England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEICESTER CROWN COURT
His Honour Judge Hammond

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd April 2003

Lord Justice Rix :

1. These are the appeals of Nicholas Sherriff, Ezekiel Francis, Louis Richards and Leroy Williams against conviction, and of Bilal Mulji and Mark Neal against sentence. Francis and Richards also appeal against sentence. All were convicted of conspiracy to commit violent disorder (Sherriff, Richards and Williams by 11-1 and Francis by 10-2 majorities) in the Crown Court at Leicester on 27 March 2002 before HH Judge Hammond and a jury.
2. Richards and Francis were sentenced to three years detention in a youth offenders' institution, Sherriff, Williams and Mulji to three years imprisonment, and Neal to five years imprisonment.
3. The trial arose out of a violent disorder which took place at Redwood Walk in Leicester at just before 11 pm on the evening of 21 September 2000. Upwards of 30 or so young men congregated there. It ended in gunfire: two men, Francis and another co-accused, Richard Gerald, received gunshot wounds to their legs and attended hospital. Eighteen men were subsequently indicted: two were acquitted by the direction of the judge during trial, and ten were acquitted by the jury. The six convicted are concerned in the present appeals.
4. The Crown alleged that the violent disorder was a confrontation between two groups. One group lived in or near the Highfields area of Leicester, some of whom could be shown to be members or associates of a gang known as "DHC" (an abbreviation of "Darg Hart Crew" which the court was told was itself a corruption of "Dog Heart Crew"). The other group lived in or near the Narborough Road area of Leicester, about two to three miles distant from the Highfields area. The two injured men, Francis and Gerald, were members of the Highfields group: Gerald was acquitted, so that Francis was the only member of the Highfields group to be convicted. The other five convicted men were all residents of the Narborough Road area: it was however disputed whether there was anything as formal as a Narborough Road gang.
5. The defences of Francis and Gerald were that they were simply passers by who happened to be in the wrong place at the wrong time. The defences of the other defendants, and in particular of the other three appellants against conviction, Sherriff, Richards and Williams, were that they were not involved at all.
6. With the exception of Neal, who admitted involvement to his girlfriend's mother, and Mulji, who admitted involvement in interview with the police (they were the only defendants to be convicted by the unanimous verdict of the jury), the evidence against the other defendants was wholly or largely circumstantial. Even so, there was no CCTV evidence, no fingerprint evidence, no other forensic evidence, and no identification evidence (save as concerned Richards' car, a dark grey Rover registration number P951 CPB). There was, however, a wealth of evidence garnered from mobile telephone records of calls made to and from the defendants' phones. The records could show the timing and duration of such calls: but not, other than could be inferred from their duration, whether the calls involved more than text messages or were connected other than to voicemails. Nor did the records in themselves prove who was in possession of the mobile handsets at the relevant times. What the Crown suggested was compelling, however, was that the records showed a substantial increase in traffic in the immediate run-up to the violent disorder, both intra-gang (referred to at trial as "inter-gang") and cross-gang, with no such cross-gang calls occurring either prior to 8 pm that evening or after the shootings. The Crown prepared telephone charts for each defendant, which were agreed as far as they went.
7. Other aspects of the evidence involved lies at interview (however, that applied only to Francis and Richards: Sherriff and Williams did not give interviews) and disputed alibis; and associations between co-accused (as also confirmed in the telephone records). As concerned Francis, there was also evidence arising from his wounds and his visit to hospital.

The evidence relating to motive: the basis of the appeals of Sherriff and Francis

8. There was, however, one further significant aspect of the evidence, which has given rise to a substantial part of the submissions made on these appeals, and that concerned a series of incidents which had involved Sherriff (and other defendants) some months earlier, in May 2000. This evidence was adduced by the Crown in order to establish that Sherriff had a motive to be antagonistic towards Francis. It was put forward not for its truth, but as being relevant only to the state of Sherriff's mind. In particular it was not evidence against any defendant other than Sherriff.
9. This evidence, which was given by police officers and also took the form of interview notes and a witness statement signed by Sherriff, was to the following effect. On 13 May 2000 Sherriff went to a rave in London and there had a misunderstanding with another youth from Leicester known as "Zico" (or possibly "Zeko"), ie Francis. On 14 May, back in Leicester, Sherriff found his home burgled and trashed. On 15 May he went out with an axe down his trouser leg for his protection. In town he came across Francis and two others: Collis Pegg, whom he named, and another whom he knew only by sight. (Pegg became a co-accused in due course, but was among those acquitted by the jury.) The three surrounded him. One thing led to another and Francis slashed Sherriff's nose with a knife. Sherriff chased Francis down the street with his axe. Pegg and the third man were also frightened off with the axe. The nose wound subsequently needed twelve stitches. On 16 May PC Malam spoke to Sherriff and made a report of the incident. Among the matters stated in his report was that Sherriff was speaking with his family to discuss whether or not he wished to complain: he was concerned that there might be reprisals if he did, but that if he tried to sort the matter out himself, trouble would erupt between gangs. On 17 May while still in hospital Sherriff did complain: he was seen by two police officers, DC Stevenson and DC Dimmock. DC Stevenson made notes of Sherriff's account, which Sherriff signed. Then on 19 May Sherriff put his account in the form of a signed witness statement.
10. On 24 October 2000, after the violent disorder, Sherriff was seen by DC Cox in relation to the May slashing: he was told that an identification parade had been arranged for him to identify his assailant. He said he was not sure what he wanted to do, as he believed that Zico, ie Francis, had informed the police that he had been involved in the violent disorder. As a result he intended to wait and see if he was charged with any offence coming from the Redwood Walk incident before deciding whether to continue with his complaint.
11. On these occasions Sherriff was interviewed as a victim not as a potential accused. He was however subsequently charged not only in connection with the violent disorder of 21 September 2000 but also with affray in connection with the May 2000 incident. In the event, however, no indictment was ever signed in respect of the latter, and the charge was dropped. Francis was never even charged with wounding Sherriff.
12. The May 2000 material gave rise to a number of applications and rulings both pre-trial and at trial. On 27 and 28 November 2001 the judge heard applications to exclude all this material and in particular the two documents signed by Sherriff. The application was made on behalf of not only Sherriff but also Francis, Pegg and Tucker. The matter was fully investigated and a voire dire held into the evidence concerned. The judge rejected the application. The judge recorded the Crown's acceptance that the evidence was evidence only against Sherriff, not against the other defendants, and even against Sherriff evidence in respect of which "they cannot rely on the truth of the assertion" but only as being relevant to Sherriff's belief that there was a "vendetta". He then concluded as follows:

