England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th December 2006

Lord Justice Gage:

1. On 4 June 2004 at Hull Crown Court, at the end of a trial occupying eleven days of court time, Christopher Jason Sirrs and Benjamin Edward Povey were convicted and sentenced in respect of the following offences:

SIRRS

Count 1	Making and explosive substance	2 years imprisonment
Count 3	Violent Disorder	3 years imprisonment consecutive
Count 5 (guilty plea)	Causing grievous bodily harm with intent	6 years imprisonment consecutive
Count 6/7	Having an offensive weapon	18 months imprisonment concurrent on each but consecutive to the above
Count 8 (11:1)	Doing acts with intent to pervert the course of justice	2 years imprisonment consecutive
Count 11	Doing acts with intent to pervert the course of justice	2 years imprisonment concurrent
Count 12	Doing acts with intent to pervert the course of justice	2 years imprisonment concurrent

TOTAL SENTENCE: 14 YEARS AND 6 MONTHS IMPRISONMENT

POVEY

Count 1	Making an explosive substance	2 years imprisonment
Count 2 (10:2)	Having an offensive weapon	12 months imprisonment concurrent
Count 3	Violent Disorder	3 years imprisonment consecutive
Count 4	Making an explosive substance	4 years imprisonment concurrent
Count 5	Causing grievous bodily harm with intent	6 years imprisonment consecutive
Count 9 (10:2)	Intimidation	3 years imprisonment concurrent
Count 10	Arson being reckless as to whether life is endangered	8 years imprisonment consecutive

TOTAL SENTENCE: 19 YEARS IMPRISONMENT

2. There were four co-defendants. Stephen Moody pleaded guilty to arson and making an explosive substance. He was sentenced to a total of 7 years imprisonment. Paul Evans pleaded guilty to violent disorder and was sentenced to a total of 2 years and 6 months imprisonment. Dean Bangs pleaded guilty to racially aggravated assault and was sentenced to 18 months imprisonment. Joanne Smith was acquitted of doing an act tending and intended to pervert the course of public justice.
3. The appellants, to whom we will refer throughout as Sirrs and Povey, appeal with limited leave of the single judge. Each renews applications for leave to appeal on other grounds and seeks leave to appeal on further grounds.

Overview

4. In the summer of 2003 a group of young men and women, interested in high performance cars, met and socialised on an informal basis at the Pryme Street car park area of Hull. The group was known as the Hull Cruise Club. The prosecution centred on events which took place in July 2003 and involved some members of the Hull Cruise Club being concerned in violent clashes with a number of Iraqi and Kosovan asylum seekers.
5. On 20 July 2003, at about 02.18am Salar Namiz Mohammed was run down by a car driven by Sirrs. Salar Mohammed was, at that time, running from a racially aggravated assault perpetrated by Bangs. The prosecution alleged that the running down was intentional and that Povey was at the time in the front passenger seat of the car. Sirrs was arrested, in respect of this alleged offence, on 25 July 2003. On arrest two offensive weapons, namely a samurai sword and a nail studded pick-axe handle, were found in the boot of his car, a white Vauxhall Cavalier.
6. During the police investigation into this incident various individuals, each of whom was involved with the Hull Cruise Club, informed the police of other alleged incidents of racially motivated crime. In particular, information was given about a violent disorder in the course of which a Vauxhall Calibra car driven by asylum seekers was attacked with a variety of weapons, including petrol bombs. This incident became known as "the Calibra incident". The alleged participation of Sirrs and Povey in that incident formed the basis of counts 1, 2, and 3. It was alleged that the Calibra incident took place before the running down of Salar Mohammed, the latter forming the basis for count 5.
7. As a result of the police enquiries and information given by various witnesses to the police it was alleged that both Sirrs and Povey were involved in acts intending to pervert the course of justice and of intimidation of potential witnesses in respect of count 5. These alleged acts formed the basis of the remaining counts on the indictment including an incident involving a car belonging to the father of one witness being set on fire (count 10).
8. We shall now deal in more detail with the allegations in respect of each count and the evidence which the prosecution allege supported those counts.

Counts one, two, three and four

9. It was the prosecution case that on an evening in July 2003, the exact date of which was uncertain but was before the incident on 20 July 2003 (count 5), Sirrs and Povey were part of a group which included the co-defendants Moody and Evans together with others, which attacked a Calibra motor car in which were two or three asylum seekers (count 3). The prosecution alleged that Sirrs and Povey used petrol bombs, prepared that evening (count 1), in the attack throwing them at the car. The windscreen of the car was also smashed with a baseball bat. It was further alleged that as the Calibra car drove off at speed Sirrs gave chase in his Cavalier car. During the chase it was alleged that Povey stood up with his body protruding out of the sun roof of the Cavalier and waving a samurai sword above his head (count 2). This incident formed the Calibra incident. The prosecution also alleged that Povey had been involved in making petrol bombs on a separate occasion about the same time at the home of a woman named Amanda Webster (count 4).
10. The principal witnesses in respect of the Calibra incident were Steven Jackson, Detective Sergeant McIntyre and Martin Hemsworth. Jackson said that he had been a member of the Hull Cruise Club for about 18 months before the incident in July 2003. He witnessed petrol bombs being prepared. They were made by empty milk bottles being filled with petrol and a rag being placed in the top of the bottles. He said that once the petrol bombs were made they were put into a milk crate in cars or in bushes. His evidence was that Sirrs had some of these petrol bombs in the back of his Cavalier. He said that he saw these petrol bombs being prepared over the space of approximately three weeks.
11. Jackson's description of the Calibra incident was as follows. He saw the Calibra car come down Pryme Street; turn round at the bottom and drive back up the street. He saw Moody hit the windscreen with a steel bar and then various people threw petrol bombs at the car. The petrol went over a Nova car setting fire to one wheel. He had seen the bombs being made earlier that evening in Pryme Street. He thought that it was Sirrs, Povey and Moody who had made the bombs. In cross-examination he confirmed it was just Sirrs, Povey and Moody. Sirrs's case was that he was present at the scene of this incident but took no part in it. Povey denied being present.
12. In cross-examination it was suggested to Jackson by counsel for both Sirrs and Povey that he, Jackson, was lying when he implicated Sirrs and Povey in this incident. The suggestion was that Jackson had done a deal with the police in order either to escape prosecution in respect of a s.4 Public Order Act offence; alternatively to obtain a more lenient sentence in respect of that alleged offence. Jackson admitted that he had previous convictions and that in September 2003 he was bound over in respect of the Public Order offence, no evidence having been offered against him by the prosecution. However, he denied that he was in any way involved in a deal with the police. He asserted that his evidence implicating Sirrs and Povey was accurate and truthful.
13. Martin Hemsworth was also part of the Hull Cruise group. His involvement with Sirrs followed his former girlfriend starting to go out with Povey. Of the Calibra incident he said that Moody had said that the Iraqis or Kosovans were "going to get it". His evidence was that Povey got a baseball bat from Sirrs's Cavalier car and waved it about. He then got a samurai sword from the front foot-well of the Cavalier. He described the Calibra driving up the street and Moody hitting the rear windscreen with a scaffolding pole. Povey used a bat to smash other windows of the car. Sirrs then threw petrol bombs and Moody threw one which set fire to the car. He said that he had seen the petrol bombs being made earlier that evening. He described Povey and Moody being involved in the making of the petrol bombs in bushes near the end of Pryme Street. He described Moody's lighter being used to light the rags of the petrol bombs. When the Calibra drove off Sirrs got into his car and chased it. Later he saw the Cavalier return with a puncture and Povey waving the samurai sword.
14. In cross-examination it was suggested to him that he was lying. He denied that he was lying or that he had decided to blame Sirrs and Povey to get each of them "out of the way". It was suggested to him that the motive for him lying about Sirrs was in order that Sirrs would be placed in custody and he, Hemsworth, could take up with Sirrs' girlfriend Joanne Connell. On behalf of Povey it was suggested that his motive for lying about him was because a former girlfriend of his had left him and begun to associate with Povey. Hemsworth denied these suggestions and asserted that his evidence was both truthful and accurate.
15. Following Jackson's cross-examination the prosecution disclosed to the defence a document which revealed that Jackson had in fact approached the officer in charge of the case, DS McIntyre, with a view to making a deal with him in respect of the s.4 Public Order Act offence. It is common ground in this appeal that disclosure of this document should have been part of primary disclosure to the defence. The prosecution called DS McIntyre to deal with this matter. His evidence was that on 1 August 2003 Jackson contacted the police saying he had information about the Calibra incident. Jackson was not prepared to make a statement at that stage and was concerned about his own position. He told the police that he had recently been arrested and charged with the possession of an offensive weapon. He wanted to know whether a deal could be offered in relation to that charge. Jackson was told at that time that no deal would be offered. In cross-examination he said that he could not explain why the defence had not been provided with his report on Steven Jackson which had been compiled on 1 August 2003. He agreed that it was an important document which touched upon the reliability and credibility of Jackson. He agreed that Jackson had effectively said that if the police could keep him out of prison he would provide them with a statement. He had told Jackson that he would speak to a senior officer about it and agreed that it could be seen as "dangling a carrot". Jackson made a statement about a month later. He was asked if an offer of reward had been made to Jackson or anyone else. He said that he could not recall discussing any reward with Jackson. So far as he was aware nobody had asked for any money. He knew that a Public Order offence had subsequently been dropped against Jackson but this was a decision which was nothing to do with him and he had made no recommendations.
16. There was evidence from other witnesses in respect of the Calibra incident. None of the other witnesses were able to identify any of those involved in the incident. Their evidence was in the form of a general description of what happened.
17. So far as count 4 is concerned, the allegation that Povey was involved in bomb making, the evidence against him came from Amanda Webster. She gave evidence from behind a screen and said that in July 2003 she lived in a flat above a Pizza shop. She said that she met Povey, Sirrs and Moody through a flatmate and learned various things from Sirrs about asylum seekers. She said Povey had a girlfriend called Yasmin at the time. One day she returned to her flat and found Povey, Moody and others making bombs on the verandah. She collected two milk bottles from a garage and the others also provided some milk bottles. They got petrol and filled them up after emptying the milk out of the bottles. She did not actually see them filling the bottles. She saw a green jerry can and some petrol on the floor which they lit and burnt briefly. They got rags or old clothes from her or her flatmate. The rags were torn into strips and put in the bottles. She thought that Povey was the ringleader.
18. On behalf of Povey, counsel suggested to her that her evidence was a tissue of lies. It was suggested that she had made sexual advances to Povey which he had rejected. The suggestion was that her evidence was motivated by a desire to get revenge on Povey for him having spurned her approaches.
19. Povey's defence to these allegations was that he was not involved in any bomb-making activity and was not present at any time during the Calibra incident. Sirrs accepted that he had been present when the Calibra incident had taken place but he denied taking any part in the events of that evening. Each gave evidence to that effect.

