Taylor & Ors v R. [2010] EWCA Crim 830

[2010] EWCA Crim 830Case Nos: 200802315 C5, 200903931 C5, 200804937 C5, 200802546 C5, 200803094 C5IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
The Hon Mr Justice Keith
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/04/2010
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE DAVISMR JUSTICE HICKINBOTTOM
Between
Scott Michael TaylorAppellantsAAppellantCAppellantBAppellantDAppellantThe QueenRespondent
N Fooks for Taylor, G P King for A, T Long for C, J Dein QC for B, and Mr C Henley for DMr J Turner QC and Mr D Penny (instructed by the CPS) for RespondentHearing Hearing dates : 25 & 26 February 2010
Judgment

Introduction

[1]These appeals and applications arise from yet another knife murder of a wholly innocent young man, and the knifing of a second young man, by a gang of young people. The attacks on the victims were unpremeditated, but the perpetrators were variously armed with bladed weapons, baseball bats and a bicycle chain. The consequences for the convicted perpetrators, of whom all but one were of good character and could have looked forward to rewarding and fulfilling lives, inevitably have been most serious. We have no doubt that when they carried out their terrible acts they did not envisage that as a result they would spend the remainder of their youths in custody. Their families, who could have been proud of their sons, must be shocked by what they have done. But these concerns are but nothing compared with the destruction of the life of Paul Erhahon and the terrible loss suffered by his family. The Court can only record the events and make its decisions according to the law.[2]On 12 March 2010 we announced our decisions on these appeals and applications. We said that we would give our reasons in writing at a later date. We now do so.

The convictions and sentences

[3]On 9 April 2008 at the Central Criminal Court before Keith J and a jury, after a trial lasting 3 months, the appellants A, D and B and the applicants Taylor and C were convicted as follows:(a) A, B and C were each convicted of murder (of Paul Erhahon) (count 1). A and B were also convicted of attempted murder of Stephen Mafolabomi (count 2).(b) D was found not guilty of murder but convicted of manslaughter on count 1 and was acquitted of attempted murder (count 2) but was convicted of wounding Stephen Mafolabomi with intent (count 3).(c) Taylor was convicted of attempted murder (count 2).[4]There were two co-accused. X was found not guilty of murder but guilty of manslaughter on count 1 and was convicted of attempted murder (count 2). Y was acquitted on counts 1, 2 and 3 and was discharged.[5]Sentence was postponed for the preparation of reports and they were sentenced on 9 May 2008 as follows:(a) A: to be detained during Her Majesty’s Pleasure with a minimum term of 13 years (less 395 days served on remand) on count 1 and 14 years’ detention in a Young Offenders Institution (less 395 days served on remand) concurrent on count 2.(b) B: to be detained during Her Majesty’s Pleasure with a minimum term of 13 years (less 352 days served on remand) on count 1 and 14 years’ detention in a Young Offenders Institution (less 352 days served on remand) concurrent on count 2.(c) D: an extended sentence of 12 years under section 228 of the Criminal Justice Act 2003 comprising a custodial term of 8 years and an extension period of 4 years (less 392 days spent on remand) on each of counts 1 and 3 concurrent.(d) Taylor: a sentence of detention for public protection under section 226 Criminal Justice Act 2003 with a minimum term of 78 months (less 392 days spent on remand) on count 2. He was in breach of a Supervision Order imposed on 25 May 2005 at the Waltham Forest Youth Court for robbery, using threatening behaviour and common assault and a further order made on 30 August 2006. The Supervision Order was discharged.(e) C: to be detained during Her Majesty’s Pleasure with a minimum term of 11 years (less 394 days served on remand) on count 1.(f) X was sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 with a minimum term to be served of 7 years (less 386 days served on remand) on each count concurrent.

The appeals and applications before the Court

[6]A appealed against convictionby leave of the single judge. The single judge refused leave to appeal against sentence and that application, not having been renewed, lapsed. D appealed against sentence by leave of the single judge. Taylor renewed his applications for leave to appeal against conviction and sentence after refusal by the single judge. Bappealed against convictionby leave of the single judge, who granted the necessary extension of time. C applied for an extension of time (of approximately 13 months) and leave to appeal against his sentence. The Registrar referred his applications to the Full Court. At the hearing before us, C sought to renew his application for leave to appeal in respect of his conviction, on the basis that if any of the convictions of his co-defendants was quashed on the ground that the anonymity order in respect of the prosecution witnesses should not have been made, his conviction must similarly be unsafe.

The decisions of the Court

[7]Taylor’s renewed application for leave to appeal against his conviction for attempted murder was granted. His appeal against his conviction was dismissed. His renewed application for leave to appeal against his sentence was refused.[8]A’s appeal against his conviction for murder was dismissed. His sentence of detention in a YOI for attempted murder was unlawful, and was replaced by a sentence of detention of the same duration under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.[9]D’s appeal against his sentence for manslaughter and wounding with intent was allowed. His extended sentence was quashed and a sentence on each of counts 1 and 3 of 8 years’ detention under section 91 of the 2000 Act substituted. Those sentences were ordered to be concurrent.[10]B’s appeal against his conviction for murder was dismissed. His sentence of detention in a YOI was unlawful, and was replaced by a sentence of detention of the same duration under section 91 of the 2000 Act.[11]C’s applications for an extension of time and for leave to appeal against his sentence were granted. His appeal against sentence was allowed, to the extent that the minimum term specified under section 269(2) of the Criminal Justice Act 2003 to be served by him was reduced to 9 years less time served on remand, i.e., to 7 years and 336 days. It followed from our decisions on the appeals of A, B and Taylor that his application in respect of his conviction must be refused.[12]X abandoned his applications for leave to appeal against conviction and sentence after refusal by the Single Judge.

