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
		25/03/2009

The Honourable Mr. Justice OPENSHAW:

Introduction

1. On 6^th February 2008 at the Central Criminal Court after a trial before Her Hon. Judge Goddard QC and a jury, the appellants Harbinder Powar (whom we shall call Harbinder) and his elder brother Kulwinder Powar (whom we shall call Kulwinder) were convicted (both by a majority of 10 to 2) of the murder of Rakesh Raithatha on count 1. The jury were unable to reach a verdict on count 2 charging them jointly with causing grievous bodily harm to Satpreet Deol with intent to do him grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861 and on count 3 with the lesser alternative of unlawful wounding, contrary to section 20; these counts were ordered to lie on the file on the usual terms. Harbinder was acquitted on count 4 of the robbery of Satpreet Deol. A co-accused, Imran Awan, was acquitted of murder and robbery (counts 1 and 4).
2. On 18^th February 2008 both were sentenced to imprisonment for life; with a minimum term specified of 15 years for Harbinder and 16 years for Kulwinder, less the time which each had spent in custody.
3. Both now appeal against conviction by the leave of the single judge, limited to grounds 1 to 4. Harbinder also renews his applications for leave to appeal against conviction in respect of Ground 5 and for leave to appeal against sentence.
4. The facts are as follows: on the evening of 24^th January 2007, Rakesh Raithatha sustained fatal head injuries in an incident that occurred outside 27 Tilney Road, Southall, where the appellants lived with their parents. There was a background to the incident. It was the prosecution case that on the evening of 22^nd January 2007 a young man Satpreet Deol was robbed of an iPod and £40 cash. He claimed to recognise Harbinder as one of the two robbers. He did not inform the police of the robbery but instead he enlisted the help of his friends to recover his property.
5. On the morning of the 23^rd, three of these friends: Rakesh Raithatha, together with Earl Augustus and Wayne Andrews drove to the appellants' home in Augustus's red Peugeot. Rakesh Raithatha spoke to Kulwinder about the robbery, no property was recovered and the three friends left. The reality is that, having failed to recover the stolen property by peaceable means, they determined to resort to some degree of force if necessary.
6. At about half past 9 on the following evening, 24^th January 2007, Earl Augustus, Rakesh Raithatha, now with Satpreet Deol (the victim of the original robbery) and a fourth man, Neil Rafiel, went round to the appellants' house in the Peugeot motor car. The co-accused, Imran Awan, who was a friend of Harbinder, was - seemingly by chance – in a car parked outside the house in his black BMW with another man Niranjal Senaratne. Deol then purported to recognise Imran Awan as the second robber.
7. It was the case for the prosecution that on the group's arrival, the appellants' – no doubt sensing their hostile attitude – came out of the house armed with weapons, Harbinder with a machete and Kulwinder with a hockey stick and, it was alleged, both acting together, launched an attack upon the group. Kulwinder attacked Deol and the Peugeot with the hockey stick. He then turned on Rakesh Raithatha, who was knocked to the ground; he did not get up again. At this time, Harbinder was fighting with Augustus. Once the rest of the group had left, both the appellants joined in the attack on Rakesh Raithatha, whilst he was lying injured on the ground. Harbinder kicked him and Kulwinder repeatedly struck him with the hockey stick. As a result of this joint attack, Rakesh Raithatha sustained very serious head injuries, from which he died very shortly after his arrival at hospital.
8. This version of events was supported at the trial by the evidence of Satpreet Deol, the victim of the robbery, by Wayne Andrews, his friend who had gone there on the 23^rd, and by Earl Augustus and Neil Rafiel, each of whom gave evidence for the prosecution.
9. Pursuant to the ruling made by the judge, the prosecution were also permitted to call anonymous eye-witnesses. We shall have to examine the judge's ruling by which she permitted this evidence to be given anonymously and examine whether her ruling can withstand examination in the light of the recent changes in the law but before we do so, we must examine the other evidence in the case and indeed the nature of the evidence given by the anonymous witnesses.

