Raphael & Anor, R v [2008] EWCA Crim 1014

[2008] EWCA Crim 1014Case No 2007/00021/CI (1)2006/06-76/C1(2)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE MORRIS QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/05/2008
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE BUTTERFIELDMRS JUSTICE SWIFT
Between
RRespondentJermaine Raphael (1)AppellantNathan Johnson (2)Appellant
Mr David Lederman QC for RaphaelMr Richard Sutton QC for JohnsonMr Anthony Leonard QC and Mr Peter Clements for ProsecutionHearing Hearing dates : 23 rd April 2008
JudgmentPresident of the Queen's Bench Division :
[1]On 30th October 2006 at the Central Criminal Court before His Honour Judge Morris QC and a jury, Jermaine Raphael and Nathan Johnson were convicted of two counts of conspiracy to rob (counts 1 and 2). Nathan Johnson was also convicted of murder (count 3).[2]Johnson was sentenced to life imprisonment (with a minimum term assessed at 17 years, less 400 days on remand), for murder, and 6 and 8 years imprisonment for conspiracy to rob, to run concurrently. Raphael was sentenced to 5 and 7 years imprisonment to run concurrently for conspiracy to rob, but consecutively to a sentence for a separate offence on a different indictment.[3]These are their appeals against conviction, coupled with renewed applications for leave to appeal against conviction on grounds rejected by the single judge, and renewed applications for leave to appeal against sentence.[4]The appellants were jointly indicted with Nyrah Hayles on count 2, and he pleaded guilty on re-arraignment to conspiracy to rob. Hayles was jointly indicted with Johnson on count 3, and convicted of murder by the same jury. He was sentenced to be detained during Her Majesty’s pleasure for a minimum of 17 years, less 397 days on remand, and to 7 years detention in a YOI to run concurrently.[5]The conspiracies concerned robberies in which two different victims were inveigled to the scene by a trick. Both had decided to sell their cars, and the conspirators purported to be involved as genuine potential purchasers. Appropriate meetings were arranged, and on 6th September and 22 October 2005 respectively, both intending sellers were treated with violence and deprived of their cars. On the second occasion the victim was stabbed and sustained fatal injuries.[6]The appellants were associates of each other and Hayles. Johnson’s nickname was “Tubs”. Hayles was known as “Mentality”, and Raphael was referred to as “Jay”. Emma Horgan was a close friend of Johnson, Safina Khan was Hayles’ girlfriend, and Donna Darby was a friend of Safina.[7]In view of the numerous grounds of appeal or renewed grounds for application for leave to appeal against conviction, we must set the facts out in some detail. Count 1[8]Gbemi Adeosun bought a Ford Focus car in July 2005 and set about improving it with a view to sale at a profit. In August, when driving through Canning Town, he saw Raphael, a friend from school days. He stopped and went over to speak to him. He was introduced to “Tubs”. Wherever Adeosun refers to Tubs, we shall be identifying Johnson in the same way. Raphael and Johnson told him that he had a nice car. Adeosun said that he was looking to sell it for £2500. Tubs expressed an interest, although quite how he would afford the purchase price, or anything like it, was never addressed. Telephone numbers were exchanged. Tubs gave Adeosun mobile phone numbers ending 711 and 987, which were indeed Johnson’s numbers.[9]On 5th or 6th September Adeosun received two telephone calls from Tubs, and a meeting was arranged on the following night at Church Street Plaistow. When he arrived Adeosun pulled over so that Johnson could examine the car. Tubs got into the front passenger seat of the car, leaving the door open, with one of his legs outside, and tied, or pretended to tie, a shoe lace. Suddenly the car key was pulled from the ignition, and Adeosun himself was pulled out of the car and struck over the head with a metal pole. He fell down in the road. More than three people were involved in the attack on him, but Tubs remained where he was in the car, and eventually it drove off taking the assailants away from the scene.[10]Adeosun was taken to hospital and discharged a few hours later. He telephoned Raphael to ask what it was all about. Raphael appeared upset and told him that he ought to call the police. He said that Tubs’ name was Nathan (as indeed it was). Adeosun reported the incident, and gave the police the 711 and 987 telephone numbers.[11]On 7th September Adeosun received a telephone call from someone whose voice he did not recognise, using the mobile telephone he had left in his car. He was told that if he wanted his car back, he would have to pay £500. On the same day, the police called the 711 number. Johnson answered the telephone. He admitted being in Church Street for the meeting when the car was taken, but said that when the attack began he had run away, fearing for his life.[12]On 8th September, Adeosun received a telephone call from Tubs. Tubs said that he had not meant to set him up, and he wanted to sort things out. He would try to get Mr Adeosun’s car back, but this would cost £300. Adeosun asked why he should pay for the return of his own car, and Tubs replied that he should not have gone to the police. Adeosun did not hear again from Tubs.