REGINA v R.G. [2002] EWCA Crim 1056

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

[2002] EWCA Crim 1056

Case No Case No: 2001/2950/W2

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

REGINA

R.G.

Before

Lord Justice Auld

Mr Justice Newman

Mr Justice Roderick Evans

Mr M F A Borrelli QC appeared on behalf of the Appellant

Mr A Kent appeared on behalf of the Crown

Date 26 April 2002

[1]Mr Justice Roderick Evans : On 26 th April 2001 after a trial before His Honour Judge Boal QC, this appellant was convicted by the jury of murder by a majority of 11 to 1 and was sentenced to life imprisonment. He now appeals against that conviction with the leave of the single judge.

[2]Before turning to the grounds upon which leave was given, it is necessary to summarise briefly the events that led up to the killing and identify the issues which arose in the case.

[3]A.L. was one of eleven young people from various countries who shared accommodation at an address in Brixton. On the night of 23 rd July 2000 he was walking home across Rush Common when he was robbed of his wallet and its contents by three men and he suffered minor injuries. When he got home he told his housemates what had happened and asked for assistance to go back out and look for his wallet.

[4]Two men, S.D. and E.J., agreed to go with him and shortly after they left the house they saw this appellant and a man called J.G.. A.L. purported to identify the appellant and J.G. as two of the three robbers. At trial it was conceded by the prosecution that the identification was wrong. Police investigations had confirmed that at the time of the robbery the appellant and J.G. had been in a local club.

[5]A.L., S.D. and E.J. ran up to and passed the appellant and J.G., turned and confronted the two men and accused them of being party to the robbery. The denials of the appellant and J.G. were not accepted. An argument ensued followed by a fight during which S.D. was involved with the appellant and a little distance away, A.L. was involved with J.G.. E.J. gave evidence that during the fight the appellant went to his car which was parked a short distance away, did not get into it and returned and carried on with the fight.

[6]It was the prosecution's case that the appellant had retrieved a knife from the car which he used aggressively and unlawfully on S.D.. The evidence disclosed that S.D. suffered five stab wounds, one to the back and four to the front together with knife-tip injuries and what were referred to as defence injuries to his front. The fatal stab wound pierced his heart and he died soon afterwards.

[7]The appellant's case was that he and J.G. had been confronted by three aggressive men. The main exchange had been between A.L. and J.G. but the appellant was challenged by S.D. who was carrying the knife. There was a struggle between the appellant and S.D. during which S.D. dropped the knife and the appellant was able to pick it up. Despite the appellant having the knife, S.D. still continued the confrontation and moved towards the appellant. The appellant tried to keep him at bay with prodding movements with the knife. He was unable to recall whether any injuries were caused in that fashion but S.D. continued to move forwards towards the appellant and caught him in a bear hug. The appellant, as he later told the police, fearing for his life, stabbed S.D. in the back. He had no recollection of inflicting the other wounds although he accepted that he had done so.

[8]The appellant and J.G. left the scene in the appellant's car. J.G. was dropped off shortly thereafter and the appellant disposed of the knife.

[9]In his summing up,

the judge summarised the primary issue which the jury had to decide as follows:

"The dispute is this; did S.D. die because this defendant, aggrieved at the accusation and determined to take revenge for the insult, went to his car, retrieved a knife and came back and attacked S.D. with it, deliberately stabbing him and intending to do him, at least, serious harm … that is the case for the Crown … or did S.D. arm himself with a knife before he left his flat with his two friends and did he die as a result of this defendant trying to disarm him in self-defence. That is the case contended for by the defence. That is the primary issue."

A little later he said:

"The Crown say that this defendant is guilty of murder. The defence say that you must find [the defendant] not guilty because the Crown have not proved that he was not acting in self-defence."

[10]Later in the summing-up the judge, no doubt in an effort to further crystalise the issues for the jury, said:

"Perhaps the critical question in this case, and something which is most hotly disputed is who had the knife just before the fatal blows were struck or, even more contentiously, where did that knife come from; from [the defendant's] car or from [the flat in Brixton]?"

And a few pages later he added:

"… The real issue you may think is, however, did [S.D.] take a knife with him when he left the flat."

