England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London WC2A 2LL

Monday 9th December 1996

B e f o r e:

LORD JUSTICE KENNEDY

MR JUSTICE JOHNSON

and

MR JUSTICE TIMOTHY WALKER

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R E G I N A

- V -

BM

and

SA

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(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR J WOOD (MR P BROOK 9.12.96) appeared on behalf of the

Appellant

MR S KAMLISH appeared on behalf of the Appellant SA

MR J BEVAN and MR M DENNIS appeared on behalf of the Crown

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J U D G M E N T

(As Approved by the Court)

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Crown Copyright

Monday 9th December 1996

LORD JUSTICE KENNEDY: The judgment which we are about to deliver is the judgment of the court which consists not only of Mr Justice Johnson who is here but of Mr Justice Timothy Walker who cannot be here today.

JUDGMENT

1. Background to the Appeals

On 31st October 1995 at the Central Criminal Court these two appellants were both convicted of violent disorder, and the appellant BM was also convicted of conspiracy to inflict grievous bodily harm and murder.

The indictment which they faced arose out of the events which occurred between 9 and 10 pm in the Somers Town area of north London on Saturday 13th August 1994.

It was the prosecution case that, possibly because of an incident a few days earlier when a youth named LC had failed to comply with a request made by SA that he return some jewellery, there came a time on the Saturday evening when a gang of about 10 young Asians set off from Euston to the adjacent area of Somers Town to find LC and to cause him grievous bodily harm. The agreement to pursue that course of action was the conspiracy charged in count 1, of which BM was convicted. SA was also charged but was acquitted.

Having got as far as Somers Town this aggressive gang was, the prosecution contended, a danger to any vulnerable white youth whom they happened to encounter.

Their first encounter was with MA, aged 16, near to Cecil Rhodes House, a block of flats off Goldington Street. MA, who had been walking with his cousins AN and KN, and with a friend AD, was surrounded by the gang, and asked in an intimidating way whether he knew LC. When he said he did not, he was punched and fell over a wall. He then ran off and someone tried to stab him in the back. Fortunately the damage was relatively slight, but he did suffer a cut lip, abrasions and small knife wound in the back. When the girls who had been with him tried to intervene they were told to "fuck off". The gang which pursued him ended up outside Cecil Rhodes House, where one of them was heard to call out "Oi, you cunt, you're going to die". At that house there were three witnesses who identified SA as one of the gang. They were TC, GK, and LT. They were all seventeen or eighteen years of age. They had all been at school with SA, and they all subsequently identified him on an identification parade. TC also saw one of the gang, not SA, with a knife, the blade of which was twelve inches long.

Count 2 in the indictment was the offence of violent disorder which we have just described, with MA as the principal victim. SA was convicted of that offence. His case was that he never asked for any jewellery during the previous week, nor was he any part of the Saturday night gang. As to the identifying witnesses he said that two of them were mistaken and the third - TC - was lying.

From Cecil Rhodes House the gang moved south, and was next seen going west on Brill Place. A little further to the east a group of three white boys reached Brill Place by walking up Midland Road. They had been playing football, and had then gone to buy some food which they were carrying in a white plastic bag. PP , aged 14, was small, and the other two were MF, aged 17 and RE, aged 15, a chubby fair-haired boy, described by PP as well-known, and well liked, very kind, and someone who would do anything for anybody. The three boys saw the gang walking away along Brill Place, but one of the gang saw the boys, and the whole gang then turned round and came back. MF was asked, by someone who put his face right up against him, and who the prosecution contended was BM even though MF was later not able to identify him, whether he knew LC, and when he said that he did not he was head-butted, and told he was lying. MF and PP then managed to run off, but RE was not so lucky. He was stabbed in the back and died as a result of that injury. The prosecution case was that BM was not necessarily the knife wielder, but he was a prominent member of the gang when the knife was used, and, the prosecution contended, what was done with the knife was a joint enterprise.