[13]Adeosun’s car was eventually found locked in a street unconnected with him or either appellant. This led to much unfocussed discussion about whether the car was “abandoned”. In any event it was eventually recovered by the police and returned to Adeosun. It was in a damaged condition and the improvements carried out after Adeosun bought it had been removed. The cost of repair was £600. A number of items were taken from the car, including Adeosun’s mobile phone which he had left in it. Counts 2 and 3[14]Mohammed Ashraf wanted to sell a Nissan Primera car which he was using as a mini cab. On 9th October he told his brother that he had a potential buyer, willing to pay £700. On 21st October he told a friend, Imran Mahmood, that he had spoken about the sale by telephone to a man known to him as “Jay”. When he was first interviewed Raphael accepted that “Jay” was a name he used. Later, when the possible relevance of the name became apparent to him he claimed that his name was “EJ”. An analysis of mobile telephone calls on the evening of 21st October demonstrated that Ashraf, using his wife’s phone, was in repeated contact with Raphael’s telephone. Imran Mahmood also sent a text relating to a possible sale on Ashraf’s behalf to Raphael’s number. On the same evening Ashraf told his wife that he had found a buyer for the car.[15]On 22nd October Ashraf told another friend that he was going to meet a black man at 8pm that evening to sell the Primera. He also told his wife that he would be selling the car that night. He cleared his belongings out of the car, apart from the crutch which, as a result of an earlier traffic accident, he needed for walking.[16]Ashraf drove to Philip Street, wearing a watch which appeared to be a Rado with a black strap and diamonds around its face. A telephone call was received on his mobile phone from a telephone box near to the Carlsberg off licence in Barking Road at about 8pm that evening. CCTV images from inside the store showed that at this time Johnson and Hayles paid a visit to the off licence. The telephone call was followed shortly afterwards by a number of further telephone calls by Ashraf to the 987 number, and he noted the word “car” against that number in the memory of his mobile phone. The Crown’s case was that Raphael was acting in the same role as he performed in relation to the Adeosun robbery, one step removed from the robbery itself, and that knowledge of Ashraf’s telephone number must have been passed to Johnson and Hayles by Raphael.[17]There were no independent witnesses to the subsequent assault. Different witnesses described hearing various noises, and people running away. Some of them went to the Nissan Primera. They found Ashraf bleeding heavily. He spoke about “dropping off” or having “just dropped them off”, and said that he was dying. The driver’s door was open. The keys were still in the ignition. A mobile phone was found in the passenger seat footwell. One witness used the telephone to call an ambulance. When the police arrived, they found that the back doors of the car were locked, the victim’s crutch was in the rear seat foot well, and that his watch was stolen.[18]The injuries were fatal. At post mortem, 18 stab or incised wounds, caused by a weapon such as a knife, were found to the deceased’s head, neck and upper torso. The most significant was a 10 cm wound to the left of the chest which produced a 1.2 cm wound in the front of the heart. This would have caused massive blood loss and was the major cause of death. A number of other injuries would have increased that blood loss. All the injuries were consistent with having been caused by a knife some 10 cm in length. Most of the wounds resulted from moderate force, but one, to the cervical vertebrae of the neck, required severe force. There were also three injuries caused by blunt force to the head. Taken as a whole, the injuries were consistent with having been caused wholly outside, or partly inside and partly outside the car. There could have been two assailants or one assailant with two different weapons.[19]Emma Horgan’s mobile telephone number ended 628. Johnson had one mobile with a number which ended 987, but because he had no credit, he habitually used her mobile phone. They spent the night of 21st October together. On the 22nd she gave him her mobile phone. Johnson denied this. She then left him to go shopping with an uncle. Emma Horgan’s mother described how her daughter telephoned her from her Uncle Terry’s mobile phone not her own, on Saturday 22nd October, to ask her to lend some bus money to Johnson. She lent him about £2. A friend, Bansal described seeing her at her uncle’s public house at 5pm on the 22nd October. She borrowed his mobile phone to make a call to Johnson’s 987 number. Horgan’s movements that afternoon were of some importance because of cell site evidence about the use of number 628, but further details would add nothing to the present appeal.[20]Horgan returned to Johnson’s home in Sutton Road at about 10pm that evening. She thought it was 11pm at first, but when she was shown evidence from the schedule of telephone calls, she revised the timing. Johnson answered the door. She watched football on the television with him. He returned her phone to her, and some 20 minutes later he went out to meet Hayles, carrying his own phone. When he left he told her not to tell his mother. She telephoned a friend to moan because Johnson was breaking curfew. She then made a number of calls to Johnson himself about the curfew. He told her that he was in the locality and would not be long.[21]Johnson was away for about half to three quarters of an hour. On his return he was dishevelled and flustered and breathing heavily as if he had been running. He told her that he and Hayles had just “done a move” on an “Asian brother”. Hayles had stabbed him, and he, Johnson, had struck him once with a crow bar. Johnson was wearing the same clothes he had gone out in, and on his return he put one item, a grey T shirt, into the washing machine. Thereafter he tried to get hold of Hayles by using Horgan’s mobile phone to telephone Safina Khan. According to the telephone schedules, no connection was achieved.