[11]At trial, the prosecution intended to call a number of witnesses who had been at the flat in Brixton when A.L. first arrived after the robbery and when the three men left. In their statements, these witnesses claimed that S.D. had not taken a knife with him when he had left the house and no knife was later found to be missing from the house. They also referred to S.D.' calm and peaceful character and his lack of propensity for carrying a knife. These witnesses could clearly give evidence of their knowledge of whether or not S.D. had taken a knife with him when he had left the house that night but could they give evidence firstly of S.D.'s non-violent and non-aggressive disposition and secondly about whether they had ever known him to carry a knife?

[12]On the first day of the trial at the request of the defence, the judge was asked to rule on these matters. He ruled as follows:

"In my view, in the context of this case, the question either in chief or probably in re-examination, 'Do you know the deceased to be an aggressive person?' or any question of the kind going to his general propensity is inadmissible. On the other hand, in the context of this case, 'Have you ever known him to carry a knife?' is, in my view, plainly admissible and goes to the root of this case. Indeed, it may go to the only live issue in this case. I have considered whether I ought to exercise my discretion in order not to permit the Crown to call that evidence because it might lead to unfairness. I am asked to do that under section 78. I am sure I would be asked to consider article 6 and, indeed, apply my mind to my general common law powers. In my judgment, none of those should lead me to the view that this defendant's trial would be unfair if the question was asked and, therefore, I permit it to be asked."

[13]Thereafter the prosecution called their witnesses and adduced evidence from them within the bounds of the learned judge's ruling to the effect that when he left the flat in Brixton, S.D. did not take a knife with him, that they had never known him to carry a knife and no knife was found to be missing from the house in Brixon after the event. One such witness, however, C.C., when testifying that she had never known S.D. to carry a knife added that he was "a gentle, laid back, caring beautiful man".

[14]In his summing up,

the judge reminded the jury of C.C.'s evidence in the following terms:

"'In the time I knew him, I have [n]ever known him to carry a knife. He was a gentle, laid back, beautiful man', was her description of him. In cross-examination she said that [the victim] is a shy and nervous person but, after being pressed by Mr BORRELLI, quite properly, she agreed that he was angry and upset that night and felt humiliated. She added this, however, when being pressed by Mr BORRELLI, 'if they had been out for a fight, they would have taken the whole lot of the men.'"

[15]The first ground of appeal upon which leave was granted is that the learned judge erred in law when he referred to the evidence of the deceased's good character in his summing up in this way. In its developed form, the complaint goes further because it is submitted that the kind of question permitted by the judge's ruling inevitably raises by inference character and general propensity which resulted in unfairness to this appellant.

[16]The extent to which evidence is admissible of the character and disposition of an alleged victim of violence when the issue raised by the defence and to be considered by the jury is self-defence was recently considered by this court in the case of R v Amado Taylor (27 July 2001). In that case a related question arose in the context of an allegation of rape where the issue before the jury was consent.

[17]The complainant's own evidence was that she had been a virgin prior to the act of intercourse with the defendant which founded the allegation of rape. The prosecution sought and were allowed to call evidence from the complainant's boyfriend that the complainant refused to have sexual intercourse with him saying that she was a virgin, that she held very strong principles about it and she firmly believed in her Catholic faith.

[18]In addressing that issue, Keene LJ examined the wider question of the admissibility of evidence of the character of a prosecution witness. At paragraph 19 of the judgment he said:

"19. It is established by the authorities that in criminal trials generally evidence is not admissible simply to show that a prosecution witness has a good character, in the sense that he or she is a generally truthful person who should be believed. That was the essence of the decision in Beard to which reference has been made, and again in the case relied on by the appellant by R v DS [1999] Crim LR 911. The reason is that whether the witness is a truthful person or not is a matter for the jury to determine without the assistance of what are normally known as 'oath helpers'. 20. Despite this principle, it is generally accepted that the occupation of a prosecution witness may be put in evidence, as indeed it was in DS even though this may have some relevance to the veracity of the witness. There is also a long recognised exception where evidence may be given as to the reputation of a witness; see Toohey v Metropolitan Police Commissioner [1965] AC 959 at 605G and 606E. 21. But the general principle is that evidence which is relevant to an issue in the trial is admissible unless of course excluded by reason of one of the normal exclusionary rules of evidence. Cases may arise where evidence of a victim's disposition or character may well be relevant to an issue in the case. One of the more obvious instances would be where the defence of self-defence is raised on a charge of personal violence. For example, on a murder charge it appears to be accepted that the accused may adduce evidence to establish the victim was of a violent disposition if self-defence is being run as a defence. We note that in Phipson on Evidence, 15 th Edition the following passage is to be found: 'If the accused's defence to a charge of some crime of violence is that he was defending himself against an attack launched by the complainant, it is apparent that the non-violent character of the latter is no less relevant as a matter of logic than that of the former': paragraph 1902. We agree with that proposition. Since the defence in such a case can in any event call evidence of good character of the accused as is recognised by the very existence of section 1(f)(ii) of the Criminal Evidence Act 1898, it would seem anomalous if the complainant were not able to seek to establish his non- violent disposition."

[19]In this court Mr BORRELLI on behalf of the appellant does not seek to challenge the accuracy of that statement of the relevant law and he further acknowledges that the judge in his ruling, no doubt bearing in mind the circumstances of the case which was before him, restricted evidence on these matters beyond that which might have been admissible in different circumstances. Nevertheless, he submits that the judge's ruling was wrong for its effect was to place before the jury evidence from witnesses who had known the deceased for periods ranging from only 3 months to 1 year, to the effect that they had never known the deceased to carry a knife. He asks whether the deceased would necessarily have told these witnesses that he carried a knife if he did so. The evidence of apparent knowledge is little more than evidence of the witnesses' belief about the deceased's habits and is quite different from evidence of a provable fact such as a previous conviction. However the repetition of this belief by a number of witnesses elevated it to such a degree that it gave it the misleading appearance of evidence of fact.

[20]The consequence of this, the submission continues, was to unfairly force the appellant to deal when giving evidence with his own bad character as the option of saying nothing about it was no longer available to the defence in the light of the judge's ruling. In the event, the defendant placed his previous convictions fully before the jury. These were a conviction for attempted theft of a pint of milk off a milk float when he was 15 years of age, a conviction of robbery also when he was 15 years of age, a conviction of theft by pick-pocketing when he was 17 years of age, a conviction for theft from a vehicle and for a dwelling house burglary when he was 17 years of age and a conviction for assault occasioning actual bodily harm when he was 21 years of age. In addition to this the defence called evidence from witnesses who spoke of the appellant's positive attributes and the fact that he was not the kind of person one would expect to carry a knife.

[21]Mr BORRELLI argues that the danger of this evidence relating to the general character and propensity of S.D. and the appellant being before the jury was that the jury would be tempted to balance the character of the two men in deciding the question posed of who brought the knife to the scene and in answering that question the appellant would be disadvantaged by his previous convictions. The admissible evidence should have been limited to whether or not the deceased had taken a knife from the house that night and whether or not a knife was seen to be missing after the event. Whatever the deceased's previous habits might have been this incident was so unique that the evidence of previous habits was irrelevant.

[22]Mr Kent on behalf of the respondent submits that the prosecution in this case was more restricted by the judge's ruling than the law required and that the judge had tailored his ruling to ensure fairness in the circumstances of this case. The evidence of whether or not the deceased was known to carry a knife was very relevant to the central issue in the case and any limitations it had could be explored in cross-examination and commented upon by the defence in their submissions to the jury. Moreover, in explaining in evidence why it was that he left the scene and absented himself from his home area for a few days the appellant relied on one of his previous convictions, namely, that for pick-pocketing as a result of which he had had a bad experience with the police.

[23]In their closing submissions the prosecution invited the jury to forget about the defendant's past and to concentrate on the facts of the case before them. That was a stance which the judge adopted and developed in his summing up. He said:

"You have heard evidence concerning [the defendant's] past and his reputation; some of which may be regarded, as it were, on the debit side and some which is quite certainly on the credit side. You must be very careful how you approach both. As to his bad character, if that is how it should be described, the debit side, his previous convictions, of course, you must not, and will not automatically assume either that the defendant is guilty or is not telling you the truth because he has some previous convictions many years ago."

