REGINA v Kenan CAKMAK [2002] EWCA Crim 500

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2002] EWCA Crim 500Case No Case No: 200106507/6510/6512/6515/6519/X4Venue Royal Courts of Justice, The Strand, London, WC2A 2LL
Between
REGINAKenan CAKMAKTolga CAVCAVEvrim TALAYMuharen CANAydemir KARAASLANAhmed DURAKANOGLU
Before
Lord Justice KennedyMr Justice AikensMr Justice PitchfordMR P ROCHE and MISS HAWLEY appeared on behalf of the ApplicantsMR J DENNISON appeared on behalf of the CrownDate 8 February 2002
[1]MR JUSTICE AIKENS: On 25th October 2001 in the Crown Court at Middlesex before His Honour Judge Blacksell QC and a jury the six applicants were convicted of a single count of threatening criminal damage, contrary to section 2A of the Criminal Damage Act 1971. In the indictment the particulars of offence were stated to be:
"That on 20th December 2000, without lawful excuse, they threatened Robert Burt that they would start fires inside capsules 4 and 24 of the London Eye belonging to British Airways, intending that Robert Burt would fear that the said threat would be carried out."
[2]The particular phraseology of the particulars of offence is important as we shall see.[3]Upon conviction the six applicants, who are Turkish nationals, were sentenced to be imprisoned for 28 days. They have completed their terms of imprisonment.[4]The applications were referred to the full court by the Deputy Registrar. We understand that this is because there is to be a trial on 11th February 2002 of 44 other people who took part in the same protest that occurred on 20th December 2000. All face the same charge.[5]We grant the applicants leave to appeal. We have heard full argument on the appeal and this judgment deals with the appeals. We are grateful to Mr Dennison and Mr Roche for their assistance.[6]At the outset we should set out the provisions of section 1(1) and section 2 of the Criminal Damage Act 1971 ("the Act"). Section 1(1) provides:
"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."
[7]Sections 2(a) and (b) provide:
"A person who without lawful excuse makes to another a threat intending that that other would fear it would be carried out: (a) to destroy or damage any property belonging to that other or a third party; or (b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person shall be guilty of an offence."
[8]As we have noted the applicants were charged with an offence under section 2(a) of the Act.[9]The facts giving rise to the allegation are striking and unusual. As is well-known the London Eye is a tourist attraction on the south bank of the Thames near to the Royal Festival Hall. It consists of 32 passenger carrying pods attached to a wheel that rotates around the central hub. The pods are constructed of glass, metal and wood. They are not individually manned by any crew. However they are connected to a control room on the ground by closed circuit television and an intercom. In normal service the wheel takes 30 minutes to complete one revolution. The speed is low enough to ensure that passengers can step into and out of the pods from ramps on the ground whilst the wheel is in motion. Even at top speed it takes approximately seven and a half minutes for a pod to reach the ground from the highest point of its travel.[10]On 20th December 2000 a group of protesters, including the applicants, occupied pods 4 and 24. These pods are positioned at opposite sides of the wheel. Thus when one is at ground level the other is almost at the top. There is no dispute that the applicant Cavcav used the intercom to contact the operator of the wheel, Robert Burt, who was in the control centre of the London Eye. Mr Cavcav explained that the protesters were demonstrating against what they called human rights abuses in Turkey. He threatened that the protesters would set fire to themselves if any attempt was made to storm the pods. Mr Burt was told that the intention of the protesters was to speak to the media. Some of the protesters were seen by Mr Burt to pour some liquid over themselves. He was very worried by the situation and he was very nervous about what might happen. He knew that none of the pods had fire sensors, nor did they have any fire extinguishers in them. He knew that if there was any fire in a pod then extraneous assistance to extinguish a fire could only be given once the pod reached the bottom of the wheel. Pods were brought round so that members of the public could leave them in the normal way, but this took over an hour after the police had been informed and had arrived at scene. Some witnesses saw protesters holding cigarette lighters above their heads. But the protestors said that they had no wish to endanger anyone else and that the members of the public should be removed from the pods and the wheel. There was scientific evidence at the trial concerning two containers that had been recovered from the scene. One smelled of petrol but did not contain any. The other contained traces of partially evaporated petrol. Eventually, after lengthy negotiations, the protesters gave themselves up and were arrested.