According to the prosecution BM returned from Brill Place to the Euston Area, and there met two girls - JS and EA. They saw him eating pot noodles which, the prosecution contended, the dead boy had bought, and according to JS he said :-

"We've just had a fight with some white boys in Somers Town. We've just stabbed one of them .... we head-butted one of them and let the little one go".

According to EA another boy asked BM what the victim of the stabbing looked like, and he said "chubby and blond". SA and BM and his friends were asked to go to the police station to assist with enquiries. They went, and BM gave false particulars. He said that was before he knew of RE's death, but the police evidence was to the contrary. He was observed to have blood on his jeans and trainers and scientific examination linked that blood with the dead boy. JS and EA at first gave a different account of the evening's events, but, according to them, they decided to tell the truth after they had been to RE's funeral and observed his grieving parents.

BM BM's case at trial was that he was never any part of the gang. Prior to the incidents in Brill Place he had been further north, searching unsuccessfully for cannabis. He returned to Brill Place, and a boy rushed past him who must have been RE attempting to flee after being stabbed. He was being pursued by "Alanz" brandishing a knife. That must have been how the blood got on to his clothing. BM said that he never ate any pot noodles, nor did he make any incriminating admission to JS and EA.

Count three in the indictment of which BM was convicted was the violent disorder which ended in the head-butting of MF, and count four, of which he was also convicted, was the murder of RE. Returning for a moment to count one, the evidence which the prosecution relied upon to show that BM was a party to a conspiracy to cause grievous bodily harm to LC was the evidence as to his participation in the events which took place in Brill Place. Both appellants now appeal against conviction by leave of the single judge.

2. Application to amend Grounds of Appeal

These appeals were listed for hearing before us on 8th November 1996. When the case was called on counsel for the appellant SA, Mr Stephen Kamlish, invited our attention to two statements, both dated 7th November 1996. The first statement is from a solicitor, Mr Imran Khan, who acted for both appellants at the trial. He states that on 2nd November 1995, three days after the end of the trial, he received a telephone call from a man who said his name was V. V said his partner had been a juror, and he was telephoning on her behalf. She might have information concerning the trial which might be of some interest to Mr Imran Khan. Mr Imran Khan then prudently terminated the telephone call, saying that he would ring back, and sought the advice of Mr Kamlish, who reminded him of the provisions of section 8 of the Contempt of Court Act 1981, which, so far as material, reads :-

"(1) subject to subsection (2) below, it is a contempt of court to obtain, disclose, or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings:

(2) this section does not apply to disclosure of any particulars -

(a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict .....

or to the publication of any particulars so disclosed."

Mr Imran Khan then telephoned V and told him to advise his partner that it was a criminal offence for a juror to disclose or discuss the jury's deliberations with anyone other than a member of that jury. "However, there would be no difficulty in V's partner disclosing any other information which she felt did not fall within the category of deliberations." Mr Imran Khan asked V to ask his partner to get in touch with Mr Imran Khan if she wanted to pass on any such information. There was then no further comment for many months.

Before we move on to the next stage in this sorry saga we must point out that the advice given by Mr Imran Khan was inaccurate and potentially misleading. Whatever the true construction of section 8 of the 1981 Act, the yardstick is not to be found in the feelings of any individual juror. Furthermore, any passing of information of the type contemplated by Mr Imran Khan threatened the secrecy of the jury room, and, as was made clear by this court in McClusky (1994) 98 Cr. App. R 216 at 304 Mr Imran Khan before taking any step which might result in information being passed to him should have sought leave of this court.

The next contact between Mr Imran Khan and V was initiated by Mr Imran Khan who, on 6th November 1996, felt that, in accordance with his duties to his clients, he ought to telephone V to check that there was nothing V's partner wanted to tell him. V then told him that his partner had in fact prepared a document shortly after the conclusion of the trial and that she had no objection in Mr Imran Khan seeing it. V delivered that document to Mr Imran Khan's office the following morning, and it is exhibited to Mr Imran Khan's statement. The second and much shorter statement is from V. It supports what is said by Mr Imran Khan in his longer statement, and ends :-

"My partner is concerned regarding safety and does not want any details to be made public."

