England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ STEVENS QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 November 2003

Lord Justice Potter:

1. On 2 May 2001 in the Central Criminal Court, before His Honour Judge Stevens QC and a jury, the appellant Savva and the applicant Nugent were convicted of Murder (Count 1) and Wounding with Intent (Count 2). No verdict was taken on Count 3, a charge of violent disorder, which was an alternative count. Each was sentenced to custody for life on Count 1 and 6 years' detention in a Young Offenders' Institution on Count 2. Their co-defendant Sylvester Oti, similarly charged, was found not guilty. Savva now appeals against conviction by leave of the single judge and Nugent renews his application for leave to appeal against conviction following refusal by the single judge.
2. A brief summary of the facts is as follows. At about 8.15pm on 16 June 2000 Mr Grahame Thomas and Mr Richard Shillibeer had just left The Litten Tree public house in Holloway Road, London when they were set upon by a number of youths. Mr Thomas received extensive injuries from which he died. Mr Shillibeer ran off in the direction of Archway but was immediately pursued and set upon near to The Jailhouse public house. He received serious stab wounds. Witnesses to the attack saw the attackers run away across Holloway Road in the direction of a local branch of Safeways. Videotape from a CCTV at this Safeway store, covering a wide passageway passing through the store from Holloway Road to an open space at the back, was to feature in the evidence.
3. The evidence indicated an orchestrated and violent attack on Mr Thomas and Mr Shillibeer by several young men waiting for them outside The Litten Tree after they had been in the public house for some time, having been involved in arguments with Nugent and Oti. There was no doubt that the injuries Mr Thomas received had caused his death and no suggestion whatever that those injuries had been inflicted in self-defence. The principal issues before the jury were whether the individual defendants had been involved in the attacks on Mr Thomas and Mr Shillibeer in any way.
4. It was common ground that there had been an incident earlier that evening in The Litten Tree when Mr Thomas had taken objection to Nugent's larking about with a laser beam torch and shining it at Mr Thomas. Mr Thomas had gone over and remonstrated with him. After the initial disagreement, Mr Thomas had returned to Nugent and remonstrated with him further. Oti, who had been seated in close proximity to Nugent was drawn into the altercation. Although matters appeared to return to amicability afterwards and Thomas and Shillibeer played a game of pool with Nugent and a man called O'Keefe, it was the Crown's case that the altercation in The Litten Tree had provided the motive for the later attack by young men summoned to the premises by telephone calls from Nugent for that purpose. Although the identity of Nugent and Oti was unknown at the time to Mr Thomas and Mr Shillibeer, the latter identified them by description at trial and Nugent and Oti in any event accepted in their evidence that they were the men involved in the altercations.
5. The Crown's case was that it was Nugent who, following the incident in the Litten Tree, had organised the attacks outside on Mr Thomas and Mr Shillibeer, Savva being among those whom he summoned to assist. Thereafter, Nugent, who was readily identifiable as a young man with bright ginger hair wearing a rugby-type shirt with broad blue and white horizontal hoops or stripes, had himself taken part in the attack on Mr Thomas.
6. In respect of Savva, the case for the Crown was that he had involved himself in encouraging the attack on Mr Thomas and had actively taken part in the attack on Mr Shillibeer near to The Jailhouse public house. In order to establish the presence of Savva in the vicinity of The Jailhouse, the Crown in part relied on the evidence of Mr Harrow, a Forensic Imagery Analyst, who had analysed and compared video footage from the several CCTV cameras available. These stills were compared with stills from video footage from other cameras which it was accepted depicted Savva.
7. The case for the Crown against Oti was that he had been present in The Litten Tree and had participated, and indeed played a leading role, in the fatal attack on both Thomas and Shillibeer.
8. Savva did not give evidence to the jury. However his case was that he did not participate in the attacks and had not been in the vicinity of The Jailhouse public house. Counsel for Savva criticised the quality of the expert evidence given by Mr Harrow.
9. Nugent and Oti both gave evidence denying any involvement in the offences.
10. During the course of the police investigation it was found that approximately a minute and a quarter of the video tape from the CCTV camera at The Litten Tree, which would have shown the events as Mr Thomas and Mr Shillibeer left the public house and were attacked nearby, had been taped over. A recent trial of the publican at The Litten Tree for perverting the course of justice in that respect resulted in a conviction.
11. After the trial it came to the attention of those representing Savva that the quality of the evidence given by Mr Harrow in relation to 'facial mapping' in earlier and unrelated cases had been criticised in this court. That fact and that criticism form the first ground of appeal sought to be advanced on Savva's behalf. We have before us a transcript of the entirety of Mr Harrow's evidence and we have been taken carefully through the stills of the video footage upon which he based his observations. He examined the video footage from CCTV cameras which the defence accepted depicted Savva and video footage from a CCTV camera in the vicinity of The Jailhouse, referred to as 'The Jailhouse public house camera 3'. The potential significance of establishing the presence of the appellant Savva near to The Jailhouse (the scene of the attack on Mr Shillibeer) was that it would contradict his assertion at interview that he had not been near The Jailhouse at the relevant time. The substance of Mr Harrow's evidence did not involve facial mapping. It was simply that, having compared the clothing worn by the appellant Savva on 16 June and uncontested video stills of Savva with the clothing worn by a person depicted on the stills taken from The Jailhouse camera 3, he found that there were a number of similarities and no significant differences in such clothing.
