Miah & Anor, R. v [2004] EWCA Crim 63

Case No 200301072B3[2004] EWCA Crim 63
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MIDDLESEX GUILDHALL
HIS HONOUR JUDGE BLACKWELL QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 th January 2004
Before
LORD JUSTICE MANTELLMRS JUSTICE RAFFERTYMR JUSTICE PITCHERS
Between
REGINACrownALAMIN MIAH AND MARUF UDDINDefendant
Mr I Hope (instructed by CPS) for CrownMiss F Roe (instructed by Waterfords Solicitors) for Appellant MiahMiss D Morris (instructed by Charles Simmons Solicitors) for Appellant UddinHearing Hearing date: 17 th December 2003
JUDGMENT
[1]On 5th February 2003, following a trial lasting eight days in the Crown Court at Middlesex Guildhall, Maruf Uddin and Faruk Miah were convicted of causing grievous bodily harm with intent. Alamin Miah, having been earlier found not guilty of the same offence, was convicted on an alternative count charging violent disorder. Five others were acquitted of both charges – four at the hands of the jury and one by direction of the judge. The three who were convicted sought and were granted leave to appeal. At a hearing on 17th December 2003 this Court adjourned the appeal of Faruk Miah to permit him to be represented by different counsel or solicitor advocate but allowed the appeals of Uddin and Alamin Miah with the result that their convictions were quashed. The court reserved its reasons, which now follow:[2]The prosecution arose out of an unprovoked and cowardly attack upon a young man, Philip Bowden, who was making his way home on the Docklands Light Railway following a night out on New Years Eve 2001. He had joined the train at Bank and was intending to alight at Poplar where the line terminates. At Shadwell station, an intermediate stop, a group of youths dragged him from the train before proceeding to punch, kick and stamp on his prostrate body before one of them stabbed him in the neck with the jagged ends of a broken bottle. As a result Philip Bowden lost consciousness; his jugular vein was severed and it was only through the prompt and efficient attention of fellow passengers, police and medical staff that his life was spared. He has little or no recollection of the incident or the events which led up to it.[3]There was a number of eyewitnesses including fellow passengers and railway staff. All of them described the youths as Asian being members of a party numbering up to fifteen in all. They too had boarded the train at Bank and had clearly taken drink in the earlier part of the evening. Some of the passengers on the train found their behaviour intimidating. There was no consensus as to how many of the youths took part in the attack. One of them, Richard Bawden, placed the number in the group at eight or nine of whom only two took part in the attack. Another passenger, Candice Rodot, also put the total number of youths at eight or nine but estimated that five of them had been involved in assaulting Philip Bowden. Another passenger, Alison Ruan spoke of some fourteen or fifteen Asian youths being at Bank station some of whom were sitting and others standing whilst on the train. At Shadwell station she noticed the group of Asian youths get out before seeing "the white guy", who must have been Philip Bowden, "fly out of the train". She saw that the Asian youths were surrounding him and one of them shouted something. Then most of the youths ran away leaving four behind who were kicking and punching the white man. She saw someone holding the man’s collar, the man rise up with blood coming out of his mouth. She noticed a Budweiser bottle rolling towards the train. In her witness statement she had described the man holding the collar as wearing a silver grey jacket which she thought must be a more accurate description than what she had first of all said in evidence, namely that the jacket was black. It was the Crown’s case that the man wearing the silver grey jacket and who had used the bottle was Faruk Miah. Not one of the eyewitnesses was able to pick out any one of the accused at subsequent identification parades.[4]In addition to the evidence from eyewitnesses there was CCTV footage from earlier in the evening at a Texaco service station and Tottenham Court Road underground station. There was also film from Bank station, the platform at Shadwell and also from the bottom of a three-flight exit staircase. From the earlier footage it was possible to identify some of the members of the group. It was beyond question that the group included these three appellants. Indeed it was the positive case of Maruf Uddin that he was shown to be the first to leave Shadwell station. He was to say when interviewed that he had been a member of the party and had gone straight home after alighting at Shadwell. Faruk Miah also accepted in interview that he had been a member of the party and that he had been in company with Maruf Uddin amongst others. Alamin Miah did not answer any questions when interviewed but it was his case at trial that he had been correctly identified as the member of the group wearing a bright yellow jacket shown in the film taken at Texaco and Tottenham Court Road and Bank stations. The Crown case, never contradicted, was that he was the sixth person to leave Shadwell station and readily identified by reason of his jacket.[5]At trial none of the defendants gave or called evidence.[6]With the possible exception of Faruk Miah, the Crown was never in a position to identify any particular defendant as one of those who actually took part in the attack on Philip Bowden. Again with the exception of Faruk Miah the nearest they got to identifying any particular defendant was through WDC Crossingham who thought that someone shown to be close to Philip Bowden on the platform could have been Uddin.[7]It is also quite clear that the prosecution were unable to prove that each and every member of the group had participated. Accordingly the Crown put its case in the following way:
"The prosecution say that this was a joint enterprise attack on Mr Bowden. Different people may have taken different roles. Some kicked and stamped on him; at least one, probably two used bottles on him; others who may not have been involved in the bottling may have bundled the victim off the train, forcing him to the floor where he was set upon by some of the others; others may have been there, knowing what was to happen and, knowing what was happening were willing and able to assist if necessary, thereby offering encouragement and support for what was happening."