We do not therefore at this stage know the name of V's partner, nor her address. We know his name, and in order to protect her identity we have referred to him only by an initial.

The document which the alleged juror is said to have prepared, although unstructured, falls into three parts :-

"(1) comments on what the alleged juror perceived to be the attitude of the other members of the jury :

(2) an account of some jurors' reactions to decisions made at the end of the prosecution case :

(3) an incomplete account of what transpired after the jury retired at the end of the summing-up to consider their verdicts, and before they returned those verdicts."

Having placed before us the two statements and the document to which they refer Mr Kamlish, supported by Mr Wood for BM, submitted that we should adjourn the hearing and order an investigation, as was done in the case of Young (1995) 2 Cr App R 379 because if what was said in the document be right it would seem that the jurors, or at least some of them, were not approaching their task as they ought to have done. It was accepted, as was made clear in Young that any investigation could not extend to what was said by jurors when deliberating, because that would contravene the express provisions of the 1981 Act. Both counsel placed before us draft additional grounds of appeal which they wished to pursue dependent upon the result of the proposed investigation.

Mr Bevan, for the Crown, submitted that there should be no adjournment, no investigation and no leave to amend the grounds of appeal. He pointed out that the authenticity of the document, emerging for the first time a year after the end of the trial, was, to say the least, open to doubt. If it be authentic a substantial part of it is unarguably disclosed by its author in contravention of section 8(1) of the 1981 Act, and by soliciting it, obtaining it, and then further disclosing it Mr Imran Khan was also, it would seem, acting in contravention of the provisions of the Act. Mr Bevan reminded us that this is not the first time that there had been a last minute procedural move by the defence in this case. Immediately prior to trial there had been problems with an alibi notice.

Having had submissions on both sides we indicated that we were not prepared to adjourn the hearing, to instigate any enquiry, or to permit the proposed amendments to the grounds of appeal. Our reasons for that conclusion were both practical and legal. Dealing first with practical matters, the material placed before us lacks substance. We are by no means satisfied that any juror has revealed anything, and if they have not there is nothing to enquire into. Even if the document annexed to Mr Imran Khan's statement is what it is alleged to be, most of the allegations it contains cannot be investigated further without contravening section 8(1) of the 1981 Act, and the rest amounts to little more than assertions about views expressed by individual unidentified jurors before they began their formal deliberations. Furthermore in reality it is difficult to see how an investigation initiated more than 12 months later could possibly yield any meaningful result. No one is likely to remember whether such things were said. Still less are they likely to be able, without trespassing on the forbidden ground of the deliberations themselves, to say anything to assist in relation to whether or not views or attitudes expressed at an early stage had any effect on the result.

Turning now to our legal reasons, it is a settled rule of long standing that an appellate court will not receive evidence from jurors about discussions or other matters that took place in the jury box or jury room concerning the cases in which they were acting. So, for example, in Straker v Graham (1839) 4 M & W 721 the court refused to receive an affidavit from an attorney, made to him by a juryman, that the verdict was decided by lot. In R v Thompson (1962) 4 Cr App R 72 there was tendered to this court what appeared to be a statement from a juror asserting that a majority of the jury had been ready to acquit until the foreman read out a list of the previous convictions of the accused. Giving the judgment of the court Lord Parker C.J. said at page 75 :-

"This court is now asked to enquire into the matter and to adjourn in order to see whether the alleged statement by the juryman can be supported by some statement or affidavit made by him. But the court has come to the conclusion that it is perfectly idle to adjourn the case for that purpose, because the court is quite satisfied that they would have no right at all to enquire as to what did occur in the jury room. It has for long been a rule of practice, based on public policy, that the court should not enquire by taking evidence from jurymen as to what did occur in either the jury box or the jury room."

One of the authorities cited by Lord Parker was the civil case of Ellis v Deer (1922) 2 KB 113 in which Bankes L.J. said at page 117 :-

"I desire to make it clear that the court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself."