12. In more detail, a summary of the evidence at trial is as follows.
13. Mr Shillibeer, the victim and survivor of the second attack, said he had been drinking in The Litten Tree with Mr Thomas and a Mr Burdis. He described the incident with Nugent (to whom he referred as a large ginger-haired young man) who had been shining a laser torch over Mr Thomas and Mr Burdis. He said he and Mr Thomas had gone over and remonstrated with the ginger-haired man who had replied: "Don't worry, it will not harm you fucking arseholes". A couple of hours later Mr Thomas had again become annoyed because he said that the ginger-haired young man and his companions were staring at him. Mr Thomas again went over and remonstrated with Nugent. At that time, a black male, later established to be Oti, was sitting nearby.
14. At the end of the evening Mr Shillibeer and Mr Thomas left The Litten Tree together. They were immediately confronted by a group of at least six youths who formed a straight line in front of them, cutting off their departure. Mr Shillibeer turned and saw others, including Nugent and Oti, standing on the pavement blocking the route back towards the public house. Mr Shillibeer described how he ran through the line of youths and shouted to Mr Thomas to run with him. However, Mr Thomas was unable to get through. Mr Shillibeer saw Mr Thomas fall over surrounded by youths who were kicking at him. Mr Shillibeer ran off but was chased by Oti and others who caught up with him and attacked him. In an effort to escape, Mr Shillibeer ran into The Jailhouse public house. He later found that he had three stab wounds.
15. Videotape evidence from the CCTV cameras in the main room and a corridor within The Litten Tree showed Nugent at various stages of the evening using mobile telephones. The videotape also showed Nugent with Savva, at one stage meeting and having words together in the corridor. A Mr Stevens also gave evidence that Savva was in The Litten Tree during the evening in question.
16. A number of witnesses described both the group attack on Mr Thomas as involving a number of people with weapons. Others described the attack on Mr Shillibeer. After the attack on Mr Thomas, some of the attackers had returned the few yards to The Litten Tree and gone back inside, whilst others had run in the direction of The Jailhouse where Shillibeer was attacked. The persons who attacked Shillibeer had then crossed over the road and disappeared in the direction of a shopping centre which included a Safeways store.
17. Mr Burdis, who was Mr Thomas' and Mr Shillibeer's drinking companion, left The Litten Tree before they did. However, he described the earlier encounters between them and Nugent and Oti. He quoted Oti as saying "You don't know who I am" and Nugent then saying "Yeah, you better fuck off. You don't know who you are messing with".
18. Mr Jason O'Keefe gave evidence that he had gone into The Litten Tree where he saw Oti, who was known to him. Oti was in the company of a large ginger-haired young man. O'Keefe was aware of tension in the pub with "looks being exchanged" and talked to the ginger-haired man who said with reference to Mr Thomas and his companions: "Them geezers are going to get it". Shortly before their departure, the ginger-haired man said "They're shitting it now". When Mr Thomas and Mr Shillibeer left the public house, Mr O'Keefe went out as well out of curiosity. He saw Oti strike Mr Thomas with a bat. He was among a group of youths around Mr Thomas. He then saw Oti running away in the direction of Archway i.e. the same direction as that followed by Mr Shillibeer. Later that evening, he had met Oti and said to him "I think you are bang in trouble because I think you killed the geezer".
19. Under cross-examination, O'Keefe said that he could not say whether Nugent had come out of The Litten Tree or done anything in the attack. Counsel for Oti attacked Mr O'Keefe's credibility, contending that he was prejudiced against him because of an earlier incident when Oti had given information to the police regarding an assault committed by Mr O'Keefe, and another incident when Oti had informed a person who wished to collect a debt from Mr O'Keefe where he could be found.
20. Mr Booth, a passing witness to the group attack on Mr Thomas, saw about six men around him as he was on the ground. He recalled one man using an instrument which could have been a short bat and described the group as a whole as kicking Mr Thomas on the ground. He clearly remembered one man in the group who wore a distinctive blue and white hooped shirt with horizontal stripes. That was an accurate description of the shirt which Nugent was wearing. There was no evidence of anyone inside or outside The Litten Tree wearing such a shirt save Nugent. Mr Booth stated that after the attack he saw two men run from the group towards The Jailhouse, while others returned to The Litten Tree.
21. Gloria Campbell, a little way from the group, heard someone shout "Get the bastard" and heard the name "Ryan" (i.e. Nugent's first name) shouted out.
22. A Mr Graham had just left The Jailhouse when he heard a commotion. A man was calling for the police. He saw two other men, one black and one Turkish looking, then turning away. He got the impression they were trying to conceal something, possibly a small baseball bat and a knife handle. He saw the two men jump over a fence in the middle of Holloway Road and cross towards Safeways stores. He had a close and 'full-on' view of them. At an identification parade on 4 July he identified the appellant Savva as the Turkish-looking male. Under cross-examination for Savva, he said there was a "10-20% possibility of a mistaken identification".
23. Christine Hanna said in evidence that she saw three men chasing Mr Shillibeer after the attack on Mr Thomas. She described the three men as two black and one white Greek/Turkish-looking man. They surrounded and attacked Mr Shillibeer. All took part. They then ran diagonally away across the road and disappeared into the shopping centre adjoining Safeways.
