Nazir, R v [2009] EWCA Crim 213

[2009] EWCA Crim 213

Case No 2006 04010 D3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM the Central Criminal Court

His Honour Judge Moss QC

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

Date 20/02/2009

Before

LORD JUSTICE STANLEY BURNTON

MR JUSTICE TREACY

MRS JUSTICE SLADE

Between

THE QUEENRespondent

AZHAR NAZIRAppellant

(Transcript of the Handed Down Judgment of

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Sally Howes QC and Jonathan Rees (instructed by the CPS) for Respondent

James Lewis QC and Toby Long (instructed by Tank Jowett Solicitors) for Appellant

Hearing Hearing date : 13 February 2009

Judgment

Lord Justice Stanley Burnton :

Introduction

[1]On 23 April 2005 Samaira Nazir, a 26-year-old young woman of Pakistani origin, was brutally killed in her family home at 36 Abbott’s Road, Southall, Middlesex, where she lived with her parents. Hers was a terrifying and painful death. She was stabbed 10 times, twice in her side, twice in the legs, once in the back, twice in the abdomen and once in the neck. When the police arrived at the scene, a scarf had been tied so tightly around her neck that an officer had to cut it to remove it. She had bled profusely. It was obvious that a very violent and prolonged struggle had taken place. The cause of her death was haemorrhaging compounded by the compression of her neck.

[2]There were two defendants to the charge of the murder of Samaira Nazir, namely Imran Mohammed, a young man aged 17 at the time of the murder, and the Appellant, Azhar Nazir, the victim’s brother. Both were convicted of her murder at the Central Criminal Court before HH J Moss QC and a jury, the date of the Appellant’s conviction being 16 June 2006. Azhar Nazir appeals against his conviction with leave of the full court.

The facts in summary

[3]Imran Mohammed was not related to the family. He had immigrated to this country from Pakistan illegally, and lived in a building at the bottom of the garden of the Nazir family home. He had been treated as if he were the youngest son of the family.

[4]The emergency services were called to the house at 11.06 a.m. on 23 April 2005. The caller said, “I think this girl has been murdered”. A further call was received in which the caller said, “I have killed my cousin, killed him with a knife, I can see police,” after which the line went dead. Police officers Lock and Ferguson were the first officers to arrive on the scene. On arrival the Appellant said, “She’s in there, she’s dead”. The officers saw Samaira Nazir’s body lying in the hallway and a lot of blood. When asked, “Was it you?” the Appellant replied “No, he’s in there”. The officers were then approached by Imran Mohammed who said, “I did it, I killed her”. When asked how he killed her, he replied “I stabbed her in the neck”. The Appellant told officers that the co-accused had stabbed his sister. The Appellant and his co-accused were then arrested and cautioned. Also present in the house was the victim’s mother, Sadaf Taneer who was also arrested, and two children Fiza and Izza.

[5]In interview after the murder, Imran Mohammed again admitted that he had wielded a knife that was used to stab and cut Samaira Nazir. He said that he was alone responsible for her murder. He sought to explain that he had not intended to kill her, but only to scare her. The reason he gave for his actions was that the family would be humiliated by the marriage that Samaira Nazir wanted to enter into. The man she wanted to marry was Salman Mohammed, who, in addition to the fact that he had already contracted a marriage of convenience in order to remain in this country, was deemed unsuitable because of his origins. Presumably Imran Mohammed wanted to scare her in order to deter her from continuing in her relationship with Salman Mohammed.

[6]When on 24April 2005 the Appellant was interviewed, he answered “No comment” to questions asked. He was further interviewed in August 2005 and the findings of the forensic scientist were put to him. He was unable to account for airborne blood on his tracksuit bottoms. He said he did not see the stabbing. He denied that it was he who had pulled his sister back into the house when she had tried to escape.

The trial

[7]The Crown’s case against the Appellant was that he actively participated in a joint enterprise to kill his sister. At trial, Imran Mohammed’s defence was diminished responsibility. The Appellant denied participating or being a party to his sister’s murder.

[8]The evidence against the Appellant was essentially as follows.(a) Presence. It was common ground at the trial that he had been present in the house when the attack on Samaira Nazir took place. As we have said, this did not take the form of a single blow or stabbing. It was obvious that a very violent and prolonged struggle had taken place. Yet the Appellant’s case was that he had not intervened.

(b) Motive. He was the son of the family whose honour stood to be damaged by his sister’s union with Salman Mohammed. The Appellant himself said he was opposed to the marriage, because Salman Mohammed was married, dishonest and carrying on illegal activities. No motive for the killing other than that it was an inappropriately called honour killing was ever advanced; indeed, the Appellant’s skeleton argument to this Court so describes it.

(c) According to Salman Mohammed, in a telephone call about 2 weeks before the murder, the Appellant threatened to kill him and Samaira if they married. The judge told the jury to be very cautious before relying on his evidence, because he was so disreputable, and for the purposes of this appeal we have placed no weight on it.