Atkin L.J. agreed, and added at page 121 :-

"The reason why that evidence is not admitted is two-fold, on the one hand it is in order to secure the finality of the decisions arrived at by the jury, and on the other to protect the jurymen themselves and prevent their being exposed to pressure to explain the reasons which actuated them in arriving at their verdict. To my mind it is a principle which it is of the highest importance in the interest of justice to maintain, and an infringement of the rule appears to me a very serious interference with the administration of justice."

Clearly, as it seems to us, that reasoning must extend to cover anything said by one juror to another about the case from the moment the jury is empanelled, at least provided what is said is not overheard by anyone who is not a juror. That was the view of the Supreme Court of New South Wales in R v Andrew Brown (1907) 7 N.S.W. State Reports 290, which refused to consider the affidavits of five jurymen in order to decide whether a fellow juryman had been guilty of misconduct. The allegation was that before any evidence was given the juror in question made it clear to fellow jurors that whatever the evidence he was not prepared to convict. In that case Darley C.J. said at page 299 :-

"I have come to the conclusion that the authorities are all one way, and that the Court cannot look at the affidavits of jurymen for any purpose, whether it be for the purpose of granting a new trial, or for the purpose of establishing the misconduct of a juryman."

More recently, in R v Schofield (1993) CLR 217, after the jury had returned its verdict a juror asked the jury bailiff if the jury could have asked a question, and on receiving an affirmative response, the juror went on to say that the jury had not understood the offence of affray and had written a note to that effect. Such a note was found in the jury room, and this court was invited at least to consider what transpired between the juror and the bailiff, but the argument was rejected on the ground that to give any meaning to that conversation it would be necessary to lift the veil of secrecy from the jury room and enquire what had happened within. That, as we have indicated, would also be the position in this case.

In Young (Supra) this court recognised the existence of the line of authority to which we have referred, but noted that there were some cases in which possible extrinsic influences on a jury in retirement had been investigated by the court, and so felt able to investigate what was alleged to have happened overnight when the jury was accommodated in a hotel. The period in the hotel was held not to form part of the "deliberations" for the purposes of section 8(1) of the 1981 Act, so a carefully circumscribed investigation was possible without contravening the provisions of that Act. That decision, considered properly in the context of the line of authority to which we have referred, seems to us to be of no assistance to the appellants in this case. Many of the submissions made to us seemed to be based upon the false proposition that we should be prepared to consider any material the obtaining of which would not constitute an offence contrary to section 8(1) of the 1981 Act, but, as we have attempted to make clear, the barrier to the reception of material is not to be found in the 1981 Act. It is to be found in a long line of authorities, some at least of which set out in terms why the barrier must be maintained.

3. The Appeal of BM

(A) The Indictment

We turn therefore to the four grounds of appeal which are set out in BM's Notice of Appeal, the first of which concerns the indictment. As we have already indicated, BM faced three counts in the indictment, namely :-

Count 1: Conspiracy to inflict Grievous Bodily Harm on LC :

Count 3: Violent Disorder in relation to MF:

Count 4: Murder of RE.

It was unsuccessfully submitted to the trial judge, and the renewal of the submission constitutes the first ground of appeal before us, that this appellant should not have been required to face trial on both the conspiracy alleged in Count 1 and the substantive offence alleged in Count 4, not least because the evidence relied upon by the prosecution to show that BM was a party to the conspiracy alleged in Count 1 was the evidence of his conduct in Brill Place at about the time of the murder. There was therefore, it is contended, a risk of prejudice, and the prosecution should have been required to elect as to the charge on which to proceed. Mr Wood further submits that the risk of the jury becoming confused was enhanced by the way in which the prosecution conducted its case. The initial contention was that Count 1 and Count 4 related to separate incidents, but in the end it became clear that, as we have said, the evidence of BM's involvement in Count 1 was the evidence of what occurred in Brill Place.