24. Veronica Solomon said she had been in the company of Mr Graham on the evening of 16 June and had witnessed the attack on Mr Shillibeer by The Jailhouse. One of the attackers had been armed with what appeared to be a small baseball bat and another had a knife about 15 inches long. They then crossed the road in the direction of Safeways. She identified Oti at an identification parade as the man with the knife, but failed to identify Savva.
25. In a statement read at trial, Miss Veronica Raw, said that she had witnessed the attack on Mr Shillibeer. Although she was acquainted with Oti she did not recognise or identify him as one of the attackers.
26. So far as the arrest of Savva was concerned, it took place in this way. Somewhat later in the evening of 16 June, a member of the public saw and reported to the police two black youths, one of whom was carrying a machete-type kitchen knife about 12 inches long and the other carrying something in a bin liner. Having called the police, he saw the subsequent arrest of the two youths and others.
27. Police Constables Davidson and Farrell made the arrests. The two black youths arrested were Cumber and Burns. Savva and a Mr Karoglin, who were walking with them, were also arrested. At the time of his arrest Savva was wearing a grey tracksuit top, a blue baseball cap and white tracksuit bottoms. Burns also had a grey tracksuit top. At the time of the arrest none of them had weapons.
28. Interviewed by the police, Savva admitted that he had gone to The Litten Tree during the evening in question in company with Burns and Cumber. There had been an argument in the public house and he said he had decided to leave with his companions. He said he had witnessed the attack on Mr Thomas after his exit from the pub but he denied any participation in this attack or any encouragement of the attackers. He had then crossed the road with Burns and Cumber. Burns went off at that point and Savva and Cumber walked through the Safeways passageway. He firmly denied being near The Jailhouse or any involvement with the attack on Mr Shillibeer close to it before crossing the road. A short while later he and his companions were arrested together with Karoglin.
29. The evidence of Mr Harrow was as follows. He had been analysing photos and video pictures to seek information from them for about 10 years. He would optimise the pictures to get the best detail from them. He could video the film or clothing under different lights and magnify the pictures without destroying their appearance. He had received the relevant tapes, the stills taken from the video tapes and the clothing worn by Savva at the time of his arrest and made comparisons between the pictures acknowledged to be of Savva and those with disputed sightings from the CCTV outside The Jailhouse. He had collated a series of pictures, both contested and uncontested, which insofar as possible showed the subject from the same viewpoint. He had examined the clothing depicted in detail and, from his examination, he was of the opinion that there were no significant differences between the contested and the uncontested images and the clothing Savva was wearing.
30. The appellant Savva did not give evidence. The case advanced on his behalf was that he was not involved in the attacks on Mr Thomas and Mr Shillibeer and did nothing to encourage them. It was submitted that the identification by Mr Graham was unreliable, as was Mr Harrow's evidence.
31. Nugent gave evidence on his own behalf. He said that he knew the appellant Savva but just to say 'hello' to. He accepted that he (Nugent) had been the person with the laser beam torch in The Litten Tree. He admitted he was the person depicted on the CCTV cameras in the distinctive blue and white shirt and did not dispute the images of him which appeared on the CCTV cameras within The Litten Tree. He said there had been some disagreement about his use of the laser torch but nothing serious. He also said he had a 'pay as you go' mobile phone but at the time he could only receive in-coming calls as he had no credit on that phone. He denied making remarks attributed to him by Mr O'Keefe to the effect that the victims were going to get it. He said he had been talking to various people in The Litten Tree. He explained the frequent use of his mobile phone during the evening depicted on the CCTV images as being to receive calls or to retrieve his voicemail. He said that when he left The Litten Tree, he saw a man on the ground with other men running away. He saw who it was on the ground but did not think it was anything to do with what had happened earlier in the public house, to which he returned. He accepted that videotape from The Litten Tree camera showed him earlier in the evening with Savva.
32. When cross-examined for the Crown, additional footage of videotape was shown to him which showed Savva arriving at The Litten Tree with Burns and Cumber. It also showed Nugent speaking to Savva. The videotape also showed Nugent (as he was obliged to accept) in the lobby of The Litten Tree with not one but two mobile phones. He then said he could not remember who owned the other mobile phone and he could not remember who he had telephoned from The Litten Tree.
33. Evidence was also called for the defence of Nugent's good character and to support his account of events in The Litten Tree, but not outside.
34. The co-defendant Oti gave evidence. He said he had gone to The Litten Tree and, whilst he was there, Nugent had come over and sat near him. Mr Shillibeer had come over and spoken to Nugent. Oti had asked Nugent what it had all been about and had been told of the incident with the laser torch. Later there was an incident when Mr Thomas had come over and accused Oti of staring at him. There had been a minor disagreement and Mr Shillibeer had taken Mr Thomas back to his table.
35. So far as the timing of Oti's departure from The Litten Tree was concerned, he said he had decided to go home and change his clothing for a night out. As he was leaving The Litten Tree he saw a crowd outside kicking someone. A shopkeeper came out and shouted at the group which split up and ran off. He said he crossed the road and went home. He denied any participation in the attacks on Mr Thomas and Mr Shillibeer. He described incidents between himself and the witness O'Keefe which he said might have led to hostility on O'Keefe's part, causing him falsely to involve Oti in what had occurred.

