Aboulkadir & Ors, R v [2009] EWCA Crim 956

[2009] EWCA Crim 956Case Nos: 200801632 D2/200801657 D2/200801635 D2/200801656 D2/200801639 D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE JOY
T/2007/7221
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2009
Before
LORD JUSTICE THOMASMR JUSTICE PENRY-DAVEYHIS HONOUR JUDGE RADFORD
Between
ReginaRespondentAdil AboulkadirApplicantsJumaa SalehApplicantMohammed Abdullahi JimaleApplicantDawt Akal KefleApplicantMaher ZeregergisApplicant
Mr T J Langdale QC (who did not appear at the trial) for Applicants on ground 1 of the applicationMr P Dahlsen for Applicant (Aboulkadir)Mr S Hadley for Applicant (Saleh)Mr D Lyons for Applicant (Jimale)Mr J Connor for Applicant (Kefle)Miss H Khan for Applicant (Zeregergis)Mr Stephen Hockman QC (who did not appear at the trial) and Mr P Forbes for RespondentHearing Hearing dates : 27 March 2009 and 3 April 2009
JudgmentLord Justice Thomas :
[1]On 14 January 2008 the applicants stood trial at the Crown Court at Maidstone before HH Judge Joy and a jury. On 21 February 2008 the jury, after a retirement of five days, returned the following verdicts. i) Aboulkadir a) On counts 1 and 2, rape and sexual activity with a child, SD, he was acquitted. b) On Count 3 he was convicted of sexual activity with a child, IH, having earlier pleaded guilty to sexual activity with the same child (Count 4). c) He was convicted of the rape of JB (count 5). ii) Saleh a) He was found not guilty of sexual activity with a child, SD (counts 7 and 8) on the direction of the Judge (see paragraph 67 below). b) He was found guilty of sexual activity with a child, IH (counts 9 and 10). iii) Jimale He was found guilty of sexual activity with a child, SD (counts 11 and 12). iv) Kefle He was found guilty of sexual activity with a child, SD (counts 13 and 14). v) Zeregergis He was found guilty of sexual activity with a child, SD (counts 15 and 16).[2]Aboulkadir was sentenced to imprisonment for public protection with a minimum term of four years; the other applicants were sentenced to determinate sentences of four years each.[3]The application of each for leave to appeal was referred to the Full Court.

The case for the Crown and the applicants; the evidence

[4]It was the prosecution case that the applicants had preyed on young and vulnerable girls and had entrapped and exploited them, each knowing or having a reasonable belief that they were underage. i) SD was born on 17 November 1993. It was admitted by Jimale, Kefle and Zeregergis that they had had sexual intercourse with her but each denied knowing or suspecting she was under 16. Aboulkadir denied having had sexual relations with her. ii) IH was born on 29 December 1993. Aboulkadir admitted having sexual intercourse with her believing her to be over 16. Saleh also admitted having sexual intercourse with her, believing she was over 16. iii) JB was born on 26 October 1992. Aboulkadir denied having sexual relations with her.

The evidence given at trial

[5]The evidence of SD was given by recorded video to which it will be necessary to refer in more detail as it forms one of the grounds of the appeal. She was cross-examined over a live link. Her evidence was that by the age of 13 she was having sexual intercourse. i) As to Aboulkadir, her evidence was that she had been walking home drunk one night. He had dragged her back to his house in Dartford and asked her if she wanted to have sex with him. She had refused. He dragged her upstairs, took her clothes off and had sexual intercourse with her against her will. She had told IH about the incident the following day. She and IH went to the house again about two or three days later. At that house IH had had sexual intercourse with Aboulkadir and with Saleh. ii) As to Saleh, her evidence was that she met him with Zeregergis and had sexual intercourse with him on two occasions. iii) As to Jimale, she met him at the house in Dartford and they had then gone back to his house above a kebab shop at 119A Rochester Road, Gravesend. She had sexual intercourse with him three or four times there. It was at these premises that the police found her on 21 May 2007. When Jimale opened the door, SD was in bed; it was clear that she and Jimale had been sharing a bed. iv) As to Kefle, she had met him in Zeregergis’ house. She had not at first agreed to have sexual intercourse with him but he had been very persuasive. She had agreed to have sexual intercourse with him twice on the first occasion. She then had sexual intercourse with him regularly at the house at Crayford Road. v) As to Zeregergis, he had asked her if she wanted to have sexual intercourse with him. She had declined, but he had done it anyway. She had had sexual intercourse with him 4 or 5 times one day and then often over a two week period. vi) In her recorded video interview, she gave evidence in respect of each of the applicants that they knew that she was under 16, but when cross-examined she said that Jimale thought she was of marriageable age. She told Kefle’s counsel that she told everyone she was 17. She gave evidence that she had been having sexual intercourse with older men starting after her 13th Birthday. She was also cross-examined about her disruptive home and school life.[6]The evidence of IH, given by recorded video and cross-examination over the live link, was that she had been having sexual intercourse with Aboulkadir and Saleh. i) As to Aboulkadir, she had been with SD and they met him at the Dartford Library earlier in 2007. She went back with SD to his house at 250 Lowfield Street, Dartford. She told him she was 16. On another occasion they had had sexual relations, kissing, mutual masturbation and oral sex and later they had sexual intercourse. Every time she saw him they would have sexual intercourse. When she told him that she was only 13, he told her that he did not want a relationship with her as she was too little. He told her that he had a friend who was younger and might be interested. Despite breaking up with him, she continued to have sexual intercourse with him. ii) As to Saleh, Saleh was that friend. She then had a relationship with Saleh for approximately two months. She told him she was 13. iii) In cross-examination, she said she had told Saleh she was over 16, but in re-examination maintained she told him she was 13. She was also cross-examined about her difficult home and school life. iv) There was forensic evidence of Aboulkadir’s semen in her vagina and knickers.[7]Her father, Derek H, gave evidence that he became suspicious about his daughter in March 2007. He watched her go to 71C Crayford Road. On 10 May 2007, after an argument with her, she stormed out. He went to 71C Crayford Road and knocked on the door. It was opened by a tall black man. He asked if IH was there and went into the house. He did not see IH in the house but SD was there.[8]JB also gave evidence by recorded video and cross-examination over the video link. Her evidence was that she had seen IH with a black person; IH and the man took her back to Aboulkadir’s house at 250 Lowfield Street, Dartford. Aboulkadir started rubbing her back and afterwards told her to go upstairs. She did so and he raped her there. She then left the house and told her friend, Frank, that she had been raped; Frank told her to go to the police and she did. They asked her questions and took her clothing. She had a full medical examination. She picked out Aboulkadir at an identification parade. She was cross-examined about her difficult home and school life and about her complaint of rape against another person. An application to cross-examine her about another complaint was refused and forms the basis of ground 5 of this application.[9]There was evidence from police officers as to the background to each of the complainants and the circumstances in which the offences came to the attention of the police. There was also medical and forensic evidence to which it is not necessary to refer.[10]HP gave evidence about what had happened outside 250 Lowfield Road. Ground 3 of the application related to this evidence. SD’s mother gave evidence as to her disruptive home life and her problems. A witness was called on behalf of Jimale to give evidence about a previous false complaint SD had made.[11]The applicants’ account was given either in evidence or by reliance on their interviews: i) Aboulkadir gave evidence; he had come to the UK because of the war in the Sudan in 2005. He denied having sexual relations with SD and denied raping JB. He had had a sexual relationship with IH believing she was 16, but stopped after she had told him she was 13, though he admitted having sexual intercourse with her on the day he was arrested. He had given a no comment interview. ii) Saleh also gave evidence; he had come to the UK for the same reason in 2004. He had lied initially to the police in denying having sexual intercourse with IH. He believed she was over 16. iii) Jimale did not give evidence. In his interview he maintained that he believed SD was over 16. iv) Kefle did not give evidence. In his interview he maintained that he believed SD was over 16. v) Zeregergis did not give evidence. In his interview he also maintained that he believed SD was over 16.