[11]At trial the prosecution called a number of witnesses to give evidence of the events. The witnesses included Robert Burt, who was in the London Eye control room; Jonathan Chubb, who evacuated the public from the platform at the foot of the wheel; witnesses who saw some protesters douse themselves in a liquid; and Detective Chief Inspector Reynolds who was the police negotiator. He dealt with someone who called himself "Sinam", who was the applicant Cavcav. Sinam/Cavcav identified two people in one pod and one female in the other pod who had doused themselves with petrol. His evidence at the trial was that the threat made was that the protestors would set themselves alight if they did not get access to the media or if the pods were stormed.[12]At the close of the prosecution case the applicants' counsel made a submission of no case to answer. The essence of the submission was that the offence in section (2)(a) of the Criminal Damage Act 1981 was in uttering a threat to damage property which threat had to be directed to the property of the person threatened or a third party. The mental element of the offence, it was submitted, consisted of intending to cause fear in a person threatened that the threat would be carried out. It was submitted that it was insufficient for the prosecution to prove that a threat to do injury to the body of the person making the threat would (if carried out) have the inevitable, likely, or foreseeable consequence that it would damage the property of the person threatened or of another. It was submitted that the prosecution had not produced any evidence of a direct threat to Mr Burt to damage the property of British Airways, as opposed to a threat to damage or cause injury to the protestors themselves which would or might have the consequence that the property of British Airways would be damaged.[13]The judge rejected those submissions. He held that the essence of the offence was "setting a fire" and that how you intend to set the fire is irrelevant. The judge indicated that he would be likely to direct a jury that they would have to be sure that(i) the inevitable consequence of the threat that was issued, by words and conduct, would be to result in damage to capsules 4 and 24 if the threat were to be carried out, and(ii) that the defendants realised that.[14]The trial then continued and five of the defendants gave evidence. The sixth, Mr Can, did not give evidence, but in his summing-up the judge told the jury that no adverse inference should be drawn from that fact.[15]As we understand it, the defence case fell into two parts: first, that no offence under section (2)(a) had been committed because there was no threat with regard to the property of British Airways. Secondly, it was said that there was a lawful excuse for making the threat to Mr Burt, which was duress of circumstances or necessity of circumstances.[16]When the judge came to sum-up he dealt with the ingredients of the offence at pages 7 to 10. He said, at 7B to 8C:
"What is it that is alleged against them here? It is quite right, members of the jury, and what you would have to be sure about before the Crown could succeed in this case ... can you look at the indictment with me together? It says: 'Statement of the offence.' The offence which here is alleged, members of the jury, is threatening to destroy or damage property, contrary to section (2)(a) of the Criminal Damage Act 1971. These people are particularised then and you see, 'And others', do you follow? ... [from the indictment] 'On the day without lawful excuse - which I shall come to in a moment - threatened Robert Burt that they would start fires inside capsules 4 and 24 of The London Eye belonging to British Airways, intending -- that is, members of the jury, that the threat that was made was intended -- that the said, Robert Burt would fear that said threat would be carried out' -- the setting of the fires. What you must be careful about, members of the jury, in this case is that the means of setting the fires, therefore, are totally irrelevant. It is said here, and it is accepted on the prosecution case, members of the jury, that the fires were to be started by people pouring accelerant over them and then setting fire to themselves. That was the threat. There must be, members of the jury, for this prosecution to succeed as you have quite rightly been told, a clear and specific threat that must involve property because just to set fire to yourself is not in essence an offence. Do you understand? There is no property in your body that others other than yourself should have. You must consider whether the threat to set fire to oneself amounted to a threat to the capsules and the wheel itself. However, you must look at the circumstances and the elected place where the threat was made. Why was it made in this particular place? Consider what it must have been like in the particular pod with a fire going on, and that is somebody lighting themselves."
