Thomas & Ors, R. v [2010] EWCA Crim 148

[2010] EWCA Crim 148Case No 2009.00477.C22009.02741.C22009.02728.C22009.00692.C22009.00678.C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
RECORDER OF LONDON
T2007.7420/T2007.7477/T2007.7471/T2007.7481
T2007.7479/T2007.7470/T2008.7005/T2007.7476/
T2008.7046/T2008.7150
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/02/2010
Before
LORD JUSTICE DYSONMRS JUSTICE SWIFT DBEMR JUSTICE SWEENEY
Between
REGINARespondentDaniel THOMASAppellantsCAppellantJoshua WILLIAMSAppellantRamin RAHIMIAppellantCarlos CYRUSAppellant
M. CHAWLA Q.C.for ThomasA. EVANS Q.C. for CR. TANSEY Q.C.for WILLIAMSM. COTTER for RAHIMIA.EVANS Q.C.and N. DUNHAM for CM.J. BOWYER for RespondentHearing Hearing dates : 27 January 2010
Judgment
[1]On 5 January 2009 at the Central Criminal Court (before the Recorder of London and a jury), the appellants Daniel Thomas and Ramin Rahimi were convicted of violent disorder contrary to section 2 of the Public Order Act 1986 (count 2) and conspiracy to cause grievous bodily harm with intent contrary to section 1(1) of the Criminal Law Act 1977 (count 3). The appellant Carlos Cyrus was convicted of the manslaughter of Yasin Abdirahman in the alternative to murder (count 1). The appellant Joshua Williams was convicted of the murder of Yasin Abdirahman (count 1). Count 1 charged the four appellants together with others with the murder of Yasin Abdirahman on 11 September 2007. Count 2 charged the three appellants with others with violent disorder on 3 September 2007. Count 3 charged the three appellants with others with conspiracy to cause grievous bodily harm with intent to another or others. All three charges arose out of the same events.[2]Thomas was sentenced on counts 2 and 3 to concurrent extended sentences of 8 years comprising custodial terms of 4 years detention less 170 days spent on remand and licence periods of 4 years. Rahimi was sentenced on the same counts to concurrent extended sentences comprising custodial terms of 4 years less 328 days spent on remand and licence periods of 4 years. Cyrus was sentenced to an extended sentence of 11 years comprising a custodial term of 7 years detention less 436 days spent on remand and a licence period of 4 years. Williams was ordered to be detained at Her Majesty’s Pleasure with a period of 14 years less 488 days spent on remand being specified as the minimum term under section 269(2) of the Criminal Justice Act 2003 (“the 2003 Act”). One of the co-accused was Sheldon John-Lewis who was also convicted of murder. He too was ordered to be detained at Her Majesty’s Pleasure. In his case, a period of 15 years was specified as the minimum term.[3]With the leave of the single judge, Thomas, Rahimi and Cyrus all appeal against conviction and all four appellants appeal against sentence.

Outline of the case

[4]Between 21.00 hrs and 22.00 hrs on the evening of 3 September 2007, members of a group of young men and boys congregated at the Hummingbird Café, Ealing. The prosecution case was that the group were members of a street gang named MDP. The purpose of their meeting at the café was to plan revenge on a rival West London gang named Gritset (which is based in the Ealing area) for a robbery in which a mobile phone was taken from an MDP member called Siavosh Khani or “Bandit” at the Kentucky Fried Chicken restaurant in Ealing. The group in the cafe included Rahimi, Cyrus and Williams. The prime mover of the planned revenge was John-Lewis, who was said to be a senior MDP member who had been present during the incident at the Kentucky Fried Chicken restaurant.[5]At approximately 23.00 hrs, the group boarded a number 207 bus which was going in the direction of Ealing Hospital. Approximately half way to the hospital, the group disembarked. CCTV cameras in the bus filmed the group during the journey. They then split up. Part of the group which included Rahimi, Cyrus, Williams and John-Lewis boarded another number 207 bus and continued to Ealing Hospital. Various witnesses saw them marching through the Windmill Park Estate. Some members of the group were seen to be carrying weapons, including at least one knife (one witness described “knives”). One member of the group also picked up a bottle. Some or all of them were wearing bandanas.[6]Thomas was not part of the group on the bus. The prosecution alleged that Thomas met the group at the estate. He was said to have acted as their scout. He lived just outside the estate and knew it well. He was telephoned by Williams and alerted to the imminent arrival of the members of the group. He went in search of the intended victims. A witness, Semir Velagic, overheard him on his mobile saying to someone (who was thought to be Williams) “come on, come on, you fucking shits, we will lose them.”[7]Mr Abdirahman was sitting on a wall in Navigator Drive with his friend Abdullah Awhussein when he was wrongly identified as a member of Gritset. In fact, he was not a member of any gang. He was a wholly innocent man who, tragically, happened to be in the wrong place at the wrong time. The two of them were attacked by the group. Mr Awhussein was able to escape from the attackers. Sadly, Mr Abdirahman was not.[8]The attack on Mr Abdirahman began in Navigator Drive. He was able to break away from the initial attack and ran around the corner of Navigator Drive. He was chased by the group. In the course of the attack, he received, amongst other injuries, three stab wounds to the head, one of which was fatal. There was CCTV footage from after the attack which showed Williams carrying a bloodstained knife on to a bus.[9]In respect of count 1, the prosecution case was that all the appellants were part of a joint enterprise to murder Mr Abdirahman. In respect of count 2, it was alleged that they were all part of the group that marched through the estate and were thereby guilty of violent disorder. In respect of count 3, the allegation was that the agreement to attack members of Gritset with the intention of causing really serious harm was made while the group were in the Hummingbird Cafe and was carried into effect as they travelled on the buses and marched through the estate in vengeful search of their victims.