The appeal of Savva

36. There are three grounds set out in Savva's notice of appeal. They state that

"1. Since the trial, Mr Harrow ("a vital prosecution expert witness") has been discredited and his expertise on the subject of image analysis has been brought into question.

2. The judge was wrong in not allowing the defence submission of no case to answer at the end of the prosecution case.

3. The judge was wrong in not allowing the jury to view the clothing seized by the police from Dean Burns within minutes of the attack on the victims following remarks by counsel for Oti."

Ground 2 has not been pursued before us.

37. Before turning to consider ground 1 which is the principal ground in this appeal, we propose shortly to deal with ground 3.
38. In our view, ground 3 is entirely without substance. It arises out of a point devoid of realism or merit raised by counsel for Oti in his final speech.
39. The involvement of Burns was as follows. The CCTV film at the Safeways centre showed two figures who by reason of their dress, the timing of their appearance, and evidence from elsewhere, the Crown asserted were Savva and Cumber. Savva accepted he had first gone to The Litten Tree with Cumber and Burns, leaving with them to witness the violence which occurred to Mr Thomas outside. After the stabbing of Mr Shillibeer near The Jailhouse they had crossed the road over to Safeways where, on the Crown case and as depicted on the video, Savva walked through the centre passageway of the shopping mall with Cumber, having come from the direction of The Jailhouse, being overtaken by a running figure in a red top said by the Crown to be Oti. Having gone through the passageway, Savva went off to another address while Burns and Cumber continued on their way. On the Crown case, that was the point at which Mr Reed saw them carrying a club and a machete wrapped in a bin liner, upon which Mr Reed called the police who came almost at once. They found and arrested Burns and Cumber who were by that time together again with Savva but with the weapons gone. The various CCTV recordings throughout the evening showed that Savva was wearing a grey tracksuit top, as indeed he was when arrested by the police who took possession of his clothes. Burns was on his arrest also wearing a grey (but hooded) Nike tracksuit top as he had been earlier in the evening. The third male visible in the Safeways passageway (on the Crown case Oti) who ran past the two figures, who (again on the Crown case) were Savva and Cumber, was wearing wholly different clothing which no-one suggested was similar to that worn by Burns. Further, in evidence, Oti confirmed that it was clear that the running male (who he said was not him) was not wearing a grey hooded top and stated that he knew and would have recognised Burns on the video if he had been that third male.
40. For some (unclear) reason defence counsel for Oti floated in his final speech the suggestion that Burns might have been that third male and might have changed his clothing in the short period between his exiting the shopping centre and the time of his arrest. This of course was contrary to Oti's evidence that it was not Burns. However, Oti had gone on to say that one of the two walking men was plainly Savva.
41. In the absence of the jury, Mr Boulter, junior counsel for Savva, expressed concern that counsel for Oti could have made a suggestion in his final speech which was essentially inconsistent with the evidence of his own client. Mr Boulter suggested that, to avoid any ambiguity, the clothing worn by Burns on his arrest should, even at that late stage, be introduced in evidence before the jury so that they would be able to see that it was nothing like the clothes worn by the third running man in the video. The judge expressed concern about introducing evidence halfway through the speeches, although being reassured by counsel for the prosecution that it could readily be done and he would not object. However, at that point, counsel for Oti confirmed that he had not suggested and was not suggesting that the third (running) man was wearing a grey hooded top. What he had suggested was that the third man could only be Burns if he had effected a rapid change of clothing before his arrest some 15 minutes later.
42. In those circumstances the judge considered that it was unnecessary to introduce the evidence. In our view he was right. At that stage it would not have added anything to the position as it stood on the evidence given to the jury, which in due course the judge made perfectly clear in the course of his summing-up.
43. So far as ground 3 is concerned, the appellant relies upon the content of two judgments of this court, R v Marlon Stubbs and R v Paul Gray, dated 3 October 2002 and 27 March 2003 respectively, from which it is apparent that the qualities of Mr Harrow as an expert witness in other cases had been criticised. In Marlon Stubbs, Mr Harrow had given evidence for the prosecution as a facial mapping expert, comparing the facial appearance of a robber said to be the defendant in CCTV photographs of the scene with a photograph of the appellant taken on arrest. He had found a considerable number of similarities with no significant differences and stated his conclusion that the imaging evidence provided "very strong support" for the contention that the appellant was the robber. Following the trial, material had come to light, which had not been available to the defence at trial for the purpose of cross-examining the defendant, which related to another case in which a man called Baker had been similarly identified by Mr Harrow, by comparison of CCTV footage taken at the scene of the crime with a photograph taken of Baker on another occasion. Having concluded that Baker and the perpetrator of the offence were the same person, such identification turned out to be incorrect when another man admitted the relevant offence.
44. It had also come to light that in another case a man called Brade had, by facial mapping comparisons carried out by Mr Harrow, been identified as a man present at a petrol station shortly after a murder had been carried out. Subsequently it turned out that a man called Mowatt arrested for the murder (and not Mr Brade) was the man who on his own admission was depicted in the relevant photographs examined by Mr Harrow. On 2 July 2001 the CPS Policy Directorate issued a memorandum noting that Mr Harrow had given unreliable evidence in the Baker case, was generally a poor witness who tended to lose his temper in the witness box, and should no longer be instructed as an expert witness for the Crown.
45. In Stubbs it was acknowledged that, had the prosecution been aware of the earlier matters, they would not have sought to rely on Mr Harrow's evidence. In the event, however, the conviction was upheld on the basis of the other evidence available, the nature of the summing-up and the fact that

" … bearing in mind that the jury themselves were in a position to compare the appearance of the appellant to the photographs emanating from the scenes of the robbery, it seems highly unlikely that the evidence of Mr Harrow could or would have made much, if any, effect upon the deliberations of the jury." (para 34)

46. In the case of Gray, Mr Harrow had made a detailed comparison of distinctive facial characteristics visible in the robber from the CCTV footage with photographs of the appellant. He identified a number of characteristics which were shared by many of the general population, adding six which he said were "the more unusual and thus individual". He concluded that the CCTV footage provided "strong support for the Crown's case that the robber and appellant were one and the same person". That evidence was disputed in detail by Dr Linney, a medical physicist who had advised or given evidence on facial imaging topics in a number of cases. The court held that, since the evidence of Mr Harrow was a main plank of the prosecution case, and since it was impossible to say what weight the jury had placed on Mr Harrow's evidence, it was impossible to say that the jury would have convicted if they had not heard that evidence and the appeal was successful.
47. In Gray the court took the opportunity to make general observations about the use of facial imaging and mapping expert evidence of a reliable kind and, in particular, use of opinion evidence like that which had been given by Mr Harrow in Gray to the effect that comparison of particular facial characteristics in a given case provided "strong support for the identification of the robber as the appellant". The court observed that in the absence of any national database of facial characteristics or any accepted mathematical formula as in the case of fingerprint comparison, any estimate of probabilities and expression of the degree of support provided by particular facial characteristics or combinations of such characteristics could only be the subjective opinion of the facial imaging or mapping witness. At para 16 of the judgment in Gray, the court observed:

"There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, of particular characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion – see Attorney General's Reference No.2 of 2002 [2002] EWCA Crim 2373; but on the state of the evidence in this case, and if this court's understanding of the current position is correct in other cases too, such evidence should stop there."