The grounds of appeal

[12]The applicants appealed on numerous grounds; some grounds applied to all, some to only one or more of the applicants. We are very grateful to Mr Dahlsen for the lead he took in consolidating the grounds and in organising the documentation. Without his work, this application would have been much more difficult to hear. In this judgment, we deal with the grounds which for convenience we have numbered 1 to 13. Mr Langdale QC (who did not appear at the trial) was instructed for all the applicants to advance the principal ground of the appeal to which we now turn.

Ground 1: Conduct of the Trial Judge

[13]The principal ground of appeal brought on behalf of all the applicants related to the conduct of the trial Judge. It was persuasively submitted by Mr Langdale QC that the conduct of the trial Judge was such that the applicants did not have a fair trial. The Judge had not allowed counsel for the applicants to argue issues, had failed in some instances to give properly reasoned judgments and generally gave the impression of favouring the prosecution case as against that of the defence. Certain particularised instances were relied upon as well as some more general evidence. It is easiest to consider first the specific instances. (i). The argument in respect of the Achieving Best Evidence (ABE) interview[14]To understand the first matter relied on, it is necessary first to set out a little of the history of the pre-trial hearings.[15]The PCMH was heard on 22 August 2007. It was made clear that special measures applications were to be submitted by 12 September 2007 and the transcripts of ABE interviews were to be served by the same date. It appears to have been made clear by counsel on behalf of Jimale and Zeregergis that the admissibility of the ABE interview of SD was challenged. On 19 September 2007 an order was made by a Judge that the evidence in chief of SD, IH and JB was to be given via video recording and the cross-examination was to be by live link. At a further directions hearing on 2 November 2007 it was ordered that edits to the ABE interview were to be notified by 23 November 2007. That time was extended on 19 December 2007 to 2 January 2008. It was agreed that no witnesses would attend on the first day of the trial (fixed for 14 January 2008) and the first witnesses to be available on the second day. At a directions hearing on Wednesday, 9 January 2008, a further order was made for all proposed edits to the ABE videos to be lodged by 1 p.m. that day and that any argument on the admissibility of the ABE interviews was to be lodged by 4 p.m. the following day, Thursday, 10 January 2008. On 10 January 2008 a skeleton argument was served by counsel for Jimale and a response was served by the Crown over the following weekend.[16]On the first day of the trial, Monday 14 January 2008, there were a number of administrative matters to be dealt with. Counsel for Jimale made it clear that he thought his submissions on the admissibility of the ABE interview meant that the Judge could send the jury away until Wednesday 16 January 2008. The Judge decided that he would send the jury away only until 2 o’clock on Tuesday 15 January 2008.[17]The submissions that counsel for Jimale wished to make began at about 11.20 on Tuesday 15 January 2008. He first addressed the Judge in relation to the photographs of SD which he contended showed her looking much younger than she would normally appear. At 11.57 the Judge ruled that the photographs were admissible; that ruling is ground 6 of the application considered at paragraph 62 and following below. Counsel for Jimale then proceeded to address the Judge in relation to the admissibility of the ABE interview of SD.[18]The skeleton argument submitted by counsel for Jimale had sought the exclusion of the ABE interview on the basis of s.78 of the Police and Criminal Justice Act and breaches of the Code relating to Achieving Best Evidence. He also relied on s.27(2) of the Youth Justice and Criminal Evidence Act 1999 which provided that a video recording could not be admitted if the Court was of the opinion that it was not in the interests of justice for the recording to be admitted. The skeleton argument stressed that the only issue as regards Jimale was his knowledge of SD’s age; that the evidence provided in the video recording was unreliable because there had been widespread use of leading questions, a widespread use of hearsay, failure to follow up vague and potentially misleading evidence, inducements to give further evidence, a failure to document matters properly and a passage which showed that SD was not taking the interview seriously. Furthermore it was contended the general tenor of the answers was not to identify the defendants specifically as regards the information she said she imparted about her age. The Crown’s response had pointed out that the defence skeleton did not identify the passages complained of with any particularity and drew to the learned Judge’s attention passages dealing with her age.[19]The Judge made clear that he had read the transcripts. Unfortunately the Judge had only been provided with two of the three transcripts of the interview but neither counsel realised that at the time. Counsel for Jimale sought to persuade the Judge that he should view the whole of the video of their interviews, as he relied on the totality of the impression caused and not any individual parts. The Judge immediately made it clear that he was not going to watch the whole of the video of the interview, but if counsel wanted him to look at parts of the video, he would watch those parts so that he could hear the tone of the voice. If there were issues such as leading questions, those could be gleaned from the transcript.[20]At the outset of the argument, counsel immediately sought a ruling from the Judge as to whether he would watch the video recording, having been requested to do so. The Judge declined, but then asked counsel to take him to various parts of the transcript. Eventually counsel agreed and referred him to two of the passages relied on. Argument then followed as to whether those passages contained anything objectionable. After those had been examined, counsel made clear he had 48 more points. The Judge observed that he had tried to find in the transcript any of the matters complained about, but could not find any. After some further argument, the Judge said, “This is a matter of law, Mr Lyons, and I want to dispose of this before 1 o’clock”. Counsel then told the Judge that he was trying to guillotine the application and there were many further arguments he wished to make.[21]The Judge then gave a short ruling which stated that he was against counsel and that such points as were being made were essentially jury points. He could not find any breach of the Code of Practice nor did he regard any part of the interview as in breach of s.78. It therefore followed that the video recording should be played to the jury.[22]Then the following exchange took place:
“MR. LYONS: Your Honour, may I observe, with respect, that your Honour has declined, and I will make this very clear for the purposes of the record------ JUDGE JOY: Well, I’m not going to hear from you any more------ MR. LYONS: … that your Honour declined to hear------ JUDGE JOY: I ruled------ MR. LYONS: … the points and can I make it also clear for the record------ JUDGE JOY: No, no------ MR. LYONS: … that your Honour------ JUDGE JOY: Mr Lyons, would you sit down, please, before you say anything that you are going to regret. The position is that I have ruled and you are bound by my ruling.”
MR. LYONS: … that your Honour declined to hear------ MR. LYONS: … the points and can I make it also clear for the record------