The evidence of the deceased's friends

10. Satpreet Deol gave evidence that he was robbed and beaten by two Asian males on the evening of 22^nd January 2007. The robbers had covered their faces but he recognised one as Harbinder and the other was someone he had seen with Harbinder. He claimed not to know of his friends' visit to Tilney Road on the 23^rd. On the evening of the 24^th, he went to the appellants' house with Augustus and Rafiel. The plan – he said - was to talk to the appellants' mother in the hope that he would get his property back. When they arrived in Augustus's Peugeot, they parked next to a black BMW. He said that he then recognised the driver, Awan, as the second robber. They all got out of the Peugeot and Rakesh Raithatha asked Awan where Harbinder was. Awan got out of his BMW and started shouting. Two males came out of the house; Deol recognised one as Harbinder, he was carrying a sword; the other, a bigger male (plainly this was Kulwinder) had a hockey stick, he began breaking the windows of the Peugeot with the hockey stick. This man then attacked Deol with it, breaking his arm; this attack was the subject of counts 2 and 3 in the indictment. Deol fell to the ground but managed to make off. He did not see what happened thereafter. At an identification parade, he identified Kulwinder as the man with the hockey stick and Harbinder as the person who attacked him. He identified Awan as the person who had robbed him and who was in a BMW on the 24^th.
11. Wayne Andrews gave evidence. He said that he was present only on the 23^rd and did not get out of the car. He claimed that he had not seen or heard much of what went on and his evidence did not take the case any further.
12. Earl Augustus gave evidence. He said that he had gone round on 23^rd with Rakesh Raithatha and Wayne Andrews because they wanted to speak to Kulwinder about his brother robbing their friend. According to him, Kulwinder opened a window and started shouting abuse, to which Rakesh Raithatha responded in kind. The witness admitted that he took up a spanner but he claimed that he did not use it and they drove off.
13. Earl Augustus said that when they returned on the 24^th, he parked beside the BMW, although he denied blocking it in. He denied that his group was aggressive. He claimed that he asked Awan whether he knew anything about the robbery mugging, whereupon Awan got out of his car and shouted towards the appellants' house, presumably for help. Kulwinder and Harbinder then came out carrying respectively a hockey stick and a sword. Harbinder went up to Rakesh Raithatha and Augustus grabbed his arm. He did not see Harbinder make contact with Rakesh Raithatha; he said that he would have seen it if he had. Kulwinder started to hit the Peugeot with the hockey stick and then hit Rakesh Raithatha on the head with the stick, knocking him to the ground. Augustus started grappling with Harbinder but he claimed that he had his back to Kulwinder and Rakesh Raithatha and could not see what was going on between them. He heard Harbinder shout "leave it". Augustus got in his car and started the engine. Kulwinder struck his car window with the stick and then turned his attention to hitting something on the ground. As he drove away, he drove towards Harbinder, who struck his car with the machete. Augustus denied having any weapons. Rakesh Raithatha had been holding something in his hand but he did not know whether it was a beer can or a spanner. About 10 minutes after he left the scene, he received a call from Kulwinder who threatened him saying: "You're a dead man". He later formally identified Kulwinder and Harbinder as the men who attacked him and Rakesh Raithatha. He identified Awan as the person in the BMW.
14. Neil Rafiel gave evidence. He was the back seat passenger in the Peugeot on the 24^th. He said that the idea of going to Tilney Road was to speak to the appellants' mother and try to get Deol's money back. He said that he stayed in the car, but that Deol, Augustus and Rakesh Raithatha all got out. He did not see them carrying weapons. Then there was shouting, the windows in the car were smashed and he got glass in his eye. He said that he did not see either of the appellants. He later formally identified Awan as the male in the BMW. He did not identify Harbinder or Kulwinder.
15. We comment that these witnesses were friends or associates of Rakesh Raithatha and might be expected to take his side against the appellants, a point that the jury obviously would have had in mind. During their evidence a number of inconsistencies were revealed. Moreover, their evidence about the telephone traffic passing between them and the appellants was not entirely consistent with the agreed schedule of calls. We also have in mind that the jury acquitted Harbinder of the robbery of the witness Satreep Deol, presumably not being satisfied either with his credibility or at least with his identification of Harbinder. Furthermore, the jury were not agreed on the charges of wounding Deol as charged in counts 2 and 3. The jury may therefore have had some doubts about the credibility and reliability of these witnesses but, taken together, their evidence against Harbinder and Kulwinder to the effect that together they attacked Rakesh Raithatha was strong.

The co-defendant's friend

16. The prosecution also called Niranjal Senaratne, who was a passenger in the BMW being driven by the appellant's co-defendant Imran Awan. He was a friend of Awan. He said that they had called round at Harbinder's house to speak to him and they were there quite by chance when the Peugeot turned up. He described how three men got out of the car: a black male and two Asians. He did not know them. They spoke to Awan, who got out of the BMW. There was shouting, then two men came out of the house carrying a hockey stick and something long and dark. The one carrying the long, dark object was shouting at the black man, telling him to clear off. Kulwinder went up to Rakesh Raithatha and struck him on the front of the head with the stick using an over-arm one-handed swing. The deceased fell to the floor. He was moving, but did not get up. Harbinder was on the pavement swearing at the black male. Kulwinder and Harbinder hit the car windows before the car was driven away by the black male. Kulwinder was hitting the man on the ground. He did not see Harbinder use his weapon against anyone.

The examination of the scene

17. The hockey stick was found broken into two pieces: the curved head was found outside no. 12 and the handle was found by a police officer who walked from Tilney Road down the side of no. 13 towards the canal area. No fingerprints were found upon it. A spanner was found outside no. 25; it had DNA on it which matched that of Earl Augustus, suggesting that he had brought it to the scene. A machete was found in the back garden of no. 27; there were glass fragments in the weave of the sheath, but it was not possible to say where they had come from.

The injuries and the cause of death

18. When the police arrived, they found Rakesh Raithatha lying on the ground, near a road-side tree, obviously gravely injured. He was rushed to hospital but – as we have already said – he died shortly afterwards.
19. The pathologist reported that the cause of Rakesh Raithatha's death was severe multiple blunt force trauma to the head. The number and pattern of injuries indicated a widespread and protracted assault with a heavy blunt object, which could have been the hockey stick. Some of the injuries may have been consistent with kicking, but there were no identifiable shoe marks. The fact that there were so few defensive injuries suggested that he had been incapacitated rapidly. There were no incised wounds such would have resulted if he had been struck by the machete.
20. Another doctor examined the brain; he reported that death was caused either by a single blow or by a combination of blows but a significant single impact, together with skull fracturing and brain injury, could have been sufficient to cause death on its own.

The forensic evidence

21. When Harbinder was arrested, his clothing was seized. There was heavy blood staining on the outer aspect and toe of his right trainer; blood was also present in the stitching, with spots of airborne blood on the laces, tongue and sock, and indeed spattering blood, which indicated forceful or sustained contact with Rakesh Raithatha, when he was already bleeding. There were also blood spots and splashes on his left trainer and on his shorts. There was heavier blood staining on the right cuff of the sleeve of his jacket. The blood was that of Rakesh Raithatha. A forensic scientist concluded that there was strong scientific support for the assertion that Harbinder was involved in the assault upon the deceased; indeed this evidence can really only be explained by Harbinder having kicked Rakesh Raithatha as he lay on the floor, from which participation in a joint enterprise to attack him with intent to cause some really serious harm could readily be inferred. Harbinder made no comment in interview and gave no evidence and therefore he has given no account or explanation for these findings.
22. The hockey stick was examined. It was covered in the deceased's blood. There was also blood inside the stick, which indicated it had been used as a weapon even after it was broken.
23. The appellant Kulwinder was arrested and his clothing, a blue sweatshirt and trousers, was seized. Glass fragments and his (Kulwinder's) own blood were found on both items; none of the blood was that of the deceased. There was, as Mr Etherington QC pointed out, no forensic evidence directly linking Kulwinder to the murder: no blood from the deceased was found on him, his clothing or on his shoes. However, if the jury accepted from other evidence that he had the hockey stick, it was but one short step to find that he used it to attack Rakesh Raithatha.