[17]The judge then reminded the jury of the evidence concerning the presence of the petrol and bottles. He continued at 9A:
"Anyway, that is what you have to consider, members of the jury. Where, in fact, this threat was made and the terms of the threat to the recipient. As I have said, this was not a threat made in the street and as you know sadly in relatively recent history people have set fire to themselves in the street as protests, movingly and humiliatingly, humbling so, humbling so. This venue was particularly vulnerable, members of the jury, picked for maximum effect. The threat was to start a fire. As I have already said, the means of which they were indicating the fire would be started is irrelevant. The threat was to start a fires if you do not do as we say. They intended, members of the jury, it is alleged, that the person receiving that threat would believe that it was carried out. They accept that that was their intention. You decide intention by considering what the defendants did or did not do and the effect of their actions. You should look at their actions before, at the time and after in order to determine that. All these things may shed light on their intention. You must be sure that the defendants realised that the inevitable consequence of the threat being made would be that the recipient would fear that damage to The Eye itself or the pod would occur if it was carried out."
[18]After some further comments, which we need not set out,

the judge then continued at 10B to G:

"Consider, members of the jury, what was the inevitable consequence of the threat being made and what was the intention of these people that somebody receiving that threat would think, whether it is thought by counsel he is very robust man or not. As I have said, when considering this a person is taken to intend the natural and probable consequences of their action by reference to all the evidence, drawing such inferences to the evidence as appears proper in the circumstances. Members of the jury, if you are not sure about that these people should be acquitted. However, if you are sure that the defendants realised that the inevitable consequence of the threat being made would be that the recipient would fear that damage to The Eye or the pod would occur if it was carried out -- and as I have said they accept they saw the fire engines turning up, three fire engines -- again, using your common sense, did they think that was to put out a person alight or to the damage that was going to be caused if this threat was carried out? Anyway, if you are not satisfied about that and you are not sure about it then these people should be acquitted."
[19]Then he said that if they were sure, the jury had to go on and deal with the defences.[20]The judge then turned to the defences put forward, that is to say duress and necessity of circumstances. No issue arises out of this summing-up as to the law on those aspects of the case.[21]However, it is alleged that in the course of dealing with the defences the judge made comments on the honesty of the applicants and also the veracity of their evidence. The particular passages on which the applicants focused are set out at page 12E to F and 13A to B of the summing-up. There is a further passage at 28G to 29G concerning the evidence of Talay which was also relied on. In the light of the conclusion we have come to it is not necessary for us to set out those passages extensively.[22]The amended perfected grounds of appeal raise four broad grounds of appeal. They are:(1) that the judge should have accepted the submission of no case to answer;(2) that the judge misdirected the jury as to the ingredients of what constituted an offence under section 2(a) of the Criminal Damage Act 1971;(3) that there was no evidence that the applicants realised that the inevitable consequences of the threat being made by them would be that the recipient of the threat would fear that damage to the London Eye itself would result if the threat were carried out;(4) the judge failed to give a Lucas direction on the effect of lies from the defendants, notwithstanding the facts that, first, he had expressed views about the honesty of one or more of the applicants and how that might help in deciding whether they were guilty; and, secondly, he had doubts about the veracity of the defendants' evidence.[23]It seems to us that before we can deal with the first two grounds of appeal at all, the initial question that has to be considered is: what has to be established by the prosecution in order to obtain a conviction under section 2(a) of the 1971 Act? As background to considering this question, we note the reference to "recklessness" in section 1(1) which is absent in section 2 of the Act. Section 1(1) makes it an offence to destroy or damage the property of another in two circumstances: first, where the defendant has an "intent to destroy or damage any such property"; secondly, where the defendant is reckless as to whether "any such property would be destroyed or damaged". In Caldwell [1982] AC 341 the House of Lords considered what would constitute recklessness for the purposes of section 1. We are not concerned with the details here. We only note that an offence under section (1) can be committed where it is established that the defendant is reckless as to whether his action would destroy or damage the property that is in fact destroyed or damaged. There is no reference to recklessness in section 2. Secondly, we note that the essential act under both parts of section 2 lies in the defendant making a threat to another to destroy or damage property. The gist of the offence is the threat, not, as the judge appeared to assume at one stage, the setting of fires. Whether an offence under section 2(a) or 2(b) is charged, the jury must be satisfied that a threat has been made by the defendant.