MR. LYONS: … that your Honour------

[23]It was common ground before us that a Judge is entitled to set a time within which submissions should be made and that counsel, if such a timetable has been set, must abide by it. It was also common ground that the proper way in which the issue should have been raised before the Court was for the passages complained about to have been identified in advance for the Judge to consider. As we had ourselves to decide whether the Judge was right in the ruling he had made on the ABE interview, (ground 7 of the application which we consider at paragraph 66 below), we required that the passages be identified for us with the comments of the applicant and those of the Crown set out side by side in a schedule. This plainly should have been done at the trial or alternatively, as sometimes happens, counsel should have photo-copied those parts of the interview identified in the schedule provided to us, writing on it the comments that were made by way of objection to the questions. It follows that what should have happened was that after reading the skeleton argument, the Judge should, on Monday, 14 January 2008, have directed that counsel for Jimale particularise the passages relied on, that the Crown should respond and made it clear that the submissions were to be made within a given time, if he wanted to impose a time limit.[24]However, the Judge took neither of these courses, but merely sought to cut counsel short in respect of his argument, having given him no express notice that counsel was constrained by time. Although, as we set out at paragraph 66 below, we consider that all the arguments made by counsel for Jimale were ill-founded, the Judge should not have simply cut him short without any notice in circumstances where he had not had an opportunity of setting out the arguments in writing. We trust, however, that, where applications of this kind are made in the future all counsel will particularise any objections they have and make concise submissions. (ii). The re-examination of SD[25]The jury was sworn in on the afternoon of 15 January 2008 and the Crown opened the case to the jury. On the morning of the following day, Wednesday, 16 January 2008, SD was brought to court, having been arrested for failing to attend. Her evidence began that morning with the video being played. At the conclusion of the evidence in the afternoon, counsel for Aboulkadir made an application to the Judge for the prosecution to be stopped until enquiries had been made into the matters disclosed in the Social Services report where her mother had made allegations that she was mentally ill. The trial continued. SD was cross-examined on 17 and 18 January.[26]Shortly before noon on Friday 18 January 2008, counsel for the Crown began re-examination. During the course of that re-examination counsel asked, “Do you know what the legal age to marry is in his [Jimale’s] country?” The answer was, “No”. The following exchange then took place:
“MR. LYONS: Your Honour, with great restraint, a point of law arises. JUDGE JOY: No, that is a perfectly reasonable question. MR. LYONS: No, your Honour, I restrain myself, your Honour, as I am entitled to, there is a point of law I want to argue in the absence of the jury. It is, in my submission, an entirely improper question for reasons which I will explain in the absence of the jury. JUDGE JOY: Mr. Lyons, would you sit down, please. MR. LYONS: Your Honour------ JUDGE JOY: Would you sit down, please, otherwise I shall------ MR. LYONS: I wish to make an objection to the question being asked in re-examination, the alternative to which may be the discharge of this jury and this young girl having to go through this whole experience again. JUDGE JOY: Mr. Lyons, would you sit down otherwise I shall ask you to be taken out. Would you please sit down. MR. LYONS: I ask one more time------ JUDGE JOY: Would you sit down. MR. LYONS: … would your Honour please hear a legal argument from counsel of considerable experience in front of your Honour. If your Honour says no, I will, of course, sit down. JUDGE JOY: Would you sit down, please. MR. LYONS: I will sit down. JUDGE JOY: Mr. Forbes, what is your question? MR. LYONS: Not in front of the witness, please, your Honour. JUDGE JOY: I would like to hear from Mr. Forbes, unless you sit down, I shall ask for you to be taken out. MR. LYONS: Your Honour, it is perfectly reasonable to ask Mr. Forbes------ JUDGE JOY: Would you please sit down, Mr. Lyons. JUDGE JOY: Mr. Forbes, what is your question? MR. LYONS: Not in front------ JUDGE JOY: Would you please sit down and keep quiet, Mr. Lyons. I want to hear from Mr. Forbes what his question is. MR. LYONS: I have no objection to your Honour hearing from Mr. Forbes------ JUDGE JOY: And I will hear it. MR. LYONS: … but not in front of the witness. JUDGE JOY: Would you leave the court, please Mr. Lyons.”
Mr Lyons then left court. Counsel for the Crown indicated that he had no further questions. We were told that he did so because he wished to defuse what had happened. The Judge then asked Mr Lyons to return to court and Mr Lyons then apologised for what had happened. All of the above happened within a very short space of time in the presence of the jury. MR. LYONS: Your Honour------ MR. LYONS: I ask one more time------ MR. LYONS: Your Honour, it is perfectly reasonable to ask Mr. Forbes------ MR. LYONS: Not in front------