The facts in summary

[13]The case concerned young people who lived on two estates close to Leytonstone High Road. Six of the seven defendants lived in the vicinity of the Cathall Estate; D lived on the other side of Leytonstone High Road. They were members of a gang based on the Cathall Estate. D got to be a member through football and had been with them for a year. He was referred to as a “younger” because of his age. The boys involved in the attack were “youngers”. All the defendants had tag names or street names (e.g., Conflict for D).[14]Other young people, including the victims Paul Erhahon and Stephen Mafolabomi, lived on the Thatched House Estate, which was just south of Langthorne Park.[15]On 6 April 2007 Paul Erhahon and Stephen Mafolabomi were with some friends on the top of steps close to railings to the left of the entrance to Gean Court on the Thatched House Estate. A group of four boys led by B walked past them, stopped, turned round and came back towards them. A second group, apparently alerted by mobile telephone, in due course came to the scene.[16]B asked Paul Erhahon to approach and to speak to him. He refused. B said he did not want his “youngers” to do anything bad. As stated in his skeleton argument in support of his appeal, it was accepted “that the Appellant and others approached [Paul Erhahon] and that he made comments along the lines of ‘this could get physical…you don’t want me to have to come over there’”. B’s case was that these words were not to be taken “at face value”, and it was disputed that he intended serious violence. However, when Paul still refused to go to him, the group attacked him. At one point Paul ran inside Gean Court. Then he ran out and was chased by C. Paul was fatally stabbed, although it is not clear when that stabbing took place. The attack on Stephen Mafolabomi, which formed the basis of counts 2 and 3, began when the attack on Paul was over.Stephen received 4 stab wounds and a laceration.[17]The prosecution case was that the defendants bore joint responsibility for what happened because they knew beforehand that one of them had a knife or sword, or saw a knife or sword, while at Gean Court and realised that it might be used on Paul and joined in the attack. Gang members would be more likely to know if others were carrying knives and would be reluctant to name others. This group was hunting in a pack. Four boys saw Paul and Stephen outside Gean Court and decided to attack them. A larger group, alerted to the ruck, then joined in.[18]B, A, C and Y accepted that they were the four boys who initially confronted Paul Erhahon. B accepted that he called over to Paul immediately before the altercation began. The defence case was that there was no general understanding to attack Paul or Stephen; each individual acted alone; the evidence of the Prosecution eye-witnesses and Stephen was contaminated by contact with others after the event.[19]Thus the issue for the jury was whether each defendant joined in the attacks knowing one of them had a knife or sword and realising it might be used.

The case against A

[20]Stephen Mafolabomi gave evidence in relation to the attack on himself that A had a long knife or something that looked like a sword. Witness E gave evidence that an individual who clearly was A had a long knife or something that looked like a sword and he lunged at Paul Erhahon. All the other witnesses said that A had a baseball bat. Witness A (to whom in this judgment we shall refer as WA) said that he could clearly see a baseball bat in A’s hand as the group passed his window on the way to Langthorne Park after the attacks. B, whose statement was read, said that when she saw the group A had a baseball bat. D said that A was one of the 2 boys in the original group with a baseball bat and he knew him because he had seen him around.[21]Two baseball bats were exhibited; one was found at Y’s home and the other in the bedroom of X’s parents. There was no evidence about A as to what he did with any baseball bat and no evidence that one was found at his home.[22]A was the first to be arrested, in the early hours of 7 April, 5 hours or so after the attack. He was in bed and he showed the police the clothes he had been wearing. There was no forensic link between his clothes and the attack. The words “Cathall” and “E11” were daubed on A’s bedroom and in his notebook. The police found a knife beneath a pillow under a sheet but it had no forensic link to the attack and was excluded as the murder weapon. He did not answer any questions in interview, but his solicitor submitted two prepared statements. In them he said that he had been with B, C, Y and M when they became involved in a fight with 4 boys. He did not say what he had done in that fight. He did not know that any of his friends had a knife or that anyone had been stabbed until afterwards on the way home when M told him that he had stabbed the boy. During the incident C picked up a stick and hit people on the backs and legs with it but he did not have it when they approached the group and A told him to leave the stick out. However the evidence of C and others was that C had a baseball bat, not a stick, which he had brought with him. A included M in the original group, but no one else did and the evidence suggested that there were only 4 boys in the original group and M was not one of them. Although A claimed (through counsel) that he had a baseball bat that evening, he did not say that he had one in his prepared statement. It was suggested that he accepted having the baseball bat because he did not want to be found to have had a weapon which may have been used to kill Paul. A did not give evidence.

The case against B

[23]The Prosecution case against B was that he was one of the boys who stabbed Stephen, and even if he did not participate in the attack on Paul Erhahon he put the others up to the attack knowing that one of them had a knife or sword, if only because of C’s evidence about what happened at the fair. C gave evidence that he was at a fair earlier that day with Y, D, A, M, O and B. A scuffle broke out between C and a boy, who was swinging a Samurai sword about. B and Y disarmed him. O picked it up. C assumed he took it when he left a little later.[24]The cross-examination of witnesses showed that B did not dispute that he initiated the initial confrontation with Paul by calling him over to him. The case against him was that he was encouraging the other three boys, his “youngers”, to attack Paul. D said that when Paul refused to go over to him B said, “You do not want my youngers to do something to you.” H said that B said to the others “Go on, youngers”. Stephen Mafolabomi said that B had been one of the four main ones who stabbed. However no-one else said that they saw the tall boy (B) with a weapon. H said that Stephen was ganged up on by some of the boys who had ganged up on Paul and some of the older boys came and joined in. She did not say that the tall boy (B) was one of them. D and E gave evidence suggesting that B was trying to stop things escalating.[25]B was arrested on 11 April. Some of his clothes were seized but there was no scientific link between any of them and the attacks on Paul and Stephen and no suggestion that clothes similar to those described by witnesses had been found at his home. In his bedroom the police found a Sony Ericsson mobile. A call was made to his mobile at the time of the incident.The phrase “bang, bang” was on a page in B’s jottings.[26]B did not answer any questions in interview or give evidence.

