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Cite as: [1998] EWCA Crim 999, [1999] QB 431, [1998] 2 All ER 744, [1999] Crim LR 987, [1998] 3 WLR 1000, [1999] 1 Cr App R 319, [1999] 1 Cr App Rep 319

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REJAN UDDIN, R v. [1998] EWCA Crim 999 (19th March, 1998)

No. 9605482 Y5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Thursday 19th March 1998

B E F O R E :

LORD JUSTICE BELDAM

MR JUSTICE JOHNSON

and

MR JUSTICE WRIGHT

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R E G I N A

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REJAN UDDIN

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR R AMLOT QC & MR M LEVY ( 9.2.98) appeared on behalf of the Appellant

MR M PERT QC ( 9.2.98), MISS I DELAMERE (9.2.98) & MR BOTARSKI appeared on behalf of the Crown

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JUDGMENT

(As Approved by the Court )

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Crown Copyright

Thursday 19th March 1998

JUDGMENT

LORD JUSTICE BELDAM: The appellant appeals against his conviction for the murder of Mark Sharp.

At about 5.50 p.m. on the afternoon of Sunday, 27th August 1995, as Mr Mark Sharp was driving his motor car in Haverlock Road, Luton, he was forced to brake sharply when a black Nova motor car driven by Mr Abdul Shahid stopped suddenly in front of him. Displeased by the actions of the driver of the Nova car, Mark Sharp overtook, making a rude gesture as he did so. Shortly afterwards he parked his car in High Town Road near a laundrette. The Nova car pulled up beside him and the four Asian occupants, Shahid the driver, Mr Jomir Miah, Mr Forid Miah and Mr Abdul Tahid, got out and confronted Sharp. An argument ensued and one of the four who had been travelling in the Nova car returned to the car to make a call on a mobile telephone. Shortly afterwards, two other Asians, Mr Rejan Uddin and Mr Abdul Abbadin, and possibly two others, joined the four occupants of the Nova car. They were obviously friends. The two new arrivals appeared to Mr Hughes, a witness, to be older and bigger than the original four. Sharp and the six Asians were all on the pavement and close to a wall. Mr Hughes turned to go back to his car and had hardly taken a step or two when hearing a noise he turned and saw that the six Asians were attacking Sharp. Three of them appeared to be using weapons made out of the bottom half of a snooker cue. He saw Sharp being hit around the head and generally all over the body. The three who did not have weapons were punching and kicking Sharp. As he was being hit around the head, Sharp fell to his knees but the attackers carried on until he fell down completely and was lying still. The six attackers then ran off to their car. The attack had lasted, he thought, 30 seconds. He saw no attempt by Sharp to strike at the attackers or deliver any blows. His impression was that all six attackers were taking part in the violence but he could not say which of them used weapons or which of them kicked or punched. Mr Tatham who owned the laundrette also witnessed the attack. He had come from a shop about two doors away and noticed an argument with five or six young Asian males standing around a white man who was swearing. The Asians then seemed calm and standing around. From just inside the laundrette he saw them on the opposite side of the road and, out of the corner of his eye, he noticed a man to his left strike a blow at Sharp who went down. As he went down all the others converged on him and as they did so he heard someone shout: “Stab him!” He added:

“When Mr Sharp was in a crouching position they all converged. They were fighting to get one in. There was kicking and everything, hitting and kicking. When Sharp was lying down the group was hitting and kicking.”

He heard the words “Stab him” as Sharp went down after the first hit had reduced him to a crouching position and before he was on the ground. All the young Asians were involved together but when they ran off some ran to the right and some to the left. He made a 999 call at 17.52 hrs. in which he said that a man had been stabbed.

Another witness, Mr Harper, described how four or five Asians were arguing with Sharp:

“They were pulling things out of their sleeves and started to hit him. They looked like poles and bars. I think they all had a weapon like a crome bar, looked like, and one looked like a wooden bar about two feet long. ... They started hitting the man, pushing him to the floor and beating him. I could see all the blood. I thought about five were involved in the attack.”

He also said:

“All of them started pushing him about, knocked him to the floor and kicked and beat him”.

He added that he did not see Sharp use any violence:

“He had no chance really. He tried to defend himself, but did not get much chance.”