MR. LYONS: I have no objection to your Honour hearing from Mr. Forbes------

[27]The Crown said it needed to see if it had any further evidence that day and the jury were asked to leave court. In the absence of the jury, counsel for Aboulkadir raised, on behalf of all defence counsel, their concern as to their ability to represent their clients properly and adequately and to be able to raise points of law that they believed to be legitimate points of law. He expressed concern that such points could not be raised without the jury being asked to leave court. There then followed submissions from counsel for Aboulkadir and counsel for Jimale as to what the Judge had done earlier that day. In the course of that submission, the Judge asked counsel for Jimale if he wished to make his argument in relation to the question that had arisen in re-examination which we have set out above. Counsel made the submission that the question asked of the witness was first, a question of foreign law and second, if it was not, a question that was irrelevant. He submitted that the question related to a plan which Jimale said that he had indicated to SD in which she would go to a third country and come back as the wife of a friend of Jimale’s or as the pretended wife. In those circumstances the question was irrelevant as what mattered was not the age in a foreign country, but the age in the United Kingdom. The Judge stated, having heard the argument, that he considered the question proper, as he had made the ruling on the basis of a passage in the interview of SD.[28]On the following Monday, 21 January 2008, the case could not proceed as one of the witnesses could not attend for understandable reasons. The jury was sent home. Defence counsel made an application to discharge the jury on the basis of what had happened on the preceding Friday. It is clear from the Judge’s ruling that the Judge had formed a very low opinion of the conduct of counsel for Jimale in relation to the application to exclude the ABE evidence. It was also evident that there were one or two occasions on which it is clear that the Judge and counsel had clashed. The Judge refused the application.[29]Mr Langdale QC who appeared for the applicants on this part of the appeal and Mr Stephen Hockman QC who appeared for the Crown agreed what happened was most unfortunate.[30]In our judgement the incident that led to counsel for Jimale being requested to leave the court was caused by counsel’s understandable concern as to the next question that might be raised. He did not want that question raised in front of the witness or the jury. There were, however, different ways in which his concern could have been dealt with. He could have asked for a moment to ask counsel for the Crown what the question was and, if he had received an answer which showed that there was no possible objection, then the matter could have proceeded without the witness or jury being asked to withdraw. Secondly, it would have been possible, given the technology, to have ensured that the witness did not hear the question which was intended to be asked and for that to have been considered by the judge. It is a matter of great regret that, given the evident clash that had developed between the Judge and counsel for Jimale, neither of these prudent courses was followed. Counsel should have taken the course we have suggested and, if he had not, the Judge should have ensured the witness did not hear the question. He should not have peremptorily told counsel that he was not prepared to listen to the objection. However, counsel, once that ruling had been made, should have accepted it and not sought to argue with the Judge; his remedy lay in this court. There is no doubt that what happened should not have happened and both counsel and the Judge were seriously at fault.[31]The real question in relation to this incident, however, is the effect on the jury and on Jimale’s confidence in his counsel. We do not think that this would have affected the jury. They would no doubt have felt, as we have felt, that this should never have happened in the courtroom. But at the end of the day they would have concluded that it was “much ado about nothing” between professional people who should have known better. Nor can we accept that this would have undermined the confidence of Jimale in his counsel. It is clear to us that counsel was conducting the case in what no doubt Jimale and counsel considered was in Jimale’s best interests.[32]However, the incident is important in the overall context of the trial. (iii). Application in respect of continuity[33]On the twelfth day of the trial, Wednesday, 30 January 2008, counsel for Aboulkadir made an application to the Judge in respect of the continuity of the exhibits. The problem had apparently arisen from the late service of documentation in relation to the Crown’s case. As a result of work counsel for Aboulkadir had done, he contended that there was no continuity from the time the doctor had taken samples in relation to IH until those samples were received at the forensic science laboratories. Counsel made it clear that he was entitled to put the Crown to proof on continuity. The Judge then said, “You are entitled to do that and I have to consider the effect on the management of the trial and it seems to me that this is not reasonable.” It was counsel’s recollection when settling the grounds of appeal that this was an implicit personal threat to counsel of a wasted costs order. One can well understand why counsel may have recollected the comment in that way, but it is clear that is not the comment the Judge made. No point, in the result, arises on this. (iv). Accident to counsel for Zeregergis[34]On a Saturday during the trial, counsel for Zeregergis had a head injury as a result of an accident. She had to visit the Accident and Emergency Department of a hospital before the court sat. The Judge enquired of other counsel in open court, in the absence of the jury, “Was this a domestic?” This was possibly intended by the Judge as a jocular remark, but it was a remark that no Judge should have made and the Judge was wrong to have made it. On counsel’s return to court, on her apology for not being in court, she was criticised for a perceived failure on the part of her clerk to keep the court informed of her movements with a view to seeing if it was possible to return to court to sit at 2 o’clock on the Monday, despite the fact that the jury had been sent away at 11.05 on the Monday and there was no outstanding legal issue to be dealt with. Again the Judge should not have made such a criticism.