"To allow the Crown to adduce the evidence of Mr Sherriff's complaint, it must be admissible and relevant to an issue in the case, and the probative value must outweigh the prejudice, and I must ensure the defendants can have a fair trial. Is it relevant? It forms the background to the case, and, crucially, say the Crown, it provides the motive for the events…Motive is a key issue in the case; why was there a serious confrontation in Leicester that evening between two groups or gangs? It is clearly relevant. Is it admissible? When Mr Sherriff was interviewed by the police on 17^th May, 19^th May and 24^th October, was it as complainant in relation to the slashing or as a suspect? If he was a suspect, then he should have been cautioned and offered legal advice, but not if he was a complainant. It is quite plain that on those occasions he was being dealt with as a complainant, not as suspect. I reject the submission that there were breaches of the Codes of Practice in relation to Mr Sherriff…

"Can the defendant[s] have a fair trial? Provided that the matter is clearly put before the jury, the defendants, in my view, can have a fair trial. My ruling is, therefore, that I reject the defence submission and I rule that the Crown can adduce that evidence."

13. On 8 January 2002 there was a further application on the part of Francis, Pegg and Tucker, this time to sever their trials. This application was premised on the admission into evidence of the two documents signed by Sherriff. It was submitted on behalf of Francis in particular that such evidence would lead the jury to view him, a man of good character, as guilty of slashing Sherriff, trashing his flat and being a member of the DHC gang. However much the jury was warned that such evidence was evidence against Sherriff only, it would be impossible for the jury successfully to apply such a direction. The judge ruled against severance: he said a situation where a jury was told that evidence against one defendant was not evidence against another was a common occurrence in multi-handed trials, that there was nothing exceptional about the present case justifying severance, and that the cure for any prejudice was an appropriate direction.
14. On 11 and 12 February 2002, just as the first of the police officers dealing with the May incidents was about to enter the witness box, there was a further application on behalf of Sherriff, Francis, Williams, Pegg and Tucker to remove the two documents signed by Sherriff from the jury bundle. Despite the earlier rulings as to the admissibility of these materials, it was submitted that as out of court statements they were mere hearsay and should not be made exhibits: to do so would tend to highlight their significance undesirably. The Crown submitted that everyone had considered that the inclusion of these documents in the jury bundle had been inherent in the earlier rulings: as a result the documents were already before the jury and the Crown had opened its case by reference to them. The judge ruled that there had been a misunderstanding as he had not specifically decided any question as to the inclusion of the documents in the jury bundle, but he nevertheless agreed with the Crown that the exercise of his discretion was in effect inherent in his earlier rulings, that the point had not been raised by the defence before the trial started, and that it was now too late to undo what had been done.
15. On these appeals Sherriff has submitted that the judge was wrong as a matter of principle to make the first and third of these three rulings, and Francis has submitted that he was in addition wrong to refuse to sever his trial. In addition, Richards seeks to join himself to Sherriff's complaints, submitting that as a result of evidence at trial associating him with Sherriff he too was unfairly prejudiced by admission of evidence relating to the May incidents.

Richards' other grounds of appeal

16. The other two grounds upon which Richards has been given leave to appeal are more closely connected with material which relates specifically to him. The first of them arises out of evidence concerning the sighting of his car on the evening of 21 September. We have already mentioned that he owned a dark grey Rover, registration number P951 CPB. Davinda Khullar stated that three cars congregated outside his fish-bar at approximately 9.50 pm that evening. The cars appeared to be connected with each other. They parked up and drove away, then returned and parked up again. Their occupants passed unidentified objects between themselves, which Mr Khullar believed to be weapons. He was so scared he called the police. He wrote the number of two of the cars on a chip bag: one of them was P951 GPB, but he was not able to describe the car. That number was only one digit different from the number of Richards' car. A witness from the DVLA said that P951GPB had never been issued, but P951 CPB had been registered to Richards.
17. Another number written by Mr Khullar on the chip bag was N203 KHG, relating to a yellow BMW registered to Mulji's father. Mulji admitted driving the BMW that evening. In interview he said that he had driven Williams and "Nicky" (an apparent reference to Sherriff) and a third man to the scene, followed by a "green Rover" with four occupants. He parked outside the fish-bar. After the gunshots he returned with others to his car and drove off. Mulji did not give evidence at trial; the contents of his interview were not evidence against any other defendant.
18. In his interview Richards confirmed his ownership of the Rover: he said, however, that at about 8.45 pm that evening he had given three or four friends, whom he refused to name, a lift, dropping them off at their request outside the fish-bar. He then joined his girlfriend between 9 or 10 pm at the latest and stayed the night. So no one else had the use of his car that evening. At trial, however, he gave a different account. He said that he had been prevailed upon to lend his car to four people: he felt intimidated and would not reveal their names. They dropped his car off outside his girlfriend's home and he saw it there the next morning. He said that he had lied at his interview because he had been scared of the people. He did not know why he had mentioned the fish-bar as part of that story – he had simply agreed with the police.
19. In these circumstances Richards' first ground of appeal is that the reference in Mulji's interview to a green Rover should have been edited out. It was not evidence against him, but its prejudicial effect was considerable. An application to edit the interview was made to the judge on 25 February 2002, but he rejected it, saying that its probative value in relation to the Crown's case against Mulji outweighed its prejudicial effect in relation to Richards. The judge pointed out that this was a common occurrence in multi-handed trials and the usual direction relating to interviews of one defendant not being evidence against co-accused would deal with the point.
20. Richards' next ground of appeal relates to his telephone records. A mobile phone was recovered from Richards' car, its records were obtained, and a telephone chart detailing relevant calls was before the jury. At interview, prior to the recovery of the phone, Richards had denied having one: that was also a lie. Later in interview and at trial, however, he said that he had not been in possession of his phone on the evening of 21 September: he had misplaced it but did not realise he had done so until the next morning. In the morning he searched his car for it but could not find it. Later that day, 22 September, after his return home from his girlfriend and before he left home for college (at another time he had said after his return home from college), he found that someone had posted it back through the letter-box of his house. His assumption therefore was that the people who had borrowed his car had used his phone that evening: they did not know where he lived, but might have been able to obtain his address from documents in the car or from other people. The judge summarised his evidence in this way:

"What he was saying is that he did not have his phone from 6.00pm on the 21^st to 9.00am on 22^nd September during which time he did not make or receive any calls on the charts. So he was denying any calls with Tucker, Francis, Pegg, and he said the calls must have been by people who borrowed his car."