[24]The nature of the threat in the two parts of the section is different. Under section 2(a) the nature of the threat must be to destroy or damage property belonging to the person threatened, or property belonging to a third party. Under section 2(a) there is no offence if the defendant makes a threat to another that the defendant will destroy or damage the defendant's own property. Under section 2(b) the nature of the threat is to destroy or damage the threatener's own property in a way that the threatener himself knows is likely to endanger the life of the person threatened or a third person. So there is no offence under section 2(b) if the defendant threatens to destroy or damage his own property in a way that is likely to endanger the property of another person. We note the contrast between section 2(a), which deals exclusively with the property of a person other than the defendant, and section 2(b) which deals with threats to the property of the threatener.[25]In relation to the both parts of section 2 the nature of the threat has to be considered objectively. It does not matter what the person threatened thought was embraced by the threat, nor does it matter whether the person threatened actually fears the threat would be carried out.[26]So far as concerns the mental element of the offence under both parts of section 2, the prosecution has to prove that the defendant intends that the person threatened will fear that the threat will be carried out. It is clear that it is not enough for the prosecution to prove only that the threatener was reckless as to whether the person threatened feared that the threat would be carried out.[27]In the light of this analysis (and we leave aside the positive defences advanced by the applicant at the trial of duress and necessity), what were the principal issues in this case? In our judgment there were three principal issues, given that the offence charged was under section 2(a) and not section 2(b).[28]The first issue was: had a threat been made by the defendants to Mr Burt? We note here that the prosecution case was that all the applicants were involved in a joint enterprise to commit the offence under section 2(a). This issue therefore involves considering whether, objectively speaking, the words and actions of the defendants on the London Eye on 20th December 2000 constituted a threat to Mr Burt.[29]The second issue has two parts. First, if the words and actions constituted a threat to Mr Burt, were they, objectively considered, capable of amounting to a threat to destroy or damage the London Eye, being the property of British Airways? Secondly, did they in fact amount to such a threat? The first is a question of law; the second a question of fact.[30]The third issue was: did the defendants intend that Mr Burt would fear that this threat to destroy or damage the London Eye would be carried out?[31]If that is the correct analysis of the ingredients of the offence with which the applicants were charged, it seems to us that there was undoubtedly a case to go to the jury on the basis of the evidence which was led by the prosecution. The prosecution had produced evidence from Mr Burt of what he was told over the intercom. There was evidence from him and others that one or more of the protestors had poured liquid other their bodies. There was, in our view, ample evidence from which a jury could find that there had been a threat to Mr Burt.[32]Next, it would be for the jury to decide whether that threat, objectively considered, constituted a threat to destroy or damage the London Eye. That must be a question of fact. It could not be suggested that the words and actions of the protestors were not capable of constituting a threat to destroy or damage the London Eye.[33]Lastly, the jury would have to decide whether the applicant's intended that Mr Burt should fear that the threats to damage or destroy the London Eye would be carried out. It was submitted to us that there was no evidence of this. But that is a question of fact in all the circumstances of the case. That is quintessentially a jury issue.[34]Although the judge did not analyse the matter in this way, we respectfully consider he came to the correct conclusion in his ruling on no case to answer. He held that a jury, properly directed, could convict on the evidence in the case in relation to this particular charge. With that conclusion we agree. Therefore we reject the first ground of appeal.