Having considered Mr Bevan's opening note and the rest of the material before us it is clear that the prosecution case in relation to Count 1 never shifted, and there was no reason for it to do so. The case always was that the conspiracy operated from the time that the gang of youths set off for Somers Town at least until RE was fatally stabbed. It therefore formed the background to the specific offences charged in Counts 2, 3 and 4, and although the prosecution believed BM was involved in that conspiracy from the outset, and said so, the prosecution could only prove his involvement by reference to what happened in Brill Place. Certainly the Practice Direction (1977) 64 CAR 258 to which Mr Wood invited our attention indicates that in a case like this where an indictment contains substantive counts and a related conspiracy count the judge should require the prosecution to justify the joinder, but here, in our judgment, the joinder was plainly justified because the two counts related to quite different aspects of the evening's criminality. The most obvious distinguishing feature is that Counts 1 and 4 targeted different victims, but there were other distinguishing features which we need not labour. We accept, of course, that where a substantive offence effectively and sufficiently covers the ground the addition of a charge of conspiracy which adds nothing is undesirable (See for example Greenfield (1973) 57 CAR 849) but here the addition of a count charging a very straightforward type of conspiracy was necessary to cover the ground and it did not, in our judgment, result in any unfairness to the defence. We therefore reject BM's first ground of appeal.

(B) Lies Direction

The second ground of appeal is formulated in this way - that although the trial judge when summing-up gave a full direction of the type contemplated in Lucas (1981) 73 CAR 159 in relation to the lies told by the appellant to the police concerning his name (and incidentally a similar direction concerning SA SA's evidence of alibi) a further similar direction needed to be given in relation to BM's evidence as to his whereabouts. In our judgment no such further direction was required. BM gave an account of searching for cannabis before arriving in the area of Brill Place. The prosecution did not accept that explanation, but that conflict was of no particular significance because the jury was not being asked to infer anything from that alleged lie. They were being asked to convict on the basis of direct evidence as to what happened in Brill Place, where the clothing of BM was stained with blood, and on the basis of what, according to the two girls, BM said later about what had happened there. As Glidewell L.J. said when giving the judgment of this court in Liacopolous, 31st August 1994 unreported, at page 15B of the transcript :-

"Where a jury, as is so frequently the case, is asked to decide whether they are sure that an innocent explanation given by an defendant is not true, where they are dealing with the essentials in the case and being asked to say that as a generality what the defendant has said in interview about a central issue, or agreed in evidence about a central issue is untrue, then that is a situation which is covered by the general direction about the burden and standard of proof. It does not require a special Lucas direction."

That approach was re-enforced by this Court in Burge and Pegg (1996) 1 CAR 164 where we endeavoured at page 173 to set out the circumstances in which a direction would be required. The circumstances there outlined do not in our judgment cover this case. Save in the most technical way the defence did not rely on alibi, and the prosecution did not seek to show that what BM said as to his whereabouts before he arrived in Brill Place was a lie, nor did they seek to rely on that alleged lie as evidence of guilt in relation to any of the charges sought to be proved. Mr Wood submits that although the prosecution did not take that line the judge should have envisaged that the jury might do so. It is noteworthy that such a possibility does not seem to have occurred to any counsel (including Mr Wood) at the trial.

Mr Wood also drew our attention to the decision of this Court in Genus and Britton , 1st February 1996 unreported, a drug trafficking case in which the appellants offered drugs to undercover police officers and then claimed to have been acting under duress. To rebut that defence the prosecution invited attention to what they submitted were the lies told by the appellants to the police and in the witness box. As Swinton Thomas L.J. said at page 5E of the transcript "Lies were absolutely central to the Crown case". In that situation a Lucas direction was required, but for the reasons we have explained the situation was entirely different in the present case.

(C) Good Character Direction

The third ground of appeal advanced by Mr Wood, and adopted by Mr Kamlish for SA, concerns the trial judge's direction in relation to the good character of each defendant. Having said that both were men of good character and summarised the evidence of good character called on behalf of each she said:

"What does that mean, members of the jury? What relevance does that evidence have in your considerations? Well, it does not mean that either or both of these defendants cannot be guilty of any of these offences or all of them if, on the evidence, you find them to be so. The fact that a defendant is of good character is simply something that you are entitled to take into account when you come to consider whether what he says may be true. It is also a factor that you are entitled to take into account when you come to consider whether he is the sort of person who is likely to commit the offence which is alleged against him. So that is the relevance of the evidence you have heard in relation to the good character of each of these two defendants."