[22]Hayles and Safina Khan, and Donna Darby, arrived at the house. Johnson and Hayles were overheard talking excitedly about what had happened. Hayles simulated a stabbing action towards Johnson’s torso. When he asked Johnson if he thought the victim was dead, Johnson replied “definitely”. Hayles, and the two females then left, taking Johnson’s 987 telephone with them. After they left Horgan asked Johnson what had happened. He said that another person had arranged the attack by telephone, and that the victim was killed to avoid the attack being traced back to that person. Horgan assumed he was referring to Raphael. Three calls in the early hours linking her 628 telephone and the 987 number were made. She was unaware of them. Johnson was calling Hayles, who by that time was in possession of the phone with the 987 number.[23]On the following morning, while Horgan was still at Johnson’s house, Safina’s mother arrived. She was looking for Safina. Johnson made a call to the 987 number to make contact with Safina because they thought that Safina was with Hayles. Horgan denied making any telephone calls to Raphael’s telephone, saying that Johnson made them. Seven telephone calls were noted from Hayles to Horgan’s 628 number on 26th and 28th October. She never spoke to Hayles on the telephone. Johnson must have answered the calls. She decided to bring the relationship with Johnson to an end. She gradually spent less and less time with him. They never discussed the killing again. She was later to deny that Safina had ever handed her the knife used in the killing or that she had hidden this in the Kangol bag which was found by the police at Sutton Road.[24]Donna Darby described how she met Hayles through Johnson. She had gone to Safina Khan’s house at about 4pm on the afternoon of the killing. Johnson and Hayles stayed outside. Hayles was saying that he was going to rob someone, and acted out stabbing the victim from behind about 10 times. Her impression was that Hayles was talking Johnson into the crime. She also said that Hayles owed someone £700. Johnson had a mobile phone with him. She described a number of visits to a Carlsberg off licence near the house, but the last occasion she had seen Johnson before the incident involving Ashraf was just before 10pm when he left because of concern about his curfew.[25]After her own last visit to the off licence at 10.45 she went to the Red House Public House. Hayles was still outside Khan’s house, but he then left. About three quarters of an hour later, at about 11.30pm there was a knock at the door. Safina answered it. She returned carrying some blood stained clothes. She threw the clothing under the bed, telling Darby that Nyrah had stabbed someone. Safina then gave Hayles some clean clothes, and he admitted that he had indeed stabbed someone.[26]She, Safina and Hayles then left for Sutton Road. On the way Hayles passed Donna a watch with a black strap and diamonds round the face, which she passed on to Safina. Emma met them outside the Sutton Road address. Johnson was there too. Darby then received a call at about 11.50, from her father telling her that she must return home.[27]She did so, arriving at about midnight. She told her father what had happened, but could not remember telling him that Johnson had been involved in a robbery. Donna Darby’s father gave evidence that on her return home Darby told him that Mentality and Tubs had stabbed someone and that Mentality had arrived at Safina’s house with blood stained clothes and had later given her a watch.[28]Bansal spoke to Horgan on the morning of 23rd October. According to him, she asserted that Johnson had gone out to commit a robbery with a man called Nyrah and that a stabbing had taken place. She also said that Johnson’s clothes had blood on them.[29]On 23rd October a number of telephone calls were made from Horgan’s telephone to Raphael’s mobile phone. The details do not now matter, but as Horgan did not know Raphael, and he was Johnson’s friend, the prosecution suggested that the calls were in fact made by Johnson. Raphael eventually responded to these calls. After the murder had been committed Hayles borrowed Johnson’s phone to keep in contact with him, and thereafter Johnson borrowed Horgan’s phone to make and receive calls. On 25th October Hayles contacted Raphael and indeed, on 28th October, after Raphael and Johnson had been arrested, Hayles continued to try and contact him by telephone.[30]Hayles’ father described meeting up with his son on Monday 24th October. Hayles was carrying a mauve plastic sports bag. They drove to Tubs’ home, picked him up and drove him to a jewellers shop. In the shop Johnson handed over a watch which was identical to the deceased’s watch. Tubs and Nyrah left the shop together, and Hayles’ father heard Tubs whisper “it’s a fake”. They were then both dropped off at some flats, and Nyrah left the bag of clothes in the car. His father put this bag into his garden shed where it was later recovered by the police. Police inquiry[31]Raphael was arrested on 28th October at his home. Johnson was arrested on the same day in Sutton Road. Raphael said that he had discovered that Ashraf (described by him as Asif) was wanting to sell his car because he happened to be out driving and, on 8th October, he passed him by when he was near some shops. He could date this occasion because he was arrested that evening in connection with a different offence. In a subsequent interview he told the police that he had seen Ashraf on 8th October because Ashraf wanted to buy some cannabis off him.[32]Johnson’s comment on being told of the investigation was “I was on curfew. 10 o’clock.” His room was searched. A crow bar was found inside a bag hidden behind a shelf. This weapon could have caused the blunt injuries to the deceased’s head, although, if it had been wielded with real force, the consequent injuries would have been likely to be more significant than those actually found. The police seized his clothing. This included a trainer shoe.