21. His account at trial that he had not been in possession of his phone that night did not emerge until his fifth interview with the police.
22. Richards' telephone chart, which as such was agreed, showed calls logged from Richards' phone to Tucker (at 20.06, 20.51 and 21.02), to and from Francis (at 20.52, 20.53 and 20.57) to Jonathan James, another co-accused (at 21.02), and from Pegg (at 21.45, 22.10, 22.11 and 22.14) and nothing after the time of the shooting at 22.55/56.
23. In connection with this "telephone alibi", Richards wished to adduce evidence from the Crown's witnesses relating to a police interview with a man called Ibrahim Kasuji. He had been the recipient of two further calls logged to Richards' mobile: one made at 19.58 (for 2 mins 40 secs) and the other at 20.04 (for 20 secs). He provided the police with the names of people from whom he had received telephone calls, but Richards' name was not among them. Richards submitted that this was support for his case that he had not been in possession of his phone at that time. Richards therefore applied to the judge on 22 February 2002 to elicit that Mr Kasuji had provided the names of people from whom he had received calls that evening and that Richards' name was not mentioned. The judge refused the application, on the ground that the answer to such questions would be hearsay: the defence could, however, always call Mr Kasuji to give such evidence – the police had made his contact details available.
24. In these circumstances the second of Richards' other grounds of appeal is that the judge was wrong to exclude such admissible and relevant evidence as hearsay.
25. Richards also renews his application for leave to appeal in relation to a still further ground on which the single judge refused him leave. On 30 September 2000 Richards was interviewed by the police. The Crown relied on certain answers he gave at that interview to the effect that he knew that Sherriff, who was his cousin, had been slashed in a confrontation with Francis and that Francis was a member of the DHC. This implicated Richards in Sherriff's evidence relating to motive. It was evidence which went not to the truth of those matters but as to Richards' state of mind. The interview, which was conducted some 8 or 9 days after the violent disorder, was conducted in the present tense. Thus –

"Q. Do you know of any problems that any of your relatives may have had?…

A. I know I know erm Nicky [ie Sherriff] had a confron, whatever, like confrontation with erm Beetle [ie Francis], that's it…

Q. Tell me what you know then about that and when it was.

A. He's was up town one time or something, I don't know like what day or that, I just know he was up town one time [etc]."

26. On 25 February 2002 Richards, supported by Francis and Sherriff, applied to the judge to exclude this evidence on the ground that it was hearsay save to the extent that it went to Richards' state of mind, and as such it went only to his knowledge on 30 September and not to his knowledge on the evening of 21 September. The judge refused the application on the ground that it was relevant and admissible to show Richards' state of mind on the evening in question.
27. Richards submits that the judge was wrong, as it only went to his state of mind at the time of interview. He submits that this evidence, and his association with his cousin Sherriff, tended to tie him in with the problem regarding the Sherriff motive evidence in general. We were willing to extend Richards' leave to appeal to this ground as well, even though it was not part of the appeals of Sherriff and Francis in this connection.

Williams' ground of appeal: no case to answer

28. At the half-way stage, the primary evidence against Williams was his telephone chart. He had voluntarily surrendered to the police on 30 September, but had given no interview. In his possession at the time of arrest was his mobile. The chart showed a large number of calls between his phone and his brother's (Michael Williams, another co-accused) both before and after the shooting, but these calls between brothers were not of particular significance. There were also five calls to his phone from Neal (at 20.49, 22.17, 22.26, 22.30 and 22.35) and a call from his phone to James at 22.00. Of particular significance were five calls between his phone and Francis: two calls from him at 22.02 and 22.04, a call from Francis at 22.37, a call from him to Francis at 22.47, and a final call from Francis to him at 22.51. These were "cross-gang" calls.
29. Apart from the evidence of these calls, there was only the further circumstantial evidence that he was a second cousin of Sherriff, that Francis had been present (and shot) that evening, that Neal had been implicated in the shooting, and that his chart had to be viewed in the context of the telephone traffic as a whole.
30. On 6 March 2002 the judge ruled on applications made by 13 out of the 18 defendants that there was no case to answer. He rejected Williams' application. It is submitted that he was wrong to do so.

The May 2000 evidence of motive

31. On behalf of Sherriff, Mr James Thomas submits that the evidence concerning the events of May 2000, and in particular the two documents signed by Sherriff and the evidence of PC Malam and of DC Cox (as to the further conversation of 24 October 2000) should not have been admitted into evidence. The point is put in two ways. It is first said that the evidence was not relevant and was therefore inadmissible. Secondly, it is said that, even if relevant, the judge should have exercised his discretion to exclude it on the ground that its probative value was outweighed by its prejudicial effect. In particular the judge should not have permitted the signed documents to be put or to remain in the jury bundle.
32. In support of the submission of irrelevance, Mr Thomas emphasised that the events of May were too remote in time from the violent disorder of 21 September to be probative of any motive in relation to the latter. There had been nothing between the May and September events to link them. There had been no further trouble between Sherriff and Francis or their respective families, friends or associates. Indeed, DC Dimmock, who had taken the notes in hospital on 17 May, said in answer to a question from Mr Thomas at trial that the only reason why Sherriff had spoken to the police at that time was "to prevent further trouble". Thus Mr Thomas submitted that the evidence in question simply did not come within the rationale of those authorities which recognised that, exceptionally, evidence of background and motive could be placed before the jury even where such evidence implicated a defendant in an offence other than that with which he is charged: see R v. Pettman (unreported, 2 May 1985), R v. Berry (1986) 83 Cr App R 7 at 10.
33. In support of the submission that the evidence should in any event have been excluded, Mr Thomas emphasised the following factors. First, there had been breaches of the Police and Criminal Evidence Act 1984's Code C (C.10.1 and C.11.1A) in that Sherriff had not been but should have been cautioned by the police during his interviews in the light of his revelations that he had armed himself with an axe which he had used to chase his assailant down the street. This was a significant and substantial breach of the Code. Secondly, this evidence presented Sherriff to the jury as a man with a propensity for violence. Moreover, he had been charged with an offence of affray arising out of the May incident, and this effectively put his character in issue even though he had never even been convicted of this offence. These details of the events had been in any event unnecessary, a fault which had (in part) led to a successful appeal in R v. Butler [1999] Crim L R 835, where at 836 this was said in commentary:

"Pettman has sometimes been used to alert a jury to previous violence against a victim: see, e.g. Underwood [1999] Crim.L.R. 227 and Commentary. But given that such evidence does not necessarily meet the stringent conditions for admissibility of evidence adduced under the similar fact principle (Director of Public Prosecutions v. P [1991] 2 A.C. 447) it must be brought in only to the extent that it is absolutely necessary, and then in a form calculated to do no more than inform the jury, in as neutral a way as possible, of the salient facts."