Count Five

20. Sirrs and Povey were jointly charged on this count. The offence alleged that each was concerned in causing Salar Mohammed grievous bodily harm with intent by running him down. Initially, Sirrs denied any part in this offence. Initially, it was his case that he neither drove a motor car into Salar Mohammed nor was in any way concerned with this offence. However, in due course he pleaded guilty to this count. In evidence, he admitted that he was the driver of the car. The car involved was his white Cavalier. He accepted that there was a passenger in the car but declined to identify that person. There was evidence that in an informal conversation with DS McIntyre he had told the officer that Povey was the driver and that Moody was the passenger. The judge directed the jury that this suggestion was not evidence against Povey.
21. It was the prosecution case that Povey was in the car at the time sitting in the passenger seat. Sirrs was seen by a taxi driver, David Barrick, to drive into Salar Mohammed knocking him over and into the path of another the taxi driven by Peter Cheney. Barrick said that the car had crossed the central reservation before driving onto the pavement and and striking Salar Mohammed. Cheney said that he only saw one person in the car. Barrick said that there were two people in the car but he was unable to identify either of them.
22. The evidence against Povey came principally from Webster. She said that about 11.00pm on 19 July 2003 Povey and Sirrs left her flat saying they were going to do some "damage to them", meaning the asylum seekers. She said they returned at about 03.00am. When reminded of her witness statement she said that they had left with baseball bats and the samurai sword. She said when they returned Povey said they had got a car and mowed down a Kosovan. He did not say he was the driver. He said that they had stuck their toe down and did it. On that evening Povey was wearing an England football t-shirt. He took it off, put it on the wall outside the verandah and burnt it. She denied that she had made up this evidence. There was other evidence from the cashier of Holderness service station. The cashier described how on 8 August 2003 Povey came to speak to a trainee, Paula Coates. Povey was angry and said that she had said he had been threatening witnesses. When asked what it was all about he said that it was to do with a Kosovan who had been run over. He implied that he was not driving but that he was sitting in the car. He said that he could not help it if "one minute he was driving down the street eating pizza and chips and the next there was a Kosovan's face on the windscreen". He appeared to be bragging about the incident.
23. Subsequently on a second search of the premises in and around Webster's flat the burnt remains of an England t-shirt were discovered.
24. There was also evidence of a taped conversation taken from covert surveillance of Povey on remand in custody. The conversation was between Povey and a man named Paul Brown. Brown asked him to tell the truth about the running-down incident. Povey said "I was eating pizza when the Kosovan's head hit the window. Like it says on one of the statements they've got off somebody". There was also evidence from a CCTV camera taken on the night of the incident. The tape showed two men looking at a car as if to inspect for damage. One of the men was wearing an England football t-shirt.
25. It was Povey's case that he was not the person in the car with Sirrs that evening. He denied taking any part in this incident.

Count six and seven

26. Count six and seven charged Sirrs with possession of offensive weapons. These counts relate to the samurai sword and a studded pick axe handle found in Sirrs car on his arrest on 25 July 2003. Convictions in respect of these counts are not challenged by Sirrs.

Count eight

27. This count alleges an offence against Sirrs of doing acts with intent to pervert the course of justice. The background to this was that the witness, David Newlove, another member of the Hull Cruise Club, made a witness statement in which he had implicated Sirrs in the driving incident (count 5). He said that Sirrs telephoned him saying that he, Sirrs, wanted to chat. They met and Sirrs wanted to know what Newlove had said to the police. Newlove told Sirrs that his name had been mentioned and Sirrs told him that he would have to change his statement in respect of the time that he was claiming to have seen Sirrs in the car park after the running down incident. Thereafter Sirrs telephoned him a few times to see if Newlove had "sorted it out". Newlove said that the clear implication was that Sirrs was seeking to get him to change his statement.
28. Sirrs accepted that he had spoken to Newlove but in evidence denied that he had sought to persuade Newlove either to withdraw his statement or change his evidence. We shall refer to Newlove's evidence in more detail when dealing with count 9 and 10 to which we now turn.

Counts nine and ten

29. These counts concern Povey. In count 9 Povey is charged with intimidation. In count 10 he is charged with arson. The two counts are inter-connected. Newlove said that after he had made his first statement relating to his knowledge of the running down incident he and Povey met by chance in town. Povey asked Newlove if he had mentioned his, Povey's, name. He told Povey, correctly, that he had mentioned his name and drove off in his car. He said that thereafter he received numerous telephone calls from Povey who accused him of being a "grass" and said that a lot of people were after him. Newlove said that Povey told him that if he did not change or retract his statement something would be done about it. He said he only spoke to Povey once and the rest of the threats were left on his voice mail. One of the messages left by Povey on Newlove's telephone was played to the jury. In it Povey is heard to say:

"Now then, I hope what we talked about last week is sorted now. You know yourself what was being said, so I think you should ring me, don't you, to get it sorted. I think it has gone a bit far, don't you? All right."

30. On 21 August 2003 Newlove made a further statement to the police in which he retracted his previous statement and said that he had received a number of threats by persons that he believed were perfectly capable of carrying them out. The message left on Newlove's telephone was the principal evidence relied on in respect of this count. In evidence, Povey said that the message on Newlove's mobile telephone referred to a complaint by him that Newlove was having an affair with the wife of a friend of Povey's who was in prison. He said that he was attempting to persuade Povey to cease his association with that woman.
31. Count 10 alleged arson against Povey. Daniel Newlove, aged 15 at the time, gave evidence via a video link. He said that about midnight on 2 September 2003 he heard a car outside the house where the Newlove family was living. He saw two people who looked about the same age as his brother David. They looked at the gate of the house and opened it. Then they walked off. He told the rest of the family and his father spoke to David. His father then taped up the letter box before they went to bed. A few minutes after 03.00 Daniel said that he again looked outside and saw the same two people coming down the street. One of them was wearing a cap which he had not had on the first occasion. Daniel shut his window and woke up his father. When his father looked out of the window he saw that the car, which belonged to him and was parked in the car-port, was on fire. By the time his father had got downstairs the men had gone. Daniel provided descriptions of the two men to the police and attended an identification parade but was unable to identify any one.
32. Claire Newlove, aged 16 at the time, also gave evidence via a video link. She said that she was on the telephone at about 23.50pm when her brother Daniel told her that he had seen two people at the gate. She heard a car and looked out. She saw a car travelling down the road which she was sure was a Peugeot 309 and reminded her of one owned by her brother's friend Dwuane. Later she looked out of her bedroom window and saw flames and someone running off in a cream jacket. Ian Newlove, David, Claire and Daniel's father, confirmed that he had taped up the letter box on the night of the fire. He said that when he discovered that his car was on fire his daughter, Claire, became hysterical. He ran out to put out the fire and noticed a pink rag on the drive about four or five feet away from the car. It had some kind of accelerant on it. He later gave the rag to a SOCO (scenes of crime officer). On the following day he spoke to his neighbours. They showed him an Umbro plastic carrier bag and some pink cloth which they had found that morning. The carrier bag had been entangled in the bushes and the cloth had been hanging over the fence between the two properties. They also found a milk bottle which smelt of solvent in the grass cuttings close to their wheelie bin.
33. There was evidence from a forensic scientist that the piece of pink rag found near Ian Newlove's car and that found by his neighbour were identical in composition and colour and the pieces fitted together. There was also evidence that Povey's fingerprints were found on the Umbro carrier bag.
34. David Newlove was in the house on the night of the fire. He said that he helped his father put out the fire. Recalling the threats to him, he decided to tell the truth about the incident involving Sirrs's Cavalier car on the night of 20 July 2003. He made a statement in which he said that later on the evening of 20 July he saw Sirrs and Povey together in Povey's Ford Escort. It was suggested to him that he hated asylum seekers. He denied that he was self-seeking and that he was in some way trying to get rid of Sirrs. He rejected the suggestion that the phone calls had not taken place. He denied doing a deal with the police for other charges to be dropped in return for his evidence. He denied that he had been involved chasing Kosovans. He denied having an affair with the wife of one of Povey's friends. The woman named by Povey as having an affair with Newlove, Tammy Arnott, gave evidence and denied that Newlove was her boyfriend.
35. Povey admitted making the telephone call to which we have referred. His explanation for it was as we have already recounted. He denied taking any part in the arson attack. He could give no explanation for his fingerprints being on the Umbro carrier bag. But he said that he had numerous bags in his car. He suggested that the bag could have been given to someone as a container for goods sold by him.

