England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge FORRESTER
T.2004.7346

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th June 2006

Lord Justice TUCKEY:

1. On 18 November 2004 after a three week trial before His Honour Judge Forrester and a jury at the Old Bailey the appellants, James Michael Edward Carney and Michael William John Evans, were convicted of manslaughter. They were acquitted of murder. The following day each was sentenced to ten years detention in a young offender institution. Carney appeals against conviction and both appellants appeal against sentence by leave of the single judge. Carney's appeal against conviction is based essentially on a submission that the summing up was unfair to him.
2. Mr MohamedAli (Mr Ali) was an 80 year old Asian man who lived alone. He was 5'6" tall, frail and could only walk by shuffling along. He was known as a friendly, polite and gentle man.
3. On 2 April 2004 Mr Ali left the White Hart public house in Northolt where he often went and was helped down the steps into a nearby underpass. Here he was attacked by one or other or both of the appellants, then aged 19 and 16 respectively. He sustained injuries from which he died soon afterwards. Robbery did not appear to have been a motive since the money in his wallet was not stolen. At the trial, both appellants denied striking him; each blamed the other.
4. In order to understand Carney's complaint on this appeal it is necessary to consider the events which led up to the trial. On the evening of the killing the police obtained witness statements from two eye witnesses, Mr and Mrs Cole, who entered the subway some time after Mr Ali. Mr Cole described seeing two men in conversation with Mr Ali when the one standing behind him punched him in the back of the head. He was then hit again by one of the men and fell to the ground. The prosecution accepted from the descriptions which Mr Cole gave that he was saying that Evans was the man who struck the first blow from behind. He was uncertain about which of the two men struck the second blow. Mrs Cole said she only saw one blow to the side of Mr Ali's head. Her description of the man who struck this blow fitted Carney. Both witnesses described a cyclist riding to where the attack took place and being involved in some sort of altercation with one of the men.
5. Another witness, Mrs Harrison, who had helped Mr Ali into the underpass, said that after she had left him two boys had passed her and gone into the underpass. Soon afterwards she had heard one of them shout "Why did you deck the Paki, bruv? You're going to get me into trouble" to which the other replied "Because I hate Pakis". She then saw them going off together laughing and joking. Although from her evidence it was unclear which of the appellants was the one who asked the question, the Crown accepted that it was Carney.
6. In the early hours of the day after the attack Carney voluntarily went to the police. He was arrested and interviewed. He said that Evans had been the assailant. Although he had been present he had not participated in the attack which was unexpected. Evans was then arrested and admitted that he and not the appellant had struck the deceased, but suggested that he had acted in self defence.
7. In the following days the police took statements from friends of the appellants. It is not necessary to detail what these witnesses said other than that Carney had admitted to two of them that both he and Evans had been involved in the attack on Mr Ali.
8. It was not until the end of the month that the cyclist came forward. This was Mr Seaborn, a middle aged respectable civil engineer. He described coming on the scene of the attack and seeing both men hitting and then kicking Mr Ali who fell to the ground. Both men were equally involved. As a result of Mr Seaborn's statement Carney was re-arrested and jointly charged with murder.
9. We have already referred to what Evans first told the police. However about a month before the trial in his defence statement he said that his earlier statement was untrue. It was, he now said, Carney who had struck Mr Ali; he had not participated in the attack at all and had only made his earlier admission because Carney had threatened him and his family. Carney maintained his account of what had happened. This was therefore a cut-throat defence.
10. At the trial, with one exception, the witnesses to whom we have referred gave evidence substantially in accordance with their statements and the appellants gave evidence in their own defence. The Crown based its case principally on Mr Seaborn's evidence whom it said had the best view of what had happened and had given the fullest account of the attack. The exception was Mr Cole. He did not alter his description of the two blows which he saw, but instead of implicating Evans as the one who struck the first blow, he implicated Carney. His explanation for this was that he had realised that he knew Evans because he had been at school with his brother and Evans was not the man whom he had seen striking the first blow.
11. The only other evidence to which we need refer is that of the pathologist, Dr. Patel. He described in detail the external and internal injuries which he had found at post-mortem. In his summing up the judge reviewed this evidence in detail because, as he records, all three parties relied on it. The detail does not matter but the Crown relied on it because the findings were not inconsistent with the attack described by Mr Seaborn. Equally the defence were able to say that it supported their case of a one man attack because in his first report Dr. Patel had said that the injuries he had found were entirely consistent with an attack of the kind described by Mr Cole. Dr. Patel's opinion was that Mr Ali had sustained a forceful blow or blows to his head which caused it to strike the wall of the underpass and break his neck. He had also suffered injuries as a result of falling to the ground.
12. The judge's summing up was delivered over two days. It is full and clear. It was favourable to the defendants in the sense that the judge directed that each had to be proved to have struck at least one blow before he could be found guilty of participating in the offence.
13. However Mr Glen Q.C., who appeared for Carney at trial, complains that the judge failed to summarise his defence in a single section of the summing up and that his failure to do so meant that the jury were not reminded of it clearly enough. He goes on to complain that the summing up talked up the joint offence case out of concern to be fair to both the defendants and in doing so played down Carney's case.
14. That case, as Mr Glen reminded us by rehearsing his final speech at trial, was that this was a one man attack. The attacker was Evans, not Carney, as Evans had initially admitted and Carney had consistently maintained. This was in substance the evidence of Mr and Mrs Cole and the effect of Mrs Harrison's evidence if Carney was the questioner. It was consistent with Dr Patel's evidence. Mr Seaborn's late description of what happened could not have been accurate because it was only partly consistent with Dr. Patel's evidence and unlikely because of Mr Ali's frailty.
15. We have carefully considered the summing with this criticism in mind. True it is that the judge did not devote a discrete part of it to all the points raised in Carney's defence, but we are satisfied that they are all there in the passages to which the Crown refer in paragraph 1 of its skeleton argument. If they had not been, we have no doubt that Mr Glen would have raised the matter with the judge as he invited counsel to do. The merits of the respective defences were for the jury to decide. The judge fully and fairly reminded them of the evidence upon which to do so.
16. Mr Glen took us to passages in the summing up with a view to demonstrating that the way in which the judge dealt with various parts of the evidence was unfair to Carney. At the end of the day however we were quite unpersuaded that this criticism was made out.
17. For example Mr Glen says that the judge talked up the evidence of Dr. Patel who, as we have said, initially thought that the injuries were consistent with the one or two blows seen by Mr and Mrs Cole. But the judge did no more than remind the jury of what Dr. Patel had said in the witness box both in examination in chief and cross-examination. He cannot be criticised for that. At the end of this summary he said:

Well, you have to decide how this man came by his death, and whether it was caused by one man or more than one man, and so these injuries and his findings may be relevant on whether this was an attack by two men, or one man; whether it is consistent with any witness in the case, either Mr Seaborn, or anyone else, including the two defendants …

So the judge fairly left it for the jury to decide what they made of Dr. Patel's evidence.

18. Similarly, after reminding the jury of the evidence given by Mr Seaborn the judge said:

The critical part, you may think, is not so much the number of blows – of course that is important – but the critical part is the number of persons involved. May he have mistaken one man striking Mr Ali, as each defendant tells you was the case, and just the one blow, may he have mistaken that for what he has described, two men, equally involved? If has made a mistake, it is a substantial one. May that be so? You decide.

19. Mr Glen submitted that the judge played down the evidence of Mrs Harrison by reminding the jury that she was unable to say which of the two boys was the questioner. The judge however left the matter with the jury by saying:

The defence say that is inconsistent with joint enterprise… The Crown say well this is joint enterprise because there they were together, before the event, after it, laughing and joking at all material times. That, submits the Crown is consistent with people who are in it together, not disassociating themselves one from the other after the event.

This again left it to the jury to decide what they made of this evidence.

20. The more Mr Glen deployed his submissions the more it seemed to us that his real complaint was not about the summing up as such but that Carney has been unlucky. Things looked good for him at first but went downhill with the emergence of Mr Seaborn's evidence, followed by Evans' change of case which resulted in, as Mr Glen put it, a competition for the identification evidence. But bad luck is not a ground of appeal. Carney's trial was fair; he had every opportunity to deal with the case which emerged against him. Arguably there were inconsistencies in that case as the single judge observed when granting leave. But it may be noted that (rightly) there was not a submission of no case to answer at the close of the prosecution case; and on a detailed consideration of the summing up we are satisfied that the judge reminded the jury of the inconsistencies. At the end of the day the case that Carney participated in some way in this attack was a strong one and there is in our judgment nothing unsafe about his conviction. Indeed, in view of the severity of the blows inflicted on the obviously elderly and infirm Mr Ali the verdict of manslaughter was, it might be thought, a merciful one.
21. For these reasons Carney's appeal against conviction is dismissed.

Sentence

22. When sentencing the appellants the judge said:

This case involves violence of the most brutal and ugly kind, aggravated by racism, which was central to the case. Mr Ali was 80. Not only was he old but he was small and he was frail and he could only move slowly as he shuffled along the street. He posed no threat to anyone, he was utterly defenceless and he was particularly vulnerable. That was the man that the pair of you attacked. This was not a case of some fight which had gone wrong, as sometimes happens. There was a not a hint of provocation. This was a deliberate and wicked attack on a defenceless old man because of the colour of his skin. I have no doubt about that at all on all the evidence of the case.

The judge went on to say that cases such as these must be visited with long sentences and that his duty was to mark the gravity of this conduct to punish and, most importantly, to deter.

23. We agree with everything the judge said. The question for us is, nevertheless, whether the 10 year sentences were too long.
24. Both appellants have argued that the judge should have distinguished between them. Carney relies on his previous good character, that he did not strike the first and probably fatal blow but simply joined in as the prosecution accepted. Further, there had been character evidence before the jury which showed that he was not normally racist. Evans relies on the difference in ages between the two defendants. In his sentencing remarks the judge considered whether he should distinguish between the appellants and decided not to do so because of the assessment he had made of their respective roles and maturity during the trial. We respect this assessment. This court cannot and should not distinguish between the two appellants where an experienced trial judge who has heard all the evidence has decided not to do so.
25. We have been referred to other cases involving unprovoked attacks on elderly victims and attacks where which were racially motivated to substantiate the submission that ten years was too long. Mr Romilly for Evans relied in particular on R v Kime 1999 2 Cr. App. R (S) 3 in which 6 years imprisonment was upheld for manslaughter of a man aged 80 suffering from heart disease. The victim had suffered a cardiac arrest as a result of being punched by the appellant once or twice in the head. The appellant had offered to plead guilty to manslaughter. He had previous convictions and psychiatric reports described him as having a propensity to act dangerously when under the influence of alcohol. We do not think this case assists the appellants. The obvious distinguishing feature is that there was no racial element involved. Moreover the attack was by one man who lost his temper and not by two for no reason other than a racial one.
26. We think it is the racial element which justified the long sentences imposed upon these two appellants. Racially aggravated offences of this kind must be dealt with severely to deter others. It follows that both appeals against sentence are dismissed.