There were several other witnesses to the attack, including a ten year old boy, Ian Smith, watching from the window of a flat overlooking the scene. One of the newcomers, he thought, took a big stick from his sleeve which looked like part of a snooker cue and he started hitting the white man (who was Sharp):

“He didn’t make him go down and the white man turned and looked around. Then another Asian kicked him. He banged off the railings of the church and fell down. Then all of them just started hitting him, stamping on him and kicking him.

All the men who came down the road had sticks as well. These sticks were all the same as the first stick that I just described.

When the white man fell to the ground, the Asians with sticks hit him with their sticks. Others were stamping on him and kicking him. All of them were attacking him. No-one was trying to stop what was happening.”

He thought he saw about five sticks.

After the attackers had departed, Mark Sharp was found to be seriously injured. He died three days later. Five of those who were said to have taken part in the attack were arrested and charged with the murder of Mark Sharp. They were: the appellant Rejan Uddin, Abdul Shahid, Forid Miah, Jomir Miah and Abdul Tahid. Abdul Abbadin could not be found. The five who were charged were tried in the Crown Court at Luton before Mr Justice Dyson and a jury. On 11th July 1996 the appellant Rejan Uddin and Abdul Tahid were convicted of murder and sentenced to custody for life. Jomir Miah, Abdul Shahid and Forid Miah were acquitted of murder but convicted of manslaughter. Forid Miah and Abdul Shahid were sentenced to four years imprisonment. Jomir Miah to four years detention in a Young Offenders Institution.

Mark Sharp died from injuries to his head. The most serious, and the cause of his death, was a stab wound delivered with moderate force near the base of the skull and which penetrated the brain but there were two other injuries to the head caused by a blow with a blunt instrument struck with mild to moderate force which might have been sufficient to cause unconsciousness and could not be ruled out as contributory causes of death but neither of the two doctors who gave evidence could state that they had actually done so.

The blow with the knife was delivered by Abdul Tahid who apparently produced a flick knife from his pocket as he joined in the attack. Apart from the shout of “Stab him” heard by the witness Mr Tatham, there was no evidence that the other defendants knew that Abdul Tahid had a knife and all denied doing so. The three defendants convicted of manslaughter all gave evidence; the appellant did not. The defendants convicted of manslaughter were of good character and apparently the appellant was not.

One of the grounds of appeal advanced by Mr Amlot Q.C. for Uddin was that the judge in giving the jury the appropriate direction on the significance of the evidence of the good character of the defendants who testified, did so in a manner which unnecessarily drew attention to the fact that he gave no such direction in the case of the appellant. It was said that the manner of his direction would have been likely to signal to the jury that the appellant was not of good character. In our view the criticism of the learned judge’s summing-up in this respect is unjustified and we find it unnecessary to say more of this ground of appeal.

Whilst the jury were deliberating on their verdicts, they reported to the judge that four of them had received telephone calls from a caller or callers who, when the telephone was answered, said nothing. It was submitted to the judge that he should discharge the jury. The judge’s handling of the situation was faultless and he declined to do so. Again we find it unnecessary to deal in detail with the submission to us that the appellant’s conviction was unsafe because the judge ought to have discharged the jury. It is sufficient to say that he gave the jury appropriate warnings and guidance and that no basis was shown on which we could review the exercise of his discretion. Accordingly we reject this ground of appeal.

We now come to the main grounds of appeal which were:

(a) That the verdict in the appellant’s case was inconsistent with the verdicts of manslaughter in the cases of the three co-defendants (Abdul Shahid, Jomir Miah, Forid Miah) who were acquitted of murder. The appellant was in no different position from those co-defendants. In each case there was no evidence that the defendant knew that a fourth defendant (Abdul Tahid) had a knife or would use it. A single stab wound to the head was the cause of death.

(b) In dealing with joint enterprise the learned judge failed to direct the jury that as a secondary party to the killing, they had to be sure that the appellant foresaw the use of a knife as a possibility if he was to be found guilty of murder. Reg. v Powell; Reg. v English [1997] 3 WLR 959.

It will be appreciated that the decision of the House of Lords in that case was given more than twelve months after the judge summed-up this case to the jury. As the law then stood Mr Justice Dyson’s directions to the jury could not be faulted. He had prepared for the jury a synopsis of his directions on murder, manslaughter and common enterprise so that the jury could follow them as they were given. Before we come to his directions, we should state shortly the evidence of the three accused found guilty of manslaughter.