Counts eleven and twelve

36. These counts allege offences against Sirrs. They allege that he did acts with intent to pervert the course of justice by seeking to persuade his former girlfriend, Jo Connell, to provide an alibi for him in respect of the incident in count five when he had run down Mohammed (count 11) and attempted to coerce her into retracting a witness statement (count 12). Connell gave evidence to this effect. Sirrs denied that he tried to get her to give him an alibi and that he done anything to persuade her to withdraw her statement.

The grounds of appeal

37. Each appellant raises a substantial number of grounds of appeal not all of which have been considered by the single judge. The single judge gave leave in respect of some and refused leave in respect of others. Each appellant renews his application for leave and seeks leave to appeal in respect of additional grounds. There are some grounds which are general and which are said to affect the safety of the convictions as a whole. We shall deal with these grounds after the grounds which relate to the specific counts. We shall deal with the grounds which relate to specific counts sequentially in indictment order.

Counts one, two and three

38. The first ground of appeal in relation to these counts is one for which leave was granted by the single judge. It centres on the evidence of Jackson. We have already recounted the fact that in cross-examination it was suggested to Jackson that the motive for him lying was to extricate himself from a Public Order Act offence with racial overtones. In the cross-examination by counsel for each appellant it was put to Jackson that he was lying because he had made a deal with the police to drop the Public Order Act offence, or at least to help him to obtain a lenient sentence. He had at the time only recently finished a Community Service Order and he accepted that he did not to want to run the risk of a prison sentence.
39. At the time of the cross-examination it was known to the defence that the prosecution had offered no evidence on the charge against Jackson when he appeared in the Hull Magistrates Court on 25 September 2003. He was bound over by the magistrates for 12 months in the sum of £50. The suggestion was that he was anxious to avoid a prison sentence and that this was the reason for him giving false evidence.
40. In cross-examination he was asked by leading counsel for Sirrs whether he thought he had been leniently treated in respect of the Public Order Act offence.

"Q. You say you had finished your Community Service but no doubt you would be still worried, would you, about this allegation? A. Yes I was.

Q. Did you think you'd got off leniently by being made the subject of a bind-over? A. Not particularly. I think I was fairly treated.

Q. Fairly…? A. I think I was treated fairly.

Q. Right. A. And then you come to make your statement in September a few days later. Okay? A. Yes.

Q. I'm going to try to ask you again – because I don't suppose it's every day you go along to the police station and make statements – who approached who first about that? A. I can't remember now.

Q. Well, did a policeman come knocking at your door and say, "Well look - - -" Had you moved, first of all, by this time? A. I was asked by the police what happened and I refused to tell them at first and then after that I then contacted Laurie McIntyre and spoke to him about it."

41. Mr Khan representing Povey put the matter more bluntly:

"Mr. Khan: And you've done a deal with the police, haven't you? A. I don't understand what you mean.

Q. You don't know what I mean when I say you've done a deal with the police? A. No. I haven't done a deal with nobody.

Q. So they can drop charges against you and you make statements against other people. A. And what charges would that be?

Q. The charge was when you appeared in court and they dropped, didn't they, dropped the charge against you? A. I don't know if the police dropped the charges, CPS dropped the charges, but I still pleaded not guilty and was bound over, just like there was another gentleman I was in court with and he was treated exactly the same and he still hasn't given a statement to this day."

42. Following this cross-examination the prosecution handed to the defence a document entitled Officers Report Number: R1. That document previously undisclosed, contained a paragraph purporting to be a description given by Jackson of his knowledge of the running-down incident (the subject of count 5). It contained the following paragraph:

"JACKSON stated that he did not wish to say anything further at this moment. He then asked if we could help him with his current charge of Section 4 Public Order. He stated that he did not wish to go to prison and if we could help him he would supply a statement.

JACKSON was told that we could not and would not make any assurances at this time and that we would speak to the Senior Investigating officers involved with this case and also if necessary the Crown Prosecution Service."

43. The defence elected not to ask Jackson to be recalled, but decided to cross-examine D.S.McIntyre. His evidence was as we have set out earlier in this judgment.
44. Three principal submissions arise out of this evidence. Firstly, both appellants submit that the defence was prejudiced by the late disclosure of R1 and that further disclosure post-trial reveals material which the appellants could have used in the cross-examination of Jackson. Secondly, it is submitted that the judge should have referred in detail to DS McIntyre's evidence. Thirdly, it is submitted on behalf of the appellants that the judge in the exercise of his discretion should have given a direction warning the jury to exercise care when assessing Jackson's evidence and to look for evidence which supported his evidence before acting on it.
45. So far as the first of these submissions is concerned, there can be no doubt that R.1 should have been disclosed before the trial. Whether this was an oversight or not, it was a serious error on the part of the prosecution. Mr Collier, when informed of the existence of R.1, immediately disclosed it to the defence. No criticism can be levelled at him or his junior. However, he submits that this late disclosure, in the event, did not prejudice the defence. The appellants could, if so advised, have asked for Jackson to be recalled. The election was made, instead to cross-examine DS McIntyre. In the course of that cross-examination DS McIntyre frankly disclosed all the information which was contained in R.1. Further, in our opinion, other documents which were disclosed post-trial add nothing to the information provided by DS McIntyre.
46. In our judgment the late disclosure of R.1 and other information has, in the circumstances in this case, not led to the verdicts on counts 1, 2, and 3 being rendered unsafe. As a result of DS McIntyre's evidence the appellants were in a position to make the maximum capital out of the failure by the prosecution to disclose this information and, more importantly, to make submissions to the jury on Jackson's credibility arising out of his failure to tell the truth about the "deal". Nothing that has been disclosed post-trial adds to any real extent to the information on this topic obtained in cross-examination of DS McIntyre
47. The second and third submissions in respect of Jackson's evidence criticise the judge's summing-up of his evidence. It is submitted that DS McIntyre's evidence was central to the defence case. It demonstrated Jackson's lies about the "deal". It is common ground that the judge did not mention in his summing-up DS McIntyre's evidence at all. There is only one reference to DS McIntyre in the whole of the summing-up and that is on an unrelated matter. However, Mr Collier points to the fact that in two places the judge did refer to the "deal". When starting his summary of Jackson's evidence he said:

"Mr. Jackson was an important witness, and it is for you to determine whether his evidence is tainted by any deal that he may have made, or is alleged to have made. It is for you to determine, having seen him tested in cross-examination, whether he, or, indeed, any of the witnesses are sufficiently bright to maintain a complicated and convoluted set of lies. It is for you to determine whether you regard his evidence as reliable or not."

48. The reference to the witness being "sufficiently bright to maintain a complicated and convoluted set of lies", would appear to echo an observation by Jackson in evidence that he was not clever enough to put the blame on other people.
49. The judge also referred to the deal in the context of the submissions made on behalf of both appellants:

"Mr. Bradshaw and Mr. Khan say, well, this was a deal that the Prosecution dropped this case against him – it wasn't perhaps the most serious matter, it was in the Magistrates' – in return for giving evidence. No, he said, that is not the case at all."