[35]The next ground concerns the judge's direction of law on the ingredients of the offence in his summing-up. We have already set out the material passages. In our view, with great respect to the judge, he did not deal with the ingredients of the offence as clearly as he might. In fairness to him he was not helped by the way the indictment had been drafted, with its emphasis on the "setting of fires" rather than the essence of the offence, which is the threat to damage the property of another.[36]If the judge had confined his directions to those set out at page 8B to C and had dealt with intention in the manner set out at page 9D to E, then we could not have quarrelled with the directions given. Unfortunately the judge concentrated on the issue of "the setting of the fires". He directed the jury that the act involved was the threat to start a fire full stop: see page 9C. He then directed that the issue was whether the defendants intended that the person receiving the threat to start the fire should believe it was to be carried out: see pages 9D and E. That would have given the jury the impression that the issue was whether there was a threat to start any fire, whether to a person or to any property. That, with great respect, is a misdirection. The test is whether, objectively, there was a threat to destroy or damage the property of another.[37]Having concluded that, with respect, the judge erred in giving the directions to the jury on the ingredients of the offence in the way he did, we must consider next whether that makes the conviction unsafe. As Mr Dennison submitted forcefully in his outline arguments and repeated orally, there was ample evidence on which a jury could have concluded that, implicitly, the threat made was one to do damage to the London Eye . There was also ample evidence for the jury to conclude that the applicants intended Mr Burt to fear that such a threat would be carried out. But we are not satisfied that the jury would have been concentrating on the correct issues as a result of the directions of the judge. Therefore, we have concluded that the misdirections rendered the convictions unsafe.[38]As to the next ground set out in the amended perfected grounds of appeal, we think that this is misconceived. The correct question is, what was the threat made? There was ample evidence that the effect of the words and actions of the applicants meant that by implication the threat constituted one to destroy or damage the London Eye, the property of British Airways. There was plenty of evidence from which the jury could conclude that Mr Burt believed that such a threat could be carried out.[39]As to the failure to give a Lucas direction, in the light of our conclusions above, we have no need to deal with it. Our view is that there was no requirement to give one here. We note particularly that none was sought by the defence at the close of the trial.[40]For those reasons the convictions will be quashed and the appeal allowed. LORD JUSTICE KENNEDY: Mr Dennison, it does not seem to us that in this case it is likely that the Crown would seek, the conviction having been set aside, that there be an order for a retrial so far as these applicants are concerned. What's the position? MR DENNISON: My Lord, the position is in fact that we would be seeking a retrial so far as these applicants are concerned. These six defendants were the first to be tried because they were the six who were identifiable by the Crown as playing the major part. My Lord has correctly identified that the first defendant, Mr Cakmak, was using the name of Sinam. He was the spokesman and ringleader. The others involved were those who were pointed out specifically and identifiable specifically as people who poured liquid accelerant over themselves and/or had been waving banners when they left the pods. My Lord, they are, the Crown would say, as it were, the leading identifiable lights, although that is not perhaps happily phrased in the circumstances. The remainder of the defendants, who are in fact to be tried in one single trial by direction of His Honour Judge Blacksell on Monday, are, as it were, the bulk of the protesters who took part, who provided the muscle, as it were. My Lord, I am -- LORD JUSTICE KENNEDY: The difficulty is that each of them was sentenced to 28 days' imprisonment which they have already served. MR DENNISON: My Lord, yes. LORD JUSTICE KENNEDY: What's gained at this stage, even if the Crown were to be successful on a retrial and obtain convictions, what is gained by that? MR DENNISON: My Lord, the Crown would submit that the fact that my Lords have allowed this appeal should not stand in the way of the interests of justice in broad terms. My Lord, the Crown would submit that all these defendants should be tried together. My Lord, I appreciate fully the uphill struggle that I face and I know that my learned friend, Mr Roche, opposes this application. My Lord, I don't think I can carry on putting it any higher than I already have. LORD JUSTICE KENNEDY: I do see this difficulty which you face, which is that if there is no order for a retrial it can be said on behalf of the defence of the others that these successful appellants have been acquitted, whereas if there is an order for a retrial the matter remains to be considered on other occasion. MR DENNISON: My