(d) The next door neighbours, at number 34 Abbott’s Road heard a disturbance at number 36. This jury could well have concluded that it was caused by the struggle in which Samaira was killed. Jaswinder Kudhail said that she heard a woman’s voice screaming, “Help me, help me.” When Jaswinder Kudhail knocked on the door of 36 to find out what was happening, the Appellant told her that his sister was having fits, or (as it was put in cross-examination on behalf of the Appellant) that she was “losing it”. The Crown’s case was that the Appellant was preventing anyone from interfering with the killing of his sister.

(e) The evidence of an anonymous witness, who was given the pseudonym Rabia Farooq, who testified that she saw the Appellant pulling the deceased, who was already injured, back into the house when she was trying to escape.

(f) The evidence of Emily McCann, a forensic scientist, who said that the blood staining found on the clothes of the Appellant was inconsistent with his account of what he had done and where he had been during the murder.

[9]The transcripts of the interviews of both Imran Mohammed and the Appellant were read to the jury.

[10]Imran Mohammed did not give evidence.

[11]The Appellant gave evidence. He accepted presence at the scene but denied any involvement in the murder. He said that he was horrified by what he saw happen. There was an argument over Samaira’s plan to marry Salman Mohammed. She was shouting and swearing. He said that he went upstairs and he heard more shouting. The Appellant said that he went into the front room and his mother was crying. A neighbour had knocked on the door and asked if everything was okay. He had told the neighbour that his sister was losing it. He said that the next thing he heard was someone running through the hallway and the door opening and his sister shouting for help. He said that he came out of the front room. He saw Imran holding his sister from the shoulders. There was a struggle going on. He saw all the blood. He could not think what to do except call the police as soon as possible. Both of them were covered in blood. He said he immediately went past her to the telephone. He denied being at the front door and pulling his sister back into the house. He denied being involved in the killing of his sister or encouraging Imran to kill his sister. He said that he could not imagine doing anything like that. He said she was like an older sister to him.

[12]The jury rejected the Appellant’s story and convicted him.

The grounds of appeal

[13]There are essentially 3 grounds of appeal:(a) The jury were given a misdirection as to the admissibility of the co-defendant’s statements to the police.

(b) Rabia Farooq should not have been permitted to give evidence anonymously and in any event the judge’s direction in relation to her was inadequate.

The misdirection as to the admissibility of Imran Mohammed’s statements to the police

[14]In his summing up, the judge referred to the lengthy police interviews of the defendants. What he said was:

“You … heard over a long period evidence of interviews of these defendants. I am happy to say that the industry of learned defence counsel has managed to produce summaries of those interviews which I think are available to you. I am going to ask that they be handed out now. …. Of course, the evidence is in a much longer transcripts that you have already and which you have heard that I think that you would find it useful if, when you come to remind your self of the contents of the interviews of these defendants, that you might like to look through, first of all, these summaries which are agreed, members of the jury, to remind yourself of the nuts and bolts of interviews but, of course, you can go, if you wish to, to remind yourself of any matter of detail in the interviews themselves that you may find and, indeed, over the suspects that you will find that the summaries are being prepared going to be sufficient for your purpose. I am not going to go through them now with you, there is no purpose in it. You have the documents. All I ask you to do, please, is to read at least the summaries of those interviews when you retire to consider your verdicts …”

[15]The summary of Imran Mohammed’s police interviews consisted mainly of his admissions that he had struck her, his denials that he intended to kill her, and the statement that it was for the youngest son of the family to protect the honour of the family.

[16]During their deliberations, the jury produced a note asking:

“Can we consider Imran’s police statements in our consideration of the case against Azhar and if not, why not?”

[17]The question and the proposed answer were discussed between Miss Howes QC on behalf of the prosecution and junior counsel for the Appellant, Mr Ghaffar, presumably because Mr Ferguson QC who was leading him was absent. They agreed that the judge should instruct the jury that they could not look at Imran’s police statements when they considered the case of the Appellant. As a result the judge responded to the jury’s question as follows:

“The answer to the first part of the question is no, you cannot and that is something I mentioned to you, I think, during the course of the trial. The rule is that anything said by one defendant about another defendant in the course of a police interview when that other defendant is not present either to confirm or deny what he said cannot be evidence in the case of the other absent defendant and the reason for it is that because that second person is not there to either confirm or deny or challenge what he said.”