48. In this case Mr Holt for Savva acknowledges that the main plank of the Crown case linking Savva to the attacks was the identification of Savva by Mr Graham as the Turkish-looking man whom he saw with another departing the scene near The Jailhouse and trying to conceal what looked like a small baseball bat and a knife handle. That evidence also derived some support from Ms Solomon who had identified Oti as the man with the knife, though she could not identify the man with him. Nonetheless, Mr Holt submits, correctly, that the Crown relied, as a further plank in its case against Savva, upon the evidence of Mr Harrow as to the similarities between the clothing observed in the CCTV camera stills and the clothing of Savva. Thus, he submits, had the jury been aware of the unreliability of Mr Harrow, as revealed by his earlier experiences as an expert witness, that part of the Crown's case would have been undermined and Savva might have been acquitted.
49. While at first sight that submission may appear to have considerable weight, we reject it in the particular circumstances of this case. We say that for the following reasons.
50. First, having been taken at length through the relevant photographs and evidence concerned, we consider that the similarities and absence of distinguishing features in the clothing referred to were obvious to the lay eye and scarcely required to be attested by expert evidence; though no doubt having the points made through evidence in chief from the mouth of an expert witness was a useful and time-saving exercise by way of presentation. This was not a facial mapping exercise of the kind with which the cases to which we have been referred were principally concerned. It was essentially a matter of ordinary observation.
51. Second, evidence of the exercise of photographic enhancement which Mr Harrow had been asked to perform by the prosecution was well within the ambit of what was said by this court in Gray to be legitimate. It was evidence, including opinion evidence, recognised to be "admissible and frequently of value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, particular characteristics so as to permit the jury to reach its own conclusion". Furthermore, Mr Harrow was not asked to give, nor did he state, his opinion on the strength of support which such evidence afforded for the identification of Savva. That was left entirely as a matter for the jury.
52. Third, the defence themselves had, present and available at trial, the support and assistance of an acknowledged rival expert in the techniques employed by Mr Harrow. Yet no challenge was presented to Mr Harrow's statement that the characteristics which he addressed were indeed similarities and that no significant differences were observable. No doubt, if the defence considered that Mr Harrow had mis-stated the position or that there was anything significant to add to his testimony, their own expert would have been called to say so. In the final speech for the defence, we are told that there was no positive assertion of error on the part of Mr Harrow, nor any suggestion that he had misapplied the techniques in which he professed to be expert. (Indeed no such evidence or submission has been placed before this court.) Defence counsel (who was not, we add, Mr Holt) simply submitted to the jury that the images which were placed before them were too poor to allow any conclusion to be formed on the basis of the apparent similarity and/or lack of differences apparent from them.
53. The judge gave full and proper directions to the jury in summing up as to the correct approach to the expert evidence. They were told that the evidence of an expert such as Mr Harrow represented opinion which they were free to accept or reject depending on their own view of the images under consideration. They were told that they were free to make their own collective judgment as to whether Savva was the person recorded on The Jailhouse CCTV, based on their own examination of all the relevant CCTV images, the appellant's exhibited clothing and the evidence with regard to Savva's presence with Nugent at The Litten Tree.
54. We would add, for completeness, that the jury were not left in ignorance that, in the case of Baker to which we have referred, Mr Harrow had expressed an opinion to the effect that he could find no significant differences between the photographic images concerned in that case, but that it had subsequently emerged that Baker was not the man concerned. No doubt a stronger attack upon the reliability of Mr Harrow would have been mounted had the fuller facts now available been known to the defence at that time. In this respect, we bear in mind the observations of the House of Lords in R v Pendleton [2002] 1 WLR 72 which indicate that, in a case where fresh evidence or new material is available to this court, it will usually be appropriate for the court to test its provisional view as to the safety of a conviction by asking whether the evidence if given, or the material if available, might reasonably have affected the jury's decision to convict. In the light of the nature of the evidence given and the absence of any evidential challenge to it by the expert available in court at the time, we do not consider that the information now available renders the conviction unsafe; nor, applying the working test set out in Pendleton, do we think that if the jury had been aware of the flawed history of Mr Harrow as an expert, it would reasonably have affected the jury's decision to convict given the evidence available and the direction to them to apply their own collective judgment to the questions of similarity/absence of observable differences spoken to by Mr Harrow. Nor do we think, that there is any lurking doubt as to the safety of Savva's conviction.
55. Accordingly we dismiss Savva's appeal.

The application of Nugent

56. There are three grounds of appeal sought to be advanced in the case of Nugent, for whom Mr Grunwald QC has appeared on this application. First, it is said that the judge should have withdrawn the case from the jury at the close of the case for the Crown, the defence having applied to this end on the ground that there was no evidence upon which a reasonable jury properly directed could have concluded that Nugent was guilty of actually participating in the murder of Mr Thomas or the assault on Mr Shillibeer either as a principal party to the assault or as a secondary party on the basis of planning and encouragement. So far as participation as a principal was concerned, it is submitted that the evidence was weak, if not non-existent. So far as liability as a secondary party was concerned it is submitted that the evidence, taken at its highest, was that of Mr Shillibeer, Mr O'Keefe and the video evidence of telephone calls, which went no further than showing that, at some stage earlier in the evening, Nugent was uttering threats and speaking on the telephone. It is submitted that, without some evidence from which the jury could properly be invited to infer knowledge as to (a) the scope of what was intended, (b) the seriousness of the injuries to be inflicted and (c) the weapons to be used, the question of planning and/or participation could not safely be left to the jury to consider. In particular, the point is made that there was no evidence of telephone contact with those participating in the attack and the Crown was unable to prove that the limited telephone use seen on the video amounted to an alleged summoning of troops for the purpose of the attack. There was therefore no evidence of planning or encouragement.
57. The second ground is that the directions of law given in the summing-up, while correct if considered in vacuo, were insufficiently connected to the facts so as to make them clear and fair so far as the applicant was concerned, for the purpose of applying the law on participation as set out in Uddin [1999] 1 Cr App R 319, Greatrex [1999] 1 Cr App R 126, R v Powell and Daniels (H.L.) [1998] 1 Cr App R 261. It is complained that when, well into their deliberations, the jury sought directions upon the law in writing, the judge did not give them a sheet of paper setting out the various verdicts open to them or the matters they would have to find proved in order to convict each defendant, but simply put his directions in law in written form unaddressed to the detail of the facts.
58. Third, it is submitted that the verdicts of the jury as between Nugent and Oti were not logically consistent, the verdicts in respect of Nugent being unsafe as a result. Reliance is place on the fact that Mr Shillibeer and Mr O'Keefe gave direct evidence of Oti being one of the attackers as well as being key witnesses against Nugent. It is submitted that Nugent's convictions cannot stand without that evidence and yet the jury must have rejected such evidence in order for Oti to have been acquitted. In the alternative it is submitted that the explanation for the inconsistency may be that the jury were confused or adopted the wrong approach to the evidence and directions of law.
59. In refusing leave to appeal against conviction, the single judge observed

"A. There was evidence that justified the Judge's decision that there was a case to answer. This included: the applicant's involvement in the incident which, the jury were entitled to conclude, led to the attack; what he said to others in the public house; his actions and movements within the public house; the time at which and the circumstances in which he left the premises. [summing-up transcript p.53, 63-65, 72, 81-83.]