Abdul Shahid said that Sharp was shouting racial and other abuse towards the Asians. He saw no-one with weapons, though he said that Uddin and Abbadin had arrived on the scene. He saw Abbadin strike a blow with a bar once or twice and saw Sharp fall down but he saw no-one with a knife, nor did he hear anyone say: “Stab him”. Forid Miah also said Sharp shouted racial and other abuse. He himself had no weapon but he saw one of Abbadin’s friends hit Sharp on the head with a wooden object and Sharp fell down hitting his car. He, Forid Miah, had not taken part in the assault on Sharp at all.

Jomir Miah also said that Sharp had made racial comments but they had not upset him. He saw no weapons but he saw Abbadin and Uddin arrive and one of them hit Sharp over the head. He did not recognise the person who struck the first blow but he said:

“They then hit him with wooden bars two of them dark in colour”.

He did not see where the wooden bars had come from but they had not been used by any of the occupants of the Nova car. It was the new arrivals who attacked Sharp. He did not see any knife, nor did he hear anyone say, “Stab him”.

All the accused, including the appellant, had told lies when they were first interviewed. The appellant admitted this in his second interview and after describing how he had arrived on the scene he said that in the fight fists were used and someone “had a bar or something”. He had tried to pull them away but he saw two pieces of wood. He said that there was punching and kicking in the fighting but he did not touch or see any other weapons or a knife. In a third interview he said:

“Suddenly there was fight. Everyone was on top of everyone. Everyone was kicking and punching everywhere and all the punches and kicks were directed at the white man.”

He said that when the white man fell, everyone started running away and he ran off after the others.

The Judge’s Directions.

After dealing with the essential elements of the crime of murder, including the necessary intent to kill or do really serious harm, the judge directed the jury that if they were sure that there had been a deliberate non-accidental killing that was unlawful but not sure that it was done with the intent to kill or do really serious harm but they did think that there may have been an intent merely to cause minor harm, for instance, then manslaughter was proved and it was not necessary to consider manslaughter any further. He explained to the jury how provocation could be considered by them as reducing murder to manslaughter if they were satisfied of the necessary ingredients of murder but considered that any of the accused had been caused to lose their self-control by things said or done by Sharp which would have been enough to make a reasonable young Asian male act:

“... as the defendant whose case you are considering acted, or may it have done? If the answer is yes then he is guilty of manslaughter by reason of provocation.”

The judge emphasised that it was for the prosecution to prove that the accused were not provoked. He explained how an individual defendant could be guilty of murder on his own and said:

“For example, in the case of Abdul Tahid you will I expect be sure that his individual act of stabbing caused the death of Mark Sharp. If you are sure looking at the case of an individual defendant that he committed the offence of murder or manslaughter on his own then he is guilty of that offence regardless of whether there was a joint enterprise.”

The judge then defined joint enterprise saying:

“The prosecution case is that the defendants committed this offence together. Where a criminal offence is committed by two or more persons each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit it they are each guilty ... The essence of joint enterprise or joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it.

If looking at the case of any defendant you are sure that he did an act or acts as part of a joint plan or agreement to commit it then he is guilty. Put simply, the question for you is were they in it together? Where two or more defendants embark on a joint criminal enterprise each is liable for the acts done in pursuance of it and that includes liability for unusual consequences if they arise from the execution of the joint enterprise, but if it goes beyond what has been agreed as part of the joint enterprise then subject to what I say below about common intention the others are not responsible for that unauthorised act and it is for you as the jury to decide whether what was done was part of the joint enterprise or went beyond it and was an act not authorised by the joint enterprise.”

The judge went on to define what was meant by common intention. He said:

“In relation to murder it means either that the defendants each intended to kill or cause really serious harm or that the defendant whose case you are considering knew that there was a real possibility that one or more of his co-defendants might act with that particular intention whether he agreed to it or not and with that knowledge nevertheless went on to take part in the attack. But if death is caused by defendant (A) which goes beyond the agreed plan and you are not sure that the act is one that another defendant (B) knew was a real possibility the necessary common intention will not have been established as regards (B) and (B) is not guilty of murder.

