Khan & Ors, R v [2010] EWCA Crim 1692

Case No 2009/02036/B1; 200902047B1; 200902178B1[2010] EWCA Crim 1692IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/07/2010
Before
LORD JUSTICE MAURICE KAYMR JUSTICE CALVERT-SMITHMR JUSTICE CRANSTON
Between
RCrownSHAFIQ KHAN, NAZEER KHAN & MASKEEN KHANDefendant
Mr Andrew Stubbs QC for Shafiq KhanMr Michael Harrison QC for Nazeer KhanMiss Frida Hussain for Maskeen KhanMr David Hatton QC and Mr Elyas Patel for CrownHearing Hearing date : 29 June 2010
JudgmentLord Justice Maurice Kay :
[1]On 23 March 2009, in the Crown Court at Bradford, Shafiq Khan and Nazeer Khan were each convicted of offences of murder and wounding with intent arising out of an incident on 26 May 2008 in Highfield Place, Bradford. Shafiq Khan was also convicted of an offence of violent disorder in respect of a separate but related incident earlier the same day. Maskeen Khan was also convicted in relation to the Highfield Place incident. He was acquitted of murder but convicted of manslaughter and wounding with intent. For the offences of murder Shafiq Khan and Nazeer Khan each received sentences of life imprisonment with a minimum term of 12 years. For the offences of wounding with intent they each received concurrent sentences of 4 years imprisonment. Shafiq Khan also received a sentence of 4 years imprisonment concurrent in relation to the violent disorder. Maskeen Khan was sentenced to 5 years imprisonment for the offence of manslaughter with a concurrent sentence of 2 years imprisonment for the wounding with intent. Nazeer Khan was acquitted of the offence of violent disorder and both Shafiq Khan and Nazeer Khan were acquitted of offences in relation to a yet earlier but allegedly related incident on 18 May 2008.[2]Shafiq Khan and Nazeer Khan now appeal against conviction by leave of the single judge. They also renew applications for leave to appeal against conviction on grounds that were refused by the single judge. All three men were refused leave to appeal against sentence by the single judge but seek to renew their applications. We shall refer to them respectively as Shafiq, Nazeer and Maskeen. The prosecution case at trial was that all the offences were committed over a period of time when there was considerable ill feeling between two groups. The indictment and the evidence related to three incidents. The first occurred on 18 May 2008 in Manningham Park; the second on 26 May 2008 in Durham Road; and the third later on 26 May in Highfield Place. The third incident ended with the killing of Shoaib Khan (the Deceased) and the serious wounding of Zahoor Hussain. These two men were part of the opposing group.[3]Even before the incident in Manningham Park, trouble had been brewing between the two groups. Indeed, it seems to have originated out of an earlier relationship when members of both groups had together been convicted of drugs offences. The Manningham Park incident occurred after some of those convicted in relation to the drugs offences had been released from prison. The prosecution case was that Shafiq and Nazeer had gone to Manningham Park and, whilst there, each had handled a gun with which Yasser Nawaz was threatened. It was also said that Shafiq had fired the gun. However, as we have said, Shafiq and Nazeer were both acquitted in relation to the Manningham Park incident.[4]So far as the Durham Road incident is concerned, the allegation was that Shafiq, Nazeer and another man had been involved in an attack upon Eyas Khan and his vehicle. Eyas Khan was a neighbour and associate of Yasser Nawaz.[5]All this culminated in the events in Highfield Place later the same day. The case for the prosecution was that, following the incident in Durham Road, Eyas Khan organised a revenge attack which resulted in about 20 men going to the home of Shafiq and Nazeer at Highfield Place, where windows were broken and there was considerable shouting and unpleasantness. Eyas Khan’s foot soldiers then withdrew, whereupon a Volkswagen Golf arrived at the scene. It was driven by Zahoor Hussain. The Deceased (Eyas’ brother) was in the front passenger seat, wearing a balaclava. Mohammed Ravat was in the rear. The Deceased fired shots from a hand gun in the direction of 8 Highfield Place. The vehicle was then reversed into a wall whereupon it was attacked. In the course of the attack the Deceased was fatally stabbed and Zahoor Hussain also received two penetrating stab wounds to his back.