclosure which was provided to the defence. However, this was disavowed on behalf of the appellants during the course of the appeal, albeit it was submitted that there may have been disclosable material which had been generated in the course of the other police operations, other than Operation Gaghay, which had not been considered.
208. Although the issues in dispute in any case, as set out in an accused's Defence Statement, provide a relevant context for considering the extent of the investigation and disclosure process which is ultimately required to be carried out by the police and the prosecution, it is in any event necessary for lines of enquiry which may assist the defence to be pursued, and for disclosure of material to be considered against the criteria set out in section 3(1)(a) CPIA 1996.
210. On the other hand, the disclosure process is not limitless and provided those involved have properly complied with their statutory obligations, as reflected in the AG's Guidelines, only that material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, need be disclosed.
212. In the present case, we can readily understand that for proper operational reasons, separate names were provided for the investigations into the events surrounding the death of Lemar Urquhart on 30 October 2022, and the different aspects of the events which took place at his funeral on 17 March 2023. Moreover, although we, as did the judge, consider that it was likely to be necessary for the prosecution to review the material which had been generated during the course of Operation Fishjet, we are unpersuaded that it was necessary for this process to extend to the material generated into the earlier investigation into the death of Lemar Urquhart, namely Operation Wormlaw. The latter investigation was not only separated in time by some months, but more particularly it centred upon discovering the identity of those responsible for his death, whereas the issues in the present case centred upon the extent to which those present in the Mercedes vehicle on the early evening of 17 March 2023 were aware of the presence of the loaded firearm within the vehicle, and the intention with which they had it in their possession.
214. Although, it may be that, at an earlier stage of the proceedings, the prosecution had not reviewed material outside the scope of Operation Gaghay, it is apparent that, following the trial judge's intervention, the prosecution undertook to do so. The trial judge, who was responsible for the conduct of the trial, accepted the prosecution's undertaking that the material generated by Operation Fishjet had been properly reviewed, and for our part we see no reason to doubt that she was entitled to do so.
216. As was considered by this court in R v Ali [2019] EWCA Crim 1527, there may, exceptionally, be cases in which although material does not satisfy the test for disclosure under section 3(1)(a) CPIA 1996, nevertheless the prosecution considers it necessary to inform the court about its existence in order to avoid potential unfairness to a defendant in the conduct of the trial and/or potential prejudice to the fair management of the trial, yet the revelation of which the prosecution considers would give rise to a real risk of serious prejudice to an important public interest.
218. In such circumstances, it is necessary for the prosecution to seek an ex parte sensitive material hearing before the judge in accordance with r3.11 CPR 2025, which is what occurred in this case. As we have already set out, it was following these hearings that the judge determined that, in the light of the issues raised in the case, including the witness statements which revealed that there was a large-scale police operation taking place on 17 March 2023 and that one of those targeted by the police was Martini, who was believed to be in possession of a firearm, no further disclosure was required, over and above the written disclosure provided by the prosecution dated 23 August 2023. Moreover, that no cross-examination could take place concerning these matters.
220. It is because criticism had been made of the judge's decision, that we like the Single Judge, have held ex parte sensitive material hearings under r3.11, in accordance with r36.2 CPR 2025, in order to be in a position to review the decision made by the judge, and more generally to consider the way in which the prosecution put their case, and the manner in which the judge summed up the case to the jury.
222. Having done so, we are satisfied that not only was the basis upon which the prosecution put its case appropriate, but that no further disclosure was required over and above that which was set out in the written disclosure document dated 23 August 2023. In that regard, it was clearly open to the prosecution to put, as its primary case, that the firearm which was seized by the police from the rear seat of the Mercedes vehicle, was the same one which was present in the vehicle earlier in the day. Moreover, there was no evidential value in either the contents of the disclosure note being placed before the jury, or any answers to questions relating to the subject matter.
224. We turn then to consider the fourth ground, and the adequacy of the judge's direction to the jury concerning circumstantial evidence, and whether anything further was required of the judge by way of legal directions to the jury to ensure the fairness of the trial.