[18]On behalf of the Appellant, Mr Lewis QC submitted that this was a misdirection: the jury could and should have been able to consider Imran’s police statements when considering their verdict in relation to the Appellant. He relied first on the decision of the House of Lords in Myers

[1998] AC 124

[1998] 1 Cr App R 153

. The effect of the decision can be taken from the headnote:

“… a defendant in a joint trial should be allowed to put voluntary statements made by the other defendant, even though incriminating the maker and not used by the prosecution, to witnesses to whom those statements were made provided that such statements were relevant to the defendant’s defence since he had an unquestionable right to lead relevant evidence in his defence and the trial judge had no discretion, as between co-defendants, to exclude it; that where such statements were relevant both as to credibility and the facts in issue the defendant was entitled to cross-examine the maker of those statements or the person to whom they were made as to their terms; …”

[19]However, the proposition of law established in Myers has been subsumed in 76A of the Police and Criminal Evidence Act 1984:

“76A Confessions may be given in evidence for co-accused “(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.”

It is unnecessary for present purposes to set out the remainder of section 76A, which excludes from admissibility confessions obtained by oppression or as a result of a promise or anything else likely to render them unreliable. As was remarked by this Court in Finch

[2007] EWCA Crim 36

[2007] 1 Cr. App. R. 33

at [16]:

“… s. 76A … was enacted following the recommendations of the Law Commission in Consultation Paper No.245, and it was enacted to put the law onto a proper footing following the difficulties which had been exposed by Beckford and Daley [1991] Crim. L.R 833, R. v Campbell and Williams [1993] Crim. L.R 448 , and the decision of the House of Lords in Myers. The plain purpose of the new section was twofold. First it was to put into statutory form the rule in Myers that defendant A in a joint trial could not only cross-examine defendant B on the latter’s confession if B gave evidence, but could also adduce the confession even if B declined to go into the witness box. Secondly, it was to provide for B against A the same protection that he would have had against the Crown if the confession had been obtained by oppression or as a result of anything said or done which was likely to render it unreliable.”

It is now therefore generally unnecessary to refer to Myers: section 76A now governs the admissibility on behalf of a defendant of his co-defendant’s confession in the circumstances to which it applies.

[20]It is apparent from the summing up, and is common ground, that Imran’s police statements were not relied on by the Appellant during the trial. So far as his junior counsel is concerned, that may well have been due to his ignorance of or his having forgot the provisions of section 76A. But we think it unlikely that his leading counsel, Richard Ferguson QC, a highly experienced criminal silk, would have been ignorant of the effect of the section. We do not exclude the possibility that a tactical decision was made not to rely on the interview, for reasons that appear below. Leaving that possibility to one side, however, we proceed to address what might or should have happened if the judge and counsel had been aware of section 76A when the jury asked their question.

[21]Let us assume, therefore, that when the jury asked their question, counsel for the Appellant had relied on section 76A and asked the judge to direct the jury that they could take Imran Mohammed’s statements in his police interview into account in deciding whether or not he was guilty of murder. Mr Lewis agreed that the application would have had to relate to the entirety of the interview rather than the summary.

[22]Miss Howes QC submitted that in this event, only those parts of the interviews that were incriminatory of Imran Mohammed could properly have been taken into account by the jury, and those of his statements that were exculpatory of the Appellant would have had to be excluded from their consideration. However, she was unable to justify her submission by reference to any legislative provision. Section 82 of the 1984 Act defines “confession” as including “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”. The italics are ours. The italicised words are inconsistent with her submission.

[23]In Finch Hughes LJ said, at [12]:

“We are conscious of the definition of ‘confession’ in s.82 of the 1984 Act, that is to say as including ‘any statement wholly or partly adverse to the person making it’. However, to accept (as we do) that a statement may remain a confession whilst partially exculpatory and partly inculpatory, is not the same as to say that everything which is said at the same time as an admission falls within the definition ‘confession’ . We accept in the present case for the purpose of argument that the assertion that the Appellant was an innocent passenger was in effect part of Richer’s admission that he was carrying out a gun delivery alone. But we think that we should leave for another day and for full argument the broader question of when the contents of a co-accused’s police interviews, which go beyond admission of the offence but in some way serve the interests of somebody else, remain within the meaning of the word ‘confession’.”

We too can conceive of cases in which a statement made by a co-defendant to the police cannot sensibly be regarded as a confession. But statements made in an interview that are partly inculpatory of the interviewee and also in part exculpatory of another person are nonetheless a confession within the statutory definition. Furthermore, the present case demonstrates the practical difficulties involved in Miss Howes’ submission. In essence, Imran Mohammed in his interviews said that he alone stabbed Samaira. One cannot sensibly separate the admission that he stabbed her from the admission (for that is what it is) that he acted alone. By saying that he acted alone, he accepted sole responsibility for the murder. That was as much a confession as the statement that he stabbed her.

[24]Moreover, for reasons that we give below, it was necessary for the jury to be able to have regard to the whole of the interviews in order for them to assess what if any weight should be given to those parts that were exculpatory of the Appellant.

[25]We conclude, therefore, that if the Appellant had relied on section 76A, the entirety of Imran Mohammed’s interviews would have been available to the jury, as Mr Lewis submitted.