(v) The summing-up

[35]We consider the issues raised in relation to the summing-up separately below at paragraph 73 and following, as these form ground 11 of the appeal. As we there set out, we have indicated that the summary was neither unfair nor unbalanced.. (vi). The cross-examination of Aboulkadir[36]During the course of the cross-examination of Aboulkadir on 7 February 2008, counsel for the Crown asked him if he recalled IH performing oral sex on him. Aboulkadir responded, “No” and counsel for the Crown then said, “So that is something she is saying that is not true”. Aboulkadir’s counsel rose to object but, without hearing the argument, the Judge said that it was a perfectly proper question. When told by counsel that he did not agree that it was a proper question, in the presence of the jury, the Judge heard the objection. The submission was based upon observations by Lord Hewart CJ in R v Baldwin (1925) 18 Cr. App. R. 175. After hearing the submission the Judge, without giving any reasons, invited counsel for the Crown to continue. We shall consider the correctness of that decision, as it forms a separate ground of appeal (ground 4) at paragraph 54 below. Counsel asked for a ruling. After further argument in front of the jury, the Judge held that it was within the right of counsel for the Crown and probably his duty to test the witness’s credibility and he was entitled to put to Aboulkadir what IH said by way of allegation. He then asked counsel for Aboulkadir if he would please sit down. We must again observe that the Judge should have dealt with this matter by hearing the argument in the absence of the jury. It was unnecessary for him to have told counsel to sit down at the end of his ruling. (vii). The general demeanour and attitude of the Judge[37]As we have indicated, the grounds of appeal raised a more general criticism of the Judge. It was submitted that when one of the defence counsel rose to address the court, the Judge would on occasions wave his hand at counsel to indicate that that counsel should sit down; that the Judge on other occasions, when defence counsel raised a point of law or made other submissions, rolled his eyes or made a tutting sound to signal his disapproval in front of the jury. This was in marked contrast to how he handled any point of law raised by the Crown. It was contended that this attitude might well have given the jury the impression the Judge did not respect defence counsel or defence submissions.[38]On the hearing for directions in this application for leave to appeal, the court indicated to counsel that they should, if possible, attempt to agree what had in fact happened. This did not prove possible. Shortly before the hearing of the application five witness statements, four from the interpreters and one from an experienced solicitor’s clerk were served. The statements, as taken, contained a large amount of inadmissible material, mainly comprising recollections of what was available on the transcript. However, there were some very short pieces of admissible evidence in relation to the Judge’s demeanour, as set out in the grounds of appeal. After hearing submissions we admitted the evidence de bene esse and heard three of the witnesses who had made statements; it was not possible for the others to be present and it was agreed that it would be sufficient if we heard the three.[39]It did not prove possible to complete the hearing of the appeal on the day allocated and on the resumed hearing, Mr Hockman QC, leading counsel for the Crown, stated that if we were to consider the evidence given by the three witnesses as admissible, he would wish to call counsel who had appeared at the trial for the Crown and who was his junior on the application before us. His junior had come to court that day unrobed, as it was accepted by counsel for the Crown that it would not be possible for counsel to give evidence in the appeal and also to continue to appear as counsel. A statement by junior counsel had been made and served on the applicants.[40]Having received the statement of trial counsel for the Crown, each of the junior advocates for the applicants had made statements as to their recollection of the Judge’s conduct. It was made clear by Mr Langdale QC, leading counsel for the applicants, that if trial counsel for the Crown was to give oral evidence, then he would wish to call the juniors for each of the applicants to give evidence in accordance with their statements. He submitted that it would be possible for them to continue as advocates in the case for each of the applicants because he, as leading counsel, was dealing with the issue in relation to the conduct of the trial Judge.[41]After submissions, we made clear that we considered it would be very difficult to conduct this application for leave to appeal where, given the conflict in the evidence set out in the statements between the advocate for the Crown and the advocates for the applicants, the advocates for the applicants could continue as advocates in the application if they gave evidence. Each would be cross-examined and we would have to form a judgement on their reliability or credibility. Experience has shown that a court should not be in the position where the advocate is also a witness in such circumstances.[42]It was agreed, in the result, that the court should proceed by taking into account the oral evidence given by the three witnesses (the solicitor’s clerk and the two interpreters) whose evidence we had heard de bene esse and should treat each of the statements given by the trial advocates as containing their best recollection of what had occurred during the trial, without the need to call or cross-examine any of them. We acceded to that course for the reason we set out below.[43]Before turning to those reasons, it is necessary to refer briefly to the issues relating to the position of the interpreters at the trial. Each of the applicants was a refugee from the Sudan who had claimed asylum in the United Kingdom. Two of the applicants spoke Tigrnya, two spoke Arabic and one Sudanese Arabic. The defence advocates considered that each applicant required a separate interpreter because of the different cases they were running and the differences in their languages. It is clear, from comments made by the Judge after the trial, that he considered that this was unnecessary (see paragraph 74 below (ground 13 of the appeal). Throughout the trial, there appears to have been friction between the Judge and the interpreters, which was not helped by the fact that, with five defendants in the dock and five interpreters, conditions were cramped. It is unfortunate that this friction occurred, as the Judge was clearly mistaken in the position he adopted as to the need for five interpreters.[44]It is clear from the oral evidence that we heard and from the statements of counsel for the applicants, that there was a perception on the part of those on the defence side that the Judge was on occasions impatient with the way in which the case was being conducted by the defence. It is also clear that from time to time the Judge rolled his eyes during the course of submissions and waved his hand dismissively at defence counsel, reinforcing that perception. We accept that the perception of the Crown was different, because it is always possible in the well of a courtroom to gain a different impression. However, what was important was the perception; that was clear from the statements and it was not necessary for us to hear the advocates to find that fact. The perception of impatience created by the Judge was one that should not have been created. Although some of the points being taken by the defence advocates were ill-founded, none of them was improperly made. (viii). Conclusion[45]We have very carefully considered the whole of the evidence in relation to the way in which the Judge conducted the case and carefully reviewed the transcripts. We were referred to a number of authorities including R v Hulusi & Parvis (1973) 58 Cr. App. R. 378, R v Matthews & Matthews (1983) 78 Cr. App. R. 23, R v Bryant (Patrick) [2005] EWCA Crim 2079, R v Sullivan & Hare [2004] EWCA Crim 3324 and R v Lashley [2005] EWCA Crim 2016, but the applicable principles were not in dispute. It is a matter of regret that we have to say that the Judge did not, on the occasions where we have specifically criticised him, conduct the trial in a manner in which it would be expected a Judge would conduct a trial. There were ways in which he could properly have dealt with all the issues raised. Nor should he have allowed the perception of impatience to arise.[46]Nonetheless, we have to view these instances and that perception in the context of the trial as a whole and ask ourselves the question as to whether the applicants had a fair trial. In our judgement, they did. The enumerated circumstances were, in the context of a trial as a whole, few in number. The Judge made several rulings that were in favour of the applicants. Nor was the perception the Judge created one that pervaded the trial. We do not consider that the jury were left with the impression that he favoured the Crown over the defence. It cannot be said of this trial that it was conducted in a way which, despite serious criticisms we have made of the Judge, could be considered unfair.

Ground 2: Application for assessment of the complainants’ mental health stability

[47]Despite requests made in the defence statements for disclosure of material relating to the three complainants, it was only on the first day of the trial that the Crown served by way of unused material a volume of documentation regarding the complainants’ school, social services and medical records. In the days that followed further material was served by the Crown. We take the material in respect of JB as an example as it was particularly relied upon. It transpired that JB had been under psychological/psychiatric counselling by the Children and Adolescents Mental Health Society; the reports and notes of meetings referred to JB having “dreadful mood swings”, “finds it hard to separate fact from fantasy”, “had smeared faeces round the house”; that her recent behaviour (in October 2005) was that of a child out of control of her emotions and reports in 2007; that she needed a psychiatric assessment; that she was vulnerable and that she had some significant neurological developmental difficulties and required a full assessment of her cognitive abilities. It was also clear that JB had a history of dishonesty, including a formal police reprimand for obtaining property by deception.[48]Counsel for Aboulkadir formed the view that he should make an application for the trial to be adjourned so that each girl could be assessed. The application was made on various occasions on the basis of observations in Toohey v The Metropolitan Police Commissioner (1965) 49 Cr. App. R. 148 where Lord Pearce said at page 162:
“Human evidence shares the frailties of those who give it. It is subject to many cross-current such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and common sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of fifty yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than twenty yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeking what he thought he saw. So, too must it be allowable to call mental evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.”
The submission was made that the complainants should be asked if they would consent to a psychiatric assessment; at one stage it was suggested that, if they did not consent, an adverse inference could be drawn.[49]The Judge ruled that there should be no psychiatric assessments. He had seen the video interviews and he considered that each was competent to give evidence. When JB gave evidence, we were told that she was cross-examined in relation to the materials in the psychiatric reports.[50]We consider that the Judge was right in the view he took on these applications. This was not a case that was in any way comparable to the examples given by the House of Lords in Toohey. The credibility and reliability of these witnesses could be amply assessed by the jury on the basis of the material before them and the jury’s task would not have been assisted by any psychiatric examination, even if the complainants had consented to it. There is no merit in this ground.