226. It is necessary to bear in mind that the questions which the court posed in Masih, including, " could a reasonable jury, properly directed, exclude all realistic possibilities consistent with the defendant's innocence ", were considered in the context of a judge dealing with a submission of no case to answer at the conclusion of the prosecution's evidential case. As Mr Hughes properly acknowledged, the judge in the present case was not obliged to provide such a direction to the jury. Moreover, the direction contained in the Crown Court Compendium reflects what was said by this court in R v Kelly [2015] EWCA Crim 817 (Kelly), where Pitchford LJ, stated at [39], that,
228. "The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt (see R v Teper [1952] AC 480). However as the House of Lords explained in McGreevy, circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect. Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the trial judge to consider how best to assist the jury to reach a true verdict according to the evidence".
229. As we have already set out, the main body of the direction to the jury was in standard form, as set out in the Compendium, directing the jury to consider which pieces of evidence it accepted as being reliable, to consider what conclusions could be fairly and reasonably drawn from that evidence, not to speculate about matters which had not been proved by any evidence, and decide whether that evidence was sufficient to make the jury sure of the guilt of the individual accused whose case they were considering.
231. Furthermore, although the direction included a very brief summary of the evidence relied upon by the prosecution and the evidence provided by Johnson and Martini, the only reference to the appellants' position was that, "[Cross], [the first appellant] and [the second appellant] have pleaded not guilty and require the prosecution to make you sure of their guilt ".
233. Although some judges may well have included a brief summary of what counsel had said in their closing addresses on behalf of the appellants, adverting to the possibility of the firearm seized by the police having been brought to the vehicle by either Johnson or Martini, we do not consider that it was necessary for her to have done so.
235. In this regard, having just heard counsel's speeches, not only would the jury have this issue well in mind, but as counsel were at pains to point out to the jury, and before us in the course of the hearing, they were not putting forward a positive case on behalf of the appellants, they were only asking the jury to consider whether, on the basis of the evidence they had heard, this possibility could be rejected; something which in our judgment was more akin to a request for the jury to indulge in speculation, rather than to draw commonsense conclusions.
237. Indeed, we note that apart from requesting a direction in accordance with Masih, counsel did not seek any further additions to the direction provided to the jury. We can understand why they may have chosen not to do so, as we consider there is merit in the observation made on behalf of the respondent in this case, that it would have been likely to have been counterproductive to the appellants. In this regard, although it could have been pointed out that two further individuals had joined the others in the vehicle following the visit to the cemetery, and that there was no further discussion of a firearm, this would have to have been balanced against the likelihood or otherwise of the appellants and Cross having disposed of a loaded firearm at the cemetery, and then, unbeknown to them, either Johnson and/or Martini were able to bring a similar loaded firearm into the vehicle, all of which was taking place in the context of a gang-related funeral in which the appellants and Cross had spent some part of the earlier part of their day conversing about the presence of the first loaded firearm in the vehicle.
239. In these circumstances, although, as we have observed, some judges may have included a brief summary of counsel's addresses to the jury in their direction upon circumstantial evidence, in the context of the evidence in this case, we do not consider that the omission has any bearing on the safety of the conviction. Moreover, not only was no Masih type direction required, but we do not consider that any further direction was required to ensure the fairness of the trial.
241. Conclusion
242. Accordingly, we refuse the renewed application for leave to appeal against conviction on the first three grounds, and dismiss the appeal.
244. Sentence
245. As the Single Judge made clear when referring the first appellant's application for leave to appeal against sentence, the only reason for doing so was lest anything which emerged from the hearing of the appeal against conviction affected the basis upon which the judge sentenced the first appellant. We have of course considered this aspect of the case, but also considered the merits of the grounds of appeal more generally.
247. Prior to the sentencing hearing the parties had submitted written sentencing notes for the assistance of the judge.
249. On behalf of the prosecution it was submitted that the culpability of all three of the accused who had been convicted of count 1, possessing a firearm with intent to endanger life, was within category A of the relevant sentencing guideline, because the offence involved significant planning, each of the accused had played different but leading roles, and the incident giving rise to the offence was prolonged. Moreover, the level of harm was within category 2, because of the high risk of death and serious disorder, such that the appropriate starting point was 14 years' custody with a category range of between 11 ? 17 years.