[33]There was abundant evidence linking the clothing found in the bag in Hayles’ father’s garden shed with the deceased. There were numerous blood stains originating from Ashraf on them. The link with Hayles was overwhelming. From start to finish the Crown made clear to the jury that Hayles was responsible for the stabbing. Accordingly, no further description is needed. However, a small, possibly airborne, blood stain was found on one of the trainer shoes at Johnson’s home in Sutton Road. DNA was obtained from this shoe using the Low Copy Number Technique. The shoe was linked with two people. As it was Johnson’s shoe, unsurprisingly, one of them was Johnson himself. However the remaining part of the major DNA contribution matched that of the deceased.[34]An identification parade was held on 28th October. Adeosun identified Johnson as the person who had got into his car in Church Street on 6th December 2005. He knew him as Tubs.[35]In interview in relation to count 1, Raphael handed in a prepared statement. He admitted knowing both Adeosun and Johnson, who was known to Adeosun as Tubs. He denied introducing them. He had not known that Adeosun wanted to sell his car. He denied that he had organised or was a participant in the robbery. He agreed that when Adeosun telephoned him from hospital after the robbery he had told him that Tubs’ name was Nathan. Johnson denied that he was “Nathan”. He admitted knowing a man called Michael for a period of about 7 months, having been introduced to him by Raphael. He had not discussed buying Michael’s car. Michael had simply asked him to help get his car back after the robbery. He had agreed to do so, simply on the basis that he would ask around. He denied seeking any fee. He also denied telling Detective Sergeant Moore on 7th September that he had been present during the Adeosun robbery, and he asserted that he had been picked out by Adeosun on the ID parade because Mr Adeosun knew him.[36]In relation to counts 2 and 3, Raphael at first denied knowing anyone called Mohammed Ashraf. However when he was shown a picture of Ashraf, he said he knew him as Asif. He said that Asif had approached him on 8th October 2005 (the afternoon when he had been stopped driving his car in London, with Johnson and Hayes as his passengers) and asked if he wanted to buy his car for £700. Raphael had said “no”. He then said that he had met Ashraf that day so that he could sell him some cannabis. He had not previously given that information because of the seriousness of the allegation. It emerged that he had known Ashraf for about 8 months, and Ashraf would call him every so often. They would meet in the General Hospital car park so that Ashraf could buy weed. He denied agreeing to buy the car from Ashraf and he was unaware of anyone else who wanted to buy it. He also denied that he was the Jay who wanted to buy the Ashraf’s car. He explained that he had bought his new 937 mobile phone because his phone had been taken from him by the police on 8th October. He suggested that contacts between Ashraf and himself related to the purchase of cannabis. He denied giving Ashraf’s number to Johnson, and could not explain how Ashraf came to be contacting Johnson’s 987 number during the evening of 22nd October.[37]Johnson’s interview in relation to counts 2 and 3 began with a total denial of knowing anything about Ashraf’s death. Indeed he denied knowing him at all, and had no idea why Ashraf should be telephoning him on the Saturday evening. He asserted that Hayles and his “big cousin” had killed Ashraf. He had allowed Hayles to use his mother’s mobile phone during the Saturday, and later said he had given Hayles his own mobile phone on the Friday and that it had not been returned to him until the Sunday. However earlier in the interview he had said that he had not given his mobile phone to Hayles until some time on the Saturday. When the conflict between these two accounts was put to him by interviewing officers he received legal advice to answer no further questions.[38]A further prepared statement was then handed to the police. In this Johnson said that Hayles had spoken to him on the Saturday morning about a plan to rob Ashraf of a watch and ring. The idea was Raphael’s, but he was not going to participate in the actual robbery which was planned for earlier in the evening. When it was re-timed to take place after his curfew was in force he decided to withdraw from the plan. He had intended to be armed with a knife, and so had Hayes, but if he had been there he would have stopped Hayles stabbing Ashraf so many times.[39]Neither appellant gave evidence at trial, nor did Hayles. No case to answer – count 1[40]The appellants were charged with conspiracy together and with others to rob Adeosun. It was unsuccessfully submitted to the judge, and accordingly repeated before us, that at the close of the prosecution case, the Crown had failed to establish a prima facie case of conspiracy to rob Adeosun of his car. It was suggested that, taken at its highest, the evidence showed that the extent of any agreement between them was that Adeosun’s car would be returned to him in exchange for money. Although the exchange did not in fact take place because the car was abandoned when the police became involved that was the original and remained the unchanging object of their agreement. At most therefore this was an agreement to take the car so that a demand would be made for its return, a demand with menaces. Whether that was so or not, there was no evidence, which suggested that the conspirators intended permanently to deprive Adeosun of his car.[41]Consistently with the judge’s ruling on the submissions, criticism of the subsequent directions in the summing up is advanced along the same lines, and it will be convenient to deal with this further submission at this stage.