England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
MR JUSTICE BURTON
T20068177

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2010

LORD JUSTICE HOOPER:

1. At the conclusion of the hearing we announced that the appeals against conviction succeeded. We substituted convictions for a count of violent disorder and passed sentences of four years' imprisonment on each appellant. We now give our reasons for quashing the convictions.
2. On the 11^th December 2008 at the Crown Court at Birmingham (Burton J.) the appellants were convicted of murder. Having convicted the appellants of murder the jury were not required to consider the alternative count of violent disorder. The appellants had been tried twice before and on both occasions the jury could not agree upon verdicts. In our view there should not have been a third trial in the light of the requirement laid down in paragraph 46 of Bell [2010] EWCA Crim 3 that the evidence "remains very powerful". Bell, a decision only handed down in January 2010, was not available to the judge. We make it clear however that we are not allowing the appeals on this ground.
3. Leave on one ground was granted by Sir Christopher Holland who wrote:

I rule that this is one of those rare cases in which a full Court review of the safety of the convictions is justified on the basis of "lurking doubt" and for that purpose I give each applicant permission to appeal against conviction. My reasons substantially reflect overall impression, specifically influenced by the following:

With a consistent Prosecution case it has taken three full trials before a jury could convict – a state of affairs that invites review.

Fundamental to the Prosecution case is proof that the gun was fired by Khadeer Hussain. Evidence sufficient to establish this to the necessary standard is not clear- cut. Thus, if this is the man to be seen by way of CCTV arming himself from a skip (S/UP, I 9A) when, where and in what circumstances did he acquire a loaded shotgun?

With respect to each applicant in turn, does the evidence serve to establish that he was a party to murder as distance from being one of the large mob seemingly looking for non specific retaliatory trouble?