50. In our opinion, there is force in Mr Collier's submission that the references to the deal must have reminded the jury of DS McIntyre's evidence. It was the essence of what was put to him by counsel for the appellants and mention of the deal would beyond doubt remind the jury of his evidence. We think it unfortunate, but perhaps understandable, that in an effort to reduce his summary of the evidence to the essentials, the judge did not deal with D S McIntyre's evidence in any detail contrasting it with Jackson's evidence. Nevertheless, on its own, we would not have regarded this omission as sufficient to render any of the verdicts unsafe.
51. The next submission criticises the judge for failing to direct the jury to exercise caution when assessing Jackson's evidence. In our judgment there is force in this submission. There was some evidence from which the jury might have drawn the inference that Jackson was an accomplice to the bomb making. He said that on the night of the Calibra incident material for making bombs was taken from the boot of his car. More importantly, DS McIntyre's evidence was more than capable of demonstrating that Jackson had a considerable axe to grind in respect of his evidence.
52. Mr Collier QC, for the prosecution, submits that whether a judge should give such a direction is a decision for him to make in the exercise of his discretion and in this case the judge cannot be said to have erred in not doing so. He relies on dicta of this court in R v Makanjuola 1995 2 CAR 469. Lord Taylor CJ, giving the judgment of the court in Makanjuola, said at page 472:

"To summarise:

(1) Section 32(1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories.

(2) It is a matter for the judge's discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence."

53. We accept that this judge is a very experienced judge and that the decision made by him in the exercise of his discretion is deserving of great respect. We also bear in mind that at no point was it suggested by counsel for either of the appellants or the prosecution that he should give such a direction. Nevertheless, we are quite satisfied that in the circumstances of this case the judge erred in not doing so. In our judgment, the factors which are heavily in favour of such a direction are, first, the nature of Jackson's approach to and soliciting of help from the police over the Public Order charge. Secondly, the fact that no evidence was offered on this charge strongly points to an arrangement or deal with the police and CPS that in return for a witness statement he would receive favourable treatment in respect of the charge. This provided an obvious motive for him, at the least, to embellish his evidence. Thirdly, the fact that he was clearly less than truthful over the arrangement or deal with the police adversely affected his credibility. And finally, in the course of the hearing we directed that there be disclosed to the appellants the fact that following the trial Jackson was given £500 as a reward. This, of course, was not and could not be available to the appellants at the time of the trial. It does, however, give some indication of the importance attached by the prosecution to Jackson's evidence.
54. Povey in his original grounds of appeal raised similar grounds in respect of Hemsworth's evidence. The single judge gave leave also in respect of these grounds. He also gave leave to Sirrs to argue a ground of appeal that the prosecution had failed properly to disclose material which undermined its case. This ground initially focused on the failure to disclose details of Jackson's deal with the police evidenced by R.1 However, following the grant of leave, both the appellants sought further disclosure. This necessitated two directions hearings. The result has been a considerable trawl through documents and further disclosure by the prosecution. This has resulted in a further ground of appeal by both appellants based on the prosecution's failure to make full disclosure. We shall deal with the general ground of appeal in respect of non-disclosure later in this judgment. The specific ground which is before the court in an application for leave is that subsequent disclosure undermines Hemsworth's evidence. We deal now with the ground upon which leave has been given and the specific ground for which leave is sought. Both centre on Hemsworth's evidence.
55. First, it is submitted on behalf of both appellants that the judge ought to have given the same warning to the jury in respect of Hemsworth's evidence as we have found he should have given in respect of Jackson's evidence. The basis for this submission is that it was put to Hemsworth that he had had a reason for being hostile towards both appellants. In respect of Sirrs it was accepted by Hemsworth that a former girlfriend of his, Yasmin Morrow, went out with Sirrs after her relationship with Hemsworth had ended. The suggestion was that this caused Hemsworth to "have it in for Sirrs". Hemsworth denied this suggestion. It was also accepted by Hemsworth that he became very friendly with Joanne Connell, an ex-girlfriend of Sirrs. He agreed that he had but denied that for that reason he wanted to get Sirrs put "out of the way".
56. In respect of Povey, Hemsworth accepted in evidence that he did not get on well with him. It was suggested that his ill-feeling also arose out of his relationship with Yasmin Morrow. Hemsworth accepted that after his relationship with Yasmin Morrow ended she also went out with Povey. He denied that this caused any ill-feeling between him and Povey. However he agreed that he had never seen "eye to eye" with Povey.
57. It was not suggested to the judge that any special direction in respect of Hemsworth's evidence should be given to the jury but Mr Perkins, for Sirrs, and Mr Khan, for Povey, both suggest that he should have done so.
58. In our judgment the position is quite different from that in respect of Jackson's evidence. Although it was suggested to Hemsworth that he also had "done a deal" with the police, he denied it and there was not a shred of evidence to suggest that he had. In his summing-up the judge made the general point to the jury that criticisms of witnesses had been made on the basis that the witnesses were "self serving". He reminded the jury that it was for them to decide what weight to give these arguments. In our opinion there was no reason for any special direction to be given in respect of Hemsworth's evidence.
59. Before leaving this ground of appeal we should mention an associated criticism of a comment made by the judge about Hemsworth. The judge said of him:

"Now, Hemsworth is a man who is criticised by the defence for having axes to grind, for trying to keep people off the street and safe. Well, you saw Mr Hemsworth. I know it is some time ago now, and I trust you will remember him: the man who gave his evidence in a way which you may have thought was confident."

It is argued on behalf of Povey that the use by the judge of the word "confident" to describe Hemsworth went beyond the boundaries of what was proper. We disagree. The following sentence puts the matter in context:

"Whether he was confident or cocky or not is a matter entirely for you to determine."

60. What is clear from these passages is that the judge specifically reminded the jury that Hemsworth was one of the witnesses who it was suggested had an axe to grind.
61. We turn to the second ground of appeal in respect of Hemsworth's evidence which is based on the prosecution's failure to disclose documents which it is submitted undermined Hemsworth's evidence. The main document relied upon by the appellants in this connection is an officer's report numbered R3L. It shows that on 10 September 2003, DC Dowd saw Hemsworth. The report notes that Hemsworth was complaining about threats from Sirrs over Hemsworth's relationship with Connell. It also contains the following paragraphs relating to the Calibra incident which in the report is put by Hemsworth as having occurred on the night of Saturday 19 July 2003:

"HEMSWORTH stated that around 22.00 hours a red Calibra came down Pryme Street got stopped before it could leave the street, then POVEY hit the Calibra with a baseball bat, then Bonehead hit the car with an iron bar and Chris threw a petrol bomb at the car which didn't ignite, then Chris threw a second petrol bomb which bounced off the Calibra and set FRAZER'S tyres on fire (FRAZER put the fire out). HEMSWORTH states that POVEY and Bonehead made the petrol bombs on Pryme Street in the bushes near Freetown Way.

POVEY, SIRRS and Bonehead then got in to the white Cavalier and went looking for as he describes it Kosovans.

At around 2230 hours Chris came back on to Pryme Street in the white Cavalier with Joanne CONNELL sat next to him.

The next night Sunday 20^th July 2003…, HEMSWORTH was again on Pryme Street when first he was told by Bonehead that they had run a Kosovan over, then later by POVEY that they had hit a Kosovan and tried to reverse to run him over again.

HEMSWORTH states that he will not give a statement as he has a child by MORROW and POVEY knows where he lives and he has stated that he will sort him out if he grasses. HEMSWORTH states that these people do not fight one to one they do everything underhand.

HEMSWORTH states that Chris is pulling all the strings whilst he is in prison through Joanne SMITH."