The case against Taylor

[27]The case against Taylor was based largely on Stephen Mafolabomi’s identification of him. If Taylor was at Gean Court he would have been one of the second group. Stephen picked out Taylor’s photograph in the identification procedures as someone who had been on the scene that evening but he did not say he specifically attacked Paul, although he did say that the boys who attacked Paul were not just the original four but also those who arrived later. The boys who had been attacking Paul attacked Stephen after Paul ran off. Taylor pointed Stephen out and told him to “come here”. Taylor was one of the four main ones stabbing him. Y said that Taylor, his friend, was one of the people punching and kicking Stephen. CCTV footage showed a tall white boy with D and X a few minutes before the attack at Dixie Chicken Restaurant. C said the tall boy was Taylor.[28]Taylor was arrested on 12 April. A silver Nokia camera mobile without a SIM card and a dark blue Nokia mobile were found in his bedroom. The cell site analysis of Taylor’s mobile with the SIM card in it and downloads from his camera mobile showed that Taylor, or at least his mobile, was in the vicinity of Gean Court. His defence was that he was at his father’s home, 52 Colchester Road. The cell site analysis showed that between 6.31pm and 9.00pm that evening his mobile received 10 calls which were received through 7 cell sites. Taylor’s address, 2 Melon Road, was served by 6 of them; Gean Court was served by 3 of them; 52 Colchester Road was not served by any of them.[29]The two downloads from the mobile found without a SIM card in Taylor’s bedroom were clips of TV broadcasts of the attack on Paul Erhahon and Stephen Mafolabomi. The prosecution alleged that if filmed by Taylor, or if they were sent to him, it was because he had been involved in the attacks. The person filming the television broadcasts was heard saying “Bang, Bang” and during the YouTube clip someone was laughing and saying, “Get out of here.” When the reporter said that the injured boy could not be named for legal reasons, someone said “Stephen”. The prosecution asked the jury to infer that the person saying these things was Taylor because it was filmed on his mobile camera and to infer that he had something to do with the attacks.[30]Taylor refused to answer questions in interview and did not give evidence.[31]The witnesses to the attack were, with one exception and apart from Stephen Mafolabomi, young people who gave evidence anonymously. Since the grounds of appeal against conviction are primarily concerned with the anonymity order, it is at this stage of our judgment unnecessary to summarise further the evidence relied upon by the prosecution. It is to be noted, however, that only Y and C testified. Taylor and X were the only defendants who denied being at Gean Court.

The grounds of appeal against conviction

(i) A

[32]A’s grounds of appeal against his conviction were, in summary, that his conviction was unsafe by reason of the following:(a) Deficiencies in the pre-trial investigation and disclosure prevented A from having a fair trial.(b) The Judge erred in granting anonymity to witnesses D & E, which deprived A of a fair trial.(c) The Judge erred in not granting anonymity to witness B.(d) The Judge failed to discharge the jury when counsel for Y infringed the rule on anonymity to the detriment of A.(e) The judge wrongly permitted the Crown to adduce evidence of the knife found under A’s pillow when it was not relevant to any live issue.(f) The Judge interrupted the cross-examination of Y and the closing speech on behalf of A in a manner which may have given the jury the impression that those acting on behalf of A were not to be trusted, thus undermining his case.(g) There was a perception that the Judge was biased in favour of Y. (ii). B[33]B contended that the trial was unfair and the convictions unsafe for the following reasons, in summary:(a) The Judge made his ruling as to anonymity in accordance with the CACD judgment in R v Davis and Ellis [2006] EWCA Crim 1155. That decision was effectively overturned by the House of Lords in Davis 2008 UKHL 36, which was subsequently overruled by the Criminal Evidence (Witness Anonymity) Act 2008. Guidance was given by CACD in the cases of R v Mayers & Others. (See paras 50 – 58). The Judge’s ruling, given in accordance with R v Davis, would have been different if the Act had been in place and the speeches in Mayers been available to the Judge. The judge erred in permitting witnesses to give evidence anonymously: the conditions for making such an order were not satisfied and he exercised any discretion he had wrongly.(b) Furthermore, the evidence of the anonymous witnesses and Stephen Mafolabomi was crucial to the prosecution and so was sole or decisive. The anonymity order prevented or hindered the defence from taking steps to undermine the credibility of the witnesses or to investigate collusion; it prohibited effective rebuttal of the cut-throat defence of Y and was incompatible with a fair trial. The trial was unfair.(c) The Judge’s orders regarding anonymity, TV link and voice distortion meant that the Prosecution case was conducted in an intimidating atmosphere of guilt, in contrast to the evidence of the defendants which was given in traditional style. It was impossible for counsel to complain of the special measures when addressing the jury because that would have alienated the jury in an “anti-defence climate”.(d) Y, who was acquitted, ran a cut-throat defence, No effective investigation could be conducted into the possibility that Y was a friend or associate of any anonymous witness. The judge was asked to review his anonymity order; he wrongly refused to do so. (iii). Taylor[34]Taylor’s grounds, in summary, were:(a) The Judge wrongly refused a submission of no case to answer.(b) The Judge wrongly admitted a video download. In addition, complaint is made of the Judge’s direction as to the use the jury could make of the video download in supporting the identification evidence.(c) The identification evidence of Stephen was fatally flawed.(d) Stills were taken from a CCTV at Dixie Chicken, Leytonstone High Road, one or two minutes before the incident; a still showing the bottom part of a face was consistent with Taylor but there was no full face view, and no matching clothes were found at his premises; others there were not identified as being at Gean Court (para 9).(e) Cell site evidence relating to his phone allegedly showed that he was not at his father’s, but there was no evidence that he had the phone with him. This evidence was incapable of supporting the identification evidence of Stephen.(f) The second mobile had a video download of news reports of the case and a voice in the background making disparaging remarks about the case and identifying Stephen as a victim when he had not been publicly named. The Judge refused an application not to admit the evidence. He should have acceded to that application.(g) The disparaging commentary on the video was so prejudicial that it outweighed any probative value. The Judge wrongly directed the jury that the video download evidence was capable of supporting the identification evidence of Stephen. There was an absence of evidence about the download and it was incapable of supporting a weak identification.