[26]Both Mr Lewis and Miss Howes accepted that if, in response to the jury question, the interviews had been relied upon on behalf of the Appellant, it would have been necessary to give both the prosecution and counsel for the Appellant an opportunity to re-open their cases so that they could address the jury on the effect of the interviews. Whether that should have been permitted would have been a matter for the trial judge; we shall assume that he would have permitted both the prosecution and the Appellant to address the jury on the import of the interviews. In that event, he would have had to give them consequential directions.

[27]We therefore turn to consider what effect on the jury’s decision their consideration of Imran Mohammed’s interviews could have had. In this connection, we point out first that the question asked by the jury may have implied that they were considering that the interviews were incriminatory of the Appellant rather than exculpatory. Judging by the direction he gave to the jury, set out at paragraph 17 above, this seems to have been the inference drawn by the judge, and, it would seem, by the Appellant’s junior counsel too.

[28]Leaving that aside too, we ask ourselves whether there is a real possibility that the jury’s consideration of the interviews, aided by counsel’s further speeches, could have affected the Appellant’s conviction. We are clear that it would not.

[29]Imran Mohammed was interviewed in the presence of an appropriate adult and a solicitor on 24 April 2005 from 09.35 to 18.06, with appropriate breaks. The transcript comprises 159 pages. Throughout, he said that he had not intended to kill Samaira. He said that he had stopped her escaping through the front door because he wanted to save her. All that was patently inconsistent with the wounds inflicted on Samaira. Until about 17.30, Imran Mohammed repeatedly said that he was the only person in the house when Samaira was killed. That was a lie, on the Appellant’s own case. Imran Mohammed said that he had telephoned the police. That too was a lie, on the Appellant’s case: he said he had telephoned the police. Imran Mohammed said that the Appellant had returned to the house at the same time as the police: that was a lie. It was only when he was told by DS Holder what the Appellant had said that Imran Mohammed admitted that the Appellant had been present. Imran Mohammed said that it was he who had pulled Samaira back from the front door of the house, but what he said about that was:

“When she was running I thought she was about to go out, I’ll quickly go and stop her.”

The interpreter translated:

“She is going outside and I shall try to save her.”

DS Holder asked:

“Save her or stop her?”

Imran Mohammed replied:

“I wanted to save her.”

That was clearly a lie.

[30]Other parts of the interviews were unhelpful to the Appellant, in that they gave a reason for him to be involved in the murder. Imran Mohammed was asked why he was trying to scare (which is all that he admitted to) Samaira. He said:

“Because, it was a question of the family being humiliated.”

Asked who was in charge of the family, he said, initially, that it was the Appellant. Later in his interview, when asked about the dishonour that would be caused by Samaira’s proposed marriage, he said:

“Because if she had gone, married him, then there would be pressure on the parents and everyone. People from outside would make fun of them that their girl has run away. This is a big thing for us, in our religion.”

[31]Having been told that the Appellant’s account differed from his own, Imran Mohammed said there had been a meeting involving the family before the killing. Asked what had happened at the meeting, he said:

“Nothing happened in the meeting, Samaira was telling them and she started swearing and saying, ‘I’ll do this and that’, then I told them you should not worry, I’ll explain to her, then daddy had left immediately, after that I don’t know about brother whether he went upstairs or went out, I don’t know much about him, because the outside door was open, then when she was knifed she came out and fell in the lobby.”

Asked why he didn’t say that before, he said:

“Because I didn’t want that you would say that they are involved in it.”

That was also a reason for him to lie about the part played by the Appellant in the murder. Imran Mohammed confirmed that the Appellant was at the family meeting that preceded the murder, and that he had asked Samaira not to marry Salman Mohammed.

[32]Having considered all of the police interviews of Imran Mohammed, we have concluded that they could not have affected the jury’s verdict in the case of the Appellant. Imran Mohammed persistently lied, in order to protect the Appellant and other members of the family. He did say he acted alone; but he also said, for most of the interview, that he was alone in the house. The latter statement was a lie, and casts doubt on the veracity of the first. He was, he admitted, treated as a son of the family, and for that reason was given the responsibility of “sorting out” Samaira (see page 117 to the transcript of the interviews). The jury may well have concluded that for the same reason the Appellant must have been involved in Samaira’ murder. We therefore reject this ground of appeal.