[6]An eye witness was called by the prosecution and was permitted to give evidence anonymously. She was given the name of “June Waterhouse”. She said that she had been nearby when she had heard the sound of a lot of glass being broken and an outbreak of screaming. A group of six or seven Asian males were screaming and shouting at a house in Highfield Place. They appeared to be intimidating the people inside and were screaming for someone to come out. Females were screaming inside. She kept the group outside under observation for 2 or 3 minutes but did not see that any had weapons. She walked away. The noise and screaming continued to such an extent that some 5 to 10 minutes later she returned to investigate. On this occasion, from a point in Highfield Place which she identified, she saw three Asian males standing in the street. These were not the ones she had seen earlier but were “new people”. They were facing a car which was approaching and they appeared to be readying themselves. They appeared to be holding something by their sides and were staring very seriously. The car approached the three men and went past them at a crawling pace. She was less than 5 to 10 feet away. She heard a lot of noise from the car. There was a driver, a front seat passenger and at least one other. The front passenger wore a balaclava. All three were “dumped down” in their seats. The front passenger window came down and the front passenger pulled out a hand gun which he pointed at the men in the street. She felt frightened and proceeded to walk and then ran down Highfield Place. As she did so she heard a number of shots, possibly between five and seven in rapid succession. She also heard something said. By this time she was about 20 to 30 metres away. She could not recall the language but the words were to the effect:
“Move forward, let’s get them”
. In her police interview she had said that the words were “Come on, let’s go forward”. She said that this was more likely to be accurate as it was closer in time to the event. She could not recall if the language was English or “Pushto”. She would not have understood if it had been the latter. However, the words spoken made complete sense to her and she had understood what had been said. She had also heard the sound of a car screeching and hitting something. This was just after the words from the individuals urging each other to go forward. Then she heard glass breaking, like a car windscreen being crunched. There was screaming and shouting from many different voices, high pitched as if people were in pain. As she left, the noise seemed to escalate. It all happened very quickly, within a minute and a half. At the bottom of Highfield Place she slowed down and called the police. Of the three Asian men in the street she said that she did not know them by name but had seen them previously. She later identified Shafiq and Nazeer as being two of the men and said that Shafiq had been holding a weapon. She had not seen where they had come from but had assumed that they had come from the house at the end of Highfield Place because she understood that they lived there.[7]Following phone calls to the police from that witness and from people within 8 Highfield Place, police officers attended the area. They found the Deceased wounded and unconscious beside the car and Zahoor Hussain a short distance away. Another officer spoke to Shafiq and Nazeer in East Squire Lane. They gave their details and said that they lived at 8 Highfield Place. They were polite but agitated and nervous. They were arrested a short time later.[8]Shafiq said in interview that he had been in the house when he had heard windows being smashed. He had seen a large group outside attacking the house with bricks, sticks and hammers. He went outside. He saw about ten lads fighting in the street. He saw a car coming towards him and his brothers. A gun came from the passenger window and started firing so he hid behind a wall. After a few minutes he went back out and saw the car smashed up and three to four lads running off. In his interview, Nazeer described the attack on 8 Highfield Place. He had heard gunshots. He had gone outside with Shafiq. He saw four or five cars, one of which tried to run him over. He had had contact with that vehicle, possibly with the side mirror. The car had reversed, the windows opened and someone fired a gun at him from the passenger window. He ran back into the house and went upstairs to get a better view. When he saw the police arriving, he went out again. Maskeen gave an account which began with his hearing the windows breaking and shots being fired. He said he went out of the house into the street with his three cousins (including Shafiq and Nazeer). Shots were fired and a car came at him. There were people behind the car. He ran indoors and told his wife to call the police.