62. Mr Perkins submits that this document would have enabled the defence to cross-examine Hemsworth on three important matters. First, Hemsworth referred to the incident having occurred after 2200 on 19 July 2003. By reference to a CCTV tape of the area at that time it can be seen that no such incident is shown to have taken place. Accordingly, Hemsworth must be lying or wrong in this respect. Secondly, Hemsworth made no reference to the samurai sword when speaking to DC Dowd. Thirdly, the date of this report demonstrates that Hemsworth lied about the date of his first contact with the police having stated in evidence that he first saw police officers when he made his first witness statement on 8 October 2003.
63. In our judgment none of the above material would have had any significant effect on Hemsworth's credibility. As to the first point, it was never disputed by the appellants that the Calibra incident took place. The prosecution were unable to put a precise date on it. In his witness statements Hemsworth said that the Calibra incident and the running down incident happened on two different days. He is recorded in R3L as saying they happened on the same night. It is accepted that the latter was probably wrong but in our judgment Hemsworth's inconsistency in respect of this date would in the circumstances not have had the effect of casting doubt on the accuracy of the substance of his evidence. Similarly we are quite satisfied that his error in respect of the date of his first contact with the police would have had no effect on his credibility generally.
64. Finally, it is correct that in R3L there is no mention of the samurai sword incident (count 2). We do not regard this as significant. In any event had these matters been put to Hemsworth to show that he was inaccurate and inconsistent in his recollection of this event and its date, bearing in mind the defence allegation that he was lying, in our judgment, any such suggestion would have been met by re-examination of the many other parts of this report which were consistent with his evidence and damaging to the appellants' case.
65. We need only refer to one other document, namely an exhibit to the witness statement of P.S. Weir labelled SMW/11. It is alleged by both counsel for the appellants that this document was not disclosed before trial. In fact this is incorrect. The witness statement of P.S. Weir, to which SMW/11 was exhibited, is dated 18 September 2003. That statement records the fact that P.S. Weir together with D.C. Mainland, spoke to David Newlove on 16 September 2003. P.S. Weir in his witness statement states that he recorded the content of the conversation upon two pieces of statement paper which form SMW/11. There is no doubt that solicitors for Sirrs, before trial, asked for a copy of a number of documents including SMW/11. There is a dispute between the parties as to whether this document was sent to either of the solicitors representing the appellants. For the purposes of this ground of appeal we shall assume that it was sent to neither. On that assumption it is, in our view, quite clear that this document could have been obtained by the appellants at least before Newlove gave evidence. It is submitted on behalf of the appellants that there was material in that document which would have assisted counsel for the appellants to undermine Jackson's evidence. It contains a hand written statement which reads "Steven Jackson. Knows all." There is then a line on the page to a further short sentence which reads "behind the car when it occurred, red Clio". The suggestion is that this would have assisted to throw doubt on Jackson's evidence. We are bound to say that in our opinion these statements would have made little impact on Jackson's evidence. We add that there are other parts of SMW/11 which would have damaged the defence of both appellants.
66. Generally, in our judgment, none of the documents subsequently disclosed by the prosecution are such as to provide any real prospect of assisting the appellants to throw any additional doubt on either Jackson or Hemsworth's evidence.
67. Next, Mr Perkins and Mr Khan raised two other matters in connection with Hemsworth's evidence. It is submitted that material disclosed shows that Hemsworth was the subject of a video interview which has still not been disclosed. It is also submitted that Hemsworth was shown the samurai sword taken from Sirrs' car on 26 July 2003 before making his witness statements.
68. It is unnecessary to set out the documents said to support these submissions. In our judgment these allegations are based on pure speculation and this ground, for which leave is sought, is devoid of merit. We refuse leave.
69. Finally, both appellants submit that the judge erred in failing to give a Turnbull direction on identification. The application for leave on this ground was not before the single judge. In support of this submission Mr Khan sought to persuade us that the evidence showed that Jackson did not know Sirrs or Povey other than as an acquaintance for a short time before the Calibra incident. It is submitted that for this reason it was incumbent upon the judge to give a Turnbull direction even though this was a recognition case.
70. We reject these submissions and refuse leave on this ground. The Calibra incident was not a fleeting glance incident. The making of the bombs, the breaking of the Calibra windows and the subsequent throwing of petrol bombs must have occupied more than a few seconds. There then followed the start of the car chase and Povey's waving of the samurai sword. The two witnesses had the opportunity of observing Sirrs and Povey, two men whom they knew, for more than just fleeting moments. The defence was not that they were or could be mistaken. It was that they had deliberately lied about Sirrs' and Povey's participation in this incident. In our judgment no Turnbull direction was necessary. We refuse leave on this ground.
71. We must now consider the effect of our above conclusions on the verdicts on counts 1, 2 and 3. Jackson's evidence was the only evidence against Sirrs on count 1. Hemsworth's evidence did not implicate Sirrs on that count. Accordingly, in our judgment, the guilty verdict against Sirrs on count 1 cannot be regarded as safe. It may be that if a direction warning the jury to exercise caution in respect of unsupported evidence of Jackson had been given, it would still have convicted him of count 1, but of that we cannot be sure. Accordingly, we allow the appeal of Sirrs on count 1 and quash his conviction in respect of it.
72. Mr Khan submits that such a finding would be sufficient to render the verdicts in respect of Povey on counts 1, 2 and 3 unsafe; Mr Perkins, that it would be sufficient to render the verdict in respect of Sirrs on count 3 unsafe. In our judgment this does not follow. The only issue on count 2 for the jury to decide was whether they accepted Hemsworth's evidence. By their verdict it is clear that they did. The judge adequately summarised the evidence and accurately directed the jury on the law. We are quite satisfied that the jury's verdict on count 2 is safe.
73. So far as count 1 is concerned there was evidence from Jackson and Hemsworth implicating Povey. In respect of count 3, Jackson and Hemsworth implicated each appellant. There is no reason to suppose that the jury would have done other than accept Hemsworth's evidence in the absence of Jackson's evidence. In any event, Hemsworth's evidence provided support for Jackson's evidence against Povey on counts 1, and Sirrs and Povey on count 3. In the circumstances we are quite satisfied that the verdicts of the jury on count 1 in respect of Povey and both Sirrs and Povey on count 3 are safe.

Count 4

74. The grounds of appeal in respect of this count, for which leave is either sought or an application for leave renewed by Povey, are confined principally to a criticism that the judge failed properly to put the defence. The matters relied on are set out in the application to renew the application for leave to appeal and Mr Khan's skeleton argument. In our opinion, they all amount to points which could, and no doubt were, made to the jury in Mr Khan's final speech. In our judgment it was not necessary for the judge to repeat these arguments in his summary of the evidence. The judge's review of the evidence on this count was sufficient to place the issues before the jury for them to determine.
75. The only other submission made by Mr Khan is that the judge withdrew from the jury a submission made by Mr Khan that if Webster's evidence was correct, others were involved in bomb making and should have been prosecuted in addition to Povey. What the judge said in the summing-up on this matter was:

"Povey, through Mr.Khan, of course, complains that "others" allegedly involved in this haven't been proceeded against. Well, we don't know, but whether they have or they haven't is neither here nor there, because you have to determine whether Ben Povey was involved in this, and what happened to others is not our concern. The issue that you have to decide is are we sure that Povey was involved in making bombs on that verandah."

76. In our opinion this was an entirely proper comment for the judge to make to the jury. There are no arguable grounds of appeal in respect of count 4 and we refuse the application for leave.

Count 5

77. We have recited the evidence in respect of this count earlier in this judgment. Two issues arise on Povey's appeal against conviction for the offence of jointly, with Sirrs, causing grievous bodily harm with intent to Salar Mohammed. Those issues are first that the judge's direction on joint enterprise was defective. Secondly, the judge's summary of the evidence was inadequate. The single judge granted leave in respect of the first issue. Before dealing with the judge's directions we shall take the second issue, since it involves the factual issue of whether or not Povey was a passenger in the car at the time Sirrs deliberately drove into Salar Mohammed. His defence was that he was not a passenger in the car and was elsewhere.
78. We have recited the evidence on which the prosecution relied in respect of this issue. Mr Khan makes criticisms of the evidence and complains that the judge's summary of it was incomplete, distorted and "redolent with rhetoric". We have carefully considered the criticisms set out in Mr Khan's skeleton arguments, application to renew and application for leave to appeal and in his oral submissions. In our judgment, the evidence was, if accepted by the jury, clearly sufficient to establish that Povey was a passenger in Sirrs car at the relevant times.
79. Mr Khan makes a number of complaints about the evidence including the fact that although police officers searched Ms Webster's flat and surrounding area on 4 September 2003 they did not find the remnants of the burnt England football T-shirt until 11 September 2003 when they conducted a second search. It is clear from the disclosed documents that the fact there was an earlier search before 11 September 2003 was or could have been known by the appellant and his advisers at the time of the trial.
80. Mr Khan criticises a phrase used by the judge when describing the evidence of the taxi driver, Mr Cheney, as "bodies flying through the air". Mr Cheney's actual description in evidence was of seeing a car shoot out in front of him "swiftly…swiftly followed by a body that came across and just as I stopped it hit the near side of my car." He added "It appeared to be sort of squeezed between the car and the wall of the building…" We can see little significant difference between the judge's description and Mr Cheney's evidence.
81. Finally, Mr Khan makes the criticism of the judge's summing-up (repeated on other counts) that the judge did not refer to all the evidence and the cross-examination of the witnesses. In general the judge's summing-up was short and concise. It was obviously designed to focus the jury's attention on the main issues. On this count (as on other counts) we do not accept that the judge was bound to refer to all the evidence and specifically to detailed cross-examination. In our judgment on this count the issues were fairly laid before the jury.
82. The criticism of the judge's legal directions on joint venture is of more substance. On this ground the single judge gave leave. The judge's legal directions on this count were as follows:

"If two people engage upon an activity then it doesn't matter who, in particular, does what. If Mr Khan and I went out burgling one night, and I let Mr Khan keep a lookout for me whilst I broke into somebody's house, he would be just as guilty as me of burgling, even though he didn't actually enter as a trespasser, because he and I would have been involved in the joint enterprise, it is as simple as that. The Crown say here was Povey; he was in that car. Given the atmosphere, given his conduct, given what you know about this case, say the Crown, it is an irresistible inference that you can draw. That you really can't avoid it, that he was part and parcel of what Sirrs was doing. Mr Povey says, "Well, no I wasn't, I wasn't in the car; never in the car", and Mr Khan says, "Well, he wasn't in the car", he asks you to accept that, but insofar as there is evidence that he was bragging about being in the car, that still doesn't mean he is necessarily guilty, because if a person is sitting in a car inevitably he is to a certain extent in the hands of the driver as to where it goes, and if Mr Povey was saying, "well, I was in the car, and I was telling Sirrs to behave himself and not to be so wicked", then that would be a defence, because he would be trying to dissociate himself from what Sirrs was doing. Say the Crown this isn't the case here. He was in the car, they say, and in the circumstances it is very difficult to resist – indeed impossible to resist – the inference that he was part and parcel of this offence."