[42]Sections 1 and 8 of the Theft Act 1968 unsurprisingly reveal that an essential requirement of the offence of robbery is that, quite apart from force or the fear of force, property should be stolen. For present purposes the element of force is not in question. The issue is whether the prosecution established that at the time when Adeosun’s car was appropriated and driven away, those who agreed on the enterprise intended permanently to deprive him of the car: if not, an essential ingredient of the offence was not established. (For a recent example see Mitchell, unreported, 8th April 2008).[43]Although the problem to which this argument gives rise is identified in the current edition of Smith and Hogan, Criminal Law 11th edition, as a “conditional intention to deprive”, the essential principles are long established. The common law is exemplified by Hall [1848] 1 Den 381. Hall took fat from a candle maker, and then offered to sell it back to the original owner. His conviction for larceny was upheld.[44]The decision in these appeals is governed by section 6(1) of the Theft Act 1968. This provides:
“ A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights:…”
[45]Despite the “obscurities” with which J. R. Spencer suggested that section 6 of the Theft Act “sprouted” [1977] CLR 653, the section itself demonstrates that the necessary intention may sometimes be established when the person appropriating property belonging to another does not in fact intend that its true owner should be deprived of it permanently. It is properly described as a deeming provision. As Lord Lane CJ observed in Lloyd [1985] 1 QB 829 “…It must mean, if nothing else, that there are circumstances in which a defendant may be deemed to have the intention permanently to deprive, even though he may intend the owner eventually to get back the object which has been taken.”[46]Initially section 6(1) was narrowly construed. In effect the principles which existed before the 1968 Act came into force continued to apply. (Warner [1970] 55 CAR 93 followed in Lloyd). We ourselves doubt whether the statutory framework created by the Theft Act 1968 should always be restrictively interpreted by reference to the law as it stood before it was enacted. Authorities such as Duru [1971] 1WLR 2, Bagshaw [1988] Crim LR 321 and Fernandez [1996] 1 CAR 175 suggest the contrary. However the facts of this particular case fall within the most restrictive possible interpretation. As Lord Lane explained in Lloyd at p836 “…The first part of section 6(1) seems to us to be aimed at the sort of case where a defendant takes things and then offers them back to the owner for the owner to buy if he wishes. If the taker intends to return them to the owner only upon such payment, then, on the wording of section 6(1) that is deemed to amount to the necessary intention permanently to deprive…” He continued that there were other cases of “similar intent”: for instance, “I have taken your valuable painting. You can have it back on payment to me of £X000. If you are not prepared to make that payment, then you are not going to get your painting back.”[47]The express language of section 6 specifies that the subjective element necessary to establish the mens rea for theft includes an intention on the part of the taker “to treat the thing as his own to dispose of regardless of the other’s rights”. In our judgment it is hard to find a better example of such an intention than an offer, not to return Adeosun’s car to him in exactly the same condition it was when it was removed from his possession and control, but to sell his own property back to him, and to make its return subject to a condition or conditions inconsistent with his right to possession of his own property.[48]This is not a case in which the vehicle was taken for what is sometimes inaccurately described as a “joy ride”. Section 12 of the Theft Act has no application to it. It was only “abandoned” after the purpose of the robbery had been frustrated and its possible usefulness to the robbers dissipated. Equally the appropriation of the car was not conditional in the sense described in Easom [1971] 55 CAR 410 where it was held that theft was not established if the intention of the appropriator of the property was “merely to deprive the owner of such of his property as, on examination, proves worth taking and then, on finding that the booty is to him valueless, leaves it ready at hand to be re-possessed by the owner”.[49]In our judgment there was ample evidence for the jury properly to be invited to consider whether the appellants agreed that Adeosun should be robbed. The fact that he was offered the opportunity to buy back his own car, even if that offer was wholly genuine, did not prevent the jury from concluding, if they wished, that an intention permanently to deprive him of it within the ambit of section 6(1) of the Theft Act was established.[50]When the judge summed this issue up to the jury he directed them about the ingredients of robbery and conspiracy to rob and explained the meaning of “steals”. He referred to appropriation with the intention of permanently depriving the owner of property, and it may be that a particular example the jury was given might have been better chosen. However he addressed the direct question:
“What is the position if A intends to return the car to B if B is prepared to pay a reward to A for doing so?”
He then directed the jury in accordance with the express terms of section 6(1), and returned to the example he had given earlier:
“..if when A takes the car he intends to return it to B, whether or not B is prepared to pay the reward, you may think he would not have the intention of permanently to deprive B of it. If on the other hand he intends to return the car only if he receives the reward, and if he does not do so, to keep the car or dispose of it, you may think he would have the intention permanently to deprive B of it.”