Before us the submission made on behalf of each appellant is that the judge erred because she said "you are entitled" rather than "you must". She thereby gave the jury a discretion, whereas in reality the jury was bound to take good character into account. In this context our attention was directed to the decisions of this court in Vye (1993) 97 Cr App R 134 and the House of Lords in Aziz (1995) 2 Cr App R 478. The principle laid down at page 141 in Vye, and approved in Aziz, which is relevant to this case, is that where a defendant has testified a direction shall be given as to the relevance of his good character (1) in relation to credibility and (2) in relation to the likelihood of his having committed the offence or offences charged. What is mandatory is to give both limbs of the direction, not to use any particular form of words, and in our judgment this trial judge discharged that obligation. She pointed out both ways in which good character is relevant - something that the jury was entitled to take into account - just as they would be entitled to take into account other matters, like the blood on BM's clothing, when deciding whether what he said be true. The point is well illustrated by looking at another passage in the summing-up when the Judge was dealing with identification evidence in relation to SA. At page 15 F of the transcript she told the jury that if satisfied with the evidence of the identifying witnesses or of any of them :-

"that is the evidence you are entitled to consider, and evidence from which you are entitled to conclude that SA must have been a party to the agreement ........."

We are conscious of the fact that in Liacopolous, to which we have already referred, this court, at page 22D of the transcript, considered the submission made to us in relation to the use of the word "entitled" to be arguable, although indicating that if it did amount to a misdirection the court would not allow the appeal on that ground because (as the law then stood) it would apply the proviso. We take a somewhat different view, but to avoid semantic issues in the future judges might be wise to select words other than those used in this case.

(D) Joint Enterprise and Intent

The final ground of appeal advanced by Mr Wood relates to what the judge said as to joint enterprise in relation to the offence of murder. Mr Wood concedes that the judge's direction to the jury was in accordance with decisions of this court, including in particular Hyde (1991) 92 Cr App R 131 and Powell and Daniels (1996) 1 Cr App R 14. However, in the latter case the House of Lords has granted leave to appeal upon the following point :-

"Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or with intent to cause grievous bodily harm or must the secondary party have held such intention himself."

If that question was answered favourably to the appellants it could then be said that the direction in the present case was wrong. Mr Wood therefore invited us to take one of two courses -either to adjourn this appeal or at the conclusion of the appeal to certify the identical point. We know from enquiries we have made that the House of Lords has yet to list the appeal in Powell and Daniels , so, as we indicated during the course of argument, we are not prepared to take the former course. Subject to what may be said after this judgment has been delivered, we are inclined to take the latter course. Nothing more need be said about this ground of appeal, and, there being no substance in any of the other grounds of appeal against conviction advanced on behalf of BM, it follows that his appeal against conviction must be dismissed.

4. The Conviction Appeal of SA

We turn now to the appeal of SA. We have already dealt with the ground of appeal which criticises the judge's direction in relation to good character. Mr Kamlish made submissions in relation to two other grounds of appeal. First, he submitted, rightly, that the case against SA depended upon the identification evidence of the three witnesses - TC, GK and LT who claimed to have seen SA as a member of the gang at Cecil Rhodes House. Mr Kamlish contends that the trial judge, when dealing with the evidence of those three witnesses in her summing-up, misrepresented what they said. She paid insufficient attention to weaknesses in the evidence, and summarised the evidence of LT in particular in a way that suggested that the evidence was stronger than it was.