The anonymity of Rabia Farooq

[33]As is notorious, there have been radical changes in the law on the use of the testimony of anonymous witnesses. This trial took place before the decision of the House of Lords in Davis

[2008] UKHL 36

[2008] 1 A.C. 1128, which reversed the decision of the Court of Appeal, which had permitted the use of anonymous witnesses in limited circumstances. The decision of the House of Lords was rapidly followed by the enactment of the Criminal Evidence (Witness Anonymity) Act 2008, which came into force on 21 July 2008. It abolishes the common law rules on the anonymity of witnesses. Trials completed before the Act came into force are the subject to section 11:

“11 Pre-commencement anonymity orders: appeals (1) This section applies where– (a) an appeal court is considering an appeal against a conviction in criminal proceedings in a case where the trial ended before commencement, and (b) the court from which the appeal lies (“ the trial court” ) made a precommencement anonymity order in relation to a witness at the trial. (2) The appeal court– (a) may not treat the conviction as unsafe solely on the ground that the trial court had no power at common law to make the order mentioned in subsection (1)(b), but (b) must treat the conviction as unsafe if it considers– (i) that the order was not one that the trial court could have made if this Act had been in force at the material time, and (ii) that, as a result of the order, the defendant did not receive a fair trial. (3) In this section– “appeal court” means– the Court of Appeal; ..” the Court of Appeal; ..”

[34]An anonymity order is an order securing that the identity of a witness is withheld from the defendant (section 1(2) and a precommencement anonymity order is one made before the day when the Act was passed, i.e. 21 July 2008. We are concerned with such an order.

[35]Thus we have two questions to consider:(a) was the order was one that the trial court could have made if the Act had been in force at the material time? and

(b) if so, as a result of the order, did the Appellant not receive a fair trial? The second question only arises if the first is answered in favour of the Appellant.

[36]On behalf of the Appellant, Mr Lewis submitted Rabia Farooq should not have been allowed to give evidence anonymously. There was no justification for the anonymity

[37]Mr Rees presented the Crown’s submissions on this ground of appeal. In summary, he submitted that the anonymity order could and should have been made if the 2008 Act had been in force at the time of the trial.

[38]The first question, whether the anonymity order could have been made, depends on the application of sections 4 and 5: 4 Conditions for making order(1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings.

(2) The court may make such an order only if it is satisfied that Conditions A to C below are met.

(3) Condition A is that the measures to be specified in the order are necessary– (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

(4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial.

(5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that– (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made.

(6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness– (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, “5 Relevant considerations (1) When deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to– (a) the considerations mentioned in subsection (2) below, and (b) such other matters as the court considers relevant. (2) The considerations are– (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness– (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; (f) whether it would be reasonably practicable to protect the witness's identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.” (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise). (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made. (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, (a) the considerations mentioned in subsection (2) below, and (b) such other matters as the court considers relevant. (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness– (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; (f) whether it would be reasonably practicable to protect the witness's identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.”

[39]In Mayers and others

[2008] EWCA Crim 1418

, the Court of Appeal considered the application of the Act. The Court suggested that the court should first consider Condition C in section 4, and then proceed to consider Conditions B and C taking into account the matters listed in section 5 and any other relevant factors, and we shall do so.

[40]Mr Lewis did not take issue with the requirement in section 4(3)(a): it was because Rabia Farooq was an important witness that he objected to her anonymity. As mentioned above, he disputed that the condition in paragraph (b) of that subsection had been satisfied.

[41]In a written statement dated 7 July 2005, Rabia Farooq said:

“Especially what I have seen, with regards to that, I am very afraid of Azhar. I am very much scared and worried, that if he finds out that I have given some statement in this case, he will beat and harmony and my family members as well ... and the fact that no one except me has seen him in that condition. ... All this has affected my mental and physical health. ... I could not eat or sleep for many days. ... I am very much concerned about the safety of myself ... if I am kept secret, my identity is kept secret, and only if the police and the judiciary of the country takes the responsibility of my and family's lives, and our properties, I am willing to appear in court to give evidence despite of my fears. ... if the police and the judiciary takes responsibility for our lives and properties, and provides us with a guarantee for our protection, only then I would appear in the court, otherwise I am not willing to take any sort of risks.”

[42]The judge also had before him a transcript of a police interview of Rabia Farooq. It was consistent with her written statement. She also said that the reason that she had not wanted to come forward was her concern about her family's and her own safety. She said that she was willing to help the police if they protected her identity. She said:

“I won't be able to speak up, okay in the court if let's say Azhar is there and I'm there and I can't confront him in that manner, I don't want to go to the court if he is there. For the sake of my safety.”