This direction mirrored the language used by Lord Lane in Lloyd: it is not open to criticism.[51]The judge continued “If you believe the evidence of Mr Adeosun, on count 1, it appears to be accepted that he was robbed of his car. No one has argued to the contrary” This direction is criticised. It is submitted that argument had been advanced to the judge in the absence of the jury in support of the submission that there was no case to answer to the effect that the offence of conspiracy to rob and robbery were not established. What is certainly true is that it was not so submitted to the jury, and we can understand why. Such a submission would have defied understanding, and diminished the standing in the eyes of the jury of the advocate who was foolish enough to make it. The defence of the appellants amounted to a denial of any involvement in the incident. No one had argued before the jury that Adeosun had not in fact been robbed. If the judge is to be criticised for having overlooked or disregarded either some desultory cross-examination of Adeosun on this topic or the submissions made to him in the absence of the jury the effect of any such criticism is wholly extinguished by his correct directions of law on the topic. The evidence on counts 1 and 2[52]At the close of the prosecution case it was submitted that the evidence on counts 1 and 2 was not mutually supportive, and accordingly, for example, when considering whether there was a case for Raphael to answer on count 1, the evidence of his involvement in count 2 could be wholly disregarded.[53]As we have narrated, there were indeed some significant similarities between the two incidents, and in addition evidence in relation to each robbery individually, which separately from the similarities between them, linked Raphael to both these offences. In summary, two men, on separate occasions, intending to sell their cars, drove to a pre-arranged meeting place. Each of them knew Raphael. Neither of them knew Johnson, and it was Raphael who introduced each of them to him. The arrangements were a device. The victims were deliberately misled. They were both attacked by at least two men, one of whom was Johnson. After the first robbery Raphael was fully aware of it. He continued to associate with Johnson, and before the second robbery, there was repeated communication by mobile telephone between them, which enabled Johnson to link up directly with the second victim. When each robbery was committed, Raphael faded into the background, and when Raphael withdrew his admission that he knew at the time when he introduced Adeosun to Johnson that Adeosun had said that he wanted to sell his car, the lie was significant and unexplained in evidence. In short, there was sufficient evidence independent of count 2 linking Raphael with count 1, which made it permissible for the evidence on count 2 to be used when the jury considered count 1. Taking the whole of the relevant evidence together, there was a case for Raphael to answer on count 1.[54]It was submitted on behalf of Johnson that although the evidence against him on count 2 was admissible on count 1, the same did not apply the other way round. In short, count 1 had no relevance to and was inadmissible on count 2. In count 2 the only issue was whether or not Johnson was present at the scene of the murder, but the evidence on count 1 did not go to his presence, merely to his propensity or intention. This submission is unrealistic. Taking shortly, both victims were lured to the scene where they were robbed, and in Ashraf’s case murdered, and there was powerful evidence that Johnson was present when the victims were attacked. Given the similarities between the two offences, and the different defences advanced to them on Johnson’s behalf, the fact of Johnson’s presence at the robbery covered by count 1 was relevant to the question whether he was present at the scene of the second robbery.[55]In our judgment the judge was entitled to conclude that the evidence on counts 1 and 2 provided mutually supportive evidence, not only in the case of Johnson, who could be demonstrated to have been present at the scenes of both robberies, participating physically in them, but also in the case of Raphael who sought to distance himself from the physical realities. The judge’s conclusion was right. His subsequent directions to the jury are not open to criticism. This ground of appeal is unarguable. The decisions not to give evidence at trial[56]The judge’s directions to the jury are criticised. In our judgment there is nothing in the criticisms. The judge directed the jury to treat each count separately. His directions on the similarities between the two offences were, as we have already decided, appropriate. When he came specifically to address the decisions not to give evidence at trial, he provided the jury with a series of directions which included circumstances in which a defendant’s silence at trial “may” count against him. He emphasised that the jury was entitled to treat silence as “some additional support for the prosecution’s case”, but only if it was a “fair and proper conclusion” and the jury were also satisfied:
“First, that the prosecution’s case is so strong that it clearly calls for an answer by him, and second, that the only sensible explanation for his silence is that he has no answers or none that would bear examination”
. This was a sufficient direction to the jury. It is suggested that the judge should have linked the direction to each count and each defendant. We disagree. He was entitled to deal with this aspect of the case compendiously. Evidential Issues raised on behalf of Johnson Cell Site Evidence[57]As the narrative makes clear cell site evidence was called before the jury. The system for using mobile cell sites, and the selection of the “best serving” available cell site were explained. At Sutton Road, where Johnson lived, there were a number of cell sites which would qualify as “best serving” sites. These were numbered 2130 and 2131, part of the “Bermeside Point” cell site, 544, as part of the “Trinity Gardens” cell site and 9CCO, as part of the Plaistow Fire Station cell site. The expert confirmed that the best serving cell site for Emma Horgan’s home address was also 9CCO, but that view was not based on analysis from inside that address.[58]In his view calls made or received using 2130, 2131 or 544 cell sites were more likely to have been made or received when the telephone was at Sutton Road than when it was at Emma Horgan’s home address. The expert conceded that it was not possible to tell exactly where within a particular cell site a call was made or received.