The appeal against conviction of Thomas

[10]The single ground of appeal against conviction advanced on behalf of Thomas is that his convictions for violent disorder and conspiracy to commit grievous bodily harm with intent were inconsistent with his acquittals on the murder and manslaughter charges. It is submitted that no reasonable jury, applying their minds properly to the facts of the case, could have arrived at the verdicts which were reached in this case. The only explanation for the verdicts is that the jury were confused or adopted the wrong approach.[11]As we have said, it was the prosecution case that Thomas was the boy who was seen to be acting as a scout for the group on the estate and thereafter joining in the group as it advanced towards Mr Awhussein. This was based on the evidence of Mr Velagic who on 30 April 2008 made an identification of Thomas at a video identification procedure. As part of that procedure, Mr Velagic was shown 9 images. The image of Thomas was at number 6. He saw all the images twice and then asked to see images 1 and 6 again. When asked to make an identification, he replied “between these two, I….maybe number 6. More than number 1, but both a very, how can I say after one year, their faces are a bit familiar.”[12]In evidence, Mr Velagic said that he was sure that he had picked out the right person in the identification procedure. He also said that the person was acting as a leader of the group and directing them to run towards the victim.[13]Mr Velagic was the only witness for either the prosecution or defence to give evidence of a white boy on the phone acting as a scout. He said that a group of about 15 youths between 13 and 17 years of years ran past him. Most of them were wearing dark hooded tops which covered their heads and masks which covered their mouths and noses. He saw knives and sticks. The white boy went with the rest of the group. He said that they all went behind a hedge except the white boy who was “in front of them as a leader”. He then saw two dark-skinned men coming towards where the group were and then the group running towards them. He said that the white boy called the rest of the group to run towards the two dark-skinned men. Mr Velagic then crossed the road and lost sight of them as he walked home. Later, he heard shouting and screaming.[14]In his closing speech, counsel for the prosecution accepted that Mr Velagic’s evidence was crucial to the case against Thomas. This was because only he identified Thomas as a participant. His evidence that the group were displaying arms, including knives, was also important because this formed the basis for the prosecution case that, if Thomas was part of the group, he would have contemplated that knives were to be used in the attack.[15]The prosecution said that there was other evidence which supported the identification by Mr Velagic. They relied on the fact that Thomas had made a number of phone calls to Rahimi and Williams in the minutes before the attack and they said that the phone call observed by Mr Velagic was one of a series of calls made between Thomas and Williams shortly before the attack. Both Rahimi and Williams accepted that they were present on the estate and, initially at least, that they were part of the group that eventually went on to attack Mr Abdirahman. Williams was seen in CCTV footage taken shortly after the incident with a knife. The prosecution also relied on the fact that Thomas had made a prepared statement when he was interviewed by the police, in which he accepted that he had been on the Windmill Park Estate and had seen a disturbance.[16]Mr Chawla QC submits that, unless the identification of Thomas by Mr Velagic was correct, the evidence suggested no more than that Thomas was present on the estate and witnessed a disturbance. That would not have been sufficient to establish guilt of either violent disorder or the conspiracy charge.[17]His short submission is that the jury cannot have been sure of the correctness of Mr Velagic’s identification, because they acquitted Thomas of murder and manslaughter. The very identification that put Thomas as a member of the group that committed violent disorder and joined in the conspiracy was also the identification that implicated him in the unlawful killing.[18]Mr Chawla places particular reliance on the following passage in the summing up at Volume III(a) starting at p 70B:
“The principal issue in his case is, of course, whether Mr Velagic is correct in identifying him as the boy, and can be relied upon to ascribe to Daniel Thomas the roles that he, Mr Velagic, describes him as playing. More of that later this afternoon, except to say, I suppose, that if you cannot be sure of that identification, in other words, if he was not or may not have been the small pale-skinned white boy on the phone, then the case against Daniel Thomas that he was, drops away against him on all three counts, which those who act for him invite you to consider, as well, as he is not proved to be a member of either the MDP or the FDA; that he was not at the Humming Bird, and therefore cannot have been party to any discussions which took place there; he was not on either of the buses going to the Windmill Park Estate, and he therefore cannot have been party to what the passengers on those buses were wearing, how they were wearing it, what they were carrying, and short of Mr Velagic’s evidence, not part of any attacking group. Therefore, it is argued on his behalf that he is not guilty of violent disorder, count 2, and being necessarily unaware of any plan to cause really serious injury on the estate, let alone agreeing to it taking place, then he is not guilty of count 3 as well.”
[19]Mr Chawla also relies on a response by the Recorder to a question asked by the jury on 5 January 2009 in relation to count 1. The Recorder directed the jury inter alia:
“You must be sure that the defendant whose case you are considering joined in the physical attack which resulted in the fatal injury sustained [by] Yasin Ramin [Abdirahman] in some form or directedothers to do so”
(emphasis added).[20]Mr Chawla submits that the words that we have emphasised were plainly introduced in order to meet the prosecution case that Thomas had directed the fatal attack. He submits, therefore, that, if the jury were satisfied that Mr Velagic’s account was accurate, Thomas had joined the group who carried out the attack and would be guilty of murder or manslaughter. If they were not satisfied as to Mr Velagic’s account, the prosecution had not proved that Thomas had joined in the attack and he could not, therefore, be guilty of counts 2 or 3 either.[21]He submits that it is clear from the verdicts returned in relation to count 1 that the jury could not have been satisfied that Thomas participated in the fatal attack. If the jury accepted that Thomas was the scout and was behaving in the way described by Mr Velagic, they would have been bound to convict him at least of manslaughter. Mr Velagic clearly put the scout as part of the group who were openly carrying weapons including knives. On Mr Velagic’s evidence, Thomas would have been aware that knives were to be used in the attack. Thus it could not be said that the nature of the attack was fundamentally different from that anticipated by Thomas.