The anonymity of the witnesses

[35]The major ground of appeal of A and B concerns the anonymity order made by the judge and his refusal to discharge it. The essential questions are: were the conditions for the making of an order satisfied? If so, did the judge err in exercising his discretion to make the order? If not, should he have revisited his order during the trial as a result of the conduct of Y’s defence? We shall consider those questions in that order. These appellants also contend that there was a failure of pre-trial investigation and disclosure by the prosecution which made a fair trial impossible. That contention is linked to the grounds relating to anonymity, and we shall consider it under this head.[36]The anonymity order in this case was made by the judge before theCriminal Evidence (Witness Anonymity) Act 2008 came into force. It was, therefore, a pre-commencement anonymity order within the meaning of section 10. Section 11(2) provides that in a case such as the present: (2) The appeal court–(a) may not treat the conviction as unsafe solely on the ground that the trial court had no power at common law to make the order mentioned in subsection (1)(b), but(b) must treat the conviction as unsafe if it considers– (i) that the order was not one that the trial court could have made if this Act had been in force at the material time, and (ii) that, as a result of the order, the defendant did not receive a fair trial. (a) may not treat the conviction as unsafe solely on the ground that the trial court had no power at common law to make the order mentioned in subsection (1)(b), but (b) must treat the conviction as unsafe if it considers– (i) that the order was not one that the trial court could have made if this Act had been in force at the material time, and (ii) that, as a result of the order, the defendant did not receive a fair trial.[37]The conditions for making an anonymity order are contained in sections 4 and 5: 4Conditions for making order(1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings.(2) The court may make such an order only if it is satisfied that Conditions A to C below are met.(3) Condition A is that the measures to be specified in the order are necessary– (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).(4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial.(5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that– (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made.(6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness– (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, if the witness were to be identified. 5Relevant considerations (1) When deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to– (a) the considerations mentioned in subsection (2) below, and (b) such other matters as the court considers relevant. (2) The considerations are– (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness– (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court. (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise). (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made. (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, (a) the considerations mentioned in subsection (2) below, and (b) such other matters as the court considers relevant. (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness– (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.[38]It can be seen that there are essentially two questions to be addressed by the Court of Appeal. First, was the anonymity order one which could have been made if the Act had been in force? That question, in our judgment, must be answered by reference to the position at the date of the decision to make the order. The second question is: was the result of the order that the defendant did not receive a fair trial? That question must be answered retrospectively, taking into account what subsequently occurred during the trial itself, as in Mayers. We accept Mr Dein QC’s submission that section 11(2)(b) requires the Court of Appeal to decide whether it considers that the defendant in fact received a fair trial. In applying that provision, the Court of Appeal is not exercising a review of the judge’s decision to make an anonymity order, although his reasons for making the order are highly relevant to the decision required to be made by the Court of Appeal.[39]The judge made his ruling on 17 January 2008. Of the witnesses in question, referred to at trial as A (in this judgment, WA), B, D, E and H, all apart from B were under 17. Each of them had made a statement to the effect that they were scared of what might happen to them if they gave evidence and were identified. Two of them said that they feared they would be killed. The judge was satisfied that the witnesses’ fear for their safety was justified, apart from that of witness B. We have no doubt that he was entitled to reach that conclusion. Put simply, if failing to show respect for a member of the Cathall Estate gang (which was all that Paul Erhahon had at most been guilty of) led to the killing of one victim and the knife (or sword) wounding of another, it was entirely reasonable for other young people to believe, and for the Court to conclude, that testifying against members of the gang would lead to serious injury or death at their hands. Thus Condition A specified in section 4 of the 2008 Act was met. In addition, he was satisfied that unless an anonymity order was made, these witnesses would not testify. Again, that was an unassailable finding. It is significant that when the judge refused to make an anonymity order in relation to B, who was older than the other anonymous witnesses and who he did not think would be a natural target for reprisals, she refused to testify. In the end, her evidence was read, because the defendants wanted it to be before the jury. It is not suggested that the evidence of witnesses WA, D, E and H was not important; to put it in the terms of the statute, it was important that they should testify. The offences of which the defendants were charged were the most serious. A young man’s life had been taken away. It was in the public interest that all available relevant evidence should be before the jury. Condition C was met.[40]In relation to the considerations to which the court must have regard under section 5(1) and (2), it is accepted that the judge took into account consideration (a). It is submitted that judge failed adequately to consider consideration (b). This is always a difficult ground of appeal: the weight to be given to any relevant factor is for the trial judge, and his decision can be challenged on appeal only in extreme cases. It is submitted that the identity of D and E and their credibility were particularly important because of Y’s cut-throat defence, to which we refer below. But when the anonymity order was made, before the beginning of the trial, it was not known that Y would mount a cut-throat defence, seeking to incriminate B and to exculpate himself. It seems to us, therefore, that this complaint as to the judge’s order falls to be considered below, in connection with the application made after D had testified.[41]It is submitted that the judge did not adequately consider consideration (c). Much the same may be said: he clearly did consider it, at pages 13H to 14C of the transcript: it was this that led him to say that it was even more important to look “at the possibility that the trial might be rendered unfair by these important witnesses being anonymised”. It is impossible to say that the judge’s consideration of this factor was perverse or indeed in any way open to criticism.[42]In relation to consideration (d), it is submitted that the prosecution failure properly to investigate and disclose relevant material in respect of the anonymous witnesses rendered a fair trial impossible. The judge carefully considered this point. He took into account that the challenge to the witnesses’ evidence was not that they were mistaken in their identifications of defendants, but that they were lying, and that two of them had colluded to lie and to put Stephen Mafolabomi up to falsely implicating one of them. He appreciated the importance for the defendants of knowing “where the witnesses are coming from”. For that reason, he required the prosecution – “to be more pro-active in its investigation of the backgrounds of the witnesses than would normally be appropriate in the case of young vulnerable witnesses. And, therefore, to disclose all the material which that investigation reveals provided that it does not enable the witnesses to be identified. … That sort of investigation and subsequent disclosure may well be intrusive, but I have no doubt that it is the price which the witnesses have to pay if they are to be given the status of anonymity which is an extreme stage to take in any case. In this case, that investigation would involve things like the street reputations of the witnesses, any evidence of gang membership and any evidence which suggests that apart from gang membership, or opposition to the gang to which the witnesses are alleged to belong, the witnesses have a particular reason to be hostile to a particular defendant. That investigation should also involve the interrogation of things like personal computers and mobile phones for rap lyrics, and the downloading of websites in the street names of the witnesses containing rap lyrics.”[43]The principal complaint of these defendants is that it was too late at the date of his order for there to be an effective investigation and disclosure of computer files, emails and mobile telephones and mobile telephone records. Too long had passed since the date of the incident which was the subject of the trial. The witnesses would have had the opportunity to delete anything damaging; and even if they had not, much would have been lost simply by the passing of time. This is not to criticise the police: at the time, such intrusive investigations of witnesses was not common. It is to the judge’s credit that he considered and directed such an enhanced investigation and disclosure.[44]We do not accept that this complaint has substance. Helen Malcolm QC had been appointed as special counsel to participate in the disclosure exercise. She had access to all the material in the hands of the Crown. There had already been the normal disclosure of material such as CRO records and school reports. In addition, she saw the material on which the witnesses’ fear for their safety was based. In our judgment, the contention that the delay in the enhanced investigation of the witnesses prejudiced the defendants was entirely speculative. It is significant that no requests had been made on behalf of the defendants for additional disclosure of documents or information relating to the anonymous witnesses before the hearing of the application for the anonymity order; nor was it suggested that emails or telephone records might evidence collusion by witnesses until after E’s MSN messages had been disclosed. Those messages did not suggest collusion.[45]Consideration (e) does not fall for separate discussion. It is not suggested that the judge had any reason to be concerned as to the honesty of any of the witnesses.[46]As to consideration (f), we accept that an anonymity order is one of last resort. However, we do not see that any measure short of an anonymity order could have protected the identity of the witnesses.[47]The judge did consider whether the anonymity order was consistent with the defendants receiving a fair trial. He concluded that it was. We see no error in his reasons for that conclusion. That being so, it has not been established that the judge could not have made the order if the 2008 Act had been in force. Whether the result of the order was that A did not receive a fair trial is a different question, to be answered retrospectively, as against the question whether Condition B was satisfied, which looks forward from the date of the decision to make the anonymity order. Having reviewed the judge’s reasons for making the anonymity orders, we see no error of principle or otherwise in his exercise of his discretion.[48]While we have considered these appellants’ submissions in relation to each of the mandatory considerations under section 5(2), we do point out that there is a degree of unreality in testing an anonymity order by reference to statutory considerations that did not exist when the order was made. The most important question for the court at the times material to these appeals was whether the judge’s decision that the anonymity order would be consistent with the defendants receiving a fair trial. If the judge lawfully and fairly answered that question affirmatively, and if Conditions A and C were satisfied, the order was one which could have been made if the Act had been in force. The absence from his judgment of express consideration of the statutory Conditions should not, in our judgment, necessarily lead to the conclusion that the order could not have been made, particularly since an appellant will always be able to contend that in the event as a result of the anonymity order he did not receive a fair trial. It is to that question that we now turn.