Ground 3: The admissibility of the evidence of HP

[51]HP was not a complainant but she had provided a statement in relation to having met a man in the street who invited her back to his home. The man was a tall, thin, black man who, according to HP, told her that she was welcome to come to his house at any time she wanted or words to that effect. The house he was referring to was 250 Lowfield Street, Dartford where Aboulkadir had been staying with others. The only applicant representing her description was Aboulkadir, but as there were others staying at 250 Lowfield Street who were not charged with any offences it is possible that her description was someone other than Aboulkadir. Although HP had said she would be able to recognise the man who approached her, no identification procedures were ever undertaken.[52]It was contended on Aboulkadir’s behalf that the evidence was of only marginal relevance and should be excluded, as it had a significant prejudicial effect. The Judge ruled that the evidence was admissible on the basis that it was highly relevant and powerful, on the basis that the girls outside the building were all aged 13 to 14 and the defence being advanced that it was a coincidence that they all happened to be having sexual intercourse with girls of the age of 13 or 14. He said he would give a careful direction to point out that there was no evidence as to who the tall, black man was who approached HP. The Judge gave a direction in the summing-up in accordance with what he had indicated.[53]As the Judge gave the direction that he had indicated, although the evidence was not of the highest relevance, we cannot see that it had any prejudicial effect upon the defence of Aboulkadir. There is no substance in this ground. Ground 4: The nature of the questions by counsel for the Crown during the cross-examination of Aboulkadir[54]We have referred at paragraph 36 to this issue when considering the grounds in relation to the conduct of the Judge. We turn now to deal with the substance of the issue. It is clear that it was counsel for the Crown’s duty to put JB’s account to Aboulkadir. However in doing so it was not desirable that the questions should be framed in terms that HP was therefore said to be lying. At the time Lord Hewart CJ made his observations, it might be thought that putting the question in such a way would enable evidence of the defendant’s bad character to be given. It was therefore particularly objectionable at that time. At the present time that is not an issue of such significance, but it is clear, in any event, that counsel was not seeking in any way to get Aboulkadir to impugn the character of JB. Nevertheless we do not consider that the way in which the question was put was helpful. The Judge made clear in his ruling that, although the evidence of JB should have been put to Aboulkadir, the way in which it was done was not appropriate. However, we do not consider that the asking of the question could possibly form any basis for saying that the conviction was unsafe.

(i) The Issue

[55]On behalf of Aboulkadir, his counsel submitted that the Judge erred in law in refusing his application to be allowed to cross-examine the complainant JB about an alleged previous untruthful allegation of sexual assault made against another man, arising from an encounter with a young Asian man on 9 July 2007. Counsel submitted to the Judge that he sought to cross-examine JB about this on behalf of his client not under the provisions of Section 41 of the Youth Justice and Criminal Evidence Act 1999 (“Section 41”) but as evidence of previous bad character for which the Judge’s leave was sought under Section 100 (4) of the Criminal Justice Act 2003 (“Section 100”). He contended that the questions he wished to put in cross-examination were not “about any sexual behaviour of the complainant” JB (as prohibited by Section 41(1)(b) of the 1999 Act) but were questions concerning JB’s alleged false statement about such behaviour and was not so prohibited. He relied on the distinction between the two concepts as drawn in the decisions of this Court in R v R.T. R v M.H. [2002] 1 W.L.R. 632 CA and as illustrated by the case of R v Garraxo [2005] Crim. L.R. 883 CA.[56]The application made by counsel for Aboulkadir was opposed at trial by the Crown. It is apparent from our reading of the transcript of the submissions made by counsel on both sides to the Judge that the Judge was directed to the issues. With regard to the Judge’s conduct of the application before him (as opposed to his ruling) no complaint is made to this Court on behalf of any of the applicants. (ii). The argument[57]The kernel of the argument on this issue before the Judge was whether the information disclosed to the defence and sought to be utilised in cross-examination truly enabled the Court to conclude that there was a sufficient evidential basis of asserting that the previous allegation was untrue. Counsel for Aboulkadir argued before the Judge, as he has argued before this Court, that inferentially such a basis existed, given that the young Asian man had asserted that JB had propositioned him into consensual sexual contact and not, as she said, been sexually assaulted by him. Counsel for the Crown contended before the Judge that no such proper evidential basis had been made out. He pointed to the fact that JB had not said that her complaint was a false one and that the person accused, a chronic alcoholic, had accepted himself that he had sexual contact – including digital penetration – with someone he described as a young girl whom he knew was underage – albeit he asserted that all of the contact was initiated by JB. This, counsel for the Crown submitted, was in sharp contrast to the case for Aboulkadir which was that the sexual acts alleged by JB had never occurred at all. In reply counsel for Aboulkadir drew the Judge’s attention to alleged inconsistencies in the detail of her accounts of the sexual encounter with the Asian male and between that said to a witness and that said to the police.[58]Counsel for Aboulkadir referred also to the fact that the allegation was not pursued later by the police because JB did not wish to be medically examined. Counsel referred the Judge to Garraxo upon which he placed considerable reliance. (iii). The Judge’s ruling[59]The Judge gave a short ruling in which he held that there was no material upon which to base an assertion of a previous false complaint by JB in relation to her encounter with the Asian male. (iv). Our conclusion[60]We have considered the merits of the application made to the Judge. We have concluded that his ruling cannot be said to have been one outside the ambit of the judgment accorded to him. Counsel for Aboulkadir placed great reliance on the decision of this Court in Garraxo but it must be borne in mind that in the later case of R v V [2006] EWCA Crim 1901 this Court made clear that a failure by a complainant to co-operate with the police in relation to a previous allegation of a sexual offence may or may not justify a conclusion that the allegation was false, depending on the facts. In Garraxo, the previous allegedly false allegation included, as it did on the facts of the Garraxo allegation itself, a blow to the head following her refusal of a sexual advance and in one of those earlier complaints the complainant had sought a crime reference number “for the social”. There was, we judge, cogency in the points made to the Judge on behalf of the Crown. Whilst there may have been some inconsistency in the detail of the accounts given by JB that fact cannot sensibly give rise to viable evidence that she was making a knowingly false complaint of sexual assault given that there was an admitted sexual encounter between the man complained about – an alcoholic with little apparent inhibition on his own account in behaving as he did with a teenage (in fact 13 year old) girl. In our view, the Judge was right to fear jury distraction into collateral material. For our own part too, we would have concluded that Section 41(1) was engaged and that leave to cross-examine was required under both it and under Section 100(4) of the Criminal Justice Act 2003. As to the former we believe cross-examination was prohibited by Section 41(4) and not going to be allowed under either Section 41 (3) or (5).[61]As to the latter, we are of the view that it is difficult to conclude that the material available for use in cross-examination derived from the Asian man encounter had – to quote the words of Section 100(1)(b) “substantial probative value in relation to a matter in issue in the proceedings” (i.e. JB’s credibility). In any event, consideration of that hurdle to admissibility would only have arisen if Section 41 could be circumvented in the way adumbrated by counsel for Aboulkadir. That we conclude the Judge was right to prevent.