[22]If the jury were not sure that Thomas was the person whom Mr Velagic had identified, there was no other evidence to put him with the group on the estate or as part of the conspiracy to commit grievous bodily harm with intent. In particular, there was no forensic evidence linking him with the scene of the attack. Moreover, there was no evidence apart from that of Mr Velagic of Thomas walking with the group. He was not travelling with the group on the bus and he was not in the Hummingbird Café when the group discussed going to the estate. In short, there was no evidence that could satisfy the jury that Thomas’s assertion that he was simply present on the estate, but not involved in the incident, was not correct. Mr Chawla submits that the jury could only have reached the verdicts that they did by disregarding the direction of the judge that, if the identification evidence of Mr Velagic were not accepted, then the case fell away on all three counts.[23]We cannot accept these submissions. It is important to bear in mind that the judge directed the jury(i) that it was for them to decide “where the evidence takes you” (summing up Volume III(a) p 10H);(ii) that they should consider each count and each defendant separately (transcript III(a) p 14F-15G);(iii) on the elements which constituted participation in a joint enterprise and in particular that they had to be sure in connection with murder and manslaughter “that the person said to bear joint responsibility for causing Yasin Abdirahman’s death must (a) be present at the scene of the fatal attack, (b) be participating in it himself, (c) [be] aware that the other person or persons concerned in joining in is or are armed with a knife or knives and prepared to use it or them, and (d) the fatal stabbing is not something so entirely and fundamentally different from anything that might occur in that attack as to take it, the fatal stabbing, outside the remit of joint responsibility” (summing up Volume III(a) p 25B.[24]The Recorder summarised the prosecution case against Thomas in the passage in his summing up starting at transcript Volume III(a) p 68B. Having referred to Mr Velagic’s identification of Thomas, he said this at p 69A:
“If that identification is correct and you can be sure about it, the implication is that Daniel Thomas is directly involved in not only bringing on and shaping the attack that developed on Yasin Abdirahman, but joining in it, at least to the extent of going down Navigator Drive with the group that attacked Yasin Abdirahman and Abdullah Awhussein. By that route, therefore, argue the prosecution, he is guilty of murder or alternatively manslaughter, because he played a central and directing role in the attack [on] Yasin Abdirahman and Abdullah Awhussein, and is thus jointly responsible [with] others for causing Yasin Abdirahman’s death. Whether his liability, if you are sure about that, is for murder or for manslaughter will depend on your decision as to his awareness of the nature of the attack he directed, and his intention to cause injury thereby. If, of course, he is not responsible in that sense for Yasin Abdirahman’s death or in any other respect, he is not guilty of murder and manslaughter. Say the prosecution: if he is not, then he certainly is guilty of count 3, in orchestrating the raid on the Windmill Park Estate, and of count 2, in playing a part in it on the estate, as it developed. ”
[25]There then followed the passage relied on by Mr Chawla: see para 18 above.[26]We are satisfied that the jury must have decided that they could be sure about(i) Mr Velagic’s identification;(ii) his evidence that Thomas had acted as a scout to find out the position of the intended victims;(iii) his evidence that Thomas had been urging the group to get there fast so as not to miss them;(iv) on the basis of Mr Velagic’s evidence, the fact that at the time he was making these arrangements (and probably after he joined the group), Thomas shared the common intent to cause grievous bodily harm with intent and was, therefore, part of the conspiracy; and(v) Mr Velagic’s evidence that Thomas ran off with and at the forefront of the group towards the victims.[27]Having accepted this evidence of Mr Velagic, the jury must also have accepted his evidence (to use the judge’s words at summing up Volume III(a) p 69B) that Thomas was directly involved “at least to the extent of going down Navigator Drive with the group that attacked Yasin Abdirahman and Abduallah Awhussein”.[28]There was no evidence from the eye witnesses as to the fact or extent of Thomas’s physical participation in the attack on either victim. There was no forensic evidence linking him to the scene. The jury may, therefore, not have been sure about the participation of Thomas. This may have been because(i) in the absence of any positive evidence that he had been present at the fatal attack, they could not be sure that he was;(ii) even if they could be sure that he was present, there was no evidence of active participation in the violence: although he had given the group geographical directions to the location and encouraged them to advance towards the victims, there was no evidence that he had been actively “directing the attack” at the time it actually occurred; (c) they could not be sure, despite Mr Velagic’s evidence about what he saw, that Thomas had been aware that the other persons were armed with a knife or knives and prepared to use it or them: Thomas had only been with the group for a very short time and joined it at the head, so that it was possible that he did not know about the knife or knives; and/or (d) they could not be sure that the stabbing was not something so entirely and fundamentally different from anything Thomas had believed might occur in the attack as to take it outside the scope of joint responsibility.[29]We are satisfied that, for any one or more of these reasons, the jury could logically have been unsure of Thomas’ guilt on count 1, despite being sure of his guilt on counts 2 and 3. The Recorder was right to say that, if the jury were not sure of Mr Velagic’s identification evidence and they could not be sure that Thomas was the small pale-skinned white boy on the phone who was acting as the scout, then the case fell away against him on all three counts. But it did not follow that, if they were sure that Thomas was the small pale-skinned white boy on the phone who was acting as the scout, they had to convict him on all three counts. They still had to be satisfied that the prosecution had proved all the ingredients of each offence. The possibility of different verdicts on the three counts was made clear to the jury in the Recorder’s general directions to them (see para 23(ii) above). More importantly, in the passage of the summing up referred to at para 24 above immediately before the passage relied on by Mr Chawla, the Recorder told the jury that the prosecution case was that, if Thomas was not guilty of murder or manslaughter, “then he is certainly guilty of count 3, in orchestrating the raid on the Windmill Park Estate, and of count 2, in playing a part in it on the estate as it developed.”[30]Nothing that was said by the Recorder in his answer to the second jury question varied or undermined that position.[31]For these reasons, we are satisfied that the jury’s verdicts are readily explicable and are not inconsistent with each other. We dismiss Thomas’s appeal against conviction.