[9]The prosecution relied on forensic evidence. An expert in glass analysis examined clothing from Shafiq, Nazeer and Maskeen. Nazeer’s top contained 20 glass fragments matching four categories of glass from the windows of the Golf. This provided extremely strong support for the proposition that Nazeer had been in contact with breaking or broken glass from the car. Maskeen’s clothing revealed 15 fragments of glass, providing very strong support for the proposition that he had been in contact with breaking or broken glass from the Golf. It was possible that the fragments were the result of secondary transfer but primary contact was more likely in both his and Nazeer’s case. Shafiq’s trousers revealed one fragment of glass and his top revealed two further fragments from the Golf. However, because there were only three fragments secondary transfer could not be ruled out in his case.[10]There was also expert evidence about blood. The Deceased’s clothing was extensively soaked in his own blood which caused the expert witness to conclude that he had suffered a prolonged stabbing and slashing attack. Much of the blood was inside his clothing and there was accordingly a low probability of it having been transferred to the assailants. Shafiq’s clothing was examined. His tracksuit bottoms revealed DNA matches to both Maskeen and Zahoor Hussain. Blood on his trainers matched DNA from the Deceased and also from Maskeen, Shafiq and Zahoor Hussain. Four spots of blood on the side of his shoe supported the view that he had been within a metre or so of the Deceased whilst his blood was airborne. As to whether this could be from having trodden in a pool of blood, the expert favoured the proposition that the blood had projected from an impact or exhalation because the spots were tiny and perpendicular. The blood on his tracksuit bottoms was consistent with his having been in close proximity to an assault upon Zahoor Hussain. Nazeer’s top bore smeared a contact blood stain on the cuff which had come from the Deceased. It was most likely to have resulted from direct contact with the Deceased because there was not much blood at the scene. His waist band matched blood from Shafiq. Blood on his trainers matched that of Maskeen and Zahoor Hussain. Maskeen’s clothing contained some of his own blood and his blood was also found on Shafiq and Nazeer.[11]The Volkswagen Golf was examined. Shafiq’s blood was on the door post between the seatbelt housing and the ceiling on the driver’s side and this was consistent with airborne blood, for example with his having been injured within a metre of the car and having flicked the blood from his fingers. His blood was not present on the passenger’s side. Maskeen’s blood was on the outside of the car, halfway up the metal part of the driver’s door.[12]A ballistics’ expert referred to four bullets found at the scene. They had been fired from the same gun. He concluded that the gun had been fired from the nearside of the car, adjacent to or behind the windscreen, consistent with the firer having been in the front passenger seat but holding the gun outside the window. A high level of primer residue was found on Shafiq’s clothing, suggesting that he had been very close to a gun when it was fired. Very high levels of metallic primer residues were found on Nazeer’s clothing, suggesting that he had been within two to three metres of a gun when fired.[13]All three defendants gave evidence at trial. Shafiq’s evidence varied from what he had said in interview. In evidence he described going outside the house with a broomstick for protection. He saw a vehicle coming towards him very quickly with the front passenger hanging out. The car passed him and stopped with him on the driver’s side. He thought the driver was going to get out so he started to hit him with the broom handle. He saw the passenger had a gun which was pointed towards him so he ran back into the house, hearing two or three shots as he went. When he went back outside someone was running towards him, covered in blood. He believed the man was going to attack him so he started to hit him again with the broomstick. The man then ran away. By inference, this was Zahoor Hussain. He saw a man lying in the street which turned out to be the Deceased. He said that he had lied in interview because he had been scared.[14]Nazeer’s evidence was broadly consistent with his account in interview.[15]Maskeen’s evidence was that he had left the house with a stick to protect himself and his family. His intention had been to bring his brothers back into the house. He saw a car travelling fast towards him. The front seat passenger was hanging out. Maskeen went one way and Shafiq went the other. He did not see Shafiq hit the driver of the car with a piece of wood. He did not see a gun although the front seat passenger did fire three shots when he was close to the car. He ran back to the house. He did not see the car reverse or crash. In the house he told his wife to call the police. When he went back out into the street, he saw a person lying on the ground.