[8]Of course, the case so formulated presupposes that there been some prior agreement involving every member of the group that at least some measure of violence should be used towards what was to them a complete stranger: hence the alternative counts of causing grievous bodily harm with intent and violent disorder.[9]Given the state of the evidence it is unsurprising that submissions of no case were made on behalf of all defendants. In particular it was submitted for Maruf Uddin and Alamin Miah that that there was insufficient evidence of joint enterprise in relation to either count on the indictment to allow the case to continue. It was further submitted on behalf of Alamin Miah that there was no evidence that he had been present with the others on the train at a time when the plan to attack Philip Bowden was being discussed. Save in relation to one of the defendants, Fokrul Islam, the judge rejected all submissions. He acknowledged that the prosecution case on joint enterprise depended upon all who alighted from the train as part of the group having agreed that Philip Bowden should be taken off the train and attacked. He seems to have considered it important that everything happened within a matter of moments. He recognised that the jury would need to be given a careful direction with regard to the state of mind necessary to establish count 1.[10]As we have said, following the close of the prosecution case none of the defendants gave evidence or called witnesses on his own behalf.[11]The only ground of appeal relied upon by Maruf Uddin and Alamin Miah is that the judge should have acceded to the submission of no case to answer. We think the complaint is well founded so far as count 1 is concerned. As noted, it could not be proved that every member of the group participated in the attack. Therefore, with the possible exception of Faruk Miah, it could not be proved that either Maruf Uddin or Alamin Miah participated. If guilt was to be established it had to be shown, therefore, that each was present with the intention of lending support and/or encouragement to those who were actively involved and with the intention that those actively involved should cause grievous bodily harm with intent to cause grievous bodily harm. That in turn involved the jury being able to infer that all members of the group were aware that some of their number were intending to cause serious harm even before they alighted from the train. In our view the evidence did not permit the drawing of such an inference.[12]However, we accept that it is more readily to be inferred that all members of the group had agreed to take part in some degree of violence or horseplay on leaving the train. On any view it was an extremely thin case as against each of the two appellants. Many judges would not have allowed the case to continue. Nevertheless, we consider that the judge was entitled to leave count 2 for the jury’s consideration.[13]But it must be remembered that even count 2 depended upon the prosecution being able to show that all members of the group had been party to a prior agreement. By its verdicts the jury quite clearly demonstrated that it did not accept the Crown’s submission. If the jury was not satisfied that all members of the group had been party to an agreement to commit violent disorder then what was there to set the case against these two appellants apart from the cases against the others? So far as we have been able to discover, there was nothing.[14]That brings us to the conclusion that the conviction of Uddin on count 1 and of Alamin Miah on count 2 cannot be regarded as safe. We recognise that the basis upon which we reached that conclusion does not depend upon any ground of appeal for which either appellant has leave. If it is necessary to do so, therefore, we would grant leave to both appellants to argue that their convictions are unsafe because of the view the jury had apparently reached with regard to a central proposition of the prosecution case. Accordingly we took the course indicated in an earlier part of these reasons.