Lord, yes. We would submit that it should be reconsidered in entirety. LORD JUSTICE KENNEDY: If we were to order a retrial what would be the Crown's course of action? Would you seek to try these ones first, or would you proceed with the remainder and then see how you stood? MR DENNISON: My Lord, we would seek, if it were to be practicable, to try all defendants together. LORD JUSTICE KENNEDY: What, including these? MR DENNISON: Yes. An order having been made that there should be one trial for all remaining defendants, it would be illogical if the split was to be maintained. LORD JUSTICE KENNEDY: The procedure at the moment envisages there being a trial for, what, 40-odd defendants? MR DENNISON: My Lord, yes. My Lord, this was a suggestion made by His Honour Judge Blacksell and accepted by the defendants. The Crown have stated in open court that so long as the defendants are content with that course of action we won't stand in their way. We obviously share, or have some concerns about trying 44 defendants. LORD JUSTICE KENNEDY: So do I. It sounds completely unwieldy. MR DENNISON: My Lord, that position the learned trial judge has directed should take place. The defence have accepted and have asked that that takes place. We, the Crown, find ourselves in the position of saying, how can we stand in the way of that if the defence are content that justice can be done in those circumstances. My Lord, that is the position. That is where we are. LORD JUSTICE KENNEDY: Mr Roche, what do you want to say? MR ROCHE: My Lord, yes. Can I first of all deal with a point raised by your Lordship about evidence of the acquittals of co-defendants. Perhaps I can say this? If the convictions stood, the Crown were seeking to adduce the convictions. That would have been subject to the usual arguments under section 74 and 78 of the PACE. In his skeleton argument supporting the adducing of convictions, my learned friend legitimately makes a distinction which there clearly potentially is in law between those authorities on adducing previous convictions and those adducing previous acquittals, and the trial judge would have a discretion as to whether to allow evidence as to acquittals of co-defendants in these circumstances to be adduced and would have to look at what the relevance of those acquittals was given the circumstances of the acquittals. So, in my submission, it certainly wouldn't be inevitable that evidence of the acquittals in these circumstances would be allowed to go before a jury. That's my first point. LORD JUSTICE KENNEDY: The principle, on the face of it, they would be entitled to know, the jury. The defence no doubt would want the jury to know, that those, whom the Crown, understandably on their case, regard as the prime movers, had not been convicted. At the moment that seems to me, at any rate, to create an imbalance. MR ROCHE: My Lord, the difficulty in ordering a retrial, as the court has observed, is that these defendants have already served their sentence. LORD JUSTICE KENNEDY: I can see that. MR ROCHE: It would certainly be most unusual to order a retrial in those circumstances. It also puts the judge at the end of the trial in a very difficult position in sentencing these defendants. In my submission any order other than an absolute discharge of these defendants would put them in double jeopardy, because any other sentence would be imposing a second sentence. LORD JUSTICE KENNEDY: That may be so. MR ROCHE: And in my submission if the only likely, or I would say legitimate order at the end of a retrial is an absolute discharge, then it would be quite wrong to put these defendants through the ordeal of a further trial simply because it might place the Crown in some difficulties as to other defendants. LORD JUSTICE KENNEDY: You can't claim it's unjust to them to have the issue determined. MR ROCHE: My Lord, I can't say it's injustice to have the issue itself determined, but where the purpose of putting them through the trial is really to assist the Crown as against other defendants, or to obviate other difficulties in regard to other defendants, I would submit that the court should be very slow to take such a course. It also would give rise to potential practical difficulties in relation to a trial of all the defendants. I noted the court having some reservations about the prospect of a trial of 44. LORD JUSTICE KENNEDY: I have very considerable reservations. If it were me I wouldn't handle it. MR JUSTICE AIKENS: I would have thought it was a recipe for disaster, Mr Roche. LORD JUSTICE KENNEDY: At the moment, my inclination, and I speak entirely for myself, is to look in terms of ordering a retrial and ordering that the whole matter be considered by one of the presiding judges of the south eastern circuit before anybody is tried at all, because it seems to me the whole thing is likely to get out of hand. MR ROCHE: My Lord, perhaps I can say this about the current proposals? Your Lordships will appreciate that defence counsel have given very careful thought to the obvious concerns that arise from an extraordinary number of defendants being tried together. The instructions that we had from our clients are that they wished to be tried together. In fact