As a result of the anonymity order, did these appellants receive a fair trial?

[49]The first point to note is that if the investigation directed by the judge had resulted in the discovery of anything of concern, we have no doubt that the prosecution or Miss Malcolm would have raised the matter with the judge, who would have considered whether to maintain the anonymity order. They did not. To the contrary, for example, the MSN messages found on the computer of witness E did not evince any animosity to B or any other concern.[50]In this connection, these appellants refer to and rely on the conduct of the defence of Y. On 7 February 2008, Mr Munday QC, who appeared on behalf or A, applied for the discharge of the jury in relation to the counts against him. At this stage, D had given evidence in chief and his cross-examination on behalf of Y was incomplete. Mr Munday had not cross-examined him. He told the judge that he had wanted to fortify that part of D’s testimony that attributed a baseball bat to A, so as to minimise or exclude the risk of the jury finding that he had had or wielded a knife. His instructions were that D and A knew each other. If so, Mr Munday would have submitted to the jury that D’s identification of A as someone with a baseball bat was more reliable, as being recognition rather than identification. However, Mr Munday did not feel able to put that in cross-examination, on the basis that to do so would have infringed the judge’s ruling that no questions should be asked which tended to reveal D’s identity. However, Mr Glen for Y cross-examined D and established, as the judge put it, that:
“.. before the evening in question D had seen [A] around and knew his street name of Splints, that D and [A] had recognised each other on the evening of the attack, and that shortly after the attack on Paul and Stephen, he, D, had got a call from the Cathall boys telling him not to talk. On the other hand, D said that he had not known [Y], that he had hardly seen him before, and had not known his name prior to the evening in question, but that he had subsequently been given Israel's name by a girl he knew.”
[51]Mr Munday was concerned that these answers would lead Mr Glen to suggest to D “that [A] was the boy with the knife, that D knows that and that because D knows [A] there cannot be any room for a mistake, but that D is wrongly attributing the knife to someone other than [A], either because D and [A] are friends or because D has been frightened off from naming [A], and that D is wrongly attributing the knife to Israel because Israel is of similar build to [A] and is not a member, so Mr Glen may say, of the gang of boys who attacked Paul and Stephen”. Mr Munday submitted that Mr Glen had infringed the judge’s ruling, in that his questions tended to disclose D’s identity; his questions advanced Y’s case and damaged A’s, because “Mr Glen [was] now better able to suggest to D that D knows that it was really [A] who had the knife”.[52]The judge rejected Mr Munday’s application. He did not consider that Mr Glen had infringed his ruling: all that had been elicited was that D and A had recognised each other, which would be true of numerous young people in the area in question. Mr Munday’s proposed questions, which would go further in seeking to establish a relationship between D and A, went further and would infringe the judge’s ruling.[53]We see no error in the judge’s decision.[54]D’s evidence in chief was helpful to B. He said that the smallest boy in the gang that attacked Paul Erhahon had put his hand down his trousers as if her was going to take something out, and had then made as if to punch Paul. D did not see a knife, but it was possible that what had been taken out of the trousers was one. B was clearly not the smallest boy; he was either Y or A. In addition, D testified that Y had said something that suggested he had a knife. D had also given evidence to the effect that when some of the gang had taken out baseball bats and were about to attack Paul Erhahon, B had told them not to, and should let Paul Erhahon talk first. B relied on this evidence as showing he had played no part in the attack, or had withdrawn from any joint enterprise to attack Paul Erhahon. D had said that A had had a baseball bat. That evidence was helpful to A, on the basis that if he had had a baseball bat as a weapon, it was unlikely that he had had, or at least had wielded, a knife.[55]Understandably, Mr Dein did not cross-examine D. However, he was cross-examined on behalf of Y, whose counsel, Mr Glen, suggested that B had telephoned D after the attack to deter him from implicating him. It was common ground that D had received such a telephone call from someone using Y’s mobile telephone. D’s evidence was that he did not know who had telephoned him. Y’s case (which when D was called had not at that stage been reflected in any evidence) was that he had handed his phone to B, who must therefore have made the call. This line of cross-examination was potentially damaging to B’s case: if the jury accepted that B had made the telephone call that would throw doubt on D’s evidence implicating Y and exculpating B. Mr Glen also suggested to D that he was covering up for A.[56]On 12 February 2008, Mr Dein applied to the judge for permission to re-open his cross-examination of D. However, he submitted that he could not do so properly unless the order relating to D’s anonymity was revoked. He said that he did not wish to re-open the cross-examination unless the order was revoked. A similar application was made on behalf of A. Mr Munday submitted that Mr Glen had infringed the judge’s order that no questions should be asked that would undermine the anonymity of the anonymous witnesses.[57]The judge refused to revoke the order. So far as B was concerned, D’s evidence had not implicated him: he had not said that B had telephoned him to warn him off. The judge did not consider that the effectiveness of any renewed cross-examination of D depended on the removal of his anonymity. Similarly in relation to A, D had not tried to attribute to him a role that A denied playing. In any event, the judge could not see how the removal of anonymity was a pre-requisite of an effective cross-examination.[58]In our judgment, the judge was right to refuse these applications, for the reasons he gave. The basis of the applications was, implicitly, that Mr Glen’s questions in cross-examination were evidence. They were not. Like the judge, we do not see that it was necessary at that stage for the identity of D to be revealed. We add that, in a case in which an anonymity order is made on the basis that it is necessary “in order to protect the safety of the witness or another person or to prevent any serious damage to property”, and there is no evidence that that Condition is not, or is no longer, satisfied, it is difficult to conceive of circumstances in which the Court could properly revoke an anonymity order after the witness has testified. To do so would be to expose the witness to the very danger that the order was intended to avoid, and it would be grossly unfair and improper to expose him or her to that danger after he or she had been told that he or she would be protected by the order. It is evident that an application for revocation of an anonymity order in circumstances such as the present, if successful, would lead to the abandonment of the trial. It follows that in such a case it must be shown that the continuance in force of the anonymity order is inconsistent with a fair trial. That was not shown in this case.[59]Witness E’s evidence in chief was potentially helpful to B. It is summarised in B’s skeleton argument for the appeal, itself taken from the summing up, as follows:
“E’s evidence was that a boy (B) called over to PE. When PE refused to go over to him, he went upstairs and asked Paul why he was giving him attitude. There was a stand off. After SM told the Appellant to leave PE alone, two of the other three boys went up to the top of the steps joining the Appellant. By this time E noticed one boy with a wooden baseball bat. That boy did not go up the steps, nor did he do anything at all. Of the two who went up the steps, E said that one of them took out a long knife which he had pulled out of his draw string bag. It looked like a machete. E identified [A] as having had this. (And Y, a baseball bat). E said that the boy with the knife lunged at PE. [B] tried to stop him, by saying at couple of times “No, allow him” or “No, leave him”
. PE was then seen to try to grab the knife by the blade. Crucially, for the first time, when under cross examination: in clarifying [B]’s actions, E introduced the highly prejudicial claim that [B] was attempting to prevent PE from prising the knife away from his assailant. . According to E, [B] was doing his best to force PE to let go of the knife. E had not a word to this effect in the course of his lengthy video recorded evidence in chief, wherein the tenor of what he had said about [B]’s demeanour was supportive of the “withdrawal “argument. In contrast, however, the impact of his testimony in court was summarised by the learned