The appeal of Rahimi against conviction

[32]There was evidence from co-defendants at the trial that Rahimi was present at the meeting at the Hummingbird Café. The CCTV footage of the first bus journey after the meeting at the café showed Rahimi as part of the group. There was telephone evidence which showed that his number was in use on 3 September. He gave a no comment interview to the police and submitted a written statement in which he said:
“On the 3rd September 2007, I had decided to visit my brother. I caught a 207 bus at Ealing, whilst on this bus I saw a friend of mine with some other boys, I said to my friend I was going to my brother’s house. My friend asked me if I wanted to go to the Windmill Estate with him. I got off the bus with him just to see what was happening. I did not intend to take part in anything that might occur. I walked with my friend into the estate with the other boys in front of us. I remember we were right at the back, I was talking to my friend the whole time were walking. At one point I saw the boys at the front stop, I could see they were facing another group of boys from where I was standing, I could see two of the boys scuffling. I then noticed blood on their clothes. At this point I decided to run away with my friend. We ran out of the estate and initially waited for a bus. As we waited other boys came towards us so we moved further away. I eventually caught a bus to my brother’s. ”
[33]The only ground of appeal now pursued is that the Recorder was wrong to admit evidence of bad character in the case against Rahimi. The bad character was admitted in the form of written admissions in these terms:
“On 4 September 2006, Ramin Rahimi, together with Daniel Thomas and two other unidentified youths robbed two other youths of their mobile telephones. Daniel Thomas punched one of the victims in the chest. One of the unidentified youths pulled out a knife, which was brandished in front of the victims. On 6 September 2007, Ramin Rahimi and another youth robbed two other youths of a bicycle at knifepoint. Rahimi was not the person who produced the knife.”
[34]The prosecution submitted to the Recorder that the evidence was relevant to an important issue between the prosecution and the defence within the meaning of section 101(1)(d) of the 2003 Act.[35]Section 101(1) of the 2003 Act provides:
“In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— (d) it is relevant to an important matter in issue between the defendant and the prosecution”
. Section 101(3) provides:
“The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
Section 103 (1) provides:
“For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include- (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence…” (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence…”
[36]As we have seen, Rahimi denied any involvement in the attack on the deceased and gave an innocent explanation for his presence on the Windmill Park Estate. The prosecution said that participation was, therefore, in issue and the two convictions demonstrated a tendency either to carry knives or to be in the company of others who carried knives and were prepared to use them.[37]In his ruling on 14 November 2008 that the evidence could be admitted, the Recorder said:
“Rahimi’s case is derived from his prepared statements, which indicate that his presence on the Windmill Park Estate that night was entirely accidental and unconnected with the MDP quarrel with the Grit Set. He just happened to see what was happening and ran away at the sight of blood. It begs a relevance to the fact that his findings of guilt indicate that he was party to two knife-point robberies, the second, three days after the events of 3 September, and the Crown’s invitation to examine this explanation and such evidence as there is of his presence on the estate, admissible solely against him, in the light of those convictions. Section 101 (1) (d) (inaudible) is conceded but subsection (3) is pleaded, favours the issue of whether the admission of the convictions is such that they would have such an adverse effect on the fairness of the proceedings that I ought to prevent it. I am not so persuaded, provided the basis of each finding of guilt is tailored to make it clear that in each incidence he was convicted on the basis of being party to the use of a knife by others, and not, in each incidence, the knife man himself. ”
[38]It is conceded by Mr Cotter that participation was an “important matter in issue” so far as count 1 was concerned. But that count was withdrawn from the jury in relation to Rahimi on 17 November following a submission of no case to answer at the close of the prosecution case.[39]As regards count 3, Mr Cotter concedes that on the evidence there was an agreement to inflict grievous bodily harm. The only issue as regards Rahimi was whether he was a party to it. The evidence against him included that(i) he was present at the Hummingbird Café;(ii) he travelled with the group to the estate;(iii) he covered the lower part of his face with a blue bandana whilst he was leaving the first bus half way to the estate; and(iv) he went on to the estate with the group.[40]As regards count 2, section 6(2) of the Public Order Act 1986 provides:
“a person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence”
. In his summing up the Recorder directed the jury that one of the elements of which they had to be sure was whether Rahimi “either caused or threatened unlawful violence, intended to use unlawful violence, or at the very least was aware that his conduct may be violent and threatening”: see summing up Volume III(a) p 35C. Having accepted that he was present within the group on the estate (thereby accepting the actus reus of the violent disorder), the only remaining question was whether Rahimi had the requisite mens rea for violent disorder.[41]Mr Cotter submits that, once the murder count had been removed from the jury, the central questions were(i) whether Rahimi was party to the conspiracy (count 3) and(ii) whether, whilst on the estate, he intended to use unlawful violence or at the very least was aware that his conduct might be violent or threatening (count 2). Mr Cotter concedes that the jury were entitled to look to Rahimi’s presence on the estate in determining the first of these questions and, if they decided it in the affirmative, they were entitled to take that into account in determining the second question.[42]Mr Cotter has developed a closely reasoned argument in support of his submission that Rahimi’s bad character was not relevant to an important issue between the defence and the prosecution in relation to counts 2 and 3; and that in any event it should not have been admitted by reason of section 101(3). He advanced three submissions:(i) the evidence was not relevant to an important issue at all;(ii) the bad character evidence did not support a propensity in Rahimi to commit offences of the kind with which he was charged; and(iii) there was an insufficient nexus between the facts represented by the bad character evidence and the alleged facts which formed the basis of counts 2 and 3.