In relation to manslaughter, the common intention means either that the defendants each intended to cause some injury, but not to kill or cause really serious injury or that the defendant whose case you are considering knew that there was a real possibility that one or more of his co-defendants would cause some injury to the victim, but would not kill him or cause really serious injury and nevertheless joined (A) in the fight.”

He went on:

“That sounds [as if] it may be rather complicated, but stripped down to its bare essentials the key question to ask of the defendant whose case you are considering is first, did he take part in the attack?

Second, did he share a common intention with the other attackers to kill or do really serious harm or if not then in taking part did he know that there was a real possibility that one or more of the attackers might attack Mark Sharp with the intention of killing him or doing really serious harm?”

After reviewing all the evidence and reminding the jury that the doctors who had given evidence were agreed that the stab wound was the cause of death but that they could not rule out that the other injuries to the head contributed, the judge fairly summarised for the jury the case as put by the prosecution and as by counsel for each of the defendants. After they had deliberated for some time, the jury asked the judge to define what constituted really serious bodily harm adding:

“Can we presume that really serious bodily harm is layman’s terms for grievous bodily harm?”

They were told that that was so. Later they asked two more questions. The first:

“If we agree that there was a joint enterprise are we allowed then to give differentiated verdicts, i.e. some of murder and some of manslaughter?”

The second question was:

“If we think that a defendant joined in an attack in any way having seen someone else attack initially do we have to find this a joint enterprise or can we judge it on an individual basis knowing that joint enterprise can be formed within the spur of the moment.”

After discussing with counsel the questions and the way in which they should be answered, the judge in answer to the first question said “Yes” and to the second question said:

“To that the answer is no. You can judge on an individual basis. I would just like to add two things. The first is that in the second question you use the word “If you think”, I am sure that [think] there is no significance in the word “think” rather than “are sure” but you will remember what I said about the standard of proof.

The second is that it is clear to me that you have been studying very carefully the written document that I provided you with and simply to remind you that the intent necessary for murder is an intent to kill or to do really serious bodily harm. If you find that you are not sure about those but you decide there was an intent to do some harm less than really serious bodily harm then the joint enterprise cannot be for murder but can be for manslaughter. I hope that sufficiently answers your questions.”

The jury then retired and after further deliberation brought in their verdicts.

We think it convenient to deal with the second ground of appeal before considering whether the verdicts were inconsistent. As Lord Hutton made clear in his speech in Reg. v English (supra), if one party to a joint enterprise suddenly forms an intention to kill making use of a deadly weapon and acting in a way which no party to the common design could suspect kills using that deadly weapon the others taking part in the common enterprise are to be judged as secondary parties and are not guilty of murder unless the actions of the party causing death are of a type which they foresee but do not necessarily intend. But as he later explains at page 981, if the weapon used by the primary party is different from but as dangerous as the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon. For example if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill or vice versa. On the question of the degree of foresight required to impose liability, he agreed with the judgment of the Privy Council in Chan Wing-Sui [1985] AC 168 that if a secondary party contemplated the act causing death as a possible incident of the joint venture, he is liable unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.

Such an analysis of the assessment of risk, whilst appropriate in the case of criminals who agree together in advance to commit an offence such as armed robbery, does not readily fit the spontaneous behaviour of a group of irrational individuals who jointly attack a common victim , each intending severally to inflict serious harm by any means at their disposal and giving no thought to the means by which the others will individually commit similar offences on the same person. In truth each in committing his individual offence assists and encourages the others in committing their individual offences. They are at the same time principals and secondary parties. Because it is often a matter of chance whether one or other of them inflicts a fatal injury, the law attributes responsibility for the acts done by one to all of them, unless one of the attackers completely departs from the concerted actions of the others and in so doing causes the victim’s death. An example found in the observations of Lord Parker C.J. in Reg. v Anderson: Reg. v Morris [1966] 2 QB 110 at page 120 is when one of the participants suddenly forms an intent to kill using a weapon in a way in which no other party could suspect.