all 50 wished to be tried together. The 44 defendants left, if I can put it in that way, would certainly present less difficulty than 50, who include certain defendants who are alleged to be the prime movers, because clearly the trial would have to focus not simply on the activities of the group, but also on the specific activities of the prime movers and that raises even great difficulties in a large trial. LORD JUSTICE KENNEDY: The other consideration which I must say concerned me, though we haven't been much involved in it, is why they were separately represented. So far as I can see the defence was a clear defence, that's what emerges from the summing-up, which was common to all of them. I don't suppose they were paying for being separately represented, and if they were not it was disgrace. MR ROCHE: My Lord, they weren't privately represented. It was certainly a matter that was raised by the judge with counsel. LORD JUSTICE KENNEDY: I don't want to go too far down this road but what is the position now? Do you represent all of them or only some of them? MR ROCHE: The position is that, after considerable discussion with the judge and with instructing solicitors, there are eight counsel representing 44 defendants which certainly -- LORD JUSTICE KENNEDY: That's a great deal better than it was on the one to one basis, but I shouldn't have thought there were eight defences. MR ROCHE: Can I say this, there aren't eight defences but having been involved with defendants, dealing with six defendants as I do, is about as much as one can. LORD JUSTICE KENNEDY: I do see the force of that. That may be a powerful reason for having six defendants, say, on trial at once and one defence counsel, or one or two. MR ROCHE: Well, as I say, my instructions are that my clients would prefer to be represented together. There aren't a multiplicity of defences. But I don't think I can honestly say that there aren't potential difficulties in having this number of defendants in the dock. There plainly are difficulties. LORD JUSTICE KENNEDY: Is there any more anyone would like to say? MR ROCHE: My Lord, all I would say, coming back to the issue of a trial of the six defendants, because it may well be there is a review of the way in which the other defendants are to be tried in any event, but so far as the six are concerned, I would invite the court to take what I would submit is the usual course in these events, which is to say that they have gone through a trial, they have served their sentence and in those circumstances to put them through another trial where there is unlikely, and I would suggest there cannot be any additional penalty, would be unduly onerous. MR JUSTICE AIKENS: How long would a trial take if, as the Crown apparently propose, the six were to be involved in the six trial as the 44? MR ROCHE: I think the last trial took something in the region of two weeks was five defendants giving evidence. The Crown's case itself only took something in the region of three days, so it very much depends on how many defendants end up giving evidence. A trial of 50 defendants might well be concluded in something like three weeks, may be three to four weeks. MR JUSTICE AIKENS: As I say, it depends on how many want to give evidence. All done through an interpreter I suppose. MR ROCHE: Yes. The court had arranged facilities for simultaneous translation. MR JUSTICE AIKENS: For all defendants in that case? Is it anticipated there be simultaneous translation for all 44 or 50? MR ROCHE: Yes, they have the -- I am sorry, I don't think there was simultaneous translation at the first trial but there is simultaneous translation arranged for the trial envisaged for the 44 defendants next week. I am sorry, I gather there was simultaneous translation at the first trial with two interpreters. LORD JUSTICE KENNEDY: Yes. We will rise for a moment. (Short adjournment) LORD JUSTICE KENNEDY: We do not propose to order a retrial. We do, however, make it clear that if anything is said about the proceedings in relation to the current appellants those proceedings must be properly explained. In other words, that they were convicted in the crown court and succeeded on appeal in relation to the direction given by the judge to the jury. We say no more. MR JUSTICE AIKENS: Mr Dennison, Mr Roche, as you both probably know I am the presider on the south eastern circuit who is in charge of London courts this year. It is my proposal to have a word with the resident judge at the Middlesex Guildhall about the progress of the further cases. Obviously representations can be made at the appropriate time about that. But, like my Lord, I am concerned at the prospect of a trial involving 44 Turkish nationals, all of whom don't speak very much English, and the prospect of dealing with that all in one trial. But obviously you will both be told of anything that is said as a result of my conversation with the relevant judge. MR DENNISON: My Lord, I am obliged. My Lord, simply as a matter of timing the trial is meant to be beginning on Monday. MR JUSTICE AIKENS: I shall speak to him at lunch time today. MR DENNISON: Thank you. LORD JUSTICE KENNEDY: Thank you all for your attendance.

Cited in 1 later judgment