[43]Mr Cotter emphasises that it was not in issue that Rahimi was part of the armed gang that was marching through the estate or that he had been with the gang at the Hummingbird Café. He submits that the main issue for the jury was whether he had the requisite mens rea or whether he was an innocent observer. He says that the bad character evidence was not relevant to that issue. On the other hand, the prosecution case was that the jury would be assisted in reaching their verdicts on counts 2 and 3 and in deciding whether Rahimi was aware of the existence of the knife or knives on the estate before and/or at the time of the fatal attack by the bad character evidence which was relevant to that question.[44]Mr Cotter accepts that there were a number of features which were common to the two robberies which comprised the bad character evidence. These were:(i) the offences were committed by a small group;(ii) they involved apparently random targeting;(iii) no violence was used by Rahimi himself;(iv) one knife was produced (not by Rahimi);(v) relatively low value single items were taken. By contrast, Mr Cotter submits that counts 2 and 3 involved: (i) offences committed by a large group (associated by gang membership); (ii) organised and planned violence; (iii) targeting of a particular location; (iv) targeting of members of a specific group; (v) intention to inflict really serious harm;(vi) actual use of violence;(vii) an array of weaponry; and(viii) offences motivated by revenge.[45]Mr Cotter submits that the distinctions between the features of the two robberies and those of counts 2 and 3 were significant. The fact that Rahimi had demonstrated a propensity to attach himself to the specific criminal enterprise of robbery in circumstances where knives were produced and/or used did not establish a wider propensity to attach himself to criminal enterprises generally where knives were produced and/or used. In short, he submits that it is artificial to assert that the two robberies that were admitted in evidence were capable of establishing a general propensity to commit offences whilst in the company of others who possessed and were prepared to use knives, when in fact the bad character evidence was nothing more than the bare minimum necessary potentially to establish a propensity to commit knifepoint robbery.[46]Mr Cotter also submits that, in addition to the fact that the evidence did not satisfy the propensity requirements of section 101(1)(d), its admission was likely to have such an adverse effect on the fairness of the proceedings that it should not in any event have been admitted for that reason.[47]Mr Cotter relies on R v Hanson [2005] EWCA Crim 825, [2005] 1 WLR 3169, [2005] 2 Cr App R 21 in support of his submission that there must be some nexus beyond mere similarity between the convictions which are the subject of the application and the charge or charges which is or are the subject of the proceedings in which the application is made. At para 10 of its judgment in Hanson, this court said that, when considering what is unjust under section 103(3) of the 2003 Act and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit that they are both within the same description or prescribed category. At para 11, the court said that old convictions, with no special feature shared with the offence charged, are likely seriously and adversely to affect the fairness of the proceedings, unless, despite their age, it can properly be said that they show a continuing propensity. At para 15, the court said that, if a judge has directed himself or herself correctly, this court will be very slow to interfere with a ruling as to admissibility.[48]Mr Cotter also relies on R v Tully and Wood [2006] EWCA Crim 2270. In that case, the court said that there must be a degree of similarity between what a defendant has done in the past and what he is now charged with. The similarities do not have to be striking. But the fact that the convictions are for offences of the same description or category within section 103(2) does not automatically mean that they should be admitted. It is not possible to define the exact degree of similarity that must be shown. That must be for the judgment and discretion of the judge.[49]We consider that the Recorder was entitled to admit the bad character evidence. This is not a case where the previous convictions were for offences of the same description or category as counts 2 and 3. The Recorder did not, therefore, make the mistake warned against in Tully and Wood. The fact that Rahimi knew that a knife or knives was or were present was not only relevant to count 1. It was also relevant to the other counts. If the jury accepted that Rahimi was aware of the knife or knives, this could help them in reaching a conclusion as to whether he had the mens rea necessary for counts 2 and 3. The fact that he had a propensity to join others in criminal enterprises in which knives were used or might be used was evidence which they could rely on in arriving at a conclusion as to whether he was aware of the existence of a knife or knives on 3 September 2007. The presence of a knife in the robberies and the alleged presence of a knife or knives in the instant case provided a potentially important link.[50]We acknowledge the force of the points made by Mr Cotter to distinguish the facts which gave rise to the previous convictions and the facts of the instant case. But the Recorder was entitled to hold that the common feature of Rahimi’s willingness to participate in criminal activity in which, to his knowledge, knives were or might be used was sufficient to justify admitting the bad character evidence. The question of whether there is sufficient similarity to admit bad character evidence often involves a judgment of fact and degree. As was said in Hanson, this court will be very slow to interfere with a ruling on such a question unless the judge has misdirected himself or herself. No misdirection is alleged here. We see no reason to interfere with the Recorder’s judgment. His conclusion was one which he was fully entitled to reach.[51]For these reasons, we dismiss Rahimi’s appeal against conviction.

The appeal of Cyrus against conviction

[52]Cyrus has two grounds of appeal. The first (on which the single judge gave leave to appeal) is that the Recorder was wrong not to give the jury a direction pursuant to R v Turnbull [1977] QB 224, 63 Cr App R 132 in relation to the identification evidence given by Mr Awhussein which the prosecution say linked Cyrus to the attack on Mr Abdirahman. The second ground is that the Recorder should have acceded to the defence submission at the close of the prosecution case that there was no case to answer. Mr Evans QC renews the application for leave to appeal on this ground following the refusal by the single judge.