B. Neither the directions of law given orally to the jury nor the written directions provided at the jury's request were arguably wrong or defective; nor could they be described as inadequate to meet the particular facts of the case.

C. The basis of the case against this applicant and Oti were different. Whilst the acquittal of Oti might have come as a surprise, and whilst more than one witness gave evidence relevant to both their cases, the verdicts cannot be reasonably regarded as inconsistent."

60. Because this case involves a conviction for murder and in the light of the lengthy and careful submissions contained in the advice on appeal, as further developed before us by Mr Grunwald, we consider it appropriate to grant to Nugent leave to appeal in this case. However, having done so and, having heard the arguments developed before us by Mr Grunwald, we are in agreement with the observations of the single judge.
61. As to A, there was undoubtedly a case to answer. The evidence revealed that there had been an orchestrated attack on Mr Thomas and Mr Shillibeer by a substantial number of youths who had brought to the scene a variety of weapons. Mr Thomas and Mr Shillibeer were ambushed as they left The Litten Tree public house in an attack which was immediate and without any verbal altercation out in the street. It was thus open to the jury to infer that it was as a result of the earlier altercation within The Litten Tree. Neither Mr Thomas nor Mr Shillibeer were regulars at the public house and both had visited it on the spur of the moment having finished work early. The attack was, it could be inferred, plainly pre-arranged in order to punish them for some perceived slight or grudge and the only incident involving them was that which had occurred prior to the attack in the altercation with Nugent. Although not all the participants in the attack had been identified or charged, it was plainly open to the jury to take the view that Nugent was the central figure in the whole incident. In opening the case the prosecution had alleged that Nugent, Savva and Oti had each "played a part in this deliberate attack upon Mr Thomas and Mr Shillibeer, either by encouraging the attack or actually participating in the use or threat of violence".
62. The evidence which supported the prosecution case, as it existed at the close of the prosecution evidence, demonstrated that Nugent had a motive to encourage or organise and participate in the assaults following the earlier aggressive and abusive exchange with Mr Thomas and Mr Shillibeer. The CCTV cameras which had been running all evening in The Litten Tree did not demonstrate that anyone else had such a motive save for Oti. When challenged by Mr Thomas for shining a laser torch at him, Nugent's response on being asked to stop was abusive and he continued to display a provocative and confrontational mood after Oti arrived. At one point both Nugent and Mr Thomas were standing up and shouting at each other. At one point Nugent looked across at the Thomas group and said "We are not looking at you, fuck off". The exchange between Mr Thomas and Oti and Nugent, when Mr Thomas was told to fuck off by Oti and Nugent told Mr Thomas that he did not know who Oti was or who he was messing with, was plainly highly threatening. If accepted, O'Keefe's evidence that Nugent had pointed out Mr Thomas and Mr Shillibeer and said "Those geezers are going to get it" was an important expression of intent.
63. When Mr Thomas and Mr Shillibeer left the pub, the group attacked both men immediately without any verbal exchange using at least one weapon and wielding others. They had clearly been waiting for the victims to leave the public house and had then ambushed them. Prior thereto, Nugent had been recorded making repeated use of mobile telephones within The Litten Tree and, at 7.58 he was using a mobile telephone outside in the street. Both Mr Shillibeer and Mr Burdis had earlier observed a number of teenagers arriving at The Litten Tree and going up to Nugent where he was sitting in a small section of the public bar and then dispersing. Similarly, Savva had arrived there with Cumber and Burns at 6.40, being met and greeted by Nugent at the entrance lobby of the public house. Savva remained inside and was recorded by the camera as having a private conversation with Nugent in the corridor by the public lavatories at 7.36, approximately 39 minutes before the attack. Savva was later identified leaving the area of the attack by The Jailhouse with a weapon.
64. Nugent, who would have been unaware of and unable to see what was happening at the scene of the attack if he had remained in the public bar, followed Mr Thomas and Mr Shillibeer out of the public house just before the violence occurred. It was plainly open to the jury to infer that it was for the purpose of participating in the attack. Moments before it, Mr Shillibeer had turned and seen Nugent in the street, into which he had emerged with two other youths, and O'Keefe confirmed Nugent's presence as the violence occurred. Gloria Campbell had heard someone shout "Get the bastard" as the violence started and the name of "Ryan" being shouted. There was no innocent explanation for anyone to have been calling out Nugent's name at that stage. Mr Booth had seen a white youth wearing a shirt of the description of that worn by Nugent in the group attacking Mr Thomas. In those circumstances, we are of the opinion that the judge's decision to leave the case against Nugent to the jury cannot be criticised.
65. So far as B is concerned, the judge gave full and proper oral directions in relation to the necessary ingredients for a conviction of murder as an actual participant in the attack upon Mr Thomas. So far as guilt by reason of planning or encouragement was concerned he said this

"To establish participation by encouragement the prosecution must prove, firstly, that the particular defendant was on the scene or very close by. Secondly, that he did, in fact, encourage the attack on Mr Thomas and, thirdly, that he intended to encourage the attack on the deceased. It is no criminal offence to stand by, a mere passive spectator of crime, even of murder. Mere presence is not enough to prove participation. You have to be sure that he, in fact, encouraged and, in fact, he intended to encourage. If you are sure of those aspects then he will have taken part in the crime and be guilty.