Ground 6: The admissibility of the photograph of SD

[62]The police had taken photographs of SD and it was sought by the Crown to place these before the jury.[63]Counsel for Jimale and Zeregergis objected on the basis that the ABE interviews would provide a sufficient photographic image of her age at the time (though as we have set out above, they had objected to the admission of the ABE interviews) and that therefore the photographs should not be put before the jury. They also submitted that the photographs were taken to show the complainants in a way which due to their dress (including underclothing), hairstyle, posture and lack of make-up was calculated to make them appear as young as possible. It was also submitted that it was not a coincidence that all three complainants appeared as they did in the photographs. As the apparent age of the complainants was central to the case put forward by the Crown, the photographs were prejudicial.[64]The Crown opposed the application. The Judge in his ruling given on 15 January 2008 rejected any suggestion that these were staged photographs or had been taken to emphasise their youth. He considered that they were of probative value and rejected any suggestion of prejudice.[65]We have ourselves seen the DVD and cannot regard these photographs of anything other than of assistance to the jury. They were in no way prejudicial. The argument advanced to the Judge was rightly rejected by him as being without merit.

Ground 7: The admissibility of the ABE interview of SD

[66]As we have set out in paragraph 23 above we were provided at our request with a schedule which set out the complaints made in relation to the ABE interview of SD and the Crown’s answers to them. We were therefore able to view those portions of the video and review the transcript to see if the video should not have been admitted as the evidence in chief. It is sufficient to say in our judgement that although there may have been one or two leading questions, the bulk of the matters complained of as leading questions were not leading questions. Moreover, as to the other complaints made, to which we have referred at paragraph 18 above, we found no merit in them. For example, there was a passage where it was clear from the way in which SD spoke at the end of the first interview that she was “fed up” with being questioned and made it clear in the way in which she spoke; however, that one short passage was plainly an important aid to the jury in evaluating her evidence. None of the matters complained of amounted to grounds for making the video recording inadmissible. This ground of appeal is without merit. Ground 8: Error by the Judge in relation to no case to answer on counts 7 and 8[67]A submission of no case to answer on counts 7 and 8 (involving SD) was made in respect of Saleh as SD had conceded in cross-examination she did not have sexual intercourse with him. The Crown did not oppose that submission. The Judge told the jury that the Crown had withdrawn these charges. At the request of counsel for Saleh, the Judge corrected this later and explained what had happened. We cannot see how this could possibly give rise to any ground of appeal.

Ground 9: The summary of the interview of Kefle

[68]After the interview of Kefle had been read, the Judge summarised the account to the jury. This was done before the officers in the case were cross-examined. Complaint is made on behalf of Kefle because it is said there were errors in translation and other difficulties, thus the interview was open to misinterpretation.[69]It is perhaps not unsurprising that there were errors in translation. We appreciate the real difficulties; we were told, for example, the same word in Tigrnya can mean a school, college or university. It is not suggested that counsel did not have an opportunity to correct these errors and we therefore do not see how there can be any possible ground for appeal in relation to this matter.

Ground 10: Submission of no case to answer in respect of Jimale and Zeregergis

[70]At the conclusion of the prosecution case, counsel for Jimale and Zeregergis made a submission that there was no case to answer. This was principally based on the fact that SD accepted in cross-examination that she had never told Jimale or Zeregergis her true age, that she had lied to them by telling them she was above the age of consent, that she had always dressed and acted to maximise her apparent age, that Jimale believed her to have been of marriageable age in the United Kingdom and she had drunk alcohol and smoked in front of Jimale and Zeregergis. Reliance was also placed upon the fact that the medical evidence was that her height was above average for a while female and that she had a well-developed bust.[71]The Judge rejected the submission. In respect of Jimale, the Judge referred to the clear answers SD had given on the video recording that she had told Jimale that she was 13, that her appearance and the way she gave her answers left it open for the jury to consider by reason of her expressions, her clutching cuddly toys and her general manner that she was very much a child. The police had found one of her knickers in the kitchen and it had a label which said that it was for ages 11-12 as did the label on the knickers she wore. The relationship with Jimale had continued for several weeks and it was for the jury to decide by looking at her evidence as a whole, including both that given in chief and in cross-examination whether Jimale reasonably believed she was 16 or over. In respect of Zeregergis, the Judge also ruled there was a case to answer, stating that Zeregergis had admitted in his interview that he was doubtful about her age, thinking she might be 17; she had a friend with her who was 15 and there was ample evidence on which a jury could decide that he did not reasonably believe she was 16 or over.[72]In this court it was submitted that where a witness who had given evidence by a video recording accepted in cross-examination that the account given in the interview that had been recorded contained lies and was contradicted by the cross-examination, a Judge should not allow the case to proceed to the jury unless there was clear independent evidence that supported a case that Zeregergis and Jimale had no reason to believe that she was under 16. In our view, the Judge was right in the conclusion he reached. The issue for the jury was the applicants’ belief in her age; what SD told them was one of the pieces of evidence against them, but it is not determinative. The Judge in his clear ruling enumerated the evidence. In our judgement that was sufficient for the case against these applicants to be left to the jury.