Ground 1

[53]Mr Evans submits that a Turnbull direction was required in this case. The evidence of Mr Awhussein was central to the prosecution case that Cyrus was on the estate at the material time. An important part of his evidence was the description he gave to the police of the person who he said was holding Mr Abdirahman during the attack. As recorded by the Recorder at Volume III(a) of his summing up at p 114A, in answer to the question whether he could describe the person who was holding Yasin, Mr Awhussein said:
“Yeah. That’s the one that was like, when they were coming towards us, he was on the end. The reason I recognised because he was short as well, like proper short. He was wearing a black top and he had a funny walk. It’s like he was limping or something. He was walking funny, and he was carrying a bottle, like a square bottle, and it was green.”
And at p 115A, the Recorder recorded this answer:
“He was wearing a black top. I can’t remember whether he had a bandana. I’m not sure, but I know his hood wasn’t fully on, like on the top of his head here. He was short, he was carrying a bottle. I think he had [the next word is inaudible], he might have had braids, I’m not sure, or it might have been just his hair was picky or what. I know he had quite long hair. “He had braids or his hair was picky, because you can get your hair cut like that now. Anyway, it looks like braids, could be that. He was short, he was quite built, he looked younger than the rest of them. That’s all I can remember. I can’t remember the face, nothing.”
Mr Evans submits that there were many weaknesses in the evidence of Mr Awhussein. He relies on these in support of the second ground of appeal. But he also relies on them as showing that it was particularly important in this case for the judge to give the jury a Turnbull direction.[54]In our judgment, no Turnbull direction was required in this case because Mr Awhussein did not purport to identify Cyrus. All he did was to describe the person he saw. There is a fundamental distinction between(i) identification evidence (“I identify the person standing at no 3 on the identification parade as the man who stabbed X”) and(ii) descriptive evidence (“the person who stabbed X was short and was wearing a blue bandana”). A Turnbull direction is required for (i), but not for (ii). This distinction was clearly made in R v Popat [1998] 2 Cr App R 208, 219C (Hobhouse LJ giving the judgment) and applied by this court (Henry LJ giving the judgment) in R v Gayle (Nicholas) [1999] 2 Cr App R 130, 135. Henry LJ put the reason for the distinction crisply in these terms:
“The fallacy of Mr Lynch’s submission is demonstrated by the qualitative difference between identification evidence and what the judge called “evidence of description”
. The special need for caution before conviction on identification evidence is because, as experience has often shown, it is possible for an honest witness to make a mistaken identification. But the danger[s] of an honest witness being mistaken as to distinctive clothing, or [as to] the general description of the person saw (short or tall, black or white etc., or the direction in which he was going) are minimal. So the jury can concentrate on the honesty of the witness, in the ordinary way.”[55]Despite this clear statement of the law in the authorities, Mr Evans maintains that the judge should have given a Turnbull direction in this case. First, he relies on the decision of this court in R v Collins and Keep [2004] EWCA Crim 83, [2004] 1 WLR 1705, [2004] 2 Cr App R 11 and secondly, he relies on the weaknesses in the descriptive evidence of Mr Awhussein.[56]In R v Collins and Keep, a police officer gave evidence that the person he saw looked like Keep, a man he had known for 20 years by reason of his general or facial appearance. The judge refused to give a Turnbull direction. This court said at para 55 that the fact that someone was seen by the officer who looked like Keep “would have little probative value independent of the strength of the quality of the identification of the person as Keep….In essence, the evidence could only be relied upon by the prosecution as showing that Keep was in the vicinity because at a distance of 50-75 yards at night PC Parlour had thought it was Keep, someone he had known for 20 years.” In those circumstances, the court held that a Turnbull direction should have been given. The reason for this appears to have been that, in substance, PC Parlour did not merely describe the person he had seen, but also identified him as Keep.[57]In our judgment, the facts of that case are plainly distinguishable from those of the instant case. Mr Awhussein did not say that the person he described looked like Cyrus. He did not purport to identify Cyrus, because he did not know Cyrus. All he did was to describe the boy who was holding Mr Abdirahman during the attack. This was a case of descriptive evidence, no more and no less.[58]The fact that there were weaknesses in Mr Awhussein’s evidence (which the Recorder identified in his summing up) was irrelevant to the question whether a Turnbull direction was required. It is clearly established that, if a Turnbull direction is required, the judge should draw any weaknesses in the identification evidence to the attention of the jury. But it is fallacious to reason that because there were weaknesses in the evidence of Mr Awhussein, a Turnbull direction was required. Such a direction is only required in relation to identification evidence. It was not required here.[59]Accordingly, we reject the first ground of appeal.