The appeals against conviction

[16]Shafiq and Nazeer have leave to appeal against conviction in relation to the anonymous witness, June Waterhouse. They were refused leave to appeal against conviction on other grounds but have renewed their applications before us. Maskeen does not seek to challenge his conviction for manslaughter or wounding with intent. (1) The anonymous witness order[17]At one stage the Crown had given notice that they would seek orders under the Criminal Evidence Witness Anonymity Act 2008 in relation to eight witnesses. However, at trial they limited their application to one witness, having decided not to call the other seven. We shall have to return to that decision when we come to the renewed applications for leave to appeal.[18]We have already described the evidence given by June Waterhouse. It was derived from what she had said in a transcribed interview. She had made a later witness statement describing her fear about giving evidence and the reasons for it.[19]At the time of the trial, applications for a witness anonymity order fell to be considered under the Criminal Evidence (Witness Anonymity) Act 2008. By section 1(2) of the Act, the previous common law rules, which had been set out in the case of Davis (2008) UKHL 36 shortly before the passage of the Act, were abolished. In their place, the Act provided a statutory code. Section 2 defined a witness anonymity order as an order “that requires such specified measures to be taken in relation to a witness in criminal proceedings as the Court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.”[20]The central provisions were set out in sections 4 and 5, which read as follows. “4(1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings.(2) The court may make such an order only if it is satisfied that Conditions A to C below are met.(3) Condition A is that the measures to be specified in the order are necessary – (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).(4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial.(5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that – (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made.(6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in sub-section (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness – (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, if the witness were to be identified. 5 (1) When deciding whether Conditions A to C in section 4 are met in the case of an application or a witness anonymity order, the court must have regard to – (a) the considerations mentioned in sub-section (2) below, and (b) such other matters as the court considers relevant. (2) The considerations are – (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness – (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associate of the defendant; (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than making a witness anonymity order specifying the measures that are under consideration by the court.” (2) The court may make such an order only if it is satisfied that Conditions A to C below are met. (3) Condition A is that the measures to be specified in the order are necessary – (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise). (4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial. (5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that – (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made. (6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in sub-section (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness – (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, if the witness were to be identified. (2) The considerations are – (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness – (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associate of the defendant; (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than making a witness anonymity order specifying the measures that are under consideration by the court.”[21]In Mayers and others [2008] EWCA Crim 2989

Lord Judge CJ said of section 5 (at paragraph 19):

“None of these considerations outweighs any of the others, and the order in which they appear does not represent an order of priority or importance. They are not exhaustive or restricted to those expressly mentioned, and they leave open the possibility that in an individual case some further point may properly arise for consideration. Equally, none is conclusive on the question whether the individual defendant will receive a fair trial. Moreover, none precludes the possibility of an anonymity order, but these considerations do not diminish or minimise the crucial requirement that before an order may be made conditions A to C in section 4 must be met. It is nevertheless clear from even a cursory glance that the focus of the considerations in section 5 is protection of the interests of the defendant.”
[22]For a time, in the light of the judgment of the Fourth Section of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom [2009] 49 EHRR 1, doubt was cast on the compatibility of the statutory provisions with Article 6 of the ECHR. However, it is now clear from the decision of the Supreme Court in Horncastle and others [2009] UKSC 14 that our task is to apply the statutory provisions, as explained in Mayers.[23]In a ruling given on 9 February 2009, the trial judge, Teare J, granted the application for witness anonymity in relation to June Waterhouse. He ordered the following measures:
“(a) The witness’s true details be removed from disclosable material. (b) The pseudonym ‘June Waterhouse’ be used. (c) Her true identity be withheld. (d) She give evidence via video link. (e) She not be asked questions that might lead to her identification. (f) Her voice be disguised except from the judge and jury. (g) Her image be pixilated, except from the view of the judge and jury.”
[24]The reason why only the judge and jury were to be permitted to see the natural appearance of the witness on the video-link and hear her natural voice was that initially defence counsel were not able to give an undertaking that, if they were to see the natural appearance and hear the natural voice, they would not reveal what they had seen or heard to their professional or lay clients. However, they were later able to give such an undertaking and measures (f) and (g) were relaxed for their benefit.[25]On any view, the ruling of the trial judge was expressed with clarity and care. It occupies 28 pages of transcript. Nevertheless, the first question we have to consider is whether, as Mr Stubbs QC and Mr Harrison QC submit, the judge was wrong to make the witness anonymity order. In this court, the issue is focused on Condition B, that is whether, having regard to all the circumstances, the specified measures “would be consistent with the defendant receiving a fair trial”. It is not suggested that the judge fell into any error in relation to Conditions A or C.[26]Mr Stubbs prefaces his submissions on this issue with a reference to a comment by the Lord Chief

Justice at an early stage in the judgment in Mayers (at paragraph 10):

“As we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required.”