The case for the appellants

24. Harbinder did not give evidence. This was a matter, in itself, from which the jury could have drawn an adverse inference. Through his plea and his counsel, however, he denied involvement in the robbery. It was his case that Rakesh Raithatha and his friends went to his house on 24^th, intent on violence. It was admitted that he left the house with a machete, but only to defend himself and others. It was not accepted that he participated in any attack upon the deceased. No explanation was proffered for the blood spatter on his shoes, save to suggest that it might have arisen if he had stepped in a pool of blood; even if there was some blood on the ground – which was not altogether clear – the expert evidence was to the effect that this would not explain the blood spatter on Harbinder's shoes.
25. It was accepted that at some point Rakesh Raithatha was hit by Kulwinder and fell to the ground but at that stage he was said to be engaged with Earl Augustus, defending himself. Further, it was argued on his behalf that if he participated in the attack on Rakesh Raithatha by kicking, which he denied, he did not contribute physically to the fatal injury or injuries.
26. The appellant Kulwinder gave evidence. He said that on the 23^rd he was awoken by aggressive banging on the front door. He opened his bedroom window. His mother was at the door and a bald Asian male started abusing him and demanding £200 because his brother had supposedly stolen from him. Two males whom he recognised as Earl and Wayne were standing by a red Peugeot. He told the man to wait while he got dressed. The male was holding a spanner which he dropped when the witness came to the door. Kulwinder was shocked by the incident. He telephoned Harbinder and Awan asked them what this was about, but they each denied committing any robbery.
27. He said that on the evening of the 24^th, his dog was growling in the hall, so he knew something was up. He ran to the front door where he met his brother. He grabbed the dog to stop him getting out and in the process he claimed that he cut himself with his bangle. He and his brother went outside. He said that neither of them were armed or indeed were carrying anything at all. At the end of the cul-de-sac he saw six or seven males fighting. Earl was in his car, which was parked at an angle. He then realised that the dog had escaped, so he went to catch him and put him inside. When he came back outside, he saw that Earl was revving the car and driving it at Harbinder. The windows of the car were not smashed. The six or seven people had disappeared. Then his mother came home from work, he took her into the house and she called the police. Harbinder came in. Kulwinder went back outside a few minutes later. The road was then quiet but he saw the body on the ground and recognised it as the bald male from the day before. He was too scared to touch him. Then the police and ambulance appeared. During these events he said that he was not involved in any violence; he said that he did not see Harbinder or the co-accused become involved in any violence either. This left entirely unexplained how Rakesh Raithatha came by his injuries or – for that matter – whether anyone had a hockey stick and if they did who that person was.

The co-defendant's evidence

28. The co-accused Awan gave evidence. He was friends with Harbinder; he said he did not know Satpreet Deol. He claimed that he was not involved in the robbery.
29. On the 24^th he had stopped outside number 27 because he wanted to see Harbinder before dropping his friend Senaratne home. Then the red Peugeot arrived and stopped in front of his car. The occupants walked over to him. He got out of his car. Earl, whom he recognised, asked him where Harbinder was. He seemed vexed. Then Deol accused him of robbing him. The co-accused did not know who Deol was. Then Earl, who had been joined by Deol and Rakesh Raithatha, threatened to take his car and demanded his keys. The co-accused started backing away. Earl had a silver object up his sleeve. They threw punches and kicks at him. He may have shouted for help. He saw the appellants come out of their house. Earl went to Harbinder; Rakesh Raithatha and Deol went to Kulwinder, who was smashing the windows of the Peugeot with a hockey stick. Harbinder was holding a machete in a sheath, but he did not see him using it. Harbinder was scuffling with Earl. The co-accused did not see anyone else involved and decided to try to get away in his car. Rakesh Raithatha, who had been scuffling with Kulwinder, came running towards him and so he was forced to kick him away which caused Rakesh Raithatha to stumble; he got up and charged at Kulwinder who hit him with the hockey stick. Rakesh Raithatha fell down, but again got up and rushed at Kulwinder, who hit him again with the stick and again he fell to the ground. This happened three times. After the third strike by Kulwinder, which blow broke the hockey stick, Rakesh Raithatha did not get up again. Awan got in his car. Harbinder was fighting with Earl who then jumped in his car and reversed away. Harbinder and Kulwinder then went back inside their house.