Ground 2

[60]Mr Evans submits that the Recorder should have withdrawn the case against Cyrus from the jury on the grounds that(i) the prosecution case, taken at its highest, was such that a properly directed jury could not reasonably have concluded that Cyrus was present on the estate at the time of the attack; and/or(ii) there was insufficient evidence to establish that Cyrus had participated in or had encouraged the attack on the deceased.[61]Mr Evans submits that it was unsafe for the jury to rely on the prosecution evidence for many reasons. Since most of these were matters for the jury to assess, we shall concentrate on what we see as the main reasons.[62]First, Mr Awhussein failed to identify Cyrus on an identity parade. During the course of the parade, he asked to view for the third time the images of two other persons before finally confirming that he could not identify the attacker of Mr Abdirahman. Secondly, as a consequence of this failure by Mr Awhussein to identify Cyrus, Mr Evans submits that the jury could not reasonably have convicted on the basis of his description alone unless they were satisfied that the description was both exceptionally accurate and reliable when compared with the appearance of Cyrus on the CCTV footage.[63]Mr Evans submits that there were several weaknesses in the descriptive evidence of Mr Awhussein when compared with the appearance of Cyrus on the CCTV footage. Cyrus did not have a funny walk. The description about hairstyle was confused and unreliable. Mr Awhussein had described two boys, the taller of whom had attacked him, while the smaller one was holding Mr Abdirahman. He described the taller boy’s hair as “picky”. When he was asked to clarify this, he said that he meant that the hair was “short wavy”. Overall, Mr Evans submits that his description of the hair was unclear. This was unsurprising since Mr Awhussein said that the smaller boy’s hood was up, although he did say that his (the smaller boy’s) head was “sticking out”. Mr Evans also submits that Mr Awhussein demonstrated questionable accuracy when in his evidence he described the taller of the two identifiable youths as 5’8” tall, and in his interviews and statement as 6’1” tall. He also qualified his evidence when being cross-examined on behalf of John-Lewis, saying that the attacker with the bottle was “one of the shortest there”. In other words, he was no longer saying that the attacker was distinctively small when compared with the others.[64]In summary, Mr Evans submits that no reasonable jury could properly convict Cyrus on the basis of the descriptive evidence alone. Furthermore, the conditions in which Mr Awhussein saw the attacker were poor. He had a very short time in which to view the boy with the bottle before his attention was distracted and his view obstructed. After realising that he did not know any members of the group, Mr Awhussein only had a split second to view the persons who were attacking Mr Abdirahman. Mr Abdirahman was immediately surrounded by a group of people, so that it was very difficult for Mr Awhussein accurately to see the characteristics of the attackers. His difficulty in seeing what was happening to Mr Abdirahman was exacerbated by the fact that he was being attacked himself.[65]The judge gave a short ruling. He said:
“I am satisfied that there is evidence specific to the applicant Carlos Cyrus, namely his size in comparison with others in the group. His appearance as manifest from the CCTV evidence of the bus journey to the estate, which combined with the jury’s assessment of Awhussein’s description of how events started, that would permit the jury safely to conclude that the person who began the attack on Awhussein, as described by him, and to be viewed in conjunction with the other material available to the jury was Carlos Cyrus. As such, that material is sufficient in my judgment as to permit a jury properly directed, to convict Carlos Cyrus not only of violent disorder, but of joint responsibility for the deceased’s murder. Accordingly, the case against him will continue on counts 1, 2 and 3.”
Accordingly, the case against him will continue on counts 1, 2 and 3.”[66]In our judgment, the Recorder was right. The weaknesses in the prosecution evidence were all matters for the jury to assess. This was not a case in which it could be said at the close of the prosecution case that no reasonable jury, properly directed, could convict Cyrus.[67]For all these reasons, we dismiss Cyrus’s appeal against conviction. The appeals against sentence Thomas

The appeals against sentence

[68]The only ground of appeal advanced on behalf of Thomas is that the sentence passed on count 2 was unlawful. That is because section 228 of the 2003 Act provides that the term of an extended sentence of detention passed on persons under the age of 18 must not exceed the maximum term of imprisonment permitted for the offence: see section 228(5). The maximum term of imprisonment permitted for the offence of violent disorder is 5 years. Accordingly, we quash the sentence passed in respect of count 2 and substitute a concurrent extended sentence of 5 years detention comprising a custodial term of 4 years (less 170 days spent on remand) and a licence period of 1 year. To that extent only, the appeal against sentence is allowed.