[27]Mr Stubbs submits that this did not take place and that, as a consequence, the defendant did not receive a fair trial. He further submits that the lack of a sufficient enquiry is evidenced by the readiness of the judge to allow the witness to “self-certify” her impartiality.[28]In his ruling, the judge observed that the defence had been informed that the witness had been asked whether she knew the Deceased, Zahoor Hussain or Eyas Khan but had replied in the negative. The judge said:
“In these circumstances, if the witness is asked whether she knows, or is connected with those who attacked the house and answers ‘No’ the defendants will not – it seems to me – be prejudiced in not knowing the identity of the witness. … Of course, if the witness answers ‘Yes’ to any such question, then the matter would have to be immediately reviewed … At present, therefore, I consider that the witness’s evidence can properly be tested in this regard without her identity being revealed.”
[29]The judge then addressed the question of possible bias against the defendants, but rejected it on the same grounds. He then said:
“The [next] issue is whether there is reason to believe that the witness is hostile to the defendants because of what the witness knows of them and may, therefore, give dishonest evidence. … In what has been described as her fear statement she said that she ‘kind of knows what those individuals are like and she knows the sort of things they get up to’. In January of this year, after counsel had given certain advice, she was asked whether she had an axe to grind against the defendants. She said she did not and she barely knew the defendants and did not know them by name. The defendants have not identified any event or events concerning them which may have caused others to have such a damaging view of them that such persons might have a motive to give dishonest evidence against them. In those circumstances, if the witness is asked whether she has a reason to be hostile to the defendants and answers ‘No’, the defendants will not, it seems to me, be prejudiced in not knowing the identity of the witness. They have not identified any event which might have caused those who are aware of such event to have such a hostile view of them that it might make it necessary to know who the witness is. Of course if the witness answered ‘Yes’ to any question, then the matter would have to be immediately reviewed.”
[30]In other words, the judge satisfied himself that enquiries had been made of the witness with a negative result. It is apparent from the way in which he expressed himself, that he anticipated that defence counsel might themselves cross-examine her about these matters, without of course doing so in a way which might lead to her identification. In the event, no such cross-examination ensued.[31]As regards the complaint of “self-certification”, the investigating officers would have been failing in their duty if they had not asked the witness questions designed to flush out any suggestion of partiality. In addition to asking her, they checked her criminal record and other police data bases. She is a person of good character. We have seen the material that was placed before the judge. It contains no basis for suspecting partiality. Moreover, one is bound to ask: what else were the police to do? Mr Stubbs and Mr Harrison suggest that they should have conducted enquiries in the local community to ascertain whether the witness might be adversely disposed towards the defendants. However, it is difficult to see how this could be done without risking the disclosure of her identity to people who might pass it on to the appellants or their associates. It is also important to keep in mind the content of her evidence. In her account she did not seek to minimise the wrongdoing of those who attacked the house in Highfield Place nor that of the occupants of the Volkswagen Golf. In her account in relation to the appellants, she did not claim to have seen them resort to violence, nor did she refer to a knife. In our judgment, the judge committed no error in his approach to bias, partiality or improper motive.[32]In his prospective evaluation of June Waterhouse’s evidence, the judge concluded that it was not the “sole” evidence relied upon by the prosecution, not least because of the cogent scientific evidence. He considered that her evidence “might well be decisive in causing a jury to be sure that the defendants approached the car and its occupants as party to a joint enterprise to attack them”. As the “sole or decisive” test is not determinative in English law but simply one of several matters to be considered, it cannot be said that the judge erred in his approach to it. The judge was entitled to conclude, as he did, that when counsel came to cross-examine the witness about what she actually saw and heard, they were not unduly disadvantaged. They proceeded to cross-examine her rather as they would have cross-examined an identified witness who gave the same evidence.