The anonymous witnesses

30. Before we examine the judge's ruling on the admissibility of the anonymous witnesses and whether it can stand in the light of the new statutory regime introduced by the Criminal Evidence (Anonymity of Witnesses) Act 2008, we must first examine in some detail what the witnesses actually said.
31. All these witnesses saw the incident from their own houses in Tilney Road. Witness E lived with witness F. She looked out of an upstairs window of their house and saw a man being chased around a car, which was parked near the end of the cul-de-sac. Someone hit him with a stick across his back; he fell to the ground, then he got up pursued by one of the two. She left the window and went to tell F what she had seen. When she looked again, she saw someone jumping into the driver's seat of a red car which was parked in front of a black car at an angle. Someone was smashing the car window. The car sped off. She looked away again. When she looked back, the one whom she had seen being hit earlier was lying on the ground. A slim person in a light top was kicking and stamping on him; although she did not identify Harbinder, plainly this could have been him. Someone else was hitting a piece of wood onto the ground.
32. Witness F looked out of the window after being told about the fight by E. She saw two people kicking something on the ground. One was wearing a light suit. There were people running about. F thought that the one in the light suit sped away in a car; on her version, this might therefore have been Awan, who did leave in the car. She could not be sure that she had seen weapons. She had told police that she had seen car windows being smashed, but now she could not be sure.
33. Witness C saw some of the incident on the 23^rd, the day before . At 9 o'clock in the morning, she heard a car drive fast into her road and brake hard. She saw an Indian boy get out of a red car. He was shouting at no. 27, where two boys lived; the elder one was fat and the younger one was skinny. The Indian boy was shouting, "I want my money back". The boys' mother opened the door and the Indian boy spoke to her with respect. The fat son came outside and spoke calmly to him. Finally she heard the Indian boy shout "I'm coming in the evening to collect the money." He got into the passenger seat of the red car which was being driven by a black male.
34. The witness C also saw something of what happened on the 24^th, she was at an upstairs window because D had told her there was a fight outside. She denied there was condensation on the window obscuring her view. She saw a man lying in the road. She saw a fat male holding a hockey stick with both hands and he was using it to hit the windows of the red car. The driver was trying to move the car away. It looked as if he was trying to run into the skinny male. After the car left, the fat male and the skinny male turned to the man on the ground. The fat male was hitting the man on the ground with the stick. The skinny one was kicking the man to the stomach. Then the mother arrived and the males went into no. 27 with her. Then the fat male went over the road to an alleyway. He was carrying the stick, but emerged without it. The police came and the three from no. 27 came outside and pointed to the man in the road. The two males had not changed their clothes: the fat one was wearing long blue bottoms and a sweat jacket; the thin one was wearing a light brown parka jacket and shorts. She had spoken to D afterwards and it was he who told her that the stick was a hockey stick. It was put to her that she could not see clearly. She accepted that she was not 100% clear, but maintained that she had seen the skinny one lift a leg to kick.
35. She formally identified Kulwinder as "the fat brother who hit a male lying on the floor". She identified Harbinder as "the skinny brother who kicked a male lying on the floor".
36. Witness D was with C at the upstairs window. He saw a boy on the ground. There was shouting from the two boys who lived in their road. The younger was skinny, in shorts and a parka. The other was stocky with a dark tracksuit top. He was beating the red Peugeot with a hockey stick. The driver was trying to get the car away and hit a blue Vectra. The skinny one had no weapon but was shouting at the car and kicking it. After it left, they went to the man on the ground. The stocky one hit him twice very hard with the hockey stick. The skinny one kicked him around the head three or four times. D did not see anyone else. The stocky one shouted "Go, go" at a man who got into the driver's seat of the BMW and drove away. D did not see where he came from. The mother was trying to pull the boys away from the man on the ground; eventually they did go inside with her. After a couple of minutes, the stocky one came out and walked across the road with the hockey stick. When he returned to his house, he was empty-handed. He formally identified Kulwinder as the male with the hockey stick and Harbinder as the male who kicked a male lying on the ground.
37. We should point out that there was no opportunity to cross-examine D; we shall return to this point later.
38. Witness B saw the incident from an upstairs window. Two groups of males were fighting. A slim male in a light-coloured coat was holding a weapon that looked like a long knife. The other weapon looked like a machete and was being held by a bigger, stronger, older male in a dark-coloured coat. One male fell to the ground. Two Asian males got in the red car and drove away. This left three at the scene who all started beating the man on the ground badly, using the weapons and kicking his body. She had never seen the third male before. She shouted to witness A to call the police. The third male got in the dark car and drove away. A lady came down the street and the two males took her inside. The dog came out. After a time, the male in the dark jacket came out of the house and again kicked and hit the man on the ground. Then he ran between some houses and threw away what was in his hand. When the police arrived on the street, the two men talked to them. They were acting as if nothing had happened. She denied that there may have been condensation obscuring her view at the window. She formally identified Kulwinder as the "larger man who was holding a weapon and who was involved in the attack of a man lying on the ground". She did not identify Harbinder or the co-accused.
39. Witness A joined B at the upstairs window when she called out "They're killing him." He saw the red car driving away. Three men were beating someone on the ground. They were kicking him and hitting him with objects. He was motionless. It seemed to go on for a long time. He called the police. He was clear that there were three males and that the third drove away in a dark car after conferring with the others. The first was tall, strongly built and wearing dark clothes; he was known in the street for his aggressive doberman. The other was less well-built, wearing paler clothing, and did not hold a weapon. He was asked about condensation on the windows and said that in general there was none; it was very rare. He described the incident as "dark and confusing" and was asked what he meant: he said it was confusing to see three men beating someone to death. He formally identified Kulwinder as the person "involved in the attack of a man lying on the ground". He did not identify Harbinder or the co-accused.

Ruling on witness anonymity

40. On 19^th November 2007 the judge granted the prosecution's application for witness anonymity orders in respect of the residents of Tilney Road, and directed that they be referred to as witnesses A-F. She further directed that they give evidence from behind screens and through a device which modulated their voices; the judge, the jury and counsel - defence counsel with the consent of their clients - saw the witnesses and heard their voices without modulation. She did, in fact, also authorise that evidence be given from two other witness anonymously but, in the event, they were not called and we need not treat further of their evidence.
41. The judge also considered a background of various reports of violence associated with the appellants. We shall consider this ourselves in detail later but the judge felt that the conclusion could properly be drawn that violence and the threat of violence from the appellants in Tilney Road was not limited to the night of the murder.
42. The judge acknowledged that orders permitting witnesses to give evidence anonymously were exceptional but that the circumstances in which such orders were made were now 'no longer rare'. She attached significance to the way in which the victim had been attacked in a public street and concluded that there were real grounds for fear of consequences if the names of the witnesses were revealed.
43. She found nothing to suggest that there was any doubt as to the witnesses' creditworthiness. If the defence knew of trouble with any of the neighbours, that could be disclosed by way of Defence Statement and further investigations would then be made to consider whether the disclosed material should trigger an order to remove the anonymity.
44. She considered whether there could be a proper examination of the witnesses' reliability, she thought that there could still be effective cross-examination of the view that each witness had of the incident and whether the evidence of any of them might have been tainted or contaminated by rumour or discussion between themselves. She considered that there would be no prejudice if she gave a clear direction to the jury and accordingly admitted the evidence.
45. We make clear that the judge's careful ruling was given before the judgment of the House of Lords in Davis [2008] UKHL 36. Nothing which she ordered was in any way unusual at the time, on the contrary she was following loyally the practice of the time and no possible criticism can attach to the ruling which she made at the time according to the standards of the time.

The law

46. The new statutory procedure is laid down in section 4 of the Criminal Evidence (Anonymity of Witnesses) Act 2008, the relevant parts of which provide:

'(2) The court may make such an order [for anonymity] only if it is satisfied that Conditions A to C below are met.

(3) Condition A is that the measures to be specified in the order are necessary—

(a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or

(b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

(4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial.

(5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that—

(a) it is important that the witness should testify, and

(b) the witness would not testify if the order were not made.

(6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness—

(a) that the witness or another person would suffer death or injury, or

(b) that there would be serious damage to property,

if the witness were to be identified.'