During the course of the hearing before us it occurred to Mr Kamlish that he might be able to argue another ground of appeal not previously mentioned and which did not appear in the notice of appeal, namely that the trial judge failed to direct the jury that it was for the Crown to disprove the alibi put forward both by SA and his alibi witness, Al Amin. Mr Kamlish therefore sought leave to add that ground of appeal, and invited our attention to the decision of this court in Fergus (1994) 98 Cr App R 313. Suffice to say that having read, and re read, the relevant part of the summing up in this case, at page 28 of the transcript, it is clear to us that the proposed additional ground of appeal is simply unarguable. The trial judge made no error whatsoever as to the burden of proof in relation to the alibi, and properly cautioned the jury against reading too much into the lies if they found the alibi evidence to be untrue.

We return now to what really was the substance of the appeal as presented by Mr Kamlish, namely his attack on the way in which the trial judge dealt with the evidence of the identifying witnesses. At the time of the hearing we were faced with a difficulty - we had no transcript of the evidence of any of the three witnesses, nor had Mr Kamlish made any attempt to agree a note of what they had said. He asserted to us in argument that when he drafted the grounds of appeal he asked for transcripts of all three witnesses. As he has now acknowledged in writing that is not correct. On 27th November 1995 he sent a note to the Registrar stating that the court "would be greatly assisted by a transcript of the cross-examination of one of the identifying witnesses, LT".(emphasis added) That request was brought to the attention of the single judge, who gave leave in relation to the good character direction, and said that "the question whether the weaknesses of the evidence of the identifying witnesses were adequately dealt with in the summing-up should be considered by the Full Court". The single judge therefore understandably made no direction for the provision of any additional transcripts, and there the matter rested until the hearing before us began. We are totally at a loss to understand how Mr Kamlish envisaged that it would be possible to succeed in relation to this ground of appeal without either a transcript of the evidence of the witnesses in question or an agreed note, but we were anxious to ensure that if there were any substance in the ground of appeal it should be properly considered. We therefore heard Mr Kamlish's submissions, and then, after the conclusion of all argument, requested the Registrar to obtain transcripts of all three witnesses, which transcripts we have now read.

Mr Kamlish accepted that the Judge properly directed the jury as to the dangers of identification evidence, in accordance with the decision of this court in R v Turnbull (1977) QB 224, but, he submitted, the judge failed in her summing-up to deal adequately with the inconsistencies between the witnesses, and with what Mr Kamlish described as "the headway made in cross-examination". In the grounds of appeal themselves the only example set out of anything relevant being omitted is in paragraph 4 where it is said that the judge failed to mention that during cross examination LT accepted in terms that because of the angle from which he was observing he could not be sure that he had seen SA.

In paragraphs 7 to 15 of his written advice, to which he invited our attention, Mr Kamlish expanded his submission that there were differences between and weaknesses within the evidence of the identifying witnesses which were not properly reflected in the summing-up. Those paragraphs contain the following points:-

(1) there was a lack of consistency as to where TC, GK and Loughlin were (and where they were in relation to each other) when observing the gang :

(2) they were inconsistent as to whether there was a chase (of MA) and if so whether he was recognised :

(3) they differed as to the part played by SA:

(4) if SA was where TC and GK said he was, it was surprising that Loughlin did not recognise him :

(5) the identifying witnesses were inconsistent as to whether they discussed what had been seen :

(6) GK said that someone told TC that SA was a member of the gang :

(7) JS Sheriff (on her own admission a bad time keeper) said that SA SA arrived at Drummond Street "about an hour" before BM and the others returned after the murder of RE.

Having read the transcripts of all three identifying witnesses we are not surprised that Mr Kamlish, when he settled the grounds of appeal sought only a transcript of his cross examination of LT. The cross examination of TC covers thirty eight pages of transcript, and that of GK covers seventeen pages, but only with LT was Mr Kamlish able to make any significant headway in cross examination. The precise positions which TC and GK were in when observing was understandably not something either of them remembered very clearly when giving evidence over a year after the observation was made. They agreed that there was a chase, but only TC and Loughlin claimed to have seen who was being chased, which is hardly suggestive of collusion. All three identifying witnesses gave somewhat different accounts of what SA was doing when they saw him, but there was no significant conflict, the impression being much more of different observers as is so often the case recalling different aspects of the same scene. Loughlin was clearly with TC and GK but, apart from his identification of MA, he was a witness who the judge invited the jury to regard as unreliable. So nothing can be made of his failure to identify SA.