He then went on to recite the evidence and ended this section of the summing-up with the following sentence:

"The Crown say this quite clearly shows Povey in the car doing something; he has got something to hide; he is burning his tee shirt and, say the Crown, the conclusion is obvious that Povey was in the car playing his part in that dreadful attack upon Saalam Mohammed"

83. Mr Khan makes two principal submissions. First, he submits that the direction itself on joint venture was insufficient in that it did not explain what the prosecution had to prove in order to establish his guilt on this count. The expression "part and parcel", it is submitted did not explain what the prosecution had to establish. Secondly, he submits that the defence was alibi and the judge should have given the standard alibi directions.
84. In our judgment the directions given by the judge were sufficient in the circumstances of this case. In our opinion, the expression "part and parcel" is quite adequate to explain the concept that what had to be proved was that the two men were acting together. What has caused us more trouble is Mr Khan's further submission that the directions are capable of suggesting that all the prosecution had to prove was that Povey was in the car. Mr Khan argues that the comment by the judge that Povey could have done something to disassociate himself with what Sirrs was doing suggests that Povey had to prove that he was not a party to Sirrs actions.
85. We recognise the force of these submissions but we have concluded that the judge's directions were quite adequate. We accept Mr Collier's submission that his directions on what constitutes a joint venture were accurate. Further, as Mr Collier points out, the judge did direct the jury that mere presence in the car was not sufficient. He had clearly given the jury a full and proper direction on the burden of proof. It was, in our opinion, unnecessary for that direction to be repeated.
86. As for the comment about disassociation, it seems to us this must be seen in context of the evidence in the case. It is apparent from Salar Mohammed's evidence and that of Barrick that the running-down of Salar Mohammed by the car was not a split second incident. Salar Mohammed's evidence was that he and his companion were chased by a car or cars. Mr Collier in his opening to the jury apparently described the incident as follows:

"You will hear some evidence about what had gone on earlier

in the evening and other incidents that had taken place.

But for now it suffices to say that Sirrs and Povey pursued the two Iraqis along Freetown Way to the traffic lights and roundabout at the junction with Wright Street and Percy Street. Sirrs drove his car over the central reservation and in to Percy Street across the junction with Wright Street.

He did not remain on the carriageway but drove up on to the pavement in a deliberate act. The Iraqis were left with nowhere to go and Sirrs drove in to them impacting with Salar who one witness described as being tossed in the air like a rag doll. He came down to the ground as a taxi coming along Wright Street was forced to make an emergency stop. Maybe that he also struck that taxi.

The prosecution case is that Sirrs and Povey were acting jointly together and that their intention was to do serious injury to this asylum seeker.

Sirrs admits that (or part of that); you must decide whether Povey was by his presence encouraging him and shared his intention."

87. Salar Mohammed's evidence was that he remembered the car coming form the other side of the road and on to the pavement where he was running away to escape from the pursuing car. He was struck by the car when it was on the pavement. There is a plan with the papers which shows what purports to be a point of collision between the car and Salar Mohammed on a pavement on the wrong side of the road for the car. In that context the evidence of what Povey is alleged to have said before and after the incident is quite capable of showing, not only that he was present in the car, but also he was actively participating and by his presence encouraging Sirrs to do what he did. In those circumstances the comment by the judge about disassociation becomes more explicable although in our opinion it could have been better expressed.
88. Mr Khan's final criticism is that the judge gave no alibi direction. However, the judge did give the standard lies directions. Povey gave evidence himself but called no other evidence. In the circumstances it was unnecessary for the judge to give additional alibi directions. It might have been better if he had specifically connected the lies direction with Povey's denial that he was in the car. But the fact that he did not, in our judgment, does not render the conviction on count 5 unsafe.
89. In all the circumstances we are quite satisfied that the conviction of Povey on count 5 is safe.


 


Count Eight

90. Various complaints are advanced, or sought to be advanced, by Sirrs in respect of his conviction on this count. The original grounds advanced a complaint that primary disclosure of mobile phone records did not take place until the first day of trial. Leave was refused on that ground and Sirrs renews his application for leave on it. That complaint was renewed in subsequent correspondence and in additional grounds. Particular emphasis was placed on two documents, Report Number: R3B which it was said is "capable of supporting the applicant's contention that the applicant had not initiated contact with Newlove at any time after Newlove had given his first statement to the police", and document SMW/11, to which we have already referred which it is said showed that Sirrs's brother Mark was present at a meeting between Sirrs and Newlove, in the course of which Sirrs intimidated Newlove. This was said to contradict a witness statement from Newlove.
91. As elsewhere in this case, we reject the proposition that a document disclosed late but before the trial finished automatically causes the conviction to be unsafe. Specifically, in relation to the two documents emphasised as they affect this count, we find that the telephone and text records do not show that Sirrs never approached Newlove after Newlove's first statement. The statement in which Newlove implicated Sirrs was dated 2 August 2003. At that stage Sirrs was in custody. He was released on the morning of 4 August. The records do demonstrate that the first contact after his release was from Newlove to Sirrs, timed at 10.48. However, there were successive contacts during the rest of that day going in both directions. Sirrs was arrested again on 5 August 2003 and released on the morning of the 6^th. On this occasion, the first contact was initiated by Sirrs at 11.29am. The telephone records thereafter demonstrate contact initiated by each of them. Moreover, the dates and times of all telephone calls and texts were before the jury. This pattern of contact completely contradicts the suggested implication of R3B set out above. In relation to SMW/11, we are highly sceptical as to whether it would have been introduced by competent defence counsel, even were it to have been to hand before the trial, and we see no realistic basis for suggesting it would have altered the outcome on count 8. We have received no clear proposition as to how any other document would have affected the outcome on this count.
92. Other complaints concerning this count relate to the summing-up. The original grounds of appeal advanced the proposition that the conviction was unsafe by reason of the judge's failure to warn the jury to be careful before convicting on the uncorroborated evidence of Newlove, a witness of admitted bad character. Leave was refused on this ground and the application for leave is renewed. The point is amplified in further grounds. On this question, we regard Newlove as being in the same position as Hemsworth. For the reasons set out above in relation to Hemsworth, we do not regard the absence of any such warning renders this conviction unsafe. The position in relation to Newlove was not such as to mean that the exercise of discretion by the judge in not giving such a warning is to be criticised, given the approach of the Court of Appeal in Makanjuola.. The conviction is not rendered unsafe on this ground.
93. Mr Perkins makes various criticisms of the summing-up on this count, suggesting that specific parts of the evidence or of the admissions or of the chronology and pattern of Sirrs "custody" were not summarised in the summing up. These contentions do not themselves bring home an appeal.
94. However, in our judgment there is a problem with the summing-up on this count. It can be very simply put. It was common ground that Newlove was a member of the Hull Cruise Club and that he and Sirrs each had an interest in cars. Sirrs defence to this count was that he had acknowledged contact with Newlove, but that the contacts were legitimate and to do with car parts. Had this been put to the jury, they might well have rejected it. As matters fell out, the judge simply failed to include any reference to Sirrs' defence to count 8 in the summing-up. He never reminded them of the defence at all. The prosecution case on count 8 is rehearsed by the judge at several points between pages 28 and 33 of the summing-up. It is well-established that however weak, or indeed implausible, may be the defence, the defendant has the right to have it fairly presented to the jury by the trial judge. In the absence of any mention at all by the judge of what Sirrs said was behind the contacts between him and Newlove, we are driven to say that this conviction is unsafe. We might add that somewhat surprisingly this ground only features in the additional grounds of appeal dated 6 October 2006 for which leave is sought and was not mentioned orally by Mr Perkins until late in his reply. However, we extend time and grant leave. Accordingly the conviction on this count is quashed.

Counts Nine and Ten

95. As with previous counts, the complaint is made by Povey, in relation to count 9, that proper disclosure would have enabled cross-examination with such effect that the failure of disclosure leaves the conviction unsafe. Here attention focuses on R3L, a report of a discussion with the witness Hemsworth dated 10 September 2003. We do not accept that any failure of disclosure renders this conviction unsafe. We have already commented on this document. As we have said we do not accept that R3L would have been introduced by competent defence counsel in order to show any detailed confusion of timing. The risks attached would have been far too great.
96. The next complaint in relation to count 9 is that the summing-up failed to deal adequately with the cross-examination of Newlove. We reject this complaint, both in relation to count 9 and count 10 for the same reasons expressed in a similar complaint in respect of count 4.
97. The next successive complaint in relation to count 9 is that the summing up misdirected the jury on the meaning of intimidation. The judge directed the jury on this topic in a short and pithy passage:

"Count 9 is intimidation, which is rather a beefed up Count Eight really. It involves – to put it crudely – putting the frighteners on, intimidating, by making threatening phone calls to Newlove which were intimidating, or intended to intimidate Newlove in relation to these proceedings."