47. Section 5 of the Act lays down the relevant considerations:

(1) When deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to—

(a) the considerations mentioned in subsection (2) below, and

(b) such other matters as the court considers relevant.

(2) The considerations are—

(a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings;

(b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;

(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;

(d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;

(e) whether there is any reason to believe that the witness—

i. has a tendency to be dishonest, or

ii. has any motive to be dishonest in the circumstances of the

case,

having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;

(f) whether it would be reasonably practicable to protect the witness's identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.

.

48. Section 11 of the Act 2008 provides:

(1) This section applies where—

(a) an appeal court is considering an appeal against a conviction in criminal proceedings in a case where the trial ended before commencement, and

(b) the court from which the appeal lies ("the trial court") made a pre-commencement anonymity order in relation to a witness at the trial.

(2) The appeal court—

(a) may not treat the conviction as unsafe solely on the ground that the trial court had no power at common law to make the order mentioned in subsection (1)(b), but

(b) must treat the conviction as unsafe if it considers—

i. that the order was not one that the trial court could have made if this Act had been in force at the material time, and

ii. that, as a result of the order, the defendant did not receive a fair trial.

49. It must follow that a conviction may be safe even if the information available at the time of the trial was such that, for one reason or another, the witnesses may not now qualify for anonymity if the prosecution presented the application with the same information. However, if that be the position, the conviction must be quashed if we think that as a result of the order originally made, the appellants did not receive a fair trial.
50. Valuable and helpful guidance in the implementation of these tests is given by the decision of the Lord Chief Justice in Mayers, Glasgow and others [2008] EWCA Crim 2989, to which we will from time to time refer. No useful purpose is however served by reading large extracts from that judgment and we refrain from doing so.

The argument

51. It is now argued on behalf of the appellants that the judge was wrong to grant anonymity to these witnesses and that the criteria for making such orders as laid down in section 4 of the Act would not have been met in this case and the court could not and would not have been satisfied that conditions A-C were fulfilled. It is suggested that too much weight was given to the fears of the witnesses, which it is said was not well-founded on the evidence.
52. It is argued that, following the guidance given in Mayers (at paragraph 12): the Crown must be proactive, focussing closely on the credibility of the anonymous witnesses and 'the interests of justice', which – it is said - contrasts with the approach taken at this trial.
53. It is said that the granting of anonymity resulted in an inability fully to challenge the evidence of these witnesses, particularly in relation to the view which each witness had of what happened ; it is said that unless the defence knew who the witnesses were and where they lived, the defence could not know how far away the witnesses were, nor whether there were any obstructions in their line of sight.
54. It is said that, since the evidence of these witnesses was of crucial importance, the orders of anonymity undermined the fairness of proceedings.
55. Furthermore, it is suggested that there was a possibility of contamination or collusion, conscious or otherwise, by witnesses who were neighbours and this could only be explored if their identities were made known.

Condition C: the interests of justice

56. The structure of section 11 of the Act, requires us to consider whether the order made by the trial judge would have been one which she would have made if the Act had been in force at the time. As was pointed out in Mayers, it is perhaps more logical to consider first condition C: 'that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that it is important that the witness should testify and that the witness would not testify without an order in place'.
57. Guidance was given in Mayers (at paragraph 26) in these terms:

"It must in any event also be clear that notwithstanding, for example, the powers vested in the court in relation to contempt in an appropriate case, the witness will not testify. The test is stark. That the witness might prefer not to testify, or would be reluctant or unhappy at the prospect, is not enough."

58. It is obvious that it was important that the witnesses should testify, for they were eye-witnesses to the killing of Rakesh Raithatha and it is strongly in the public interest that such evidence is put before the jury. Indeed the appellants have not sought to argue to the contrary. There was clear evidence from their statements, which we have read, that these witnesses would not testify without being allowed to do so anonymously.
59. We conclude that Condition C would have been met on the information before the trial judge when she made her ruling on 19 November 2007 and indeed is met now.

Condition A

60. We move on to Condition A: that making the order was 'necessary to protect the safety of the witness …' .
61. Again guidance is given in Mayers (at paragraph 29):

"Condition A is linked to sub-section 6. The order must be necessary. Some time was spent at the hearing considering synonyms for "necessary". None is needed, although we agree that this is a requirement which goes well beyond what may be described as "desirable" or "convenient". Condition A is not fulfilled unless the order is necessary for the protection of the safety of the witness or any other person, or to prevent serious damage to property or, alternatively, to prevent real harm to the public interest. In relation to human beings, the issue is unembellished by adjectives. The question is safety, and this may encompass the risk of personal injury or death, or a reasonable fear of either."