Even if a person, let us call him A, is not very close by, if he organised it, or arranged or encouraged others to carry it out, and they do carry it out, with the necessary intention to kill or to cause serious bodily harm, then A is guilty so long as you are sure that what the others did was within the scope of what A organised or encouraged.

I will try to illustrate that, I will take the case of three people accused of murder, not these defendants. I will call them A, B and C and I will call the victim X. The allegation is that X was killed by a concerted attack of several people including A and B as physical attackers who were actually kicking or beating, and C who was allegedly actively encouraging and intending to encourage the others to use unlawful violence on X. Even if there was a plan to use violence on X, if what A and B did in using a weapon or kicks to the head went beyond anything that C had agreed or realised might be done, only the user of the weapon or the relevant kicker is responsible and is, therefore, guilty of murder. C would not be guilty. Because as I told you, what C organised or encouraged the others to do, what they did, must fall within the scope of what C organised or encouraged …"

No exception is taken as to the content of that passage by Mr Grunwald and we do not consider it is open to criticism.

66. Having continued correctly to direct the jury as to the effect of the sudden production of a weapon in the course of an attack, the judge went on to direct the jury as to the possibilities of an alternative count of manslaughter on Count 1. In the course of doing so he said:

"Manslaughter could arise in this case if you were not sure that A or B, the primary parties as I may call them, had the intention necessary for murder. If such a person deliberately caused the death of the victim unlawfully intending to cause some harm, albeit not serious, then he would be guilty of manslaughter. On the facts of this case, you may think that is unlikely bearing in mind what you have heard of the nature of the attack and the medical evidence, but it is a matter which I put before you for your consideration. If C, when he actively encouraged or organised A and B in what he did, contemplated that A or B might deliver a blow or blows of the nature delivered with the intention of causing X some harm, then C would be guilty of manslaughter. Of course, it follows that if A and B do not have the intention for murder then C could not be guilty of murder either."

67. The judge then moved immediately to summarise the way the prosecution was put against each of the three defendants. He said:

"Let me now briefly summarise the way the prosecution case is put and what the defence say in respect of each of the three defendants. Remember that you are looking at the case of each one separately. In the case of Nugent, the prosecution say that, following on incidents and recrimination inside the public house, he orchestrated, organised the attacks on the two men. If you are sure that he is the man described in the evidence of Mr Booth, he fully participated in the actual attack on Mr Thomas. But at the very least, say the Crown, he organised the attack on Mr Thomas and, they say, in the light of all the circumstances you can be sure that whoever it was that actually killed Mr Thomas, that person or persons intended to kill him or cause him really serious bodily harm and that Mr Nugent realised when he encouraged the attack that others might inflict such serious injury on the victim with that intention. The defence say: yes, there was a brief incident in the public house but it all ended up thoroughly amicably with Mr Nugent playing pool with the two men. "Yes", says the defendant "I did go outside when the crowd of other people did but I did not participate in any attack and I did nothing to organise it or encourage it." That is a very brief summary in a nutshell, at this stage, of the case relating to Mr Nugent."

Again that was a fair 'bare bones' summary of Nugent's case.

68. The judge then proceeded scrupulously to review the evidence against each defendant. Later, he recounted all the essentials of, and gave careful examination to, the cases advanced by each defendant. At the end of his review of the evidence of Nugent and the witnesses called on his behalf, the judge did not return specifically to relate the issues of law to the facts as advanced. He simply said:

"Well, members of the jury, those were Mr Nugent and his witnesses summarised. You know the issues in the case as far as he is concerned. I do not think I need to repeat them."

69. Soon afterwards, and shortly before the jury retired, the judge observed:

"You heard the evidence. You heard counsels' speeches and I hope you now know the legal basis upon which you should proceed."

They were sent out with a piece of paper prepared by the judge which demonstrated the various possible verdicts upon each count.

70. After almost two days of deliberation, the jury sent a note to the judge which indicated that they may have been expecting directions upon the law in writing to assist them in their deliberations. By now it was a Friday afternoon and the judge had the jury into court and gave them an oral direction as to the necessity to look at each count separately, indicating to them that they would receive written directions on Monday. The judge agreed with counsel that he would produce such directions which would be discussed with counsel on Monday before being given to the jury. This procedure was agreed and followed. The directions thereby produced were very full.
71. So far as Count 1 – the charge of murder - was concerned, the ingredients of the offence were set out and thereafter the relevant parts read as follows:

"2. Where several people are proved to have participated in an attack, they may all be guilty of murder, and not only the person or persons who struck the fatal blow or blows.

3. The prosecution's case is that the defendants committed this offence jointly with others. Where a criminal offence is committed by two or more persons, each of them plays a different part, but if they are in it together as part of a joint plan, or agreement to commit it, each one is guilty.

4. The words "plan" and "agreement" do not mean there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment or very shortly before its implementation. It is open to you to conclude that there was an agreement simply by looking at what the relevant persons did or did not do.

5. The essence of joint responsibility for this offence is that each defendant shared the intention to commit the offence i.e. to kill or to cause really serious bodily harm, and took some part in it so as to achieve that aim.

6. Your approach to the case should therefore be as follows: if, looking at the case of any defendant, you are sure that with the intention I have mentioned, he took some part in committing it with others, he is guilty.

7. Mere presence at the scene of a crime is not enough to prove guilt, but if you find that a particular defendant was on the scene and intended, and did by his presence alone, encourage others in the offence, he is guilty.

8. To establish participation by encouragement, the prosecution must prove that:

The particular defendant was on the scene or close by;

that he did, in fact, encourage the attack on the deceased; and

that he intended to encourage the attack on the deceased.

It is no criminal offence to stand by, a mere passive spectator of crime, even of murder. Mere presence at the scene is not enough to prove participation …

9. Even if the person is not close by the attack, if he organised it or encouraged others to carry it out, and they do carry it out with the necessary intent, then he is guilty so long as you are sure that what the others did was within the scope of what he organised or encouraged.