98. This court has repeatedly said that, whilst directions of law must be accurate, the shorter and clearer they are the better. In our view, this direction is exactly that: short, clear, and to the point. In the context of this case the jury needed no more. We refuse leave in respect of this ground.
99. There being no other ground of appeal directed to count 9, the appeal in relation to this count leave to appeal is refused and the conviction stands.
100. Some similar complaints are directed to count 10, Povey's conviction for arson, reckless as to the endangering of life. A complaint is made once more about the effect of non-disclosure of documents. For identical reasons to those set out above, we reject this complaint. We can find no undisclosed document which would have made a difference to the conviction.
101. As we have summarised above, two of the witnesses in relation to count 10 were the teenage siblings of David Newlove, Daniel aged 15 and Claire aged 16. A Special Measures Direction was made in the period before trial pursuant to Section 27(1) of the Youth Justice and Criminal Evidence Act 1999, namely that a video of their evidence be made and that it should be admitted as their evidence in chief. Section 27(5)(b) specifies in such a case that, where a video is so admitted, no other evidence in chief should be given by the witness, subject to exceptions which do not arise in this case.
102. When the matter came to trial, the prosecution applied to the judge to proceed by a different method. Having seen how the case developed and, we were told, having spoken to the two young witnesses, the prosecution applied not to play the pre-prepared videos as evidence in chief, but rather to elicit the evidence in chief live before the jury by means of a video link. Mr Khan, for Mr Povey, objected to this change at the time and seeks to raise it as a ground of appeal now.
103. Section 20 of the Act deals with variations to Special Measures Directions. We set out the relevant parts of the section here:

"20 – (1) Subject to subsection (2) and Section 21(8) a special measures direction has binding effect from the time it is made until the proceedings for the purposes of which it is made are either –

(a) determined (by acquittal, conviction or otherwise), or

(b) abandoned,

in relation to the accused or (if there is more than one) in relation to each of the accused.

(2) The court may discharge or vary (or further vary) a special measures direction if it appears to the court to be in the interests of justice to do so, and may do so either –

(a) on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or

(b) of its own motion.

……………………..…………………………..

(5) The court must state in open court its reason for –

(a) giving or varying,

(b) refusing an application for, or for the variation or discharge of, or

(c) discharging

a special measures direction ………"

104. It will be clear that the section seeks to strike a balance as regards the fixity of a Special Measures Direction, once such a direction has been given. Any party seeking to discharge or vary such a direction must show a material change in circumstances. This is no doubt to discourage any repeated tactical harrying by either party. In our view, it is important that such a culture should not be permitted to develop. However, by the same token it would be inappropriate for a Special Measures Direction, once given by the court, to become a straitjacket importing an unnecessary rigidity into case management of such cases. It is for that reason that the court, "of its own motion" may vary such a direction without the need for a material change in circumstances, if the interests of justice so require. The legislation is carefully drafted, therefore, to ensure that the judge is untrammelled in controlling the proceedings before the court and seeking to ensure that justice is done. We wish to emphasise that judges may keep a Special Measures Direction under review. A Special Measures Direction is intended to give confidence to the witnesses and part of that confidence derives from the assurance that the matter will be handled as the direction has stipulated. However, that must not prevent a judge, who feels that a variation to the direction will help the trial proceed properly, from making such a variation.
105. In this instance, the matter of a variation was raised by Mr Collier and was approved by the judge as being an appropriate variation. In our view, it is clear both from the transcript and from the assurances given before us by Mr Collier, that the reasons for the change in approach were essentially threefold: firstly, the issues before the jury in relation to count 10 had narrowed, given some of the other evidence in the case; secondly, as a consequence, much of the content of the relatively lengthy videos consisted of unnecessary preliminaries or irrelevances; and thirdly, the two young witnesses were content to give their evidence live by means of video link. As the judge made completely clear, Mr Khan was able to cross-examine either witness on the contents of their original video statement, if that was thought appropriate.
106. We note in passing that as this matter developed, it would be hard to tell in this case whether the variation was granted as a consequence of an application by the prosecution or by means of a decision taken of his own motion by the judge, once the question was raised with him. However, so far from finding that this decision renders the conviction unsafe, we regard it as an entirely sensible piece of case management. Its effect was, almost certainly, to shorten the proceedings, remove irrelevancies and to move the procedure adopted closer to the live oral evidence, which has always been the normal way in which contested evidence is received in our criminal courts. Provided young witnesses and vulnerable witnesses are prepared to proceed in this way, it must be a benefit to the jury as bringing them a greater opportunity to assess the demeanour of the witness and the content of his or her evidence. We reject any suggestion that such a variation could, in these circumstances, begin to render a conviction unsafe.
107. The final ground of appeal relevant to count 10 is the submission that the judge misdirected the jury in relation to recklessness as to life being endangered. The relevant part of the summing up reads as follows:

"A person is reckless as to life being endangered if he realises that there is a risk of what he is doing endangering life and carries on, if he couldn't care less. So, if a person – you may think there can hardly be an argument about this – sets fire to a car outside a dwelling house, where any explosion or spread of the fire is going to endanger people inside, then quite clearly it is being reckless. The issue is not whether what happened on this occasion amounts to reckless arson; it is whether Povey did it. It is a who done it, and the Crown say quite clearly this was Povey…"

108. Various complaints are made about the summing-up on this count: that the summing-up entangled arson with other factual incidents in the case; the comment in the summing up was unduly prejudicial; that 'similar fact evidence' was permitted wrongly in the recital of evidence; that the law was not explained. All these we reject as ill-founded.
109. However, what does seem to us to be a valid criticism is that the judge removed from the jury the issue of recklessness as to the endangering of life. There was an overwhelming case that Povey was guilty of arson. There was strong evidence upon which the jury could properly have convicted of the more serious offence. However, in our view it was not so strong that the issue was closed. There was in our view an obvious risk, and the objective element of the test was probably a non-issue. However, it was not so obvious that a reasonable person of Povey's description would have realised the risk to life, coming from a fire in a carport, even at night. If the matter had been left to the jury and they convicted, there could have been no complaint. As it is, in our judgment, the direction was a misdirection. We grant leave to appeal on this ground and quash Povey's conviction on this count.
110. As we provisionally indicated in the course of the hearing, in the event that we quashed the conviction on the basis recited above, we are of the view that this is likely to be a suitable case for substitution of a conviction of arson. We will hear argument on this when judgment is handed down.