Rabia Farooq’ unwillingness to give evidence other than anonymously is apparent from the remainder of that interview:

“DC GIBSON If we protect her face and her name and everything so she doesn’t have to see him, would that help? FAROOQ Yes. DC GIBSON And if that’s not done would she still give evidence or would be unwilling to give evidence if we cant do that would she be unwilling to give evidence? MS ASMAN Andy I’m going to ask that if Azhar is not present in the court and (real name)… DC GIBSON He will be present, he will be present in the court, but it’s we have screens and we can use different names, and so she wouldn’t have to look at him and she wouldn’t be able to see her. I know how worried, I can see her expression in her face, I know how worried she is. We’ll do everything we can to protect her identity. FAROOQ I’ve told you everything I’ve told you everything I knew so even then is it necessary to appear in the court for me? DC GIBSON It might be, it probably likely would be, but we will protect her, do everything we could to protect her identity. Hence the reason why we’ve given her a different name for her statement. FAROOQ No. DC GIBSON What’s that? FAROOQ I can’t go no. DC GIBSON She can’t go to court. FAROOQ No. If it’s very important and crucial then I can think. DC GIBSON It’s crucial, but we will do everything we can so nobody see’s her and nobody knows her name. FAROOQ Can I ask my husband, can I have a word with him. DC GIBSON Yeah do you want me to go and get him. I’m just leaving the room will I go and get your husband.”

Rabia Farooq then spoke to her husband, who reiterated their concerns and requirement for protection.

DC GIBSON What’s that?

The judge also had before him a statement of Detective Inspector Reid, who said:

“As a result of protracted investigative activity driven by the belief that a key witness did exist the enquiry team eventually identified this key witness. It was clear to the officers concerned that the witness was (in) fear of repercussions of her contact with the police. … The witness made it clear they would only (provide a statement) providing every effort was made to protect their identity. ... it is clear that had the witness not been traced they would not have volunteered themselves as a witness in this case. … I am satisfied that the Nazir family have sufficient status in the community to be influential figures. They still maintain business interests in the immediate vicinity. I am also satisfied that the family, in murdering one of their own, clearly demonstrate a propensity towards extreme violence to protect their own interests and integrity. … I believe that were the identity of the witness to be revealed that there is good grounds to fear for the safety of the witness and their family. The circumstances of this case clearly portray a situation where certain individuals will exercise extreme methods to compel others.”

[44]At the suggestion of Mr Ferguson, the judge held a voire dire in the absence of the jury, so that he could hear from her in person her state of mind at the prospect of giving evidence. In giving his reasons for the anonymity order, he said:

“In short, I was satisfied from all that I had read and heard that Rabia Farooq was terrified at the prospect of giving evidence against the second defendant unless she could do so in conditions of anonymity. She was in genuine and justified fear of serious consequences to her and/or her family if her true identity became known to the defendant or his associates. She had witnessed, if the evidence is right, a truly dreadful event.”

[45]True it is that the judge did not in terms find that Rabia Farooq would not give evidence if she were not anonymous. That was understandable: he did not have before him the terms of the 2008 Act, and made his findings on the basis of the common law as it was understood to be prior to the judgment of the House of Lords in Davis. But it is in our judgment quite clear from his ruling and the material before him that Rabia Farooq would not have given evidence otherwise than anonymously, and that the judge would have made that express finding if he had thought it necessary to do so. It follows that Condition C was satisfied.

[46]We turn to consider Condition A: was the order objectively necessary to protect the safety of the witness and her family? This was addressed in DI Reid’s statement to which we have referred, and was the subject of an express finding by the judge, who, in his ruling cited above, found that the witness was in genuine and justified fear. One has only to ask what, if the witness’s evidence was true, a man who had murdered his own sister out of a misplaced sense of family honour might do to someone who would be or was responsible for his being sentenced to life imprisonment to answer this question. We see no basis for disturbing the judge’s finding.

[47]We turn to Condition B and to the considerations set out in section 5(2). The judge was conscious of the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings, and referred to the disadvantages for the Appellant in his ruling and in his summing up. The right is not unqualified, but is of great importance, and we take that into account.

[48]It is convenient to address considerations (b) (d) and (e) together. It is significant that Rabia Farooq’s account of seeing Samaira trying to escape through the front door was supported by the evidence of Jaswinder Kudhail, who, as summarised in the summing up, said that after the Appellant had told her that Samaira was having fits:

“I came back into my house and closed my front door. The screaming continued. I went back to the sitting room and was looking after the baby, then I went to my front room for a while. Somebody tried to get out. Someone opened the front door at 36. I saw a bloody arm. I couldn't make out whose. Then I heard a voice, 'Help, help.' It was Samaira’s voice. Somebody pulled her back. I couldn't see which part of her was being pulled and then the front door closed. …”

[49]Rabia Farooq could not have known of Samaira’s attempted escape through the front door if she had not in fact been passing at the time. The credibility of her seeing it could not be, and was not, disputed. All that could be disputed is whether she did see that it was the Appellant who had pulled her back. In that connection it was also relevant that, as has been seen, she had not come forward voluntarily and was reluctant to testify.