[33]All this leads us to the conclusion that the judge’s ruling was correct. Condition B was satisfied. We do not forget that counsel made broader submissions about the fairness of the trial. We shall return to these later in the judgment. (2) The surviving occupants of the Volkswagen Golf[34]Zahoor Hussain and Mohammed Ravat survived the attack on the car although Zahoor Hussain was seriously injured. Both were interviewed by the police and gave detailed accounts. At no stage did the Crown wish to call them as witnesses. What they had to say was served as unused material. The reason why the Crown did not wish to call them is obvious. They gave mendacious accounts as to the reasons for their arrival in the area and they denied that the Deceased had fired a gun and that he was wearing a balaclava. Indeed, Ravat asserted that Shafiq was in possession of and fired a gun in the incident. Mr Stubbs and Mr Harrison submit that it was quite wrong for the Crown not to call or at least to tender the two men. Their complaint is that, although Hussain and Ravat gave accounts at variance with and adverse to the cases of the appellants, parts of their accounts were favourable to them. In particular, they did not describe any of the defendants as carrying a knife. Both described a man with a knife but the description did not match Shafiq (who, in any event, was wrongly identified by Ravat as having been in possession of a gun). Moreover, both men suggested that the number of assailants was greater than the number in the dock. Hussain said “might have been six or seven” and Ravat said “between four to five roughly, it could be more”. Mr Stubbs and Mr Harrison contend that the identity of the man with the knife and the number of assailants were matters of fundamental importance to the defence because the case for the Crown was one of joint enterprise on the part of the three men in the dock, one of whom was the man with the knife.[35]In support of this submission they refer to Russell-Jones [1995] 1Cr App R 538, in which Kennedy LJ set out the principles which govern the duty of the Crown in relation to the calling of witnesses. The touchstone is, of course, fairness, but the principles (set out at pages 544–545) give more specific guidance including:
“The prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief … If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say ‘incredible’, then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called.”
[36]In our judgment, it was not unfair of the Crown in the present case to refuse to call or tender Hussain and Ravat. Having reasonably concluded that the witnesses were telling obvious lies about themselves and the deceased, their decision was a proper exercise of discretion.[37]Whilst it was open to the defence to call Hussain or Ravat, we accept that no competent defence counsel would have done so. It is not unusual for a witness to a crime not to be called to give evidence because, for good reason, neither party chooses to call him. In the present case, the Crown offered at trial to read or to make admissions as to what Hussain and Ravat had said about the man with the knife and the number of assailants, without accepting the accuracy of the passages in question. However, the Crown were only willing to do so if they were also permitted to read or make admissions in relation to the passages which tended to establish their untruthfulness and the passages which implicated the appellants as being present during the attack. Counsel for the defendants, on instructions, would not agree to such a course but would only agree to the jury knowing about those passages which were helpful to the defence case. In our judgment, they had no right to such cherrypicking. Moreover, we question whether the well-intentioned offer of the Crown could have had a proper lawful foundation. Whilst it is the experience of all of us that things are sometimes done by agreement in the course of a criminal trial which might lack a proper legal foundation, the position here was somewhat complex. Admitting what a non-witness has said whilst denying the accuracy of it and without any disclosable explanation to the jury of why such a course was being taken is hardly desirable. Of course, and as happened here, it was open to the defence to apply to the judge to allow the statements of Hussain and Ravat to be read as hearsay in the interests of justice pursuant to section 114(1)(d) of the Criminal Justice Act 2003. However, the judge rightly ruled against the application following a rigorous application of the criteria set out in section 114(2). The application was highly selective, being confined to those passages helpful to the defence. Exchanges between the Bar and the Bench in the course of the hearing before us demonstrated the difficulties which may arise where, for good reason, neither party wishes to call the witness but one party wishes to adduce part of what the witness has said which is helpful to his case but adverse to the other party. In the absence of agreement (or the judge calling the witness, which neither side has suggested as appropriate in the present case), the evidence may have to remain incomplete. That, it seems to us, is an acceptable consequence of an adversarial procedure. A fair trial denotes fairness to both sides. To have taken the course sought by the defence in the present case in relation to these two potential witnesses would have been grossly unfair to the Crown. (3) The uncalled anonymous witnesses[38]Mr Stubbs and Mr Harrison next turn their attention to the seven uncalled anonymous witnesses – that is to say, witnesses whom the Crown had originally intended to call anonymously but in respect of whom they did not press the application for anonymous witness orders. The debate focused on two of the seven who have the pseudonyms “Justin Rose” and “William Price”. The reason why the Crown did not pursue their application in relation to these two witnesses was that they took the view that their evidence could not be properly cross-examined without their identities being revealed. Accordingly, their statements became unused material with a cloak of anonymity. Rose described people coming out of the appellants’ house “having sticks in their hands … three or four of them … had sticks in their hands”. He also repeatedly expressed himself in terms of what “we” could hear or see. At one point he was describing “about five or six of them”. Price, who also used the pronoun “we” at one point referred to “three or four lads” and later “at least four”.