[24]Having told the jury of the potential relevance of previous convictions

the judge continued:

"Bear in mind that they are certainly, compared with this allegation, relatively trivial and some time ago. I am not even going to remind you of what they are because you may think that [the prosecution] put it fairly into context in one sentence; 'forget his past' and that is the advice I give you."

[25]The judge then went on to remind the jury of that evidence which spoke of the defendant's gentle and kind personality and non-violent nature. Thereafter he gave the defendant the benefit of a full good character direction.

[26]Finally

the judge crystallised the issue for the jury in the following terms:

"So, in deciding whether the prosecution have made you sure of guilt you should have regard in those two ways to what those five people say about him. It is relevant but of course it cannot be conclusive just as the evidence of people who gave evidence of their view of S.D.'s character cannot be conclusive. People, do they not, act occasionally quite out of character and you may think that the inescapable fact must be that one of those two men, S.D. or R.G., acted that night in a way contrary to their reputation among their friends. S.D.'s friends say, 'I do not believe he is the kind of man to carry a knife'. R.G.'s friends say, 'I do not believe he is the kind of … sort of man to carry a knife'. The unhappy fact is that that night one of them did carry a knife. You will decide which one."

[27]The case against the defendant however was not that he was carrying a knife on him when first confronted by A.L., S.D. and E.J., but that he had retrieved a knife from his car during the incident. The evidence that the jury heard from A.L. was that he, A.L., had earlier told S.D. that he would have liked to have "kicked their arses in" at the time of the robbery, that S.D. had told him that he should have been more aggressive when initially confronted by the robbers, that S.D. had run down the road in an angry mood towards the defendant and J.G., that he and S.D. were angry and aggressive and that S.D. had demanded the return of the wallet from the defendant and J.G. in a very authoritative way. It was during the ensuing incident that it was alleged that the defendant resorted to a knife which it was alleged he had in his car.

[28]Although the question of whether S.D. had, as alleged by the defence, taken a knife with him when he left the flat in Brixton, was undoubtedly an important issue for the jury to resolve, it was not the "real issue" in the case. It was only an issue the resolution of which would help the jury resolve the real issue in the case, namely, had the prosecution made them sure that the defendant did not use the knife upon the deceased in lawful self-defence.

[29]Having formulated the issue in the way that he did, the judge reviewed the evidence in the case by reference to that issue in order to help the jury decide the questions that he had posed for them including that posed for them at the end of the passage quoted above in paragraph 26; was it the deceased or the defendant who carried a knife that night? The formulation was however something of an oversimplification of the issues. The true comparison of the positions of the two men was whether the defendant was a man who for no specific or explained reason carried a knife in his car or whether the deceased who may have had it in mind to confront three men who had mugged his friend had armed himself with a knife on this particular occasion. The judge may therefore have moved the focus of the case away from the central issue and inadvertently given the impression, despite his earlier correct directions on the burden of proof - both the general direction and the specific direction in relation to self-defence - that the burden of proving that the knife was brought to the scene by the deceased from the flat lay upon the defence.

[30]In deciding what evidence is admissible about the character, disposition and previous known behaviour of the victim of alleged unlawful violence, a trial judge has to apply the principles referred to by Keene LJ in Amado Taylor in the light of the issues raised in the case he is trying and the quality of the available evidence. In this case, assuming that the answers to the question put "have you ever known [the deceased] to carry a knife" were prima facie admissible, the judge should go on to consider the quality of the evidence available to answer the question. In this case, in our judgment, the probative value of the answers, for the reasons developed in argument by Mr Borrelli, was minimal.

The judge then had to consider whether the answers to the question should be

[32]Excluded in the exercise of his discretion under section 78 of the Police and Criminal Evidence Act 1984. Section 78(1) reads as follows:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

[33]At this remove of time neither counsel was able to tell us whether the judge had been asked when ruling on these matters to consider when exercising his discretion under this section what affect the admission of the evidence would have on the defendant's ability to conduct his case without having to disclose to the jury his previous convictions. The judge's ruling does not assist us in this respect, as it does not refer to the matters he considered when exercising his discretion.