34. Thirdly, the manner in which the May events had been presented to the court had undermined the judge's ruling and directions that this evidence went in only for the purpose of showing Sherriff's state of mind and thus his possible motive and not for the truth of the contents of the evidence. Thus PC Dimmock had read Sherriff's witness statement in the first person including the standard opening words of the statement ("This statement…is true to the best of my knowledge and belief…"); and the judge had twice underlined this point in his summing-up by referring to the notes and witness statement signed by Sherriff as having been signed as being true (at 76E/G). Fourthly, and also as a particular aspect of his third point, Mr Thomas complained about the fact that the signed notes and witness statement had gone into the jury bundle. As material which went only to motive and was otherwise hearsay the documents should never have been made exhibits. It had not been too late to remove them from the bundle when the point had been argued, since the first of the relevant police officers had not yet taken the stand and thus the documents had not yet been referred to in evidence.
35. On behalf of Francis, Sir Jonah Walker-Smith adopted Mr Thomas's submissions, but added a point of view which reflected matters of particular concern to the case of his client. Thus he emphasised that as against Francis the totality of this material was inadmissible but highly prejudicial. Its effect was to accuse Francis of a slashing (an offence for which he had never even been charged), an innuendo of having been involved in the trashing of Sherriff's home, a propensity for violence, an animus against Sherriff, and membership of the DHC (via PC Malam's report of his conversation with Sherriff), itself a matter in dispute. All of this prejudice was achieved in the name of evidence of Sherriff's state of mind. This required mental gymnastics of Olympic standards (an unspoken reference to the phrase used by Hodgson J in R v. Silcott [1987] Crim L R 765, CCC and repeated elsewhere). It was impossible for the jury on the one hand to take this material into account when determining whether Sherriff had a motive to be antagonistic towards Francis, but on the other hand to ignore it so far as Francis was concerned in deciding whether he had any motive to be antagonistic towards Sherriff; or to disregard the inadmissible suggestion that Francis had a propensity for violence. This was prejudice which no direction of the judge could dispel. In the circumstances, if that material was to be admitted, the prejudice could only be cured by severing Francis's trial, in fact by severing the trials of the two groups or gangs. It was a case of that exceptional kind where severance was required: see R v. Lake (1977) 64 Cr App R 172 at 175, cited in Blackstone, 2003, at F17.34, as follows:

"Joint offences should generally be tried jointly, however, even though this may involve evidence which is inadmissible in respect of a particular accused being given. The fact that there is some prejudice is not enough, though 'if a case is strong enough, if the prejudice is dangerous enough, if the circumstances are particular enough, all rules of this kind must go in the interests of justice' Lake…"

36. On behalf of Richards, Mr Mark Summers in turn adopted Mr Thomas's and Sir Jonah's submissions: they were relevant to Richards because of the association otherwise evidenced between Richards and Sherriff, in particular on the basis of the evidence admitted before the jury that Richards knew about the slashing incident in May (the subject matter of a separate ground of appeal).
37. On behalf of the Crown, Mr Wheeler submitted as follows. The motive evidence was relevant and probative, highly probative, of the conspiracy to commit violent disorder. The May incident fell within the period covered by the indictment, and there was a clear nexus between the two incidents. He referred to Archbold, 2003, at paras 13-34/38 and the principle taken from Pettman (cited at para 13-36 and applied in subsequent cases) that –

"where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."

38. As for the judge's exercise of his discretion not to exclude such relevant and probative material, he had taken account in his ruling of all relevant circumstances, and in particular the need for fairness to Sherriff, Francis and other co-accused, such as Pegg, who had also been implicated in the slashing incident. The latter was in fact acquitted by the jury. The matter had been properly investigated at a voire dire. It was clear on the police officers' evidence that Sherriff had been treated as a witness and victim, not as a suspect: Code C was therefore irrelevant. Any potential prejudice was removed by the judge's clear directions to the jury, at the time the evidence was given and again in his summing up, that the evidence went only to Sherriff's motive and not to the truth of the facts related and was not evidence of any kind against any other defendant. As for the documents in the jury bundle, they were properly included, for they had been signed by Sherriff. But even if there was an irregularity in that respect, that could have had no effect on the outcome of the case since the jury would in any event have been entitled to take notes of the police officers' evidence: see R v. Sekhon (1987) 85 Cr App R 19 at 27 and R v. Fenlon (1980) 71 Cr App R 307 at 312. That the jury had been faithful to the judge's directions was again shown by the acquittal of Pegg. In any event, the convictions were safe.
39. In our judgment the submissions of the Crown are to be preferred. The evidence of the May incidents was relevant and probative, and was tied into the September incident both by PC Malam's evidence that Sherriff foresaw that trouble would erupt between gangs and by the further material arising from PC Cox's meeting with Sherriff on 24 October. The period between the incidents did not make the earlier incident too remote. In Pettman the evidence was of an earlier burglary two months prior to the offence charged. R v. Berry (1987) 84 Cr App R 98 doubted the use of past incidents for the purpose of proving the state of mind, ie the intent, of a defendant charged with murder: but here the prior incident was used not to prove something as contemporaneously vital as the ingredient of intent, but to explain why Sherriff was involved in an inter-gang confrontation. Berry was itself distinguished in R v. Singh (1994) 98 Cr App R 59 at 64/65, where the passage cited from Pettman was approved as a correct statement of the law. Pettman was again applied in R v. M(T) [2000] 1 WLR 421 at 427, where the previous history "although separated in time by years" was part of a continuous family history. It was applied again by Lord Bingham of Cornhill CJ in R v. Sawoniuk [2000] 2 Cr 220 at 234/5, admittedly in a case concerned with exceptional facts, but where Lord Bingham also put the principle generally as follows (at 234E):

"In order to make a rational assessment of evidence directly relating to a charge it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences are said to have been committed."