10. By way of example, consider a case where A, B and C are charged with the murder of X, the allegation being that X was killed by a concerted attack of several people including A and B as physical attackers who were kicking or beating and C who was actively encouraging and intending to encourage the others to use unlawful violence on X.

Even if there was a plan to use violence on X, if what A and B did, in using a weapon or kicks to the head, went beyond anything that C had agreed or realised might be done, only the user of the weapon or the relevant kicker is responsible, and is therefore guilty of murder. C would be not guilty.

11. ….

12. The prosecution do not have to prove who the actual perpetrator or perpetrators are. So long as they make you sure that the use of the weapon or kicking to the head with the necessary intent was foreseen by other participants in the attack, then each identified participant would be guilty of murder."

72. Direction 13 and 14 turned to the possible alternative verdict of manslaughter in the event of a conclusion by the jury that the level of violence intended or contemplated by the participants was to do some injury short of serious bodily harm. The part relevant to this appeal ran:

"14. ….

So manslaughter could arise in this case, if you were not sure that A or B, the primary parties, had the intention necessary for murder. If such a person deliberately caused the death of the victim unlawfully, intending to cause him some harm albeit not serious bodily harm, then he would be guilty of manslaughter. And if C, when he actively encouraged or organised A or B in what he did, contemplated that A or B might deliver a blow or blows of the nature delivered with the intention of causing X some harm but not really serious harm, then C would be guilty of manslaughter."

73. Directions then followed in relation to Count 2 on the basis that the prosecution case was "that these three defendants participated in the attack on Mr Shillibeer either as physical participants, or as organising or encouraging the attack". The possibility of verdicts of 'not guilty of wounding with intent, but guilty of unlawful wounding', was appropriately dealt with.
74. Mr Grunwald makes certain individual complaints in relation to the directions we have set out. First, he says that in direction 3 the judge failed to make clear of which offence each of the defendants referred to would be guilty, bearing in mind the alternative verdicts and bases of verdict left to the jury. We do not think that is a fair criticism. The directions as a whole proceeded in stages. It is quite clear that, in context, direction 3 was referring to the charge of murder in count 1, direction 2 having earlier referred to the fact that individual defendants proved to have participated in an attack may all be guilty of murder and not merely the person or persons who struck the fatal blow or blows. Equally, in relation to direction 6 the complaint is made that the judge failed to make clear which offence was being referred to. Again it is quite clear that, in context, it was the full offence of murder under Count 1.
75. It is also complained that, in relation to direction 14, the judge failed to make clear to the jury that they could have found Oti and Savva guilty of murder and Nugent guilty only of manslaughter. Without his having done so, the direction implied that verdicts of manslaughter would stand or fall together. It is also complained that, in the final sentence of direction 14, the judge should have used the words "if you are sure he actively encouraged or organised A or B" rather than the words "when he actively encouraged or organised A or B". By his use of the latter words, the jury may have been under the impression that they were being directed that such active encouragement had in fact taken place. We accept that direction 14 would have been better so phrased. However, taken as a whole, given the judge's clear oral directions to the jury as to the burden of proof, the necessity to consider the case against each defendant separately, and the repeated references to the burden of proof, in directions 1, 2, 6, 7, 8, and 12, we do not consider that the jury could have been in any doubt that the burden rested upon the prosecution in relation to each defendant on the charge of manslaughter as well as murder.
76. We reject the submission that the judge's directions on the law were insufficiently linked to the facts of the case. The summing-up as a whole was full, fair and clear as to the nature of the prosecution and the defence case in respect of each individual defendant, and the written directions were given in response to a request by the jury after retirement which was limited to the relevant law. There are no grounds on which to regard the verdict as unsafe by reason of any misdirection on the part of the judge.
77. In this connection, we should add that Mr Grunwald gave a careful analysis of the evidence of particular witnesses and the reason why in his submission such evidence was inconsistent with, weaker than, or to be preferred to, the evidence of other witnesses upon whom the prosecution relied. However, those were essentially jury questions. In particular the jury had the advantage of seeing and hearing Nugent in the witness box, not least in relation to his use of the telephones in the pub (about which he had plainly lied), when deciding, as they clearly did, that he was responsible for the orchestration of the later attacks. In those circumstances, this ground of appeal is in our view doomed to failure.
78. Finally, as to C, the question of inconsistent verdicts, Mr Grunwald was obliged to concede that the verdicts could not be regarded as logically inconsistent, given the different issues of identification involved as between Nugent and Oti and the differing nature of the prosecution case against each. Nonetheless he asserts that Nugent's conviction is unsafe. The case against Oti alleged that he had been identified as an active participant in the violence meted out to both Mr Thomas and Mr Shillibeer, whereas the principal case against Nugent was that he had encouraged and organised the attack upon the victims rather than being an active participant, albeit the evidence of Mr Booth was relied on to show active participation in the ambush. Apart from Mr Shillibeer, the principal witness against Oti was Mr O'Keefe, in relation to whom (unlike Nugent) it was suggested he had special reasons to implicate Oti. Furthermore, the jury heard evidence from two witnesses, John Carruthers and Rebecca Raw who purported to know Oti and to be well able to identify him if they saw him in the street. Both excluded him as one of the youths who had attacked Mr Shillibeer. Taken at face value, in the light of the weight of evidence against him, Oti may be thought fortunate indeed to have been acquitted. It is impossible to say what factors influenced the jury when reaching that verdict. However, if he was indeed fortunate in that respect, that is no reason to upset the verdict against Nugent in the absence of any cogent or credible reason for supposing error or misunderstanding on the part of the jury in his case.
79. The jury received a full, detailed and careful summing-up on both the law and the evidence. They had the benefit of full, detailed and careful closing speeches on behalf of each defendant and there is no reason to suppose that they were in any way confused or misled in their deliberations. The length of time taken by them to consider the case against each of the defendants and the differences in their verdicts do not suggest that they in any way misunderstood or misapplied the directions of law given by the judge.
80. In those circumstances we dismiss Nugent's appeal.