[34]The judge dealt with the defendant's character in a full and fair way. However when reminding the jury of that part of the evidence of C.C. which went beyond the scope of his ruling, the judge gave the jury no guidance upon how they should address that evidence. The only possible assistance they were given is the reference in the passage we have quoted above where the judge deals with the evidence of character relating both to the appellant and the deceased. In our judgment there was a danger that the jury would, despite the advice they received to ignore the defendant's past, decide the issues in the case by comparing the evidence relating to the character of the two men.

[35]The second ground of appeal upon which leave was granted relates to a comment the trial judge made in the summing-up about J.G.. Although J.G. had been much mentioned during the trial neither side had called him to give evidence. Under cross-examination, the appellant had said that he had known J.G. for 15 years, that J.G. was one of his best friends whom he used to see four or five times a week. He had last seen J.G. the previous week and still saw him on a regular basis.

[36]In the summing-up during his review of the defendant's evidence,

the judge reminded the jury of those answers during cross-examination and then said:

"Members of the jury, it will not have escaped your attention that [J.G.] has not been called to give evidence."

The judge then continued with his review of the defendant's evidence.

[37]J.G. had in fact been charged as a result of this incident and up until a short time before the date of trial appeared on count two of the indictment upon which the appellant was tried charged with wounding A.L. with intent to do him grievous bodily harm contrary to section 18 of the Offences Against the Persons Act 1861. By the end of the incident during which he had been involved with J.G., A.L. had sustained a stab wound. When interviewed by the police J.G. had maintained that he was unarmed and that during the fight the appellant had come to his assistance. A possible conclusion from these answers was that it was the appellant, not J.G., who had stabbed A.L..

[38]The prosecution sought expert evidence in relation to A.L.'s injuries. This evidence disclosed that blood from the deceased S.D., was found close to the hole in A.L.'s T-shirt through which A.L. had been stabbed and that it could not be ruled out that one knife had caused all the wounds on the deceased and the wound to A.L. Therefore the prosecution could not exclude the possibility that it was the appellant who had wounded A.L. and accordingly not long before the date of trial the prosecution offered no evidence against J.G. on count two of the indictment. Thus it was that the appellant came to be tried alone.

[39]These matters, we are told, would have been known to the trial judge as was the fact that at the beginning of the trial of the appellant a formula had been adopted by the parties in relation to A.L. Reference could be made to the fact that A.L. had been injured and that he had bled at the scene, but not to the fact that he had sustained a stab wound.

[40]The complaint made on behalf of the appellant in relation to the judge's comment is firstly that the comment stands in isolation and unexplained. If it had any relevance, that should have been explained to the jury by the judge. In the absence of an explanation the jury were left to speculate as to why J.G. had not been called to give evidence and as to what evidence he would have given had he been called. Secondly, the danger of the remark coming as it did in the middle of a summary of the appellant's evidence was that it could have left the jury with the impression that they should hold J.G.'s absence from the witness box against the appellant.

[41]The remark having been made, it is argued, the learned judge should have told the jury firstly that there was no burden on the appellant to prove his case, secondly that there might have been a very good reason why neither side called J.G. and thirdly that the evidence disclosed that at the time that the appellant was involved with S.D. and the knife, J.G. was fighting and struggling with A.L. and may therefore not have seen the fatal incident (this was the point made at trial by the defence to the jury) and fourthly that they should not speculate as to why J.G. had not been called to give evidence or as to the evidence that J.G. could have given had he been called.

[42]The respondent submits that the judge's observation was no more than an observation on a fact which was well known to the jury and which had been mentioned during the course of the trial and that this observation should not be given the construction suggested on behalf of the appellant. Furthermore at the beginning of the summing up,

the judge when explaining the function of the jury had said:

"You may also draw, from facts that you do find established, such inferences as you think it safe and fair to draw. Inference is permissible. Speculation is not."