[59]Some non expert analysis on Johnson’s behalf suggested that it was possible that some of the telephone calls using the 628 phone may have been made not, as the Crown suggested from Sutton Road, but from Emma Horgan’s home. If so, this would have enabled Johnson to argue that far from being with him at Sutton Road, and therefore in a position to provide the evidence against Johnson which she gave at trial, Emma Horgan was at her home, and not with him at all. The Legal Services Commission refused funding for the instruction of a cell site expert until shortly before the close of the prosecution case. By then Emma Horgan, and her mother would not allow access to her home. It is suggested that it was impossible to state with certainty that cell site 2130 which served Johnson’s home at Sutton Road may not also have served Emma Horgan’s home. The relevant expert evidence should now be obtained. Essentially, and at best from the appellant’s stand point, this evidence would seek to address Emma Horgan’s credibility about her movements at about 10pm on 22nd October.[60]According to her evidence, she was at Johnson’s home at Sutton Road, and he too returned there by 10.00pm, his curfew time. She said that he left at about 10.27pm, and was therefore in breach of his curfew conditions. She explained that she used her mobile phone to telephone her friend Bansal. Bansal’s evidence was that in this telephone call Horgan had expressed annoyance that Johnson had left his home, and he understood from what she was saying, that she was telephoning him from Johnson’s house. Johnson’s mother telephoned from her mobile phone to Johnson’s mobile phone at 10.05. She telephoned again at 10.56. Evidence suggested that she was at their home address when she made the telephone calls, and the Crown suggested that these calls too, like Emma Horgan’s calls, were directed at his breach of curfew, and concern about it. If Johnson was present at his home at this time, and therefore not contravening his curfew conditions, it is surprising that both his mother and his then girlfriend were making telephone calls consistent not with his presence, but his absence from his home.[61]We have taken a close look to see if we can identify any possible disadvantage which Johnson may have suffered from the absence of additional expert defence evidence on this issue. We can see none that would have affected the safety of the verdicts. At best, such evidence might show that cell site 2130 was linked not only to Johnson’s home address but to both addresses. This evidence however would not have excluded the use of Horgan’s phone from Johnson’s home. There was ample further material to impugn Emma Horgan’s credibility, but further cell site evidence linking her home to the site at 2130 would have had no practical effect on this trial.[62]Criticism is made of the judge’s observations on the cell site evidence during his summing up. His directions are said to have been inappropriate and to have poured scorn on the contentions advanced on Johnson’s behalf. On examination the high point of the adverse comment made by

the judge was to observe:

“We spent quite a lot of time dealing with where Emma Horgan’s telephone was in the period up to the evening of 22nd October 2005. Whether you think that really helps in this case is a matter entirely for you, but I shall review the evidence that has been given”
. That is hardly the stuff of scorn: it was a legitimate judicial comment, and in accordance with his undertaking, the judge proceeded to summarise the evidence in some detail. He reminded the jury of the concessions made by the expert for the Crown on the basis of the material put to him, pointing out in particular that no survey had been carried out within Horgan’s home and that the survey was therefore “somewhat limited”.[63]The jury was in possession of a very detailed schedule of every relevant telephone call, and the judge identified some of the specific calls in the context both of Horgan’s movements, and the varying accounts of his movements given by Johnson during the course of his police interviews. Both were relevant, Horgan’s movements because they were challenged by Johnson, and Johnson’s movements because the Crown asserted that the interviews represented the deliberate fabrication of an alibi, subsequently abandoned. The judge also referred to the introduction in evidence by Mr Sutton of a number of statements of friends or associates of Emma Horgan, some of whom knew Johnson, whose names appeared on the telephone schedule as callers or recipients of calls from the Emma Horgan telephone. In his closing address Mr Sutton did not refer to any of the statements, or to any of this evidence. The judge pointed that out to the jury, adding “you may feel that they really cannot help as to who had Emma Horgan’s telephone during the afternoon or early evening of 22nd October. It is a matter for you to decide whether they do or do not”. In context, although Mr Sutton suggested that this evidence was indeed important to his client’s case and therefore that the judge should have rehearsed the evidence, the judge’s approach was unimpeachable.[64]Particular concern is directed to omission from the summing up of telephone call number 49 in the schedule made at 22.04.49 and lasting 2 minutes and 3 seconds, and therefore ending 22 seconds before telephone call number 52 which began at 22.07.14 and which we are told Horgan accepted must have been a telephone call by her to a friend. Given the meticulous detail in which the judge summarised the telephone evidence, we suspect that reference to this particular call was an inadvertent omission, but whether inadvertent or not, the material was before the jury which had heard the submissions about the importance which was attached to it by Johnson’s defence. Whether it was important was indeed for the jury.[65]These criticisms of the summing up do not begin to produce an arguable case that the safety of the conviction is undermined. Safina Khan[66]Safina Khan was Hayles’ girlfriend. She was interviewed, and based on the interviews, a witness statement was prepared. This contained material adverse to both Hayles and Johnson. The most damaging evidence was directed to the significant amounts of Ashraf’s blood found on the clothing which she said Hayles was wearing on the night of the murder.[67]At the start of the trial the prosecution intended to call her as a witness. She failed to attend. The prosecution applied for a witness summons, and subsequently a warrant for her arrest. However she was not and did not become available to be called. It was submitted on Johnson’s behalf that the judge should request or direct the prosecution to read Safina Khan’s statement (by which we mean all the relevant material from both the interviews and her witness statement) or that, alternatively, permission should be given for the police officer who elicited the significant passages from her evidence to be cross examined about what she had said.[68]The Crown took the view in the light of the “cut throat” defences advanced on behalf of Johnson and Hayles, Safina Khan’s statement should not be read as part of their case. It would significantly disadvantage the proper conduct of Hayles’ defence if the witness could not be cross-examined. On the other hand, the advantage sought to be drawn from it by Johnson (to the extent that it inculpated Hayles) was limited, because of the strength of the remaining evidence favourable to Johnson bearing on the topic, and the prosecution’s express assertion that it was indeed Hayles who had used the knife.