In this example the party departing from the common enterprise has not only formed a different intent but has acted in a way which no other party could suspect. In short he has not merely brought about the death of the victim with a different intent but has used a weapon which the others did not know or suspect he had with him. The essential ingredients of his offence are different and the actions of the others coincided with, but did not contribute to or assist, the commission of his offence. The difficulty in applying these principles to a case such as the present led to the expression in the speeches of Lord Mustill and Lord Steyn in Reg. v Powell; Reg. v English (supra) of the difficulties in the concepts of joint enterprise and accessory liability and their calls for urgent review of the law of homicide. Notwithstanding these difficulties, we think that the principles applicable to a case such as the present are:

(i) Where several persons join to attack a victim in circumstances which show that they intend to inflict serious harm and as a result of the attack the victim sustains fatal injury, they are jointly liable for murder; but if such injury inflicted with that intent is shown to have been caused solely by the actions of one participant of a type entirely different from actions which the others foresaw as part of the attack, only that participant is guilty of murder.

(ii) In deciding whether the actions are of such a different type the use by that party of a weapon is a significant factor. If the character of the weapon, e.g. its propensity to cause death is different from any weapon used or contemplated by the others and if it is used with a specific intent to kill, the others are not responsible for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon.

(iii) If some or all of the others are using weapons which could be regarded as equally likely to inflict fatal injury, the mere fact that a different weapon was used is immaterial.

(iv) If the jury conclude that the death of the victim was caused by the actions of one participant which can be said to be of a completely different type to those contemplated by the others, they are not to be regarded as parties to the death whether it amounts to murder or manslaughter. They may nevertheless be guilty of offences of wounding or inflicting grievous bodily harm with intent which they individually commit.

(v) If in the course of the concerted attack a weapon is produced by one of the participants and the others knowing that he has it in circumstances where he may use it in the course of the attack participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound.

(vi) In a case in which after a concerted attack it is proved that the victim died as a result of a wound with a lethal weapon, e.g. a stab wound, but the evidence does not establish which of the participants used the weapon, then if its use was foreseen by the participants in the attack they will all be guilty of murder notwithstanding that the particular participant who administered the fatal blow cannot be identified. See Reg. v Powell (supra). If, however, the circumstances do not show that the participants foresaw the use of a weapon of this type, none of them will be guilty of murder though they may individually have committed offences in the course of the attack.

(vii) The mere fact that by attacking the victim together each of them had the intention to inflict serious harm on the victim is insufficient to make them responsible for the death of the victim caused by the use of a lethal weapon used by one of the participants with the same or shared intention.

As we have said, in the present case there was no evidence upon which the jury could find that before the attack began the others involved knew that Abdul Tahid was carrying a flick knife.

If the jury accepted the evidence of Mr Tatham who said that whilst in his laundrette on the opposite side of the road from the attack he heard the shout “Stab him” as the attack began, they could as we have said have concluded that those of the defendants who then took part in the attack did so being aware, or at least foreseeing, that a knife might be used with intent to cause really serious harm. Whether those who having heard the shout attacked the deceased with shortened billiard cues as clubs themselves committed the offence of inflicting grievous bodily harm with intent or not, they would be guilty of murder as secondary parties.

The judge’s direction clearly left it to the jury to say whether one of the accused had gone beyond the common purpose of the concerted attack and he told them that if one of the defendants had done an act which went beyond the agreed plan and they were not sure that the act was one which another defendant knew was a real possibility, the necessary common intention would not have been established. It was suggested that the jury may from this direction have concluded that if a particular defendant had an intention to do really serious harm the existence of that intention was sufficient to make that defendant guilty of murder even though the action of the party who had caused the death went outside the common purpose of the attack. We do not think that the judge’s direction was susceptible of this interpretation but we do think that since the case of Reg. v English (supra) it is necessary for the jury to have their attention directed particularly to the nature of a weapon used in a concerted or combined attack and to knowledge or foresight of the use of such a weapon. In the course of his speech in English Lord Hutton at page 978E said:

“In Reg. v Hyde [1991] 1 QB 134, as already set out, Lord Lane CJ stated, at page 139:

“If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture.”

However in Hyde the attack on the victim took place without weapons and the Crown case was that the fatal blow to the victim’s head was a heavy kick. The problem raised by the second certified question is that ,if a jury is directed in the terms stated in Hyde, without any qualification (as was the jury in English), there will be liability for murder on the part of the secondary party if he foresees the possibility that the other party in the criminal venture will cause really serious harm by kicking or striking a blow with a wooden post, but the other party suddenly produces a knife or a gun, which the secondary party did not know he was carrying, and kills the victim with it.”