[43]Great care has to be exercised when commenting to a jury on the fact that someone whose name has been mentioned during the course of a trial as a person who might have been able to give evidence before them has not been called to do so. In the case of R v Shakeel Khan (6 March 2001), Pill LJ having reviewed earlier authorities said:

"17. In the absence of guidance, juries will inevitably speculate first as to why an apparently relevant witness has not been called and secondly as to what evidence that witness might have given had he been called. There will be situations in which the jury are entitled to ask themselves why the defence have not called a witness, as acknowledged in Gallagher and Wilmot . A universal requirement to direct the jury that they must not speculate as to why a witness has not been called might, as between prosecution and defence, work unfairness in some situations. On the other hand to give no direction may be to invite speculation and thereby to work injustice. To comment adversely may work injustice to the defence because there may be a good reason, but one which in some circumstances it would be unfair to disclose to the jury, such as previous convictions which may damage the defendant by association, why the witness has not been called. Moreover there may be an issue between prosecution and defence as to whether a witness is available. The judge cannot be expected to try an issue as to availability before deciding whether or not to comment on the failure to call a witness. 18. There is no simple answer to the problem and much depends on the judge's sense of fairness in the particular situation. In our minds … the dangers of making adverse comments and of failing to warn the jury not to speculate will usually be the paramount consideration. On the other hand now that a defendant's failure to give an explanation in interview or his failure to disclose his case in advance may be the subject of comment the case for permitting comment on failure to call an available and obviously relevant witness may be stronger. The absence of power to comment would be an encouragement to dishonest evidence naming persons alleged to know of relevant events, if they can be named in the certain knowledge that the jury will be directed not to speculate on why they have not been called. 19 If comment is made … a reference to the burden of proving the case remaining on the prosecution may in some situations be appropriate. Moreover a judge who is proposing to make adverse comment on the failure to call a witness should first invite submissions from counsel in the absence of the jury."

[44]Here the judge's comment stands unexplained and the jury having heard it were given no assistance as to what significance, if any, should be attached to J.G.'s absence. Coming as it did in the middle of a review of the defendant's evidence there is in our view a danger that the jury might have been left with the impression that it was for the appellant to call J.G. as a witness and his failure to do so was a defect in the defence case. Moreover in the context of this case with the evidential background of the stabbing of A.L. to which we have referred, the judge, had he intended to make any comment on the absence of J.G., would have been wise to have invited submissions from counsel before embarking on his summing up.

[45]Mr Kent submits that notwithstanding the matters to which we have referred, the case against this appellant was strong and the conviction for murder is in any event safe. We have given that submission anxious consideration but have concluded, not without some hesitation, that we are unable to accept his submission. The cumulative effect of the matters to which we have referred is in our judgment to make the conviction unsafe. Accordingly we allow the appeal and quash the conviction. ************* LORD JUSTICE AULD: Mr Stilgoe? MR STILGOE: My current instructions are to seek a retrial in this matter. LORD JUSTICE AULD: Yes. Is there any reason why that should not take place, Mr BORRELLI? MR BORRELLI No. LORD JUSTICE AULD: Thank you. We shall allow the appeal, as we have indicated, and quash the conviction. We shall direct that a fresh indictment be preferred and the appellant rearraigned on that fresh indictment. He is going to be in custody; is there any reason why he should not remain in custody, Mr BORRELLI? MR BORRELLI: My Lord, my learned friend has quite properly drawn to my attention the need for a notice for bail pending the retrial to be served on the prosecution. What your Lordships may not have appreciated is that the defendant was on bail up to and including the duration of the trial until such time as the jury retired. It would be my application that he should be readmitted to bail, there being no obvious reason why, if he was bailed beforehand, he should not be on bail now. (The Bench conferred.) LORD JUSTICE AULD: What do you say about that, Mr Stilgoe? MR STILGOE: I am sorry, my Lord, I was taking instructions. LORD JUSTICE AULD: Mr BORRELLI points out that the appellant was on bail whilst awaiting trial. MR STILGOE: Notwithstanding that fact, my Lord, the provisions of the Court of Appeal Rules are clear and notice is required of a bail application pending retrial. We have not had any such notice. I have the benefit of officers who were involved in the case behind me, but I do not, obviously, have instructions from the Crown Prosecution Service at this stage. LORD JUSTICE AULD: You would need to take instructions is what you are saying, is it? MR STILGOE: I believe so, yes. LORD JUSTICE AULD: Yes. MR BORRELLI: Can I just draw your attention, my Lord, to the provisions that my learned friend has rightly drawn to my attention? I apologise for not warning myself of this in advance. If you look at Archbold.; it is chapter 7 paragraph 189. It is section 3(3):

"Notice in writing of intention to make an application relating to bail to the court shall, unless the court or a judge thereof otherwise directs, at least 24 hours before it is made be served on the prosecution and on the Director of Public Prosecutions, if the prosecution was carried on by him or, if the application is to be made by the prosecutor or a constable under section 3(8) of the Bail Act 1976, on the appellant."