judge as follows :

‘…the effect of his evidence was that [B]’s intervention was not to protect PE but stop PE from trying to get the knife from the boy who had it [initial attempt to stop things or slow them down]......the effect of E’s evidence was that immediately after that B was trying to stop PE getting the knife from the boy who had it ‘or at least slow things down’
. E went on to say that the boy who tried to stab PE, “missed”. The other of the two boys who had gone up the steps to join [B] pulled out a metallic baseball bat from a plastic bag with draw strings which he was wearing in front of him (168E). E then saw a much larger group of boys coming down Victoria Road from Leytonstone High Road. One of them jumped onto the ledge by the railings and hit either SM or PE, but E could not tell whether he had a weapon. It was at that stage that E ran off. (168F). ‘…the effect of his evidence was that [B]’s intervention was not to protect PE but stop PE from trying to get the knife from the boy who had it [initial attempt to stop things or slow them down]......the effect of E’s evidence was that immediately after that B was trying to stop PE getting the knife from the boy who had it ‘or at least slow things down’.[60]Mr Dein submitted that E’s evidence became much more important as against B. It was necessary to know whether there was a relationship between him and D that might account for his new evidence in cross-examination. This made it impossible for there to be a fair trial if the witnesses were to remain anonymous.[61]We think it significant that no application to discharge the jury was made after E had given evidence. The suggestion of collusion involving him was pure speculation. We do not think that of itself the fact that E’s evidence became damaging to B was inconsistent with his receiving a fair trial.[62]We can deal with B’s complaint concerning witness H even more shortly. Her evidence was damaging to his case. It does not follow, however, that this rendered his trial unfair. Indeed, it is implicit in the 2008 Act that an anonymous witness’s evidence may be important (and therefore if adduced by the prosecution, likely to be substantially damaging to a defendant’s case) but the trial fair. Indeed, if the evidence is unimportant, an anonymity order cannot be made.[63]Mr Dein submitted that the anonymous witnesses’ evidence was not supported by independent evidence. Stephen Mafolabomi did implicate B, but his evidence was said to be unsatisfactory. His evidence was said not to be independent, since he was himself a victim and had been the best friend of Paul Erhahon. We cannot say what the jury thought of Stephen Mafolabomi’s evidence, but the suggestion that it was not independent of the anonymous witnesses’ evidence is unsupported by evidence. There was in fact much independent evidence supporting much of the witnesses’, at least as far as B was concerned. He accepted he had been one of the four and had been the oldest of them, and that he had challenged Paul Erhahon immediately before he was attacked.[64]Nothing emerged during the trial, other than the evidence damaging to these appellants that supported a contention that there had been collusion between the anonymous witnesses or between any of them and Stephen Mafolabomi or anyone else concerned to secure these appellants’ convictions.[65]In our judgment, the present case is very different from Mayers, where the anonymous witness had previous convictions, the Court of Appeal did not have confidence that everything relating to her credibility, motivation and integrity had been disclosed, and there was reason to believe that she had not been present at the scene of the murder.[66]We turn to consider the judge’s summing up, in so far as it was concerned with the anonymous witnesses evidence. It is submitted that he did not sufficiently address the difficulties experienced by these appellants in disputing this evidence or the effect of the anonymity order, and its consequences in terms of voice disguise and other measures, that created an atmosphere of criminality. The judge addressed these matters in his summing up at pages 99 and following of volume IV(a). In our judgment, he did so quite adequately.[67]It is also said that his summing up favoured Y, and/or evinced bias in his favour. When the judge gave examples of the possible prejudice to a defendant resulting from the anonymity of the witnesses, he always instanced Fredericks. We think it would have been very much better if he had also used other defendants in his examples. However, he made it clear that he was using Fredericks as an example only.