251. On behalf of the first appellant, the categorisation of count 1 was disputed. It was submitted that there was no evidence that he was involved in the planning of the offence and that his role was limited to transporting the firearm for a limited period of time. Therefore, the first appellant's culpability was at worst within category B and there were a number of culpability C factors, which required some downward movement in his level of culpability. Likewise, in so far as harm was concerned, it was submitted that if category 2 was correct, then there were a number of factors which should reduce the level of harm, including the lack of evidence that the firearm was ever produced at any of the public events which took place that day. In these circumstances, " Dependent upon the view the court takes as to the factors set out, the starting point will be between 5 ? 10 years ".
253. In the course of her sentencing remarks, the judge set out the gang-related context in which the offences took place. She stated that having considered the evidence in the trial, she was satisfied that the appellants and Cross were in possession of the loaded firearm from about 11am to 6pm and that during this period, it was " inconceivable that the firearm was left unattended in the Mercedes G-Wagon. The inescapable inference is that it was taken into the church by Mr Johnson-Cross, carried in a Louis Vuitton man-bag ".
255. On this basis she was satisfied that the offence at count 1 was a category A2 offence. In so far as culpability was concerned, the incident was prolonged, it involved a significant degree of planning, including the hiring of the Mercedes G-Wagon in a false name, and each of the convicted accused had different but leading roles; the first appellant being responsible for transporting the firearm, the second appellant being able to give instructions for using the firearm, and Cross was in direct possession of the firearm. Moreover, carrying a loaded firearm of this nature to public events involved a high risk of death and serious disorder.
257. In the case of the first appellant, the judge noted that he was 30 years of age, and had a difficult family background. However, although he had no previous convictions for carrying offensive weapons, the first appellant had two sets of convictions for either being concerned in or being in possession of Class A drugs with intent to supply to others, resulting in custodial sentences in 2015 and 2018.
259. In his grounds of appeal, Mr Hughes sought to criticise the judge's categorisation of the offence at count 1 under the relevant sentencing guideline. It was submitted that it was not open to the judge to determine that all three of the accused convicted of count 1 had a leading role in the offence. Moreover, that the judge was wrong to determine that the first appellant had been in possession of the firearm during the majority of the day. It was submitted that the judge had failed to take into account the defensive nature of the possession of firearm, and that there was no evidence that the firearm had been removed from the vehicle at any of the public events that day.
261. In his oral submissions before us, Mr Hughes focused his submissions upon the judge's assessment of the first appellant's culpability, which he submitted ought to have been determined as being within category B, on the basis that the judge erred in considering that all three of the convicted accused had leading roles in the offence.
263. We are satisfied that the judge was entitled to approach the sentences in this case on the basis that the appellants and Cross had been in possession of the same firearm throughout the majority of the day. The circumstantial evidence supported this finding, and nothing we heard in the course of the r3.11 ex parte sensitive material hearings requires us to consider otherwise. Moreover, for the reasons provided in her sentencing remarks, we are of the view that the judge was entitled to determine that the loaded firearm was taken out of the vehicle to each of the two public events which had taken place that day, namely Lemar Urquhart's funeral and burial.
265. On this basis, we are satisfied that in relation to the appellants and Cross, count 1 was a category A2 offence within the sentencing guidelines. There was a significant degree of planning and the incident was prolonged. Moreover, despite each of the convicted accused having different roles, the judge was entitled to determine that they all had a leading role in the offence, in the manner set out by the judge in her sentencing remarks.
267. In our view there can be no question but that the level of harm involved in this offence was within category 2, as the possession of a loaded firearm at these public events inevitably carried with it a high risk of death and/or serious disorder, whether it was carried for a defensive or offensive purpose.
269. In these circumstances, the appropriate starting point for count 1 was 14 years' custody with a category range of between 11 ? 17 years. Although some mitigation was available to the first appellant arising from his difficult childhood, his age did not provide any reason to doubt his level of maturity. Moreover, the gang-related context of the offending on 17 March 2023, was a significant aggravating factor, and we note that despite the first appellant's lack of previous convictions for the possession of offensive weapons, the author of the Pre-sentence report considered that he posed a high risk of serious harm.
271. Conclusion
272. Bearing all of these matters in mind, we are satisfied that the sentence imposed upon the first appellant was entirely justified, and that none of the matters raised on his behalf provide any arguable grounds of appeal. Accordingly, we refuse the referred application for leave to appeal against sentence in this case.

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