Counts 11 and 12

111. We turn to counts 11 and 12, counts which concern Sirrs only. The offence charged in each case is doing an act or acts tending and intended to pervert the course of public justice contrary to common law. On count 11 the particulars are that Sirrs on 31 July 2003 requested Joanne Connell to make a false statement to the police in respect of the criminal investigation which led to count 5. On count 12, the particulars are that Sirrs between 4 August 2003 and 8 October 2003 attempted to coerce and bribe Connell into retracting her witness statement – that is, the witness statement in which she asserted the facts which gave rise to count 11.
112. Mr Perkins applies for leave to appeal the convictions on these counts. In oral submissions he confined the application to a single proposed ground. This was that the prosecution failed to disclose material in its possession capable of undermining Connell's evidence and thereby undermining the prosecution case. Among other things, it was said that the undisclosed material was capable of supporting Sirrs' defence that he had not put forward Connell as an alibi witness and that her disavowal of him had been procured by a deception perpetrated by police officers.
113. Connell gave evidence for the prosecution at the trial. Her evidence in chief, so far as material to these counts was that she knew both defendants and was an ex-girlfriend of Sirrs. The relationship was pretty volatile and went on from March 2001 to the summer of 2003. She next saw Sirrs after he had been bailed and she spent his last day with him before he was remanded into custody on the 2 August. She spoke to him a few times about why he had been arrested. He said that when he had run the man over his leg was flapping. She went to visit him following his remand and he asked her to say that on that night he had picked her up at Myton Bridge at 1.15am and that they had spent the night at his parent's house in Bilton. She initially agreed but then on the following day told him that she had changed her mind. He said that in that case she should say nothing. He wrote many long letters to her from prison which she gave to the police. She wrote a couple of letters to him and agreed that she still cared for him in part. He eventually discovered that she had made a statement to the police to the effect of her evidence so far. He told her to retract the statement and say that she had lied because she had found out that he had been sleeping with other women and was just being vindictive. He said that she would get herself into trouble at court. She told DC Elvin that she wanted to retract her statement because he had threatened her and she did so. Sirrs had told her that she would be hurt or her face slashed, or something to that effect, and that her father's place would be petrol bombed (count 12). She found it frightening and told the police about the threats. When she found out what had happened at Newlove's house on the 2 September she saw the police and told them they could use her original statement. She had stopped seeing Sirrs by that time but received some more letters from him which she gave to the police.
114. In cross-examination she denied that she had lied and said that she was not trying to get Sirrs into trouble. She was not really bothered about him.
115. The evidence of Sirrs in relation to counts 11 to 12 was essentially that he ended his relationship with Connell about a week before his arrest. She was still trying to get back with him. She wrote to him and visited him but he never asked her to provide him with a false alibi or retract her statement.
116. There are three categories of material now known to Sirrs and sought to be relied on as undermining the prosecution case on counts 11 and 12. First, it is said that although he did indeed put forward a false alibi, he made it clear to the police that he did not rely on Connell but on a different girlfriend in support of his alibi. Sirrs now asserts that undisclosed material shows the police falsely told Connell that Sirrs had put her forward as an alibi witness, and that during the incident giving rise to count 5 there were two other girls in the back of the car driven by Sirrs. On this foundation, the argument is that had this material been disclosed at trial Sirrs would have been able to advance a case that Connell had made untrue allegations against him as a reaction to what the police had dishonestly told her. We regard this suggested argument as far-fetched. The material in question merely shows that at the relevant time the police understanding – whether right or wrong – was both that Sirrs did indeed rely on Connell as his alibi, and that there were two other girls in the back of the car driven by Sirrs. The material of which complaint is made does not begin to provide a basis for the assertions now sought to be advanced.
117. Second, it is said that the undisclosed material shows that after Connell retracted her witness statement the police placed her under covert surveillance, and that this had this been known at trial it could have been used to discredit her as a witness whom the police themselves did not trust. However, as Mr Collier pointed out, the surveillance shows only that the prosecution were concerned by her retraction of her witness statement. The prosecution's own case at trial was that she had retracted her original witness statement, but had been prompted by the arson incident to tell the police that they could use it. We can see no basis for suggesting that the decision to instigate surveillance cast any doubt on the evidence she gave at trial.
118. The third head of complaint concerns a note by the police that on 4 August 2003 Connell told them, "While Chris is out I have no chance of moving on." This, despite the fact that it was in the context of a description by her of Sirrs assaulting her and damaging her father's property, was said to be liable to disclosure as evidence of an underlying motive on the part of Connell to incriminate Sirrs. It is apparent, however, that this possible line of cross-examination was available at trial on the basis of other evidence, in particular, a text message sent to Connell pointing out to her the advantages of Sirrs remaining behind bars. This did not in fact lead to any cross-examination along those lines. We are satisfied that the position would not have been any different if the police note had been disclosed. Cross-examination about the note would have inevitably led to evidence about the assault on her and damage to her father's property. This would have not have helped the case for Sirrs in the least.
119. Thus in relation to all three categories of undisclosed material now sought to be relied on as undermining counts 11 and 12 we can see no arguable basis to conclude that it would have assisted the case for Mr Sirrs. We therefore refuse the application for leave to appeal against conviction on counts 11 and 12.

General grounds of appeal

120. We now deal with three general grounds of appeal raised by both appellants and for which there are renewed applications for leave and additional grounds. The first ground is that there has been wholesale failure by the prosecution to give primary disclosure of documents which undermined their case. Secondly, the summing-up by the judge is criticised as being unbalanced and defective. Complaint is made about what are said to be comments by the judge which were unfair and displayed bias against the appellants. Thirdly, the judge gave a Lucas direction which it is said was unnecessary, confusing and prejudicial.
121. We deal first with the allegation that the prosecution failed to give full and proper disclosure. There can be no doubt that the prosecution did fail to disclose some material documents before trial. The most important was the document R.1 to which we have made reference when dealing with the grounds of appeal relating to counts 1, 2 and 3. This document and the telephone records referred to in connection with count 8 were disclosed during the course of the trial. As we have already said, although the documents were disclosed late, they were not so late as to cause such prejudice to the appellants as to render their convictions unsafe.
122. The appellants sought to rely on other documents disclosed after the trial. Placed before us was a bundle of documents relied on by Sirrs running to 331 pages. The bundle relied on by Povey, which contains many documents common to Sirrs' bundle, consists of 166 pages of documents. In skeleton arguments it is asserted that all these documents were relevant. When it came to oral argument comparatively few were referred to. We found the blanket, unfocused assertion that the documents demonstrated that the appellants had not had a fair trial unhelpful.
123. We are very conscious of the fact that a failure to make full and proper disclosure of documents is a very serious matter. In R v Hadley and Others [2006] EWCA Crim 2554, a decision relied on by both Mr Perkins and Mr Khan, this court said at para 37:

"Given the importance of disclosure in ensuring a fair trial, the court is likely to be slow to accept that the safety of the conviction is unaffected if it is satisfied that a substantial volume of disclosable material has been wrongly withheld from the accused, as was the case here. The very fact that the material was capable of undermining the case for the prosecution or assisting the case for the defence means that it was material which the accused was entitled to put before the jury for their consideration and unless the court can be satisfied that the evidence tending to establish the defendant's guilt was so strong that the undisclosed material could have made no difference to the outcome, it cannot be sure that the jury would have reached the same conclusion if it had had that material before it."

But we must emphasise that when there has been a failure by the prosecution to disclose documents the test for this court remains whether such a failure renders the verdict or verdicts of the jury unsafe.

124. In this respect, during submissions when, in response to an assertion by counsel that failure to disclose a particular document rendered a verdict unsafe, we asked in what way the document could have been used by the defence, counsel was often either unable to explain or gave a wholly unrealistic answer. We take as an example, R.3L. We have referred to this document extensively above. It contained material very damaging to both Sirrs' and Povey's cases and very little that assisted them. To state as did Mr Perkins that he would have considered putting the documents to Hemsworth seems to us a somewhat naïve proposition.
125. Mr Perkins also sought to persuade us that there was material in notes by a police officer taken as preparation for a written statement made by Newlove's mother (the latter disclosed) which would have assisted the defence and undermined Newlove's evidence. Any such attempt would in our judgment have been doomed to failure. At one point, Mr Perkins made the surprising suggestion that he would have considered calling Mrs Newlove as a witness on Sirrs' behalf. Ignoring the fact, that her witness statement had been disclosed and that she was hardly likely to give evidence favourable to defendants, one of whom was alleged to have set fire to her husband's car, Mr Perkins was quite unable to demonstrate to us how he would have been able to get the notes in evidence before the jury. If he had, he would have placed before the jury notes which for the most part were unfavourable to the appellants.
126. Where undisclosed documents have been put forward in relation to a specific count or counts on the indictment we have set out our conclusions above. As to the general ground based on a failure to disclose documents we are quite unpersuaded that the failures by the prosecution, regrettable as they were, of themselves, in any way renders the verdicts of the jury unsafe.
127. The next general ground concerns the judge's summing-up. As we have already said it was short and in some respects pithy. It was obviously designed to concentrate the jury's minds on the essential issues. Apart from Sirrs' evidence in respect of count 8 it recited the evidence on both sides. Comments made by the judge were in some instances robust, but put the case for both sides of the argument. We have set out some instances of remarks of which complaint is made. Having considered all those matters about which complaint is made, in our judgment, the remarks complained of did not cross the boundary between what is robust but acceptable comment by a judge and what is unacceptable.
128. We add, as we have done in respect of individual counts, that the judge was not bound to refer to every piece of evidence adduced in the trial nor to summarise all the answers given in cross-examination and points made by the defence. On this matter the single judge said:

"The judge assisted the jury to focus on the issues, count by count, in a commendably brief summing-up. He is not to be criticised for failing to refer to all the witnesses or for failing to remind the jury of all the defence points. Most of your Counsel's lengthy arguments are a reiteration of points made to and rejected by the jury."

We agree.

129. The third ground, put forward only by Povey, criticises the Lucas direction given by the judge. We need not set it out. In our judgment it accurately reflected the legal requirements on this topic. So far as Povey is concerned it was couched in general terms. As we have said, it was not specifically tied to count 5 as it might have been. When we suggested this to Mr Khan during submissions, he disavowed the suggestion. Nevertheless, it was in our view an appropriate direction and was not confusing.
130. In the result we refuse leave on all three of these proposed grounds.

Conclusion

131. The result is that we quash the convictions of Sirrs on counts 1 and 8. We quash the conviction of Povey on count 10. We shall hear argument from counsel as to whether on count 10 there should be substituted a conviction for simple arson.

Sentence

132. We have heard submissions from counsel for both appellants in respect of their applications for leave to appeal the sentences imposed by the judge. The effect of our judgment on conviction will be to reduce the sentences of each appellant. So far as Sirrs is concerned the submission made is that the totality of the sentence was too long. A similar submission was made on behalf of Povey. In view of our conclusions on conviction we invite counsel to indicate whether or not the applications for leave are pursued. If a conviction of simple arson is substituted on count 10 we shall have to sentence Povey in respect of that offence. In that event we invite Mr Khan to indicate whether he wishes to make any further submissions.