4. On the 13^th November 2006 there were two stabbings of Asian youths by unknown black youths in the Lozells area of Birmingham, an area with a significant population of persons of Asian origin. At 6.45pm Naveed Hussain was stabbed in the leg and at 7.15pm Kisar Hussain was also stabbed. Kisar Hussain was Kadeer Hussain's brother and Naveed Hussain was Kadeer Hussain's cousin. The emergency services attended and Kadeer Hussein can be seen on CCTV at the corner of Frances Road and Lozells Road obviously angered by what had occurred.
5. At the end of the judgment we include a link to the Google map of the area.
6. It was the prosecution's case that Kadeer Hussein, to take revenge, walked from Frances Road, down Burbury Street to a nearby area of Birmingham with a significant black population. He, on the prosecution's case, arrived in a cul-de-sac off Melbourne Avenue with some 25 other persons of Asian origin and, using a 12 bore shot gun, fired one cartridge and killed a young black man, Meshack Bernard-Brown (date of birth 13^th November 1986), who was enjoying his birthday party. Other members of the group attacked occupied cars in the cul-de-sac. The deceased had nothing to do with the stabbings and must have been chosen at random.
7. It would take a minimum of about 7 minutes to walk from Frances Road to the cul-de-sac. In fact some 25 minutes elapsed after Kadeer Hussein had left Frances Road and before the shooting.
8. Kadeer Hussein did not stand trial having disappeared after he had, on the prosecution's case, shot the deceased. The next day he made a very hurried departure to Pakistan where he is still believed to be.
9. The jury were told that the appellants could not be convicted of murder unless they were sure that Kadeer Hussein was the killer. The jury, in the light of the verdicts, must have been sure of this. Although written arguments were addressed to us about the safety of that finding, we have no doubt having read and heard the respondent's submissions, that the jury were entitled to find that Kadeer Hussein was the killer (see the summing-up page 17).
10. The jury were also told that they could not convict the appellants of murder unless they were sure that the appellants were there participating in the attack in the cul-de-sac. The jury, in the light of the verdicts, must have been sure of this. Although written arguments were also addressed to us about the safety of these findings, we have no doubt that the jury were entitled to find that appellants were in the cul-de-sac participating in the attack. It is not necessary for us to go into great detail about this conclusion, which underpinned our decision to substitute convictions for violent disorder. The three appellants set off down Burbury Street with Kadeer Hussein and the jury were entitled to be sure in the light of all the evidence, including the various adverse inferences that they could draw, and, in the case of Nadeem and Azam, the covert recordings that they were planning some form of revenge attack and that they did not abandon that plan en route to the cul-de-sac.
11. The jury were also told that they could not convict the appellants unless they knew that Kadeer was armed and they had the necessary foresight. If they knew he was armed, then, in our view, it would follow, on the facts of this case, that they would have had the necessary foresight.
12. At the first hearing of the appeal, which had to be adjourned for reasons to do with the health of one of the appellants, we told the parties that we wished to concentrate on the issue of knowledge: Was there evidence on which a jury could properly conclude that the appellants knew before the shooting that Kadeer Hussein was armed? Whilst accepting that a number of trial judges had answered that question "Yes", we asked for full argument on that point and, at least initially, on that point alone.
13. At that first hearing before us Mr Linehan QC, for the respondent, conceded that the appellants had to have acquired, before the arrival in the cul-de-sac, the knowledge that Kadeer Hussein was armed. He was right, in the light of the evidence, to make that concession. If the appellants arrived in the cul-de-sac without the knowledge that Kadeer was armed, then there was no evidence upon which the jury could properly conclude that they became aware after the arrival and before the shooting. Unfortunately the jury was not directed in accordance with that concession.
14. To help answer the question which we posed, Mr Linehan spent almost a morning taking us through the CCTV and other evidence relating to the period just before the departure of Kadeer Hussein from Frances Road until the time of the shooting, as well as some of the evidence of what occurred after the shooting.
15. CCTV evidence showed Kadeer Hussein, the three appellants and Altaf Hussain, with others, in the mouth of Frances Road. Ataf Hussein was not on trial, he also having left the jurisdiction and not returned.
16. The appellant Nadeem and Ataf Hussein arrived in a red Golf car which they had parked at the top of Carpenters Street near the junction with Lozells Road.
17. Four of the group left the mouth of the road at about 19.34 meeting up with Kadeer Hussein very shortly afterwards and the group of five crossed to the other side of Lozells Road. There, from a skip, Kadeer Hussein armed himself with a piece of wood which he discarded not long afterwards. The appellant, Nadeem, armed himself with a brick which he or may not have discarded shortly afterwards.
18. Another CCTV camera followed the group of five down Burbury Street and eventually lost sight of them at 19.40. At this stage the group were not travelling quickly. There was an issue at the trial as to whether two of the group, including Nadeem, crossed the road at about 19.39.
19. There is no more CCTV footage of the group before the killing.
20. There is no doubt that at this stage Kadeer Hussein was not armed with the shot gun used (on the jury's verdict) by him in the killing.
21. At the bottom of Burbury Street the group, it seems, must have crossed Gerrard Street. The next event said by the prosecution to involve the group (and in our view rightly said) occurs at 19.45 in Melbourne Avenue at its junction with Rosslin Grove, down which the group must have come.
22. But before setting out what happened at 19.47, we should mention that CCTV caught a group of six young Asian men at 19.39 congregating by the skip on Lozells Road and moving down Burbery Street as the first group had done at 19.46. It seems likely that that group formed part of the group of 25 Asian men who were to be in the cul-de-sac at about 20.00 when the fatal shooting occurred.
23. We take the evidence of what happened at 19.45 from the summing up:

And so we come to the bottom of Burbury Street and the evidence of Misses Bates and Thompson. They were driving to the bank along Melbourne Avenue towards Wheeler Street, into which Roslin Place led, which as you know, is directly opposite the bottom of Burbury Street. They drew out their money at 19.47, according to the bank record, and so it's not in dispute that it would have been about 19.45 that they were driving along Melbourne Avenue and they saw between five and eight, one said five and six, the other said six to eight, Asian males walking along Melbourne Avenue. The prosecution say that these were the five who'd come down Burbury Street, perhaps with others who'd caught up with them, walking on Melbourne Avenue. One of them, shorter than the others, about 5ft 4, held at his side what looked like a metal pole. Miss Thompson said it looked like a long pole carried at his side and Miss Bates said he had a metal pole in his hand. ... One of them said that she hadn't seen a barrel or a handle. The prosecution suggest that that may have been Kadeer Hussain carrying a gun at his side.

24. Kadeer Hussein is about 5'4" and thus fits the description of the man carrying the pole and there was no other member of the group of five who meets that description. Notwithstanding the evidence to which we have referred about two members of the group crossing Burbury Road and notwithstanding Nadeem's evidence that he did not get beyond the bottom of Burbury Road (which the jury must have disbelieved), the jury would have been entitled, in our view, to conclude on all the evidence that the witnesses were seeing a group which contained the original five.
25. Mr Linehan accepted in argument that the jury could not have been sure on this evidence that Kadeer Hussein had by now armed himself with the gun and, as the summing up shows, did not invite the jury be sure on this point. It seems unlikely, albeit not impossible, on the evidence available in the trial that Kadeer Hussein had by this stage armed himself with the gun used in the killing and it should be remembered that Kadeer Hussein had previously armed himself with a piece of wood. If the jury could properly have been sure that Kadeer Hussein had armed himself with a gun by this stage, then it would not have been difficult to infer the requisite knowledge on the part of the appellants.
26. The next event occurs at some point between 19.47 and 19.55. In the words of the summing up which we have amended slightly in accordance with corrections made by counsel:

On their drive back from the bank, Misses Thompson and Bates, between 19.50 and 19.55, saw a large gathering of Asian males at the bottom of Burbury Street, the top end of Roslin Place [Grove], gathering on the grass verge and some of them standing on the wall. Mr Nadeem, of course, in his police interview, confirmed that there was such a gathering. Miss Thompson stopped and counted 26 males as they started off altogether, leaving where they could see them and going down Roslin Place [Grove] towards Melbourne Avenue.

27. We turn to the events of the shooting as summarized in the summing up:

Down in a cul-de-sac off Melbourne Avenue, Meshack was holding an impromptu outdoor birthday party. Friends appear to have arrived at about 7 p.m. There was music from two parked cars, a red Saxo, driven by Nadine Bedward. It was parked facing away from Melbourne Avenue, down towards the entrance to Burbury Park. Nadine was in the driver's seat, her friend Amelia Mighty, was in the front passenger seat and by 8 o'clock Jodie Bell, who arrived separately, had got into the rear passenger seat because she was cold. The door was open so that they could play the music so that other people could hear it.

Junior Hewitt's car was facing the opposite way. Two schoolgirls were, by 8 p.m. sitting in the front, Rochelle Webber and Farabelle Green. We had evidence in person, or in writing, and therefore not disputed, from all of them. Additionally there was evidence from others who were present in the street. Junior Hewitt, Britney Mitchell, Atiba Liburd and Elijah Thomas. Four of the witnesses spoke of being concerned by a silver car which passed and re-passed the top of the cul-de-sac and seemed to be, if I can use the expression, "casing the joint", but there was no particular unease until suddenly, 20 to 30 Asian youths burst onto the scene. All but one of the witnesses, Farabelle Green, being the exception, confirmed the description of them as coming from the left, that is from a direction of Roslin Place Grove.

What then took place happened very quickly indeed and resulted, as you know, in Meshack being fatally shot. Atiba Liburd described making a 999 call, which was logged at 8.02.40. DC Bevan described how it does take a little while, and it may be your experience, for a 999 call to be put through before it's logged and in any event, we know that when Meshack was shot, he managed to run away into the park before he collapsed and it was only then that his friends realised that he was badly hurt and Atiba Liburd made the call.

So the shot would, on that basis, have been, perhaps on the best estimate which Ms Liburd gave, of one to two minutes earlier and allowing for what has to happen, namely the call going through to the call centre, coupled with the somewhat staggered, I suspect, run by Meshack into the park, one would have thought two minutes would have been about right and so let's, Members of the jury, you may think, put the shooting at being at 8 p.m. It's a matter for you.

As to what happened, there are differing versions of this very short incident. It seems that there was an almost immediate assault on the cars with bricks and/or bottles, because Nadine and Amelia in the Saxo, didn't actually see the shot, because their windows were already being or had been smashed. It began with Meshack, it seems it was Meshack, asking the youths "Who are you?" or "What is this?" and one of the youths replied "I'll show you" or "tell you who I am" or "I'll show you what it is" and that was the starting point for the assault. Jodie Bell and Britney Mitchell both described there are being two men in front, one taller, about 5ft 10 to 11 and one shorter, about 5ft 5. Jodie Bell, as you will recollect, described the shorter one as a head shorter than her and she was about 5ft 11 and agreed about 5ft 4.

Now of those two men, Jodie said it was the shorter one who produced the gun and fired the shot, while Britney thought it was the taller one and Britney described the jacket, which she thought looked like a Stone Island jacket with a Stone Island logo on the taller man.

Junior Hewitt, who wasn't called before you on this occasion, said on a previous occasion, not recorded, in the agreed facts, Paragraph 12, that the gunman had short black hair and distinctive eyes, which he described as greenish and wore a long beige or brown coat with gloves. Now all, except Farabelle, of the witnesses who described what happened then, described the group, after the shot was fired and the two cars had been damaged, as disappearing back to the left, back where they'd come from, towards Roslin Place. Again, Farabelle is the only exception in thinking that they left to the right. All were extremely shocked and scared and Meshack died in hospital shortly after midnight.