40. As for the exercise of the judge's discretion, we again see no reason to disturb his conclusion. He had his eye firmly on the fairness of the proceedings and the interests of justice for all concerned, and investigated the matter at a voire dire. As the evidence at trial proved, he was fully justified in his view that Sherriff had been seen as a victim and not as a suspect. No indictment was pursued against him, and for his part Francis was never even charged. A good character direction was given in Francis's favour. At every point the jury was told that evidence of the May incident was admissible for the very limited purpose of showing Sherriff's motive. Thus when the first of the police officers was called to the stand, at the end of his evidence in chief, Sir Jonah made the point that –

"given that not a word of the evidence of this witness is admissible evidence against my client Ezekiel Francis, and given that all this witness's evidence is wholly irrelevant so far as the case of Ezekiel Francis is concerned, it is quite pointless for me to cross-examine this witness, and unnecessary, and I do not do so."

41. Pegg's counsel made a similar point, and the judge said:

"Can I just explain, members of the jury, that what this officer has dealt with, and indeed the whole topic of the complaint made by Mr Sherriff, is only evidence against Mr Sherriff, it is not evidence against anyone else, in particular against either Mr Francis or Mr Pegg, or for that matter any other defendant. This case is not about that, and the only reason why I have allowed the Crown to adduce this evidence is to show Mr Sherriff's state of mind, in other words motive, and that is why the evidence is in, and that is why you have not heard any cross-examination on behalf of Mr Francis and Mr Pegg."

42. Sir Jonah made the same point about why he was not cross-examining DC Stevenson, DC Dimmock and DC Cox.
43. When it came to the summing up, moreover, the judge addressed the function of this evidence twice, once close to the outset of his summing-up and once when dealing with the police officers' evidence. Thus he said (at 7E/G) –

"Mr Sherriff made a complaint of being slashed on 16^th May 2000 and the background to it. That is evidence against Mr Sherriff only. It is not evidence against Francis, Pegg, Tucker or any other defendant. The reason is that the others mentioned by Mr Sherriff were not present when the allegation was made, and the reason why the evidence has been allowed against Sherriff is that it is relevant only to Sherriff's state of mind and motive."

44. In the later passage (at 77B/C) he said:

"The evidence about the slashing is only evidence against Mr Sherriff and it is before you not to prove what was alleged but to show Mr Sherriff's state of mind. In other words, it goes to motive. No one is on trial for the slashing. It is not evidence against Francis, Pegg or Tucker or any other defendant."

45. In these circumstances we do not think that the judge's passing references to the notes and witness statement as having been signed as being true are material. The jury were not required to form a view, indeed were warned not to do so ("not to prove what was alleged"), as to the details of Sherriff's account, but only as to whether the prosecution were correct to say that Sherriff, on his own account of things, had a motive in his mind for bearing animosity against Francis and his associates. For that limited purpose, it was a typical case where something said by one party outside court might amount to evidence against him, but could not amount to evidence against a co-accused.
46. We do not think, therefore, that the jury were required to perform impossible mental gymnastics. The May incidents were before them only for a limited purpose. This was quite unlike a case such as that cited by Sir Jonah in his written skeleton (but not at the hearing), R v. Mattison [1990] CLR 117, which is authority for the proposition that if A is on trial for gross indecency with B, the adducing of evidence of the fact that B has pleaded guilty to gross indecency with A would be fatally prejudicial to A's right to a fair trial. Nor is it similar to a case such as R v. Silcott where the interviews in question went directly to the participation of co-accused in the offence being tried.
47. As for the two documents in the jury bundle, we think that it would have been more consistent with the status of this material as going only to motive if they had not been in the jury bundle; but in circumstances where they had been in the jury bundle from the beginning it may have been counter-productive to have taken them out at the stage when there was a dispute about them. We agree, however, that it would have been possible. Nevertheless, we think that the judge's directions and the constant reiteration of the refrain that this material was relevant only against Sherriff and only so far as concerned his motive would have effectively undermined their significance.
48. We have given special consideration in this connection to the case of Francis, because we can see that the theoretical prejudice to him was greater than to others. It might have been possible to edit the statements and reports to avoid any reference to any name (such as Zico) from which he could have been identified, as occurred in Silcott and was said to have been desirable in Butler (which, as was accepted however, was a very different case, where the disputed evidence was advanced as going directly to the accused's character against the background of a defence of provocation). However, this possibility was never raised on behalf of Francis or any of the defendants as the way to proceed, perhaps because it was in any event clear from the Crown's approach and the judge's original ruling that the material was not being admitted as evidence of the truth but only as going to Sherriff's motive. We think that in such circumstances the theoretical prejudice was very largely eliminated. As has often been remarked, for instance by Lord Rodger of Earlsferry in R v. Jones [2002] UKHL 5, [2002] 2 WLR 524 at para 67, jury trials proceed on the basis that juries are faithful to the directions given to them. In the present case, the acquittal of Pegg is consistent with that view of the matter.
49. It follows that we think that there was no need for severance. In any event, evidence relating to the May incident was hardly a central feature of the case, as distinct from background to it, and we do not regard this as the exceptional situation where severance may be the only way of proceeding to ensure a fair trial. It is relevant to note that the extract cited in Blackstone from Lake reads (at 175) as a whole as follows:

"However the question of severance is primarily one for the trial judge. The discretion was properly exercised in the present instance, and notwithstanding the fact that there must have been some risk of prejudice the decision of the judge, we think, was right. If course if the case is strong enough, if the prejudice is dangerous enough, if the circumstances are particular enough, all rules of this kind must go in the interests of justice, but this is not the sort of case in which the ordinary rule of practice in our judgment will operate unduly to the detriment of the accused and therefore it is a case in which we should apply the ordinary rule."

We think that the ordinary rule applies here.

50. For all these reasons we do not consider that the judge erred or that there was any material irregularity in these respects. That makes it unnecessary to consider the safety of the convictions, but since there were detailed submissions on that subject, we will deal with them at any rate briefly.

The safety of Sherriff's conviction

51. Linda Egwabor, a friend of Sherriff, made a statement which was read as part of the Crown's case because it was agreed. She said that she had spent the evening at Sherriff's flat, but that he was out between 9.30 and 11.30 pm leaving his mobile phone behind. While he was away, his phone rang several times. She made a call to a friend in London at 22.28. About an hour later Sherriff returned and made a number of calls. This evidence was consistent with Sherriff's telephone chart. That chart showed that Neal had called Sherriff at 21.29 (twice) and at 21.32, which must have been just before Sherriff went out. At 22.20 and 22.32 there were two very short calls, one from Michael Williams and one from Anthony Richards: these would have been while Sherriff was out. After the shooting and Sherriff's return he received two more calls from Neal (at 23.38 and 00.32) and made a call to (Leroy) Williams (at 00.30). Neal had admitted involvement to his girlfriend's mother, Tina Allured, and was convicted. Williams was also convicted (we shall deal with his sole ground of appeal, that there was no case for him to answer below): he had been in phone contact with Francis and Neal prior to the shooting (see at para 28 above). This was powerful evidence of Sherriff's involvement. He had no alibi for the evening, being away from his flat at the critical time covering the violent disorder. Sherriff refused to answer questions in interview as to where he went, and gave no evidence at trial. The judge told the jury they could draw an adverse inference against him.
52. We consider his conviction to be safe, irrespective of any evidence relating to the May incident.