62. In determining whether this condition is made out, section 4(6) (which we have already read) requires the court to have particular regard to any reasonable fear of the witness for his or her safety. All counsel invited us to approach the question of "reasonable fear" on the basis the fear must be genuinely held (a subjective element) but that fear must be held on reasonable grounds (an objective element).
63. Of course we recognise that the calling of anonymous witnesses must not become a routine event in the prosecution of serious crime but we reject the submission that witness anonymity orders should be confined to cases of terrorism or gangland killings. The intimidation of witnesses has become an ugly feature of contemporary life; as has been said (by Royce J, see paragraph 101 of the judgment in Mayers) 'the climate of fear in these cases is like a cancer'; this fear serves 'to silence, blind and deafen witnesses; without witnesses justice cannot be done' (per Judge LJ in Davis; also quoted in the same paragraph).
64. In this case, the judge considered not only what the witnesses themselves said about their fear but she also properly had regard to the circumstances of the killing. Murder is often committed in secret, out of the public gaze, but this brutal murder was committed in a quiet ordinary residential cul-de-sac in suburban Southall, it was – as the perpetrators must have known - witnessed by a number of the quiet ordinary people who lived there. The prosecution say that those who killed Rakesh Raithatha relied for protection not on masks or disguises but on fear: they believed that no one would dare to speak out.
65. Of course, the prosecution do not submit that the witnesses are entitled to anonymity just because this murder took place in a public street but the brutality of this murder committed in this street is plainly a highly relevant factor when the appellants knew that the eye-witnesses must live in some of the only twenty houses odd which overlooked the scene. Furthermore, the brutality of the murder must be considered in the light of all the other circumstances, to which we now turn.
66. We return to detail the incidents of previous violence which had occurred in the street; these were set out by DS Brown in his statement of 30^th April, which was disclosed to the defence in full.
67. There had been trouble in 2002, when a neighbour reported that a window of his house was broken shortly after having an argument with Kulwinder, whom the neighbour suspected of causing the damage. Later that year the same neighbour reported that Kulwinder had hit him with a baseball bat; Kulwinder was arrested and charged but the neighbour retracted his statement, seemingly without further explanation. Later that same year there was a report, from the same neighbour, that Kulwinder had fired an airgun at their door and at their car; after that the neighbours left the street: they had had enough.
68. Again in 2002, the police were called to a fight at the Powars' house; the father Sarwan and indeed Harbinder had injuries but decided not to press charges against Kulwinder. In February 2003, police were again called to the house after yet another family fight. It is said by Mr Ivers that what he called 'internecine' strife within the Powar household could not affect the neighbours perception of the danger which they presented: we do not agree. If the family was prepared to use violence on each other, one might readily conclude that they would be prepared to use violence on others, if the need arose.
69. In 2004 a neighbour complained to Kulwinder about misbehaviour by his dog; Kulwinder and his father responded by pushing and punching him; the victim had lacerations and indeed bite marks; Kulwinder and his father were arrested but the neighbour did not press charges.
70. More serious was the incident in 2006 when one Harpreet Singh complained that after an argument with the appellants, he had been chased and then stabbed in the shoulder; this gave rise to an allegation against them of wounding with intent. A fortnight after their arrest for the wounding, the victim complained that he saw Kulwinder draw up in his car and point at him saying 'bang, bang' as if to mimic a gun being fired; it was a clear incident of witness intimidation. The appellants were tried at Isleworth Crown Court for the stabbing and for witness intimidation but they were acquitted on both charges.
71. None of these matters proceeded to conviction but that is not the point, for the history of violence and the threats of violence must surely have contributed powerfully to the reputation of the appellants and their associates for violence and intimidation, giving rise to a real and entirely reasonable fear that they would or may use violence and intimidation against those who gave evidence against them in this case.
72. Since the murder there were a number of incidents of window breaking and criminal damage; it was unclear whether those responsible were associates of the appellants or of the victim, it was perhaps more likely to be the latter, but the residents understandably associated giving evidence in the case with the risk of real and serious trouble. This has heightened the witnesses tension and fear.
73. There was also some evidence, falling short of proof, that the appellants had been dealing in Class A drugs. It is not clear whether the neighbours were aware of the allegation; if they were it might increase the level of fear. However, we make clear that we have not taken into account the police intelligence reports to this effect: we will leave for later cases to decide whether, and on what terms, this is permissible, after full argument upon the point.
74. An attempt was made to pass off these matters and emphasis placed on DS Brown's description of them as 'makeweights'. We do not agree. When one considers the cumulative effect of the brutality of the murder, in the light of the incidents which happened before and after the murder, we have no doubt that the witnesses genuinely feared retaliation and reprisal if they gave evidence under their own names and we have no doubt that their fears were reasonable; accordingly, we have no difficulty in finding that it was necessary to protect these witnesses by granting them anonymity.

The inadvertent disclosures

75. We move on, for there were developments in the trial. On 19^th December 2007 the judge was asked to review her earlier ruling granting anonymity orders to A and B following the supply of a bundle of statements to the defence solicitors, which included a statement which may have been incompletely redacted. The solicitors forwarded this bundle to one of the appellants without reading it; by the time the mistake was realised, it was – or may have been - too late.
76. At about the same time, the prosecution also produced a plan drawn by C, which might have identified the house in which C and D lived. This gave rise to a similar application in respect of C and D.
77. The defence had thereafter applied for the anonymity orders to be lifted in respect of these witnesses A and B (and C and D) on the grounds that the cat was out of the bag and the continuance of the order was a pretence, even a 'pantomime' as Mr Ivers called it; he argued that the order of anonymity was no longer necessary since the protection which it afforded had already been removed by the disclosure. Furthermore, it was said that the only effect of its continuance was to give a false and misleading re-assurance to the witnesses that their identities remained unknown. Moreover, it was said that to continue with the pretence that the defence did not know the identities of the witnesses created a tension between the defence lawyers and their clients and also gave a false impression to the jury.
78. The continuance of anonymity was not a pantomime to the witnesses themselves, who had been told of what had happened. Each remained anxious to preserve anonymity, for fear of the consequences of testifying and made further statements to that effect.
79. On 2^nd January 2008 the judge gave reasons for ruling that the witness anonymity orders would remain. She said that some risks remained. It was one thing for the appellants to have a suspicion as to the identity of an anonymous witness but it was quite another thing to confirm the identity of the anonymous witnesses to them. Furthermore, stripping the witnesses of the protection of anonymity would inform any one in the public gallery, including the associates of the appellants, of their true identity, which the judge thought would again heighten the risks.
80. In our judgment, this ruling was plainly right: it would have been highly irresponsible indeed dangerous to authorise a public revelation of the witnesses' names. The judge was quite entitled to stand by her previous ruling.

Condition B: the fairness of the trial

81. We turn to condition B: that the making of the anonymity orders 'would be consistent with the [appellants'] receiving a fair trial'. We have regard, as we are bound to do to the relevant considerations as set out in section 5 (to which we have already referred).

Section 5(2)(a): the right to know a witness's name

82. As we are required to do by section 5(2)(a), we do have very much in the forefront of our minds the ancient principle, of general application, that a defendant in criminal proceedings has a right to know the identity of the witnesses against him. This was the subject of powerful speeches in the House of Lords in Davis. But we also have in mind the intention of the Act which – as explained by Lord Judge CJ in Mayers (at paragraph 6) - is to seek to preserve what he called 'the delicate balance' between the right of the defendant, including his entitlement to a fair trial and a public hearing and to examine the witnesses who inculpate him and the witnesses' right to life, to physical security and indeed the respect for their private lives, whilst always recognising that anonymity is a special measure of last resort.