Ground 11: The summing-up

[73]The principal contention put forward in respect of the summing-up was that it was not fair and balanced and a further example of the Judge’s bias towards the Crown and unfavourable stance towards the defence. There were also specific criticisms of more detailed points. We will first consider the criticisms that go to the conduct of the Judge. i) Lack of balance in summarising the evidence of SD. The Judge stated that he would remind the jury of SD’s evidence in chief and about quite a lot of her cross-examination. Over a very lengthy passage he reminded the jury of the evidence given by way of the video recording but concluded the review of her evidence without mentioning the cross-examination. Counsel for the Crown subsequently reminded the Judge that he had not dealt with the cross-examination. The Judge accepted that he had not done so and expressed gratitude to counsel for the Crown for reminding him of it. Later, in the course of his summing-up, he reminded the jury of the cross-examination. It is unfortunate the Judge did not deal with the cross-examination when dealing with her evidence in chief, but he did set out the salient points during the course of his summing-up. We do not consider this amounted to unfairness or could give rise to such a perception. ii) The reluctance of the Judge to accede to defence requests to remind the jury of parts of the evidence. After counsel for the Crown had raised the failure of the Judge to remind the jury about the cross-examination of SD, the Judge asked counsel if there were other areas they wished to have dealt with. There then followed an extensive exchange between counsel and the Judge. It is again clear from reading the passages that the exchange between counsel for Aboulkadir and the Judge was the kind of exchange one would expect, but it is unfortunate that there was another clash between the Judge and counsel for Jimale which no doubt coloured perceptions. Other counsel only raised very minor points. The Judge then made a number of amendments to the summing-up. It is said that these were made with reluctance, but it seems to us that the additions he made were sufficient to make the summing-up fair and balanced. iii) The Judge’s failure to remind the jury that SD had specifically said that she told Jimale she was 17 When the Judge, in response to the request we referred to above, summarised the evidence of SD, he only mentioned the lie SD had told to the defendant about her age. At the conclusion of his summing-up the Judge asked counsel if there were any further matters they wanted to raise. Counsel for Jimale again asked the Judge to remind the jury of SD’s evidence that she told Jimale that she was 17. Counsel for Jimale pressed for this to be done at greater length. The Judge told the jury that SD had told Jimale she was 17. We do not think it was necessary for the Judge to say any more. iv) The Judge’s failure to remind the jury of the evidence of Osama Adam The Judge was said to have failed to remind the jury of the significance of the evidence of Osama Adam in relation to JB; he merely indicated what the evidence was without reminding them of its significance. We do not think that any criticism could attach to the Judge; it was unnecessary for him to have reminded them of its significance which was, at best, very minor. v) The Judge’s misdirection on cross admissibility Before the Judge continued his summing-up he circulated the proposed directions, including a direction in relation to the cross admissibility of the complainants’ evidence. No complaint was made about the proposed direction save by reference to the position of Aboulkadir. It was submitted that Aboulkadir’s case was that, although there was some dispute as to relatively minor aspects of IH’s evidence and cross-examination, it was accepted she had told the truth. He, of course, challenged the truth of the evidence of JB and SD. It was therefore submitted that it was not correct for the Judge to suggest the defence were accusing all three girls of lying. It seems to us that the way in which the Judge approached the direction on cross admissibility was appropriate. The fact that Aboulkadir was only saying that two of the complainants were lying did not make any difference to the approach the Judge took. vi) The Judge’s direction on unanimity The Judge said, “The only other matter is this; it is important to reach unanimous verdicts if you can, that is verdicts on which you are all agreed and I am sure you will be able to do so in this case.” He then went on to give the usual direction in relation to majority verdicts. Complaint is made that the Judge should not have suggested to them that he was sure they would be able to reach unanimous verdicts. We do not think there was anything improper in what the Judge said. In any event it transpired that the jury retired for five days and returned majority verdicts on some matters. There can be no possible complaint in this respect. vii) The trial Judge’s summing-up of the cross-examination of IH in relation to Saleh It was submitted on behalf of Saleh that the Judge read to the jury too much of the evidence in chief of IH and did not properly deal with the cross-examination in relation to Saleh. Although it was accepted the salient points were covered, it was submitted the effect of the cross-examination was undermined by the jury being told to consider all her evidence, even though she had significantly changed round by the end of the cross-examination. We do not think that this gives rise to any arguable ground of complaint. The jury were rightly reminded of the points made but told to consider her evidence as a whole, as her credibility was a matter for the jury. viii) Conclusion We have considered the whole of the summing-up in this case. We do not consider that there is any arguable basis on which it can properly be said to have been unbalanced or unfair. The Judge did make a number of corrections and additions at the request of defence counsel and the summing-up as a whole fairly set out the defence case and contained no misdirections.

Ground 13: Remarks made by the Judge after the jury had returned its verdict

[74]After the jury had returned its verdict the Judge proceeded to sentence. During the course of the sentencing remarks he stated that it was quite plain from all that the court had heard that what the applicants had done had caused hurt and they had exploited the most civilised aspects of this country. He then stated that each claimed the need of his own interpreter for his defence to be conducted and that had cost £1,000 a week, the bill for interpreters was £25,000. He also referred to the fact that there had been eight pre-trial management hearings and numerous conferences. It seemed to him that they had exploited the hospitality of this country. Each had claimed the need for a second barrister. Each application for that was refused.[75]Although, in our judgement, the Judge was plainly right in the decision he had taken earlier in the case that this was not a case which by any standards whatever could justify the use of two counsel for the defence, we do not think it was wise of him to have commented on that in relation to the defendants. It would be unlikely that they would have put forward that request. Nor, given the differences in language that each spoke and the different defences they were going to take could it properly be a subject of criticism of them that they each required an interpreter. They were entitled to separate interpreters and the Judge should not have made the criticism he did. However, these remarks could have had no impact on the fairness of the trial. They do not in our view evidence a lack of impartiality, merely unwisdom on the part of the Judge after the trial had concluded.

Conclusion

[76]We have considered the specific criticisms made of the Judge in respect of the correctness of the rulings he made and the content of his summing-up. None of them has any merit. As we have set out, we do consider there is merit in some of the criticisms made of the way the Judge conducted the trial, but we do not consider they give rise to an arguable case that the trial was unfair. In our view the convictions are safe and we refuse leave to appeal.