The safety of Francis's conviction

53. Francis was present at the violent disorder and was shot at 22.55/56. Why was he there? He said that he had left his grandmother at a nearby house at 22.00 to walk home, but that would not explain why he was still in the vicinity almost an hour later. After being shot he went to the Leicester Royal Infirmary. How did he get there? He said in interview that he had flagged down a passing car and had been taken to hospital by an unknown driver. It emerged that that was a lie and that he had been given a lift to hospital by people he knew. He was not dropped at the hospital's A & E entrance but a short distance away, and the reason he gave for that in interview did not stand examination. When questioned by hospital staff, he told them that he did not want the police informed about his wound.
54. His telephone chart showed that Richards had called him at 20.52 (36 secs), he had called Richards at 20.53 (2 mins 49 secs) and Richards had called him back again at 20.57 (3 mins 31 secs). Williams had called him twice, at 22.02 (26 secs) and 22.04 (47 secs). There were three further calls between Williams and him in the immediate run up to the shooting: he called Williams at 22.37 (30 secs), Williams called him at 22.47 (5 secs) and he called Williams 22.51 (18 secs). All these calls to and from Williams were cross-gang calls. Richards and Williams were themselves convicted. Yet in interview Francis lied by saying that he did not make or receive any calls on 21 September.
55. None of this was explained by Francis, who gave no evidence at trial, and the judge directed that the jury could draw an adverse inference against him.
56. We consider Francis's conviction to be safe.

Richards' appeal: his other three grounds

57. The first of these grounds was that Mulji's interview should have been edited to avoid any reference to a green Rover (see paras 16/19 above). It was submitted that this evidence, which was inadmissible against Richards was unfairly prejudicial to him. The Crown had agreed to edit out Mulji's reference to a registration number: it was inconsistent to maintain any reference to a description of a car.
58. We find no merit in this ground. The description of the car was probative in the case against Mulji, for it reinforced the truthfulness of his admissions in interview. It was not known to what extent Mulji might seek to depart from his interview – in the end he did not give evidence, but that could not be anticipated. Thus Mulji's reference to his car being followed to the fish-bar by a green Rover with four occupants, which was consistent with Mr Khullar's evidence about one of the cars which he saw, which he could not describe but which could be identified with Richards' dark grey Rover by means of the registration number which Mr Khullar recorded at the time, tied in Mulji's admissions with other Crown evidence.
59. The Crown were willing to edit out Mulji's reference to a registration number because it was unsatisfactory in itself: we were told that he could recall only a few digits (from memory) and he was prompted by the police.
60. As for any prejudice to Richards: we are unable to discern any but the slightest. Richards' case was that he was with his girlfriend for the relevant part of the evening and that his car had been borrowed by other people he was afraid to name. If the jury accepted that alibi or were even unsure as to its validity, the car's presence at the scene would not be of the slightest impact on Richards' case. If, on the other hand, the jury were sure that Richards' alibi was a lie, then it would have been Mr Khullar's evidence about the number- plate which he had written down at the time that would have been the critical evidence which would have placed Richards' car at the scene. It is true that that registration number was wrong with respect to the digit G being recorded in stead of a C: but that mistake is easily made, and there was evidence from the DVLA that the number with a C in stead of a G had never been issued.
61. The appropriate editing of interviews and statements in such circumstances is very much a matter for the judge's discretion: see R v. Jefferson (1994) 99 Cr App R 13 at 24/29. The judge here concluded that the probative value in relation to Mulji outweighed "any prejudice, if there be any" to Richards. We fully agree with that, but we would have been reluctant to interfere in any event.
62. Richards' next ground related to his application to adduce evidence that Mr Kasuji had been interviewed about his phone use that evening and had not mentioned speaking to Richards. Richards sought thus to support his claim that he had been out of possession of his mobile that evening, since the telephone records showed two calls to Mr Kasuji's telephone (see paras 20/24 above). We find no merit in this ground either. We agree with the judge that this was an attempt to introduce hearsay evidence. Mr Summers accepted that he wanted the evidence so that he could submit that Mr Kasuji spoke the truth when he said, if his words could be so interpreted: "I spoke only to X and Y" and thus it might be inferred "and not to Richards". He also conceded that in such circumstances the evidence "I spoke [only] to X and Y", coming as it would from a police officer and not from Mr Kasuji, was hearsay, but, he submitted the additional inference "and not to any one else" was not hearsay. This was, in our judgment, an impossible submission. Mr Summers sought to support it by reference to cases concerning an inference of silence arising from documents: see R v. Shone (1983) 76 Cr App R 72 at 76. In Shone, however, the witnesses were speaking as to their personal knowledge of their record keeping and what the documents showed, but in this case only Mr Kasuji could speak to his own knowledge. The Crown were willing to make available Mr Kasuji's personal details to enable Richards to call him as a witness in his defence: but Richards did not choose to do so,
63. Richards' final ground of appeal, as we have permitted it to become, is that his knowledge of the slashing of his cousin Sherriff, as demonstrated at his interview on 30 September, was not evidence of his knowledge of that matter as of the night of the violent disorder, nine days earlier (see paras 25/27 above). Mr Summers submitted that evidence of a state of mind after the event was mere hearsay: see R v. Moghal (1977) 65 Cr App R 56 at 62/3 and R v. Blastland [1986] AC 41 at 61/2. In our judgment, however, Richards was speaking of his knowledge contemporaneous to the events which were under investigation, and that is the proper way to understand his interview. He was a relative and friend of Sherriff. He was on his own admission with Sherriff earlier on the evening of 21 September. He could not have seen Sherriff without knowing of the wound to his nose and of the circumstances which Sherriff would have ascribed to it. If, contrary to what appears to us to be the obvious context of the questions in interview, Richards had in fact been intending to refer to some very recent post 21 September acquired knowledge, he could have said so: both at interview, and if not then, in his evidence at trial. But he did not do so.
64. We therefore reject all three further grounds of appeal on the part of Richards. As to the safety of his conviction, the cumulative evidence relating to both his car and his mobile was compelling. His car was at the scene; and his telephone records showed three calls with Francis, who of course was also at the scene. Moreover his calls were cross-gang calls. He lied about both his car and his mobile, but at trial persisted in presenting a developing story, to the effect that he was out of possession of both car and mobile. The jury did not believe him, nor the witnesses he presented in support of his alibi. This is not surprising, since the story was an unrealistic one. We regard his conviction as safe.