(a) page 102, in relation to the evidence of witness D:

“The only point I am making is that if he had not known who D was, Israel and his defence team would not have been able to make their own inquiries about whether D might have had a motive for lying about Israel. This does not just apply to Israel, of course. It applies to any defendant who is named by an anonymous witness as having done something which they deny. They are not in a position to investigate whether the anonymous witness might have had a motive to lie, and I have only mentioned Israel as an example.”
Having given another example,

the judge continued:

“Once again, there is no evidence before you to suggest that that was the case here -- you just do not know one way or the other -- but it is another example of the sort of disadvantage which defendants can face when the evidence against them is given by anonymous witnesses, and, again, I have used Israel simply as an example of that.”
A little later,

the judge said:

“The point I am making is that it is possible that the defendants -- not just Israel, though again I have used his case as an example -- might have been disadvantaged by not knowing who the witnesses or other people connected with the case were, and you should bear that in mind in their favour throughout your deliberations.”
[68]In these circumstances, the complaint that the judge unduly favoured Y when addressing anonymity is unfounded. We shall have to address another contention of bias later in this judgment.[69]In assessing whether the trial of A and B was, as a result of the anonymity order, unfair, we have to consider the whole of the trial. Neither of them answered questions in interview. A gave a prepared statement. Neither of them gave evidence. They could have testified, and might have contradicted the anonymous testimony against them. If they had done so, the jury would have considered their credibility. As it is, the jury had nothing to put against the prosecution evidence and that of Y. It is noteworthy that Y, who was acquitted, did give evidence. We do not consider that the trial was unfair as a result of the anonymity order. Other grounds of appeal against conviction (1). Appellant A

The failure to grant anonymity to witness B

[70]There is a certain irony in this ground of appeal, which is put forward by A. It has no substance. The judge was right to scrutinise the case for her anonymity, and had good reason to refuse it. By agreement, her evidence was read and was not challenged. We see no basis on which it could be said that the judge’s decision to refuse anonymity or the fact that her evidence was not given live resulted in an unfair trial or casts doubt on the jury’s verdict.

The knife under A’s pillow

[71]When A’s home was searched, a knife was found under his pillow in his bedroom. The judge allowed the prosecution to adduce the evidence of the finding of this knife. It had not been used in the attack. The evidence was allowed in on the basis that it suggested that A was frightened of reprisals from friends of Paul Erhahon and Stephen Mafolabomi who knew that he had been involved in the attacks on them. It was not evidence of bad character, since it had to do with the alleged facts of the offences charged. The judge considered that the probative value of this evidence was not outweighed by any prejudicial effect. It is argued on behalf of A that the judge was wrong in this regard. This decision was very much one for the assessment and discretion of the trial judge. We see no basis for the argument that the judge’s decision was wrong in principle or can otherwise be faulted.[72]A contends that his defence was unfairly prejudiced by the judge’s interruptions of, as we understand it, his counsel’s cross-examination of Y and of his counsel’s closing speech. So far as the cross-examination is concerned, the interruption, if any, related to the attempt during the cross-examination to obtain from Y his consent to the disclosure of his mobile telephone billing. Y had been only 13 at the date of the attacks. Not surprisingly, the judge held that Y’s consent in the witness box was not informed consent. No complaint is made as to the correctness of this ruling. It is said that it discredited those acting for A. The other interruption occurred during Mr Munday’s final speech, when he sought to hand Y’s mobile telephone to the jury for them to read the text messages on it. The judge referred to this in his summing up at volume IV(b) page 76, when he explained that he had not alerted Mr Munday to the objection to his giving the telephone to the jury. The judge offered to read the texts to the jury if they wanted to be reminded of them. We see no basis for this ground of appeal. It is argued that a jury question indicated that the judge had damaged the standing of A’s lawyers. The question was, “Where does Mr Munday suggest that [A]’s bat is?” This was a relevant question: on one view of the facts, A was seeking to establish that he was carrying a baseball bat at the time of the attacks, since if he had that weapon it was less likely he had a knife or sword. But no baseball bat had been found at his home when it was searched. In our judgment, it does not suggest that the jury did not trust Mr Munday.