At page 980F he said:

“Accordingly, in the appeal of English, I consider that the direction of the trial judge was defective (although this does not constitute a criticism of the judge, who charged the jury in conformity with the principle stated with Hyde) because in accordance with the principle stated by Lord Parker CJ in Reg. v Anderson at page 120B, he did not qualify his direction on foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle’s part which English did not foresee as a possibility, then English should not be convicted of murder. As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Criminal Appeal held in Reg. v Anderson, that English should not be found guilty of manslaughter.

On the evidence the jury could have found that English did not know that Weddle had a knife. Therefore the judge’s direction made the conviction of English unsafe and in my opinion his appeal should be allowed and the conviction for murder quashed.” [Emphasis added].

Whilst the jury were, as we have said, carefully directed to consider whether the actions of any of the accused went so outside the common purpose that they were not foreseen by the others, the jury’s attention was not specifically focused on the use of the knife by Abdul Tahid and whether on the evidence they were sure that the others were aware that he might use it. As we have said, there was evidence from which the jury could conclude that those of the accused who took part after the shout of “Stab him” must have been aware that one of them had a knife and might use it with intent to do serious harm. Lord Hutton stressed the lethal nature of a knife as a weapon; it was for the jury to say whether its use in this attack was so different from the concerted actions of hitting the deceased with clubs and kicking him with the shod foot that Tahid’s actions went beyond the common purpose.

It was also for the jury to say in each case whether those taking part were aware, whether from the shout or otherwise, that one of their number might use a knife.

We are further troubled by the distinction apparently drawn by the jury between the parts played by the three accused convicted of manslaughter and the part played by the appellant. If the actions of Tahid did in fact go outside the common purpose of the attack then those who took part aware that a knife might be used were guilty of murder as secondary parties; if they were not aware that a knife might be used they were entitled to be acquitted. (See the observations of Lord Hutton in English). If, however, the use of the knife did not go outside the common purpose of the attack which from the actions of those taking part was plainly to cause Sharp really serious harm, it is difficult to discern the basis for the verdict of manslaughter or the basis on which the participation of those accused was found by the jury to be different from the participation of the appellant. It is true that each of those accused convicted of manslaughter gave evidence that they did not know that any of their number had a knife and therefore that it might be used with intent to do serious harm but equally there was no evidence that before the attack began and the shout of “Stab him”, the appellant knew that Tahid had a knife. In the circumstances of this case we think that it would be unsafe to allow the conviction of the appellant for murder to stand. We think, however, that as there was evidence from which the jury directed in accordance with Reg. v English could have concluded that the appellant was guilty of murder that there should be a retrial. Equally however, as Tahid had used a lethal weapon, the jury could have concluded that his actions were so outside the common purpose of the attack in which the others joined that they could only be liable for murder if they were aware that Tahid was carrying a knife or could foresee his actions in using a knife in the course of the concerted attack. Accordingly it could be argued that the defendants Abdul Shahid, Jomir Miah and Forid Miah may have been deprived of the chance of acquittal and we direct that this judgment should be drawn to the attention of Abdul Shahid and Jomir Miah and their solicitors for them to consider whether they wish to make a renewed application to the Court for leave to appeal. We direct that any such renewed application should be made within twenty-eight days of their receipt of the judgment.

On 3rd October 1997 the Full Court over which I presided dismissed a renewed application for leave to appeal by Forid Miah. The point we have now identified as a possible ground of appeal was not argued on that application and the only way in which we could now consider it in his case is if his conviction were to be referred back to the Court. This judgment should be drawn to his attention and the attention of his solicitors for him to consider whether he wishes to take steps for that to be done. In these circumstances we will consider any application which the Crown may make for an extension of time within which to prefer a fresh indictment.

To Counsel:

In the case of Forid Miah, his renewed application for leave was before the Court on 3rd October 1997 and was dismissed. The point which we have now identified as a possible ground of appeal in his case was not put forward and, therefore, the Court did not consider it, but it seems to the Court, subject to anything which may be said from the Bar, that the only way in which that matter could be referred back to the Court is through the avenue of the Secretary of State.

We therefore have directed that this judgment should be drawn to the attention of Forid Miah and his solicitors for them to consider whether they wish to take that course.

Obviously that means that if there is to be a retrial (subject to the decision of the Court in the case of the others, should they renew their applications or should the case of Forid Miah be referred back,) it will mean that the normal period of 28 days within which the Court directs a fresh indictment to be preferred would not be met, but there is power in the Court to extend that time.