It would appear, in our respectful submission, that there is a provision here that if this Court so directs, the normal notice can be waived for the need for this application to be in writing. LORD JUSTICE AULD: The critical matter, assuming that to be right, is whether Mr Stilgoe can obtain instructions, which is what the purpose of the notice is designed to secure, quickly. MR BORRELLI: Yes. MR STILGOE: I will endeavour to do that. I hope to be able to do that before we rise for the short adjournment, if your Lordships will give us five or ten minutes to phone the appropriate person. LORD JUSTICE AULD: It needs to be done quickly if at all today because one of us has other court commitments that are being neglected at the moment because of this judgment. MR STILGOE: I make it clear that instinctively the only danger that we would foresee is the defendant's attendance at future hearings. There is no other reason why bail would be objected to in any way. LORD JUSTICE AULD: You think you can do it before the short adjournment, do you? MR STILGOE: I will do my best. LORD JUSTICE AULD: Whilst we are dealing with all these matters, let us deal with them together. You will need to make an application for legal aid to cover the retrial, Mr BORRELLI, will you not? MR BORRELLI: We will. LORD JUSTICE AULD: It is an application which, according to the rules, you have to make orally to the Court, so I take you make it. MR BORRELLI: I do make it, please. LORD JUSTICE AULD: Was the certificate below for leading and junior counsel or just leading counsel? MR BORRELLI: Yes, it was. LORD JUSTICE AULD: And solicitor? MR BORRELLI: Yes. LORD JUSTICE AULD: Of course. (The Bench conferred.) LORD JUSTICE AULD: The legal aid order will be granted as before, leading and junior counsel and instructing solicitors. MR BORRELLI: I am very grateful to your Lordships. LORD JUSTICE AULD: What about venue? Although we are statutorily no longer required to consider it, are there any observations that you and Mr Stilgoe would like to make about that? MR BORRELLI: I would ask that the trial takes place at the Central Criminal Court again. LORD JUSTICE AULD: There is no reason why it should not be so, Mr Stilgoe? MR STILGOE: No. MR BORRELLI: Can I raise one other matter? I am asked, and it would seem to be very sensible precaution, to raise the question of press reporting, whether there should be a restriction on your Lordships' ruling being published in the press prior to a forthcoming retrial. LORD JUSTICE AULD: Yes. That is a matter which Mr Stilgoe prompts you to raise, so you are in agreement about that? MR BORRELLI: I am prompted from those sitting in front of me to raise it, which I do. I am grateful. LORD JUSTICE AULD: Is there anything you would like to say about that, Mr Stilgoe? MR STILGOE: I do not have specific instructions. I imagine that our position will be largely neutral. (The Bench conferred.) LORD JUSTICE AULD: We think, subject to anything further you want to Mr BORRELLI or Mr Stilgoe, that the stay should only be on the publication of the names of the victims, and witnesses and the appellant, but otherwise there should be no stay on the publication of the matter pending retrial. MR BORRELLI: Very well, my Lords. I do not think I need address you any further on that. LORD JUSTICE AULD: I do not know whether any members of the press are here but certainly one would know that they have sufficient nous not to prejudice any trial. There will be an order so as to confine the identification of the personalties in the trial to initials. MR BORRELLI: Thank you. LORD JUSTICE AULD: That should not make very interesting reading for anybody. MR BORRELLI: No. LORD JUSTICE AULD: We will retire and hope you can take instructions quickly, Mr Stilgoe. MR STILGOE: I hope so too. (The Court adjourned for a short time.) LORD JUSTICE AULD: Yes, Mr Stilgoe. MR STILGOE: Thank you very much for the time. There is no objection, as far as the Crown are concerned, to bail continuing as before. I understand the conditions that were placed on the defendant before the trial involved two sureties and a condition of residence at the very least. We would ask in the circumstances that an additional condition that he not contact directly or indirectly any prosecution witnesses be placed on his bail; but, apart from that, we have no direction. LORD JUSTICE AULD: Thank you, Mr Stilgoe. We are grateful to you for taking instructions at such short notice. Mr BORRELLI? MR BORRELLI: May I express my gratitude too. The address