Section 5(2)(b): credibility

83. The witnesses just happened to live nearby. There was no reason to think that any of them bore any malice, grievance, grudge or ill will towards the appellants, nor that any of them would derive any benefit, gain or advantage by their conviction. The judge invited the appellants to identify by way of defence statement any trouble which any of them had with any of their neighbours, so as to identify any matter which might adversely reflect upon the credibility of any of the witnesses; the witnesses - it will be remembered - must have lived in the twenty houses surrounding the end of the cul-de-sac, so they came from a very small and identifiable pool. Neither of the appellants accepted this invitation, from which the judge concluded – surely rightly – that there was no such material. We reach the same conclusion for the same reasons.
84. Furthermore if, as is suggested, the appellants (or at least one of them) did work out the identities of A, B, C or D, even that revelation did not prompt any such disclosure from the appellants concerning them.
85. We note that the eye-witnesses tended to confirm each other and whilst there was an obvious opportunity for A to speak to B, C to speak to D and E to F, there was no reason to think that they all could or did collude or collaborate between themselves beyond that.
86. The reality is that there was and is no reason at all to doubt the credibility of any of these witnesses. The real question was as to the witnesses' reliability not credibility; reliability is more conveniently dealt with within sub-paragraph (d) to which we turn later.

Section 5(2)(c): sole or decisive evidence

87. As was pointed out in Mayers (at paragraph 24): 'as a matter of common sense, the more facts independent of the witness, which tend to support him, the safer it would be to admit anonymous evidence'. As we have already indicated by our extensive review of the evidence, there was a good deal of evidence from others, which tended to confirm the correctness of the evidence of the anonymous witnesses. Certainly as against Kulwinder, the evidence of the other witnesses was very strong. Furthermore, there was the evidence of the forensic scientist which as against Harbinder, without explanation from him – and there has been none - would plainly be sufficient to raise a prima facie case against him and perhaps even to justify conviction. We conclude, therefore, that the evidence of the anonymous witnesses was not the 'sole' evidence against the appellants.
88. In our system, it must be unusual for an appellate court to know which part or parts of the evidence a jury found to be 'decisive'. Whilst the evidence of the anonymous witnesses was very far from being the only evidence against the appellants, and whilst their evidence was confirmed and supported by a raft of evidence from independent sources, as we have already set out in some detail, there is no doubt that the evidence of the anonymous witnesses was important, as we here explicitly acknowledge and take into account; that is, however, but one of the matters which we must take into account where reaching a decision as to the fairness of the trial.

Section 5(2)(d): the extent to which the evidence could be tested

89. The prosecution had provided plans and photographs of the scene, together with photographs taken from the viewpoint of the witnesses (without disclosing their precise location). The scene is a typical cul-de-sac of pre-war semi-detached houses, with a turning circle at one end. Each house has a small garden at the front; most of the gardens are now converted into hard standing for parked cars. None of the gardens has trees or shrubs which could or would have obstructed the view out onto and across the street. The gardens are surrounded only by low walls, no more than three feet high, which again would not obstruct any one's view into the street from upstairs but even such a low wall might conceivably obstruct the view of what was going on immediately in front of the wall from a house immediately behind the wall.
90. There are a couple of lamp-posts but there was no other street furniture to obstruct the view. All that could be in the line of sight of some of the witnesses was a single deciduous tree, with a trunk not much bigger than a telegraph pole; in January, the tree was bare of leaves.
91. As was clear from one of the plans, of the twenty or so neighbouring houses, from which the anonymous witnesses must have been looking, none was more than 22 metres away and some were as close as 10 metres.
92. Although it was dark at the time, there was a street light just across the road from the action. Furthermore, there was a bright security light outside the Powars' house; at some time it was activated by movement in the street and shed an even more brilliant light on the scene.
93. There was some suggestion that there had been a van in the street; the witnesses could be asked if that van in any way obstructed their view. The witnesses could be, and were, asked whether they were upstairs or downstairs and whether there was any – and if so, what – obstruction in their view. We have been provided with a long list of the questions which were asked about the view which the witnesses had. Since the judge knew where they lived and had photographs of the view from their house, she would have been in a position to point out if the witnesses' view was obscured or to intervene if the witnesses did not answer truthfully about any obstructions, which were blocking their view.
94. Of course it is not ideal that the defence do not know where the witnesses are viewing the scene from but we do think that there was a proper opportunity for examination of the circumstances in which their observations were made. No witness suggested that their view was obscured by the tree or by anything else; indeed there was no reason to think that the views of any of these witnesses were obscured or masked in any way.
95. A particular point arose concerning obstruction of the view from the window through which A was looking. A said in evidence that on the night in question the view through window was not obscured or obstructed by condensation within the double glazing. On 14^th January 2008 the defence applied for leave to cross-examine witnesses A and B on photographs taken by a police officer on three separate occasions which showed condensation on their windows and applied for the officer to be called to give evidence and for the photographs to be exhibited to the jury. The judge ruled against the application. It is said that this decision was wrong. The photographs showed condensation at a different time of the year to the incident; we do not know how the climatic conditions varied from the day of the incident to the days on which the photographs were taken, nor do we know anything about the ambient temperatures or relative humidity inside and outside the house. Furthermore, it is difficult to re-produce by photograph what is seen by the human eye. In our judgment, it may have been highly misleading to admit the photographs and we think that the judge was quite entitled to rule exclude the evidence.

Section 5(2)(e): tendency to be dishonest

96. Checks by the prosecution revealed that none of the anonymous witnesses had previous convictions or had otherwise come to the adverse notice of the police. There was – and is - no reason to think that there was anything in their backgrounds to suggest that they had any reason to be dishonest (there is an overlap between this latter point with the considerations under section 5 (2) (b) with which we have already dealt).

Section 5(2)(f): other measures

97. We have considered whether there were any other measures which could have achieved the same protection to the witnesses, but nothing short of re-housing would do that; that was both impracticable in the time frame between the incident and the trial and so unreasonably burdensome on the witnesses and their families as to be intolerable. No one has argued this point.