[69]The judge was satisfied that despite all reasonably practicable steps to find her, Safina Khan would not be available. He did not require the prosecution to read her witness statement or reconsider the decision not to do so. We agree with him. The fairness of the process involves fairness to all those being tried, and on occasions the prosecution is required to make forensic decisions which contribute to or help preserve the fairness of the trial as seen through the point of view of each defendant. In the final analysis, of course, the judge is in control of the trial, but it will be rare for him to conclude that the prosecution should be ordered to adduce evidence which in the view of the prosecution would undermine the fairness of the process. There was certainly no reason for him to do so in this case.[70]The judge further took the view that if the statement of Safina Khan was to be put before the jury then the whole of it, rather than those parts favourable to Johnson would be admitted. If the police officer was to be cross-examined by Mr Sutton to elicit those parts of the statement which suited Johnson, then it was absolutely inevitable that Hayles’ counsel would be given the same opportunity to highlight material adverse to Johnson, and the Crown would no longer be bound by its self-denying ordinance in relation to Safina Khan’s statement. All this we remind ourselves would therefore have involved the selective introduction of hearsay material in a form which would have tended to confuse rather than illuminate the jury’s task.[71]The judge considered sections 114(1) (d) and 126(2) (b) of the Criminal Justice Act 2003, and section 78 of PACE 1984. He made clear that he would entertain further submissions if Johnson applied to have Safina Khan’s statement read as part of his own case. In the result no application was made, not least because the statement would have provided further evidence directly implicating Johnson as well as Hayles. Mr Sutton suggests that the judge’s decision imposed an unfair forensic burden on him. If he had taken the course which was open to him, he would have been required to impeach the witness whose evidence he had advanced in support of his own case, at any rate to the extent that the evidence implicated his client in the murder. We entertain no doubt about Mr Sutton’s ability to explain his position to the jury if this course had been taken, and the judge would no doubt have confirmed the nature of the forensic difficulties. More to the point, if this evidence had come to be placed before the jury, counsel for both defendants would have been required to deploy highly persuasive advocacy to persuade the jury that there was some credible basis for picking and choosing from Safina Khan’s evidence to the advantage of either defendant, and without disadvantage to both.[72]In short, if Johnson wished for hearsay evidence of Safina Khan to be put before the jury, it would undoubtedly have gone before the jury as a whole. Mr Sutton made the sensible forensic decision not to adduce it before the jury as part of the appellant’s case. In truth his client stood to gain nothing, not least because of the overwhelming evidence that it was Hayles who wielded the knife against the unfortunate Ashraf. More harm than good would have followed. Accordingly, notwithstanding the deployment of the numerous authorities included in Mr Sutton’s comprehensive 50 page skeleton argument designed to demonstrate that, in effect, the judge had no discretion to refuse to allow Mr Sutton to cross-examine the police officer to introduce selected parts of Safina Khan’s evidence to the jury, even if the decision were wrong in law, (and we are far from deciding that it was) the decision did not begin to undermine the safety of the conviction. We have tested the point in two separate ways: first, Mr Sutton’s decision not to introduce the evidence, and the second, potential damaging effect against Hayles, and any possible advantage Johnson might have extracted from it. Our conclusion, in brief, is that the judge’s decision caused not the slightest prejudice to Johnson’s defence.[73]Following the judge’s decision Mr Sutton applied for the jury to be discharged on the basis that the decision prevented his client from having a fair trial. This was not Mr Sutton’s most carefully considered submission. Given the nature of the cut-throat defences, a joint trial was obviously appropriate. If the judge’s ruling had created any unfairness to Johnson, the remedy would have to be found in this court. As it is, there was no unfairness and no remedy is required. DNA[74]Mr Sutton had the advantage of his own DNA expert to address the issue of the 1mm blood stain found on the welt of one of Johnson’s trainers. Part of the DNA contribution matched that of the deceased. It was approximately 80,000 times more likely that it was from him rather than from someone related to him. That meant, of course, that on a statistical analysis a number of individuals living within the London area might have provided the blood stain.[75]A number of possible theories were advanced to explain the blood stain, including innocent contamination by Emma Horgan on the evening in question.[76]We have been asked to consider whether the decision in R v Hoey, and the procedures now deemed appropriate, requires further examination of this area of evidence. We have examined the Crown Prosecution checklist for Low Copy Number DNA analysis. We can find nothing to suggest that there was any failure to follow the newly formulated procedures designed to protect the interests of the defendant. There is nothing in this point.[77]These appeals against conviction are dismissed. Sentence[78]There are renewed applications for leave to appeal against sentence. On behalf of Raphael it is suggested that the judge failed to take sufficient account of his previous good character, supported by favourable references, his youth, 20 at the time of the offences, and the contention that he did no more than provide information which led others to carry out the robberies. The problem with this submission is that the judge believed that Raphael had organised the robberies and recruited others, and having done so, deliberately faded into the background. As to Johnson, he was 19 at the date of the offence, but there were three previous convictions within a short period before the robberies. Mr Sutton pointed out that Hayles was responsible for the production of the knife which caused Ashraf’s fatal injuries, but Johnson had armed himself with a dangerous crowbar.[79]The problem facing the appellants is stark. These were planned conspiracies to rob two separate victims which were carried through until their objective was reached. The victims were lured to locations which suited the conspirators, and were there set upon. The case proceeded as a trial. The judge was well able to assess the relevant personalities, and their individual levels of maturity in the context of the “cut throat” defences which were advanced. Like the single judge, we can see no basis for interfering with his conclusion.[80]These applications for leave to appeal against sentence are refused.

Cited in 2 later judgments