(e) the judge said:

“I have been told, on a PII basis, her true identity. I was satisfied that all proper enquiries had been made so as to discover if there was anything known to her discredit. Those enquiries revealed that she had entered this country illegally. That information and the relevant details known about it were disclosed to the defence. There was, in my judgment, nothing potentially suspect about her evidence. There was no reason to suppose that she bore any grudge against the defendant or that she had any reason to be untruthful about. Indeed, the defendant himself, when confronted with her account when interviewed by the police before charge, did no more than to suggest that she was mistaken in what she said, which, indeed, was the line taken eventually in cross-examination by Mr Ferguson. … The Crown has closed its case. Nothing has occurred which would lead me to consider that it would be unsafe for the evidence of the witness to be considered further by the jury and, indeed, and understandably, no submissions have been made to that effect.”

[50]It is not suggested that the judge could not properly have come to his conclusions on the material before him. The defence were able to test whether the witness was mistaken, and for the reason given in paragraphs 48 and 49 above, it was unlikely that it could properly have been put to her that her evidence that she saw Samaira trying to escape could have been alleged to have been false.

[51]Since the trial the Appellant has suggested that he is aware of the true identity of Rabia Farooq, and has put forward reasons why she might be willing falsely to implicate him in the murder or be biased against him. They include the suggestion that her husband had asked for and been refused kickbacks on purchases from the Nazir family business, and that he had asked to rent a flat above the family shop and been refused. Even if Rabia Farooq had been correctly identified, given the circumstances in which she was persuaded to testify, and the fact that it is not disputed that Samaira did try to escape through the front door of the house, we do not think that putting these matters in cross-examination would have assisted the Appellant. If she had denied such matters, her answers would have been final. Given the circumstances surrounding her testimony, we think it fanciful that such insubstantial matters would have led her to say that it was the Appellant who pulled Samaira back when either she did not see who it was or knew it was not him.

[52]We turn to consideration (c). While it was clearly important evidence, Rabia Farooq’s evidence was not the sole evidence implicating the Appellant. We refer to paragraphs 8(a), 8(b), 8(d) and 8(f) above. “Decisive” here means evidence that (in the case of a trial on or after 21 July 2008, the date when the Act was passed) if accepted by the jury would decide or be determinative of the case against him; in the case of an appeal to which section 11 applies, it means evidence that was decisive or determinative of the case against the Appellant. The evidence of Rabia Farooq was not decisive evidence implicating the Appellant: the evidence of Jaswinder Kudhail, combined with that of Emily McCann and his admitted presence and his motive, were a sufficient basis for a finding of guilt.

[53]As to consideration (f), it is and was not suggested that there were other means of protecting the witness’s identity other than by making a witness anonymity order. What is submitted is that the order was pointless. Mr Lewis submitted that as a result she was recognisable when she testified: she was a local woman who shopped in the Nazir family’s shop, and her voice would be recognised.

[54]When the anonymity order was originally made by the judge, it included provision for the use of voice distortion equipment. There were technical difficulties with the voice distortion system when Rabia Farooq gave evidence in the voire dire. As a result, the decision was made to dispense with voice distortion. The fact that because of the way events developed Rabia Farooq was prepared to forego voice distortion did not mean that the original anonymity order was ill founded. Thus, the issue is not whether the witness anonymity order should have been made, but whether, as a result of voice distortion being dispensed with, the order should have been discharged. Mr Lewis’s first problem is that no such application was made. We would give also greater credence to this contention if it had occurred to anyone at the time. In fact, the point was not put forward in the Appellant’s original perfected grounds of appeal dated 13 October 2006 drafted by his trial counsel, or in Mr Lewis’s and Mr Long’s further advice and renewed grounds of appeal dated 5 June 2007, or in their skeleton argument dated 27 March 2008. It first appeared in their addendum skeleton argument of 5 January 2009, 2½ years after the trial. It is an after-thought. Moreover, if anyone had identified Rabia Farooq when she testified, we would have expected the Appellant’s counsel to have been informed, and they would have informed the judge. That did not happen. Even now, we have no witness statement by someone claiming to have identified Rabia Farooq from her undistorted voice. There is nothing in this point.

[55]It is not suggested that there are other matters for us to consider relevant to the fairness of the trial.

[56]It is clear that the judge considered that the anonymity order was consistent with the Appellant receiving a fair trial. We see no error in his approach or, for the reasons given above, in his conclusion.

[57]We therefore return to the two questions which the Act requires us to address:(1) do we consider that the anonymity order could have been made if the Act had been in force? and

(2) do we consider that, as a result of the order, the Appellant did not receive a fair trial? The first of these questions is a review of the lawfulness of the original order under the retrospectively applicable provisions of the Act. For the reasons we have already given, we answer it affirmatively. The second question is not a review question: it is an original decision by this Court. Having considered all of the matters we consider to be relevant, we have no doubt that the Appellant’s trial was not rendered unfair as a result of the anonymity order.