When giving evidence all three identifying witnesses agreed that there had been some discussion between them that evening of what they had seen, but they also said that after they had given statements to the police and identified SA SA they, as instructed, did not discuss the matter any further. The suggestion that someone told TC that SA was a member of the gang was put to GK by reference to a section of his deposition which was plainly impossible properly to interpret without knowing what questions had been asked of him at the Magistrates' Court, and what answers had been given - a matter pointed out both by the trial judge and prosecuting counsel during the course of cross examination - so it is not right to say that GK agreed that someone told TC that SA was a member of the gang. As to JS Sheriff's evidence that SA was in Drummond Street about an hour before BM, that was specifically referred to by the trial judge in her summing-up, and in dealing with the evidence of LT she gave full specific weight to Mr Kamlish's effective cross examination. The difficulty, from Mr Kamlish's point of view, was that when re-examined that witness, as the judge said, claimed to be "very confident" that it was SA whom he had seen.

Now that we have not only heard Mr Kamlish's submissions, but also seen the transcripts of the evidence of the identifying witnesses, we are satisfied that the way in which the judge dealt with the evidence of those witnesses was entirely appropriate. Her summing-up was not exhaustive, nor should it have been, but there were no significant weaknesses or discrepancies omitted to which she should have referred. The appeal against conviction by SA SA is therefore dismissed.

5. Sentence - SA

We turn now to the renewal of SA's application for leave to appeal against sentence, leave to appeal having been refused by the single judge. When passing sentence the trial judge pointed out that the seriousness of the offence of violent disorder which SA was convicted was that he joined a group one of whom was openly carrying a knife, and that was something he must have known. It was used against MA, and was thereafter seen held in the hand of one of the gang.

In support of the application for leave to appeal Mr Kamlish makes a number of points :

(1) the jury's verdict in relation to Count 1 shows that they were not satisfied that SA was a party to the conspiracy to cause grievous bodily harm to LC. Therefore, it is submitted, they cannot have been satisfied that SA knew that any member of the gang was going to use a knife to attack anybody, or that MA had been stabbed. That is simply a non-sequitur.

(2) that the incident involving MA was brief, and did not result in any serious injury.

(3) that SA was not himself in possession of the knife, nor was he shown to have himself uttered threats or used violence.

(4) that he may have called off the chase, a point not acknowledged by the judge, although if his reasons for doing so was simply that he believed the quarry to have escaped it is difficult to see how he deserves credit for his actions.

(5) that SA had a positively good character.

(6) that because BM, who was much more deeply involved in that evening's criminality, was also sentenced to 3 years detention in a young offenders institution for an offence of violent disorder (in his case involving MF ) the sentence on SA should have been less.

Mr Kamlish also invited our attention to two decisions of this court - Sturton (1992) 13 C A R (Sentencing) 116 and Betts (1995) 16 C A R (Sentencing) 436. In each of those cases the facts were so very different that we are unable to derive much assistance from either of them.

For the reasons identified by the sentencing judge this was a serious matter, and like the single judge we regard the sentence as neither manifestly excessive nor wrong in principle. The renewed application for leave to appeal against sentence must therefore be dismissed.

MR BROOK: My Lords, I invite you to certify the point which is set out in the draft which I know your Lordships now have in relation to mens rea and intent in relation to this offence.

LORD JUSTICE KENNEDY: Is there anything you want to say about that Mr Dennis?

MR DENNIS: I have not been supplied with a copy of this.

LORD JUSTICE KENNEDY: The easiest way to find this is if you turn to page 17. I assume -- I have not checked it Mr Dennis, but I assume it is word for word.

MR BROOK: My Lord, it is identical.

MR DENNIS: My Lord, no. I have nothing to say.

LORD JUSTICE KENNEDY: We are prepared to certify the point set out in your draft, but we are not prepared to grant leave.