Williams' appeal – no case to answer

65. On behalf of Williams, Mr Leonard Smith submitted that the judge was wrong in principle to have rejected the plea of no case to answer (see paras 28/30 above). He said that it was possible that Williams had spoken on the phone as a peacemaker: since that possibility could not be rejected at half-time, the evidence of the telephone records was entirely neutralised. In support of that submission he relied on R v. Moore (unreported, 20 August 1992) where the defendant was convicted on five counts of burglary. The evidence against him was that articles belonging to him had been found in a car which belonged to his parents but which his brother was allowed to have the use of. His brother was then arrested approaching the car after a burglary in the vicinity. Two men had been seen getting out of the car before the burglary and running away after the burglary, but neither of them was then apprehended. On appeal prosecution counsel himself did not seek to support the conviction (at 5). Steyn LJ regarded the case as one exemplifying the well known danger that a chain of inferences may make the ultimate inference too tenuous (at 6/7). The passage ultimately relied on by Mr Smith was this (at 8):

"It may be helpful for the judge to address specifically the question whether the proved facts are such that they exclude every reasonable inference from them save the one sought to be drawn by the prosecution. If the proved facts do not exclude all other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct."

66. Mr Smith also relied on R v Burley (unreported, 16 March 1995). The defendant there had met a woman at an airport. The woman had drugs in her suitcase. But there was no evidence that he was there to meet the suitcase rather than the woman. There was nothing to link him with the suitcase. His explanation in interview was that he had been asked to meet the woman and give her some money. Henry LJ said (at 8):

"The jury could only be asked to draw the inference that he was there to meet and take charge of the suitcase if they could properly be satisfied that that was the only conclusion to be drawn from the evidence."

67. In our judgment, however, the present case was like neither Moore nor Burley. The evidence of Williams' telephone records permitted the obvious inference that he had spoken five times that evening with Francis, who had been present at the violent disorder and had been shot there. The last three calls were within 20 minutes of that shooting. That is quite unlike the tenuous chain of inference which the prosecution had relied on in Moore at trial (but not on his appeal) as stemming entirely from his possessions being found in a car used by his brother. It is also quite unlike Burley where the defendant had put forward a realistic explanation of his presence at the airport to meet the woman. In the present case, however, there was no suggestion of any evidence that Williams had spoken as a peacemaker. That was a merely hypothetical and speculative possibility. In our judgment, if a jury, properly directed, could not be satisfied that the inference which pointed to guilt was the only reasonably possible inference to be drawn, then there would be no case to go to the jury. But if the jury, properly directed, could be satisfied that there was no other innocent explanation, then the case could go forward. Ultimately the decision would be for the jury, unless the judge considered that no jury could properly exclude the innocent inference as a reasonably possible one. We think that that is in accordance with the classic formulation in R v. Galbraith (1981) 73 Cr App R 124.
68. We would therefore dismiss Williams' appeal.
69. It follows that all four appeals against conviction have failed, and we go on to consider the appeals against sentence.