As we have stated in the judgment, we would like to hear submissions on that point.

MR BOTARSKI: I represent the Crown today. Mr Pert was unable to attend the hearing before your Lordships today, but I did manage to speak to him yesterday. What he asked me to ask for from the Court today is an extra period of 14 days after the expiry of the 28 days so that the Crown can consider what the other potential appellants wish to do and prefer an indictment within that period of time.

LORD JUSTICE BELDAM: I wonder if it would be more sensible not to make a fixed period at this stage. We have given 28 days for the renewal of application for leave. It does not follow that their renewed applications will come before the Court within 28 days or indeed within 14 days thereafter. One would hope that it will, but it seems to me that perhaps the Court might, in the circumstances of this case - because we were told that the Crown would wish to prefer a fresh indictment - subject to anything which we may hear from the appellant, make an order for the fresh indictment, but give leave to the Crown to apply for an extension of time. We could put a period of, say, 56 days with leave to the Crown to apply for an extension if necessary.

MR BOTARSKI: Subject to anything that is said, that would be satisfactory to the Crown.

LORD JUSTICE BELDAM: Yes, Mr Amlot.

MR AMLOT: My Lords, I have no observations, thank you, to make upon what your Lordship is suggesting. My only concern is, as I read the judgment, your Lordships have ordered that there should be a retrial.

LORD JUSTICE BELDAM: Yes, we did hear submissions on that point, and we concluded that there ought to be a retrial but, for reasons which we have identified, the period during which that retrial would normally take place looks to me to be likely to be extended.

MR AMLOT: That leads to my real concern, which is the length of time which might elapse before the retrial takes place. In the circumstances I would want to make an application for bail on the appellant's behalf.

LORD JUSTICE BELDAM: Of course, I understand that. Was he on bail pending the trial?

MR AMLOT: He was not, no. He was in custody. He has now been in custody for a long time. The position is he is a young man, of course, and he would be able to go and stay with his parents. No parents are in Court today, but arrangements can be made through my instructing solicitor. He tells me today that he would be in a position to go and stay with them if he were granted bail.

I do not know whether your Lordship would like to deal with the question of bail at this stage or wait to see what happens with the other appellants or not. I am in your Lordship's hands.

LORD JUSTICE BELDAM: Is there any objection to bail?

MR BOTARSKI: My Lord, there is, given the nature of the offence and your Lordship's decision in relation to a retrial.

LORD JUSTICE BELDAM: On the face of it, the fact that the offence is serious is not of itself a ground for refusing bail, is it?

MR BOTARSKI: My Lord, it is not, but it leads to the risks of failure to attend or intimidation of witnesses or the other matters which the Court does have regard to in relation to this bail order.

I understand, though I was not involved in the trial, there were considerable frictions between the families and relatives of the victim. In those circumstances the Crown would be concerned if bail were to be granted.

LORD JUSTICE BELDAM: Yes, thank you.

Did you wish to add anything to that? Mr Amlot, you did say, in effect, that the Court might deal with this on the occasion when, if there are any renewed applications, the matter comes back to the Court.

MR AMLOT: I would prefer that because one could then assemble arguments more carefully and, if I may say so, that would give the Crown the same opportunity to be fully represented.

LORD JUSTICE BELDAM: I thought that is what you were submitting, but, of course, it is possible that the other four may not either renew or seek to have it referred, bearing in mind the risks involved, so that it may be that within 28 days the Court will be in a position to know whether he will stand his retrial alone or with others.

MR AMLOT: Yes.

LORD JUSTICE BELDAM: We shall stand over the question of bail until this matter returns to the Court within the 28 day period and we know whether, hopefully within that period, the applications will be renewed.

Thank you both very much.

(To the appellant ) Mr Uddin, the Court has allowed your appeal, but it has ordered that you should be retried on this charge. There has been an application made that you should be admitted to bail, but there is an objection to bail on behalf of the Crown and, within 28 days, we have directed that this matter should, if possible, come back to the Court. It may not come back to the same Court, but this Court, the Court of Appeal Criminal Division, will consider an application for bail made on your behalf if it is made. Do you understand that?

THE APPELLANT: Yes.

LORD JUSTICE BELDAM: Thank you very much, Mr Amlot.