28. As one can see from these passages from the summing up, the group of Asians comprised some 20-30 persons, the group was led by two men, one of whom was about 5'4", the only two attackers for whom there is a description are those two men and events unfurled very quickly. The shooting must have occurred at about 8.00 pm. There was conflicting evidence about which of the two fired the gun, but, in our view, the jury were entitled on all the evidence to prefer the evidence that it was the shorter man who fired. If the shorter man was the gun man, then that supported the prosecution's case that Kadeer Hussein was the gun man. However the description of the gun man as wearing a long beige/brown coat and gloves did not fit the CCTV images of Kadeer Hussein. The taller man identified as wearing a Stone Island jacket with a Stone Island logo could not be identified from the any of the CCTV images and his clothing did not correspond with anything worn by the appellants.
29. It is the respondent's case that whenever the handover occurred the three appellants must have been nearby and seen the handover and/or were walking towards the cul-de-sac with the now obviously armed Kadeer Hussein. The respondent relies on the fact that the three appellants had accompanied Kadeer Hussein down Burbury Road on, what the prosecution say, must have been a revenge attack. They also point to other evidence which, it is said, supports the contention that they knew that Kadeer had a gun before arriving in the cul-de- sac. We turn to that now.
30. No-one was seen coming back up Burbury Road after the shooting. Azif and Azam are seen in Frances Road at 20.07.44 and .55. Azam lives nearby. The prosecution submit that the jury were entitled to infer that the two had walked back together from the cul-de-sac. Nadeem and Ataf drove away from the area in the red Golf which had been parked, as we have said, on Carpenter's street, a road up which Azif and Azam may well also have come, given that they are not seen coming up Burbury Street. Thus, say the respondent, shows that the three appellants and Ataf left together on the revenge attack with Kadeer Hussein and returned together, albeit without Kadeer Hussein.
31. The respondent also relies on lies told by the appellants, but accepts that this is not a very strong point in their favour on the issue of knowledge of the gun before arriving in the cul-de-sac. There was ample reason for lies to be told to cover up what was, on the jury's verdict, participation in the attack in the cul-de-sac, during which attack a person was killed. We looked together at that part of the summing-up dealing with lies and we note in passing that the judge did not make this point. He said:

There may possibly be innocent reasons in the sense they don't denote guilt. You can lie to beef up what is a genuine and true defence. You can lie to protect someone else. You can lie because you're ashamed of what you did. You can lie out of panic, distress, confusion. You'll no doubt consider all those possibilities, but if you think, having done so, that may be there is, or may be an innocent explanation for any lies that you found had been told, then you put them to one side. If you are sure that he didn't lie for an innocent reason, then they can be regarded by you as going to support the prosecution's case. (Underlining added)

The lies may not have been told for an innocent reason but nonetheless may be of limited value on the issue of knowledge (see Bullen [2008] EWCA Crim 4).

32. The respondent relied on covert recordings of Nadeem and Azam speaking whilst in a police van. The conversations certainly excite suspicion of participation in the attack but not, at least directly, of prior knowledge of the gun. The respondent argues that if they were unaware of the gun, then they could have been expected to say that. It will be noted that Azif was also convicted of murder even though he did not participate in this conversation.
33. As we have said, it is the respondent's case that whenever the handover occurred the three appellants must have been nearby and seen the handover and/or were walking towards the cul de sac with the now armed Kadeer Hussein. The jury were entitled, so the respondent says, to draw that inference having regard to the matters which we have just outlined.
34. We disagree. It seems likely that Kadeer Hussein (who did not have a gun while being observed on CCTV) obtained the gun from one of the 20-25 Asians who were counted by Miss Thompson as the group moved off down Roslin Grove towards Melbourne Avenue shortly before the killing. In the absence of any evidence, whether direct or circumstantial, to help the jury determine when Kadeer Hussein was given the gun, it would not be right to draw an inference that he was given it in circumstances where the appellants must have known that Kadeer Hussein had a gun before arriving at the cul-de-sac. Indeed he could have been given the gun at the very last moment.
35. For these reasons we allowed the appeal and quashed the convictions for murder.

Map of area: <http://maps.google.co.uk/maps?f=q&source=s_q&hl=en&geocode=&q=lozell+road+birmingham&sll=53.800651,-4.064941&sspn=18.61907,35.639648&ie=UTF8&hq=lozell+road&hnear=Birmingham,+UK&ei=3dJ6S8XJC4GQjAeKpdSABg&attrid=813137d45c3cfa13_&ll=52.502743,-1.910162&spn=0.018025,0.034804&z=15>