Rahimi

[69]For the same reasons as apply in the case of Thomas, the sentence passed on Rahimi in respect of count 2 was unlawful. In his case too, therefore, we quash the sentence passed and substitute an extended sentence of 5 years detention, comprising a custodial term of 4 years (less 328 days spent on remand) and a licence period of 1 year. To that extent only, his appeal against sentence is allowed. Cyrus[70]Cyrus was only 12 years of age at the time of the offence and 14 years of age at the time of his sentence. In his sentencing remarks, the Recorder said: “In order to have convicted you of his manslaughter, the jury must have been sure that you were present at and joined in the attack in which Yasin Abdirahman was fatally stabbed by someone else, and that at that time you were aware a knife or knives were to be used or were being used by others, and might cause some injury to Yasin Abdirahman. I rehearse that statement of the law, not only to fix the precise limits of your responsibility for the unlawful killing of Yasin Abdirahman but to draw the distinction you are entitled to have drawn between you and the three defendants I have just sentenced.” 71. The Recorder then referred to the analysis of Cyrus’s previous offending made in the pre-sentence report. This comprised assault, attempted robbery, robbery, aggravated vehicle-taking and driving offences all committed during a 4 months’ period from June to October 2007, a period which spanned his involvement in the unlawful killing of Mr Abdirahman. He had served an 8 months’ detention and training order for those offences. He was assessed by the probation officer as posing a medium to high risk of future harm to the public, of medium harm to staff and other offenders in any institution in which he served his sentence, and a high risk of re-offending given, in particular, his pattern of offending prior to the index offence and his gang association.[72]The Recorder accepted the submission of Mr Evans that, having regard to Cyrus’s age, an indeterminate sentence was not justified, whether detention for life or a sentence of detention for public protection. The Recorder concluded that an extended sentence of detention was preferable to a determinate sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, since Cyrus would obviously need long-term community supervision after his release from custody. This would be provided by an extended sentence, but not by a determinate sentence.[73]Mr Evans submits that the Recorder should not have passed an extended sentence at all. But in our judgment, for the reasons given by the probation officer and accepted by the Recorder, his conclusion that the dangerousness criteria were satisfied in this case was amply justified, as was his decision to impose an extended, rather than a determinative sentence.[74]The principal submission made by Mr Evans is that a custodial term of 7 years was manifestly excessive. He does not challenge the extension period of 4 years. He submits that a 10 year custodial term would have been appropriate for an adult. Having regard to the fact that Cyrus was only 12 years of age at the time of the offence and 14 at the time of his sentence, Mr Evans submits that the custodial term should not have exceeded 5 years.[75]We do not agree. It is true that by their verdict the jury showed that they were not sure that Cyrus intended to kill Mr Abdirahman or cause him really serious harm and that he did not have a knife in his possession or use a knife himself. But he joined in the attack and was aware that the knife or knives might be used and that injury might be caused. It is right that full account must be taken of his youth. But he has a worryingly bad record for offences of violence. Above all, he played a full part in this shocking attack on an innocent victim who lost his life. We see no reason to interfere with the sentence passed by the Recorder. The appeal against sentence is dismissed. Williams76. Williams was just 14 at the date of the offence and 15 at the date of sentence. He has 7 previous convictions. These include a conviction for assault occasioning actual bodily harm in July 2007, for which he was sentenced to a Referral Order. The pre-sentence report dated 13 February 2009 stated that Williams showed a lack of insight into the seriousness of his actions and an inability to accept responsibility for what he had done. Whilst he had shown some remorse for his involvement in a group who were clearly looking to cause trouble, he continued to deny any participation in the fatal attack. But he did show insight into the impact the offence had on the victim’s family and friends. We have also seen a report on his progress in detention which can perhaps best be described as variable.77. In passing sentence, the Recorder identified as the aggravating features the degree of planning and premeditation, the use of a weapon in the course of street gang activity, exacerbated in Williams’s case by the existence of certain internet material on his My Space web page (“Me, myself and my shank”) which, to use the words of the Recorder “comes very close to home in what happened to Yasin Abdirahman”. The Recorder also had regard to the previous convictions which demonstrated “a propensity towards violence and recklessness at a very early age”. He then said: :
“What mitigates your offending is your age in comparison with your co-defendants, and over and above the minimum term set to reflect a young age anyhow, so that there is permissible double counting in your favour. The fact that, as I said to Sheldon John-Lewis, I have no evidential basis on which to be sure that you wielded a knife that night, as opposed to participating in an attack in which, to your knowledge, a knife was used, is reflected in the conclusion which I come to, applicable to you, that your intention was not to kill but to cause really serious injury. I take into account the evidence I heard in the trial that even before conviction you started to make significant progress in custody, so demonstrating maturity in accepting and succeeding to a marked degree, that evidence demonstrated, the educational opportunities and training which have been offered to you.” 78. Mr Tansey QC submits that the minimum term of 14 years was too long. His principal submission is that Williams did not play a major role in the planning of the revenge march to the estate and the fatal attack. That role was assumed by John-Lewis. Mr Tansey submits that the Recorder did not sufficiently differentiate between Williams and John-Lewis in terms of their respective ages and roles. John-Lewis was 17 at the time of the offence, 3 years and 8 months older than Williams. As regards role, the Recorder noted that John-Lewis’s “forceful personality and charisma within the gang was fully exercised that night”
. He said that John-Lewis was responsible for much but not all of the subsequent events. The aggravating features which the Recorder identified in the case of John-Lewis included the significant role he played in the planning and execution of the raid on the estate. By way of mitigation, the Recorder accepted that John-Lewis was guilty of murder on the basis of participation in the killing with an intent to cause really serious harm, and not an intent to kill. He also accepted that the pre-sentence report and the letter that John-Lewis had written indicated that “with your intelligence and grasp of the realities of life since your conviction, you have at least started on the process of rehabilitation.” John-Lewis had previous convictions, but these were less serious than those of Williams. 79. The appropriate starting point in determining the minimum term of both Williams and John-Lewis was 12 years: see para 9 of Schedule 21 of the 2003 Act. The most significant aggravating factor in both cases was that there was a significant degree of planning and premeditation. But there were two important mitigating factors. First, in both cases the intention was to cause really serious bodily harm rather than to kill. Secondly and crucially, Williams was just 14 at the date of the offence, i.e. some 3 years and 8 months younger than John-Lewis and some 4 years below the cut-off age of 18 provided by para 9 of Schedule 21 of the 2003 Act. 80. In order to produce a reasonable and fair balance between the sentences passed on Williams and John-Lewis, these sentences had to reflect not only the differences in their ages, but also the fact that John-Lewis was, as the Recorder emphasised, the charismatic leader of the gang and the principal organiser of the fateful expedition. In our judgment, the disparity in age and role of these two young men called for a substantial difference in their minimum terms. This difference should not have been significantly affected by the fact that Williams had a somewhat worse criminal record or by his website material. A difference of 1 year was not enough. 81. We acknowledge that the Recorder was in a better position to judge differences in role than we are and we are conscious that he is a very experienced judge. Nevertheless, we consider that he did not sufficiently reflect the difference in age and role of these two young men in the sentences that he passed. In our judgment, a difference of 3 years in their respective minimum terms was appropriate. But for the reasons that we have already given, even if the sentence passed on John-Lewis is left out of account, we consider that the appropriate minimum term in the case of Williams was one of 12 years since the aggravating and mitigation factors in his case more or less cancel each other out. 82. For these reasons, we quash the minimum term passed and substitute one of 12 years. To that extent only, the appeal of Williams against sentence is allowed.

Cited in 1 later judgment