Ruling re witness D

98. Another point arose concerning the witness D, who was looking from upstairs. D's evidence was important, particularly in the case against Harbinder, for he was the only witness who identified Harbinder as the person who kicked the victim in the head as he lay on the floor. We comment that the same conclusion could have been drawn from the evidence of the blood staining and blood spatter to his shoes, which we have already reviewed. Having given evidence in chief, D refused to return to the witness box to be cross-examined unless the defendants were removed from court because he stated that whilst he was giving evidence he had heard his name being shouted from the dock, which caused him to believe that his identity was known to the defendants. It was not easy for the judge or indeed for counsel to identify whether this had been shouted or by whom it was shouted, since they were at the time wearing the headphones which permitted them to hear the witnesses' voice unmodualted. Despite an investigation, it was not clear which of the defendants had done this, nor was it clear why it had been done but one clear possibility was that it was further to intimidate the witness. D was only willing to continue in his evidence in the absence of the defendants; the judge – quite rightly – declined to order the removal of the defendants. Defence counsel for Kulwinder submitted that the witness should be compelled to appear. Counsel for Harbinder submitted that the jury should be discharged.
99. The judge ruled that the witness should not be compelled to appear again to face cross-examination and that there was no good reason to discharge the jury.
100. These rulings were challenged, particularly by Mr Ivers on behalf of Harbinder. It was argued that the evidence of D was important as against him, since he was the only witness who claims to have seen Harbinder deliver kicks to the head of the deceased. It was said that defence counsel was deprived of the opportunity to challenge the damaging testimony of this witness, which – it was suggested - was clearly prejudicial.
101. In our judgment, the trial judge was in the best place to assess whether any particular witness may be coaxed back into the witness by persuasion and re-assurance, or whether he should be compelled by witness summons, backed by the threat of arrest. Here she ordered that compulsion was an inappropriate response to the withdrawal of this particular witness, whom she had seen in the witness box; we decline to interfere with the exercise of her discretion.
102. Nor was it necessary to discharge the jury. The refusal of a witness to return to the witness box to face cross-examination is not an altogether unusual incident of criminal trials; the remedy is a clear direction to the jury, which was given, and about which no complaint is made.
103. Furthermore, after D's refusal to return to the witness box, the judge invited defence counsel, then and there, to tell the jury what matters they would have canvassed with the witness in cross-examination, if they had had the opportunity, including any inconsistencies which there had been between his evidence in chief and in his witness statement. Both counsel accepted this invitation. This seems to us to be a very helpful device to minimise the prejudice to the defence by the withdrawal of the defendant from the witness box, which enabled the points to be made – without, incidentally, contradiction by the witness.

Overall fairness

104. Without repeating what we have already considered at length, we turn to take an overview of the case, for even if the witness anonymity orders could have been made under the new Act, it is still necessary to consider the overall fairness to the appellants.
105. We give full weight to the need for defendants to know the names of those who give evidence against them. However, in our judgment, the anonymous witnesses in this case were ordinary law abiding neighbours, who were terrified of giving evidence against the appellants, whom they feared, on reasonable grounds, having seen them batter a man to death in the street in front of their houses and in respect of whom there was a long history giving rise to an aura or atmosphere of fear. They would not give evidence without the protection of anonymity. We see nothing to suggest that they – or any of them – were dishonest or lacked credibility or had any reason at all to give other than truthful evidence. There was, we think, a proper opportunity to examine the view which they had of the incident. There was a strong case against both appellants, without even considering the evidence of the anonymous witnesses. It was, in our judgment, plainly in the interest of justice that the orders were made.
106. For these reasons, applying the statutory test in section 11 of the Act, we do not consider that the order for anonymity was not one which the trial court could have made if the Act had been in force at the time. Furthermore, and in any event, we are entirely satisfied that the appellants received a fair trial and that the convictions are safe. Accordingly, the appeal on these grounds is dismissed.

Renewed application for leave: Ground 5: Causation

107. We turn briefly to consider the renewed application of Harbinder for leave to appeal on ground 5, on the point of causation. At the request of the prosecution, the judge – perhaps unnecessarily - left to the jury the possibility that Harbinder could be guilty of murder as a sole principal on the basis that he struck the fatal blow, by kicking. Complaint is made as to the precise formula of words used in the summing up to cover this possibility.
108. However, in our judgment, the real case against Harbinder - and plainly the basis upon which he was convicted - was that he was a party with Kulwinder to a joint enterprise, the aim and object of which was jointly to attack the victim; the jury was properly so directed. There was abundant evidence to support such a finding. Accordingly, we refuse leave to argue this point.

Renewed application re Harbinder's sentence

109. We turn to the renewed application by Harbinder for leave to appeal against sentence. Harbinder was aged 23. He had two previous convictions for minor offences; he had not received a custodial sentence before.
110. The judge correctly identified the starting point as 15 years. She accepted that the group who arrived at the house on 24^th January was hostile to Harbinder but this did not justify what happened. The appellants had burst out of their house, Harbinder was armed with a machete and his brother Kulwinder with a hockey stick; she concluded that each even then had an intention to kill. She accepted that Harbinder did not himself inflict the fatal injuries.
111. It is now argued by counsel that the judge was wrong to find that Harbinder had formed an intention to kill as he dashed out of the house with the machete; it is said that this conclusion cannot be sustained since he did not use the weapon to strike the victim. However, as the jury found by their verdict, this was a joint enterprise; both brothers were armed and the judge, who heard the evidence was quite entitled to come to this conclusion. It is said that the offence was not premeditated and arose out of the hostile visit by the group to his family home, which – it is suggested - was evidence of provocation, falling short of the legal defence; in our judgment, what happened fell so very far short of provocation as to be no mitigation at all; the appellants had weapons immediately to hand, with which they armed themselves to fall upon their attackers; this went far beyond self-defence, indeed it amounted to a counter attack of quite over-whelming force and violence. Finally it is said that he was only twenty years old, with no relevant previous conviction, some six years younger than his brother Kulwinder, that he played a lesser part than Kulwinder and that there is an insufficient difference in the sentences.
112. It seems to us to be quite impossible to argue that for a joint attack of this violence a minimum term which was no more than the starting point of 15 years was manifestly excessive and accordingly we refuse leave to argue this point also.