The appeals against sentence

70. We are here concerned with the appeals of Francis, Richards, Mulji and Neal. The first three received sentences of three years (detention in the cases of Francis and Richards). Sherriff and Williams, who have no appeal against sentence, also received three years. Only Neal received a longer sentence, one of five years, and that was because he was implicated in the use of a firearm.
71. The judge directed himself by reference first to the aggravating factors. He pointed out that residents of the neighbourhood had seen two gangs totalling between 30 and 40 young men squaring up to each other, many of them disguised with hoods and scarves and some carrying weapons. At least two men were armed with hand guns, one in each gang. Each armed man was firing at the other gang. Two men were hit. Fortunately the wounds were not serious, but the incident was. The judge accepted that the conspiracy did not contemplate firearms, and that no one had been convicted of an offence under the Firearms Act. Nevertheless, violent disorder in a public place was totally unacceptable, and in the event guns had been used. All in all the residents must have been terrified. The conspiracy arose out of the events in May: it was no coincidence that the two men who were shot were Francis and a friend of his. "This was a planned confrontation using mobile phones to marshal the gangs and get them to the scene." The disorder had caused the need for a massive and difficult police operation.
72. As for the roles and backgrounds of individual defendants, the judge referred to the fact that all (with the exception, it may be said, of Mulji) had been involved in either cross-gang or intra-gang calls or both. Mulji had a previous conviction in 1997 for possessing an offensive weapon (a wheel-brace) for which he had received a community service order. Sherriff had a number of previous convictions for dishonesty including one for robbery. Williams also had a number of convictions for dishonesty, but also one for violent disorder. Neal had numerous convictions, but all for dishonesty and none involving violence.
73. Turning to matters of mitigation, the judge pointed out that Francis and Richards on the other hand were men of previous good character. References had spoken well of them. Richards and Mulji were talented. No one had been injured other than the two who had been shot. Innocent people were not targeted.
74. Neal was treated as in a special category, because he had brought and used a firearm. The judge accepted the evidence of Tina Allured, Neal's girlfriend, that he had boasted about using a gun and shooting someone. He therefore passed in his case the maximum sentence allowed by law which was five years. He expressly treated all the other defendants equally, however, giving them three years.
75. On behalf of Francis, Sir Jonah submitted in his written skeleton in reliance on the case of R v. Vanes & Vanes (1989) 11 Cr App R (S) 147 that the sentence of three years was excessive; and that it was in any event wrong in principle to have sentenced defendants of previous good character like Francis and defendants with previous convictions in the same way. Therefore there ought to have been a discount from the standard sentence. On behalf of Richards, Mr Summers accepted, in a careful review of previous authorities concerning large-scale disorders, that the judge was correct to adopt three years as his starting point, but he too submitted that good character should have been rewarded with a discount from that starting point.
76. We agree that the judge was entitled to take three years as his starting point. That is a sentence which has frequently been upheld on appeal in disorders of this kind: see R v. Andrews [1971] CLR 175, R v. Callaway & Neale [1971] CLR 176, R v. Luttman, Hutson, Turner & Kent [1973] CLR 127. It may be true that in the present case the violence was limited and brought to a premature close by the uncontemplated shootings: nevertheless it was premeditated and organised. Even higher penalties have been upheld in still worse cases: R v. Pilgrim, Huggins & Taylor (1983) 5 Cr App R (S) 140 and R v. Keys, Sween & MacMinn (1987) 84 Cr App R (S) 204. Vanes & Vanes on the other hand was a case where there were pleas of guilty.
77. We have sympathy for the judge's view that he should treat all participants in the conspiracy equally, whatever their particular roles. However, we are persuaded that he should in principle, in a case such as this – as has often been said the position in still more serious offences may well be different – have made an allowance for the previous good character of these two appellants. Otherwise, as was said in R v. Sykes (1980) 2 Cr App R (S) 173 at 175 (and applied in R v. Goodacre [1996] 1 Cr App R (S) 424 at 427) – "the utility of good character as mitigating circumstances will at least seem not to exist". A distinction on these grounds was made by the sentencing judge in a case of violent disorder in the case of Vanes & Vanes. In these circumstances we have quashed the sentences of three years in the cases of Francis and Richards and substituted sentences of twenty-seven months.
78. In the case of Mulji, Mr Gary Bell relies on personal mitigation in the form of twelve references about him: he had a supportive upbringing, he had always been in employment, he was a religious man who worked for charity, he was the sole carer for two sick parents, he was married and his wife had given birth only a week before his sentence. However, Mr Bell made it clear that his primary submission related to Mulji's role in the violent disorder, which he submitted was a comparatively modest one. He was not a gang member and was not implicated in the telephone traffic. His involvement, on his own evidence in interview, was that he had been asked by his friend Williams to give him, Sherriff and one other a lift into the city centre. En route he had realised that he was driving his companions to a fight of some kind. He tagged along out of curiosity and from fear of appearing afraid.
79. In our judgment, however, whatever weight these submissions may have had if Mulji had pleaded guilty was lost in the course of trial and in any event dissipated by other facts. He was implicated not only by his own admissions in interview but also by identification of the number-plate of his father's car which he was driving. He had been visiting Williams that evening. At the end of the violent disorder he drove away with three other participants. At the conclusion of the trial the judge was in the best possible position to know whether he should make an exception for Mulji on the ground of some lesser role. His express decision was, with the exception of Neal who carried a firearm, to treat the defendants alike. We have already expressed our sympathy for that position on a charge which after all was one of conspiracy. Mulji did not have the mitigation of good character: he had a previous, not irrelevant, conviction for carrying an offensive weapon. We therefore dismissed his appeal against sentence.
80. Finally, we come to the case of Neal. On his behalf Mr Timothy Palmer submitted that where the use of a firearm is alleged to be incidental to another offence, but is disputed, it is generally appropriate to add a firearms count to the indictment, relying on R v. French (1982) 75 Cr App R 1 and R v. Guy (1991) 93 Cr App R 108. The evidence deriving from Tina Allured relating to Neal's use of a firearm was disputed, as the Crown knew in the approach to the trial. There was strenuous, but unsuccessful, opposition to the admissibility of her evidence. The Crown had every opportunity to add a firearms' count to the indictment but did not do so. During the trial Tina Allured's evidence was vigorously challenged. She had also alleged that she had witnessed her daughter dispose of a gun on Neal's behalf by giving it to Anthony Richards, the brother of the appellant Richards. That implicated Anthony Richards in the conspiracy, but was also disputed at trial on his behalf. Evidence was called to contradict her account, and her evidence was partly inconsistent with her witness statements. In the event Anthony Richards was acquitted. Although Neal was convicted, it is not known whether the jury accepted or rejected her evidence against him, and it is not known whether the jury were sure not only of his involvement but also of his use of a firearm. The judge, however, was satisfied on her evidence that Neal had used a firearm.
81. Mr Palmer submitted that where it is possible to shape or even amend an indictment in order to obtain the jury's view as to an important conflict in the evidence, then that should either be done or, if it is not, then the defendant should be given the benefit of the doubt before he is sentenced for a grave offence upon which the jury's view has not been obtained: see R v. Efionayi (1995) Cr App R (S) 380 and R v. Eubank [2001] EWCA Crim 891, [2001] Crim L R 495.
82. We are impressed by these submissions. As Lord Lane CJ said in Guy at 111:

"There are both practical reasons and policy reasons for including a firearms count. The practical reasons are definitively to establish the use, or carrying, or possession of firearms either by plea or by verdict of the jury. These reasons the Court spelt out in French (1982) 75 Cr. App. R. 1. The policy reasons are to deter criminals from using or carrying or possessing firearms by the knowledge that such use or display or possession may be expected to attract a consecutive sentence…"

83. What Lord Lane there called the practical reasons are of general application. Thus in Efionayi, in the context of child neglect, this court quoted from the judgment of Watkins LJ in Stosiek (1982) 4 Cr App R (S) 205 at 207 and continued (at 387/8):

"Here from the outset was an important, clearly defined issue, the existence of which was well known to the Crown. An amendment to the indictment could easily have been made so as to secure a finding of the jury on the point. In the event, for whatever reason, the Crown chose not to make it, and the jury were left to convict on whichever factual basis was proved to them…In those circumstances we are satisfied that the judge should have taken the judge's verdict to relate to the shorter period and sentenced accordingly. His own fact finding exercise may well have duplicated that undertaken by the jury, yet terminated with a different conclusion."

84. In Eubank the defendant pleaded guilty to a single count of robbery and a Newton hearing was conducted to determine the disputed question of whether he was carrying a firearm. This court again said that the defendant was entitled to have the verdict of a jury on such a grave matter and that the appropriate course was to include a count on the indictment to make the position clear. In the absence of such a count, it would be wrong to sentence the defendant on the basis that he had a firearm.
85. In our judgment the Crown had the opportunity of preferring a firearms count against Neal, but did not take it. The jury's view of the contentious evidence of Tina Allured on the matter of Neal's use of a gun in the event could not be obtained. It is not unrealistic, in the light of the acquittal of Anthony Richards and otherwise, to suppose that the jury may not have been satisfied that Neal had used a gun. The use of a firearms count would have clarified that question. In these circumstances we have concluded that it would be wrong to sentence Neal on the basis that he had used a gun. It was for this reason that at the conclusion of oral argument we allowed his appeal, quashed his sentence of five years imprisonment and substituted for it a sentence of three years.