[58]We therefore turn to consider whether the judge’s direction on the anonymous testimony of Rabia Farooq was defective. He said this:

“Let me turn now to Rabia Farooq. This was a lady who alleges that she saw Nazir pulling Samaira back into the house and who gave evidence under a pseudonym, that to say anonymously, from behind a screen. I told you at the time and I repeat that you must not hold it in any way against the defendants, in particular the defendant Nazir, whom the evidence affects, that she was permitted to give evidence in this way. Special arrangements for witnesses in criminal cases are quite commonplace these days. Giving evidence is not intended to be an ordeal and where the judge concludes that the quality of a witness’ evidence is likely to be improved by such arrangements, he or she will permit them. The fact that these arrangements were made for this lady must not be allowed by you to reflect in any way upon the defendants or either of them but it does not end there. You must also bear in mind that Nazir in particular is disadvantaged by the conditions of anonymity of the witness. It is a pretty fundamental principle that the person is entitled to know the identity of his or her accuser. If the identity is known, then the defendant may be able to say, “Oh, well I am not surprised that X would want to incriminate me or because so and so that happened or that applies to us” ie because of some bad feeling or grudge between the witness and the defendant. This is not available to Nazir in the circumstances of this case. However, you may think that in this case what Nazir is saying and said in interview to the police is not that Rabia Farooq has lied about it, rather that she is mistaken in what she says she saw, so that her evidence is not true. So those circumstances may mitigate the potential unfairness of the situation so far as Nazir is concerned, but you must have that difficulty well in mind.”

[59]In our judgment, this was an entirely adequate direction. It follows that the grounds of appeal relating to the anonymity order fail. There was an inadequate direction on joint venture.

[60]Mr Lewis submits that the judge’s direction on joint venture was defective and unfair. It was defective because it suggested to the jury that they could convict the Appellant if they found that he had intent to kill (or to cause serious bodily harm) and was present when Samaira was murdered, but did nothing. It was unfair because it allowed the jury to convict the Appellant if they were sure that he had by his presence encouraged Imran Mohammed to kill her, even if he did not participate in stabbing her, whereas the Crown’s case had been that the Appellant was an active participant in her murder. It was also defective because the judge should have defined or given the jury some assistance as to what was meant by encouragement.

[61]The judge’s direction on joint venture was essentially the Judicial Studies Board specimen direction. He made it clear that mere presence without more was not a crime. He said:

“It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. But if you are sure that Nazir was on the scene and intended to and did by his presence encouraged Mohammed in the commission of the offence of murder, then Nazir is also guilty of that offence.”

[62]It is submitted that the judge should have elaborated on or explained what he meant by encouragement. This is a perfectly simple English word the meaning of which is clear. In our judgment it required no elaboration.

[63]It is true that at one point in his summing up, at page 14A of the transcript, there is a sentence that could be read as suggesting that mere presence and intention were sufficient. But the summing up must be read as a whole and that sentence in context. So read, the direction made the position clear to the jury.

The judge summarised the prosecution case by saying:

“Put shortly, the Crown say that the defendants were in it together.”

This was a pithy but nonetheless accurate summary of the prosecution case, which would be well understood by a jury. It is significant that neither counsel for the prosecution nor counsel for the Appellant made any submission during or at the end of the summing up as to any error such as that now contended for. Indeed, this ground of appeal was not put forward by the Appellant’s trial counsel. We see no unfairness in the way in which the issue of joint venture was summed up to the jury.

[64]Giving leave to appeal in this case, Laws LJ said:

“As for the encouragement point, we would not give leave if that stood alone. But there is something in the suggestion that the judge has misdirected the jury by attributing a decisive importance to a subjective intention in a case of mere presence.”

[65]We think that the Full Court was right to be dubious about this ground of appeal. It is not made out.

Conclusion

[66]Finally, we have considered whether in all the circumstances, taking into account all the Appellant’s contentions, we consider his conviction to be unsafe. In our judgment, the case against him was a strong one. Quite apart from the testimony of Rabia Farooq, we do not see how the evidence of Jaswinder Kudhail and of Emily McCann could have been explained away. The appeal will be dismissed.

order

the Appellant was not a member of a criminal gang, but a man of good character, from whom she had nothing to fear. Any fear she had was not objectively justified. Furthermore, the judge did not make a finding that unless the order was made she would not give evidence, and there was no justification for such a finding. Any justification for her anonymity disappeared when it was decided to dispense with voice distortion: as a result she would have been recognisable as a woman living locally. Rabia Farooq was a crucial witness, the only one who testified to the Appellant’s part in the murder. Her anonymity meant that the defence could not challenge her evidence by putting to her matters said to give rise to an intention falsely to incriminate the Appellant, or at least to believe that she had seen him when she had not done so. Furthermore, because she was anonymous it was impossible to know whether there were not more serious reasons to doubt her credibility or veracity. Her anonymity deprived the Appellant of a fair trial. Finally, it is said that the judge failed to give an adequate direction to the jury on their consideration of anonymous witness evidence.