[39]If the defence had known the identities of Rose and Price it is unthinkable that they would have called them as defence witnesses. The reason is that both men clearly know the appellants and their detailed accounts describe them as the assailants after the Volkswagen Golf arrived. We are entirely satisfied that no competent counsel would have called them when they would be open to cross-examination in a way which would provide significant contradiction of the defence case. Mr Stubbs and Mr Harrison do not leave the matter there. They submit that if the defence team had had access to these witnesses it might have led them to other witnesses who might have been helpful to the defence. This submission is predicated partly on the recurrent use of the word “we”.[40]Again, at trial, there was an investigation as to how material from the statements of Rose and Price might be placed before the jury for the benefit of the defendants but the consideration ran aground on the same rocks as had impacted upon Hussain and Ravat. We regard that as inevitable. The only question is whether, by being kept in the dark about the identity of Rose and Price, the defence were unfairly denied access to other possible witnesses. The judge regarded this as being in the realm of speculation. In our view, he was right. Counsel were not able to place before us any material suggesting that there might be some crock of gold or even baser metal at the end of this particular rainbow. In addition, Mr Hatton QC, on behalf of the Crown addressed us briefly in private and imparted to us information which underwrites this conclusion. (4) Overview of fairness[41]The matters we have been considering so far also fall to be considered on a holistic basis. It is submitted on behalf of the appellants that, even if the grounds do not find favour individually, taken together they should cause us to doubt the fairness of the trial and, as a consequence, the safety of the convictions. We reject this submission. The evidence of June Waterhouse was properly admitted and now, with the benefit of hindsight, we are wholly unpersuaded that, having been admitted, it gave rise to unfairness. The judge dealt with it appropriately in his summing-up. No-one suggests otherwise. The specific complaints about it amount to little more than can be advanced in relation to the evidence of any anonymous witness whose evidence is disputed. The grounds relating to Mohammed and Ravat and to Rose and Price have found no favour with us whatsoever. The complaints are the result of the natural operation of an adversarial procedure and of decisions made by counsel at trial as to how to present the defence case. That is not intended to imply a criticism. We think that the decisions were entirely understandable. However, many of them were made in the hope of securing advantages without incurring reciprocal disadvantages. This is not always possible and fine judgments have to be made. We think that there are questions that counsel could have asked of June Waterhouse to probe her reliability and impartiality without putting her anonymity at risk. Counsel chose not to ask them. That was a matter for them. We simply do not accept that they or their clients were put in an impossible position by any ruling of the judge or by the approach of the Crown. We do not consider, taking a holistic view, the trial was unfair. (5) Inconsistent verdicts[42]The complaints here are that the convictions of Shafiq and Nazeer are inconsistent with the acquittal of Maskeen on the charge of murder, he having been convicted of manslaughter by reason of provocation. Mr Stubbs advanced this proposed ground of appeal with appropriate diffidence; Mr Harrison less so. In truth, it is unarguable. The test is a demanding one: see Archbold, paragraph 7-70. The threshold is logical inconsistency. The evidence in relation to the three defendants inevitably differed. In relation to each of them the jury had to consider what they did and whether they lost their self-control. The accounts of the three defendants differed, as did the forensic evidence in relation to them. We do not consider that there is an arguable case of logical inconsistency. Conclusion on appeals against conviction[43]It follows from what we have said that we reject the grounds of appeal for which leave was granted by the single judge. So far as the renewed applications are concerned, we grant leave in relation to all grounds except inconsistent verdicts. We think that the grounds in relation to the uncalled witnesses and overall unfairness overlapped with the ground relating to June Waterhouse. Having granted leave in relation to them, we dismiss the appeals against conviction. We refuse leave on inconsistent verdicts.