is with his brother in Swindon. Would your Lordship like me to read the address out so it can go on the court record? LORD JUSTICE AULD: Let us do that. MR BORRELLI: It is [address stated]. LORD JUSTICE AULD: That is the address which was the subject of the original condition of residence? MR BORRELLI: Yes, it is. I believe it was the sister-in-law who was a surety. She has been spoken to on the phone outside court and will, when notified to do so, go to Swindon police station to sign on there, if that is acceptable to the Court. The other surety was another sister who is here. If your Lordship is content, she can go to the police station and be taken at a police station, unless your Lordships want to hear from her? LORD JUSTICE AULD: No, it can be done in each case within 24 hours. MR BORRELLI: I am grateful. Can I simply ask so that we all understand, when they have reported to police stations, is it to this Court the police will have to notify that they have been taken? LORD JUSTICE AULD: I do not know the answer to that. I would think it is to the Central Criminal Court; and Mr Stilgoe is nodding. Do you know the answer to that? We all think it is to the court of trial. If I am wrong about that, then this Court. But our instinct is that it is to the court of trial. MR BORRELLI: It is just that within 24 hours, given we are Friday afternoon, the Central Criminal Court -- LORD JUSTICE AULD: I see, yes. MR BORRELLI: They may not know what this is about. LORD JUSTICE AULD: This is Friday, is it not? Then by midday on Monday- will that do? - they can enter into the recognisance at whatever convenient police station there is to them. MR BORRELLI: Does your Lordship therefore say that the defendant meanwhile can be released from this building unless there is then a problem and they have not reported by 12 on Monday? LORD JUSTICE AULD: Mr Stilgoe? MR STILGOE: My Lord, the purpose of the sureties is to ensure the defendant's attendance and until they are back in place that pressure is not on him. LORD JUSTICE AULD: Can they not enter into recognisance as their nearest respective local police stations this afternoon. Can that not be arranged? MR BORRELLI: I am sure we can do that, yes. LORD JUSTICE AULD: I am sure that should not cause any problem. MR BORRELLI: I am sure they will be very anxious to do it to assist the defendant. LORD JUSTICE AULD: Will the defendant, as he now is again, remain here for any length of time today or will he have to go back to the prison? MR STILGOE: The position would be that the officers who sit behind me will do their best to cooperate with the sureties and with the relevant police stations and can inform this Court when messages are obtained from those police stations that the sureties have been properly taken. LORD JUSTICE AULD: Then is the appropriate order - and I am thinking aloud now - that we order that he remain in court until the recognisances have been entered into in the course of this afternoon and thereafter to be released from the custody of this Court? MR BORRELLI: What I would ask is that your Lordship makes an order that he should not be taken away from this building until close of court business today to give us a chance to get these sureties taken. I am sure that there will not be a problem. I will talk to the officer outside. We can obtain telephone numbers as to who needs to be spoken to, and then if he is in this building then the Court will know and he can be released from this building later today. LORD JUSTICE AULD: Without him being whisked back to prison and everything going in limbo because of the difficulties. MR BORRELLI: He will go back to prison in Cambridge and that will cause all sorts of problems. (The Bench conferred.) LORD JUSTICE AULD: Very will, that is the order that we shall make. Bail will be granted on the same terms as before, subject to the additional condition that the defendant should not contact, directly or indirectly, any prosecution witness in the case; that the recognisances of the surety should be in the same sums as they were before and that the sureties should enter into those recognisances this afternoon; and that the defendant should not be released from the custody of this Court this afternoon unless and until they have done so. MR BORRELLI: I am very grateful to your Lordships. LORD JUSTICE AULD: We are grateful to counsel. (Clerk of the Court asks for clarification as to the amount of the sureties.) MR BORRELLI: They were £25,000 each. LORD JUSTICE AULD: That is the same sum of course.