Appeals against sentence

[44]Shafiq, Nazeer and Maskeen renew their applications for leave to appeal against the sentences imposed following refusal by the single judge. We grant leave.[45]As we have said, on the count of murder both Shafiq and Nazeer were sentenced to serve a minimum of 12 years less the period they had each spent in custody before trial before they may be considered for release. Both submit that the degree of provocation to which they had been subject prior to the attack upon the Deceased and Zahoor Hussain justified a greater reduction from what they agree was the correct starting point of 15 years. They draw support from the Sentencing Guidelines Council Guidelines on sentences in cases of manslaughter by reason of provocation. They submit that the provocation to which they were both subjected was “high” as opposed to “substantial” as found by the judge.[46]In sentencing these 2 appellants the judge considered whether there were aggravating features which should increase the starting point. He found none. He then turned to mitigating features. He indicated that both fell to be sentenced as secondary parties, and that they would be sentenced on the basis of an intent to cause really serious injury rather than an intent to kill and that there had been no premeditation. He then said “Fourthly, for the same reasons, there was provocation, though not such as to amount to a defence to murder and there was an element of self-defence, though not such as to amount to a defence to murder. The degree of provocation was substantial. The house had been attacked by at least 23 people and you had been shot at. Furthermore your attack on the car and its occupants occurred very shortly after these events, in particular the shooting.”[47]There were therefore four mitigating features of the seven listed in paragraph 11 of Schedule 21 to the Criminal justice Act 2003.[48]The sentence had to reflect the fact that a second serious offence had been committed at the same time, which, because of the mandatory life sentence for the murder, could not be ordered to run consecutively to it. Although not wholly irrelevant, the guidelines on sentence for those who have been acquitted of murder but convicted of manslaughter are of little assistance.[49]On behalf of Maskeen, Ms Hussain, who was junior counsel at the trial, submits that his sentence of 5 years imprisonment was too long in view of the matters already referred to and strong personal mitigation. In particular he had only recently arrived in this country. He was staying at 8 Highfield Place with his pregnant wife and was there, as a favour to his father in law, looking after the women and children of a large extended family at the address. He was a man of good character. He had no connexion to the feud which had preceded the night of the murder.[50]It is submitted that he fell to be sentenced in the lowest category of case in which the provocation is “high”, rather than, as the judge found, “substantial”. Alternatively it is submitted that the judge should have sentenced at or below the bottom of the middle range. In that connexion she submits, correctly in our judgment, that four of the five “additional mitigating factors” in the guidelines were present. The offender was acting to protect others. The offences were spontaneous. The victims presented an ongoing danger to others, and the applicant reasonably anticipated further violence from them. The starting point for the lowest category is three years imprisonment with a range from community penalty to four years and for the middle range eight years with a range from four to nine years. He too was being sentenced for an offence under section 18 of the Offences against the Person Act 1861.[51]Having considered the three cases, we believe that there should be some reduction to reflect the degree of provocation and the other features correctly identified by the sentencing judge in respect of the murder and to us on behalf of Maskeen.[52]We allow the appeals of Shafiq and Nazeer by substituting minimum terms in both cases of 10 years. We allow the appeal of Maskeen and reduce the sentence to 4 years. The remaining orders as to time spent in custody awaiting trial remain.[53]We grant a certificate to counsel for Maskeen to cover her preparation and appearance at court.