The perception of bias

[73]It is submitted on behalf of A that a number of decisions by the judge, when viewed cumulatively, gave rise to a perception of bias against his defence. The principal matters on which he relies are the judge’s refusal to make an anonymity order in respect of witness B, his ruling in relation to the cross-examination of witness D referred to above, the refusal to discharge the jury, the interruptions referred to in the preceding paragraphs of this judgment, his suggestion that A wished to establish that he had a baseball bat in order to render it less likely that he had wielded a knife or sword, and the judge’s consistent references to Y when giving examples of the possible prejudice caused to the defence by the anonymity of prosecution witnesses. Any positive reference to Y was potentially damaging to A because on one view of the evidence one or other of them had had a knife or sword. Complaint is also made of the summing up of A’s defence, which it is said compared unfavourably with that of Y’s. We have addressed the principal complaints, other than that relating to the summing-up, above. It was understandable, indeed inevitable, that Y’s defence would receive greater attention in the summing-up, since he had given evidence and A had not. The summing up in relation to A was full and fair. Looking at the matters complained of individually and cumulatively, there is no substance in this ground. (2). Taylor[74]The principal submission made on behalf of Taylor is that the judge should have acceded to the application made after the close of the prosecution case that he had no case to answer. The identification evidence against him was of questionable strength, but the judge regarded it as supported by other evidence, namely the evidence of the location of his mobile telephone and the video recording referred to above. Hence the submission of no case involves consideration of the admission of those items in evidence: their admission forms separate grounds of appeal, but can be considered together with the principal ground.[75]Taylor’s defence, according to his defence statement, was alibi: he had been at his father’s address at all relevant times. The evidence of the location of his mobile telephone was inconsistent with his alibi. It was objected by the defence that there was no evidence that he had had his mobile with him. The cell site analysis showed only where the phone was, not where he was. As a matter of strict logic, that may be true; but the natural inference that the jury were entitled to draw was that, in the absence of evidence to the contrary, Taylor had his mobile telephone with him. In other words, Taylor was where his mobile was. It required evidence from Taylor (or someone else) to displace that inference. At the close of the prosecution case, there was no such evidence. Indeed, there was none at the close of the defence case, since he did not testify or call evidence.[76]Similarly, in the absence of evidence that pointed to a different explanation, the jury were entitled to infer from the video recording on the mobile telephone on his mobile that Taylor had indeed been involved in the attacks on Stephen Mafolabomi and Paul Erhahon. That the commentary to the video was unattractive cannot be disputed, but it does not follow that it was so prejudicial that its prejudicial effect outweighed its probative value.[77]These two items of evidence, together with Stephen Mafolabomi’s testimony, justified the judge’s conclusion that Taylor had a case to answer.[78]It is also submitted that the judge wrongly directed the jury that the video download was capable of supporting Stephen Mafolabomi’s identification of Taylor. We reject this submission, for the reason given in paragraph 76 above.[79]We note that although Taylor did not give evidence, the judge fully and with care summarised the evidence against him and its weaknesses, as well as his case as set out in his defence statement. The summing up was conspicuously fair. We are not surprised that in the face of the evidence, in circumstances in which Taylor had refused to answer questions in interview and did not give evidence, the jury convicted him of the attempted murder of Stephen Mafolabomi. His conviction is safe. The appeals against sentence (1). Appellant D[80]D appeals against the extended sentence imposed on him. It is submitted that an extended sentence was not justified in his case, and that the custodial period was excessive.[81]D was born on 27 January 1992. He was aged 15 at the date of his offences. He was of good character, not only in that he had no previous convictions but in that character evidence spoke highly of him. He came from an excellent and supportive background. His mother is a school governor. He performed well at school and in sport, to the extent of having trials in playing basketball for England. A letter from the chairman of Ilford Colts Football Club said that he was shocked and dismayed by Nathan’s involvement in the incident, which “is simply out of character”. The Deputy Head of his school stated that Nathan was on the Gifted and Talented register based on assessments carried out internally, he had excellent numeracy and literary skills and was generally respectful of authority. The writer of his pre-sentence report expressed the view that the risk of his committing further of these types of offences was low. His report from the Carlford Unit was excellent.[82]D admitted that he had kicked Stephen Mafolabomi whilst he was assaulted by others. When sentencing the convicted defendants, the judge said that there was no evidence that D had a weapon with him, or as to what he actually did to Paul Erhahon. He sentenced him on the basis that he joined in the attack on Paul by being there and letting it be known that those attacking him could rely on him if need be. In relation to the attack on Stephen Mafolabomi the judge said that D did not realise that knives would be used to kill him, but only to really hurt him, and that he had joined in by kicking Stephen. The judge accepted that the attacks were not premeditated, but suspected that he, with X and Taylor, while relatively young, and went around with friends “hunting in packs”, posed the greatest danger to members of the public. Accordingly, he said, “it is just not possible for me to say, in the light of these convictions, and the circumstances of the offences [to] which they gave rise, that you do not pose a significant risk to members of the public, of serious harm being caused to them by the commission of really serious offences by you in the future, especially as you, Scott, unlike any of the others, already have a history of relatively serious offending.”[83]In order to pass an extended sentence under section 228 of the Criminal Justice Act 2003, as the judge purported to do, the judge had to be satisfied that D posed the requisite risk. In the passage of his sentencing remarks to which we referred in the previous paragraph of our judgment, he posed the onus the other way: that he could and should pass an extended sentence if he could not say that D did not pose the relevant risk. We would not wish to be over-critical or over-analytical of the sentencing remarks, but given D background and the information concerning him, the reversal of the applicable test was significant. Having considered the available information concerning D, we are not satisfied that he does pose the relevant risk, and do not think that the judge would have so concluded had he correctly applied the statutory test. For these reasons, we quashed the extended sentence imposed on him. It was replaced by a determinate sentence, under section 91 of the 2000 Act by reason of his age.[84]We do not consider that in the horrific circumstances of his case, where death and serious injury resulted from the use of knives or a sword in a gang attack, the determinate period of 8 years assessed by the judge was excessive: see AM and others [2009] EWCA Crim 2544. Accordingly, we rejected his appeal in relation to the determinate period of his detention. (2). Taylor[85]Taylor was aged 17 at the date of the attacks. The judge concluded that he was sure that Taylor was one of those carrying a knife and who actually stabbed Stephen Mafolabomi. The jury had accepted that when he stabbed Stephen he intended to kill him. As the judge pointed out, Taylor, unlike the other defendants, already had a history of relatively serious offending: he had three previous convictions, one for assault occasioning actual bodily harm, the others for robbery. At the time of his offence he was under supervision. The judge took his age into account, and the fact that the attacks were not premeditated and were not pre-planned. It was contended on his behalf that a sentence of imprisonment for public protection was unnecessary and the minimum term to be served excessive. We disagree. The finding of an intention to kill, together with his previous convictions, amply justified a finding that he posed in the future a significant risk of causing serious injury. The minimum period was substantial, particularly for a young man of his age, but deserved.

Appellant C

[86]C was arrested on 8 April 2007, having attended the police station voluntarily. He had no previous convictions or cautions. He was interviewed and gave a prepared statement, but then answered “no comment” to most of the questions. In his statement, he said that one of his group had walked up to Paul Erhahon and showed him a samurai sword, and that Paul had been punched a hit with a bicycle chain, used as a weapon. C gave evidence. The judge thought it more likely that the jury convicted him on the basis that he knew that A had a knife or sword on him, and knew that he might use it on Paul. Nonetheless, B had told A and C to attack him. C joined in by attacking Paul with the baseball bat he had with him. As we pointed out during the hearing of these appeals, there was no evidence that anyone had played or intended to play baseball. The bats, like the sword and knives, were carried as weapons. As already mentioned, the judge took into account the fact that the attack on Paul Erhahon was not premeditated and C’s age, only 14 at the time. He thought that there was a strong element of peer pressure in the offence. The minimum period set by the judge, of 11 years, reflected the difference between his part in the incident and those of B and A, whose minimum terms were fixed at 13 years.[87]C had been an able and conscientious student. In custody he has maintained the highest level in his behaviour, and achieved A and A* grades in Maths GCSE and good grades in English and ICT, the only subjects available at the Carlford Unit. He had an excellent pre-sentence report, indicating that he was remorseful and had acted without thinking of the consequences. According to the report, C described his involvement in “a robbery … intended by his peers, that led to violence and that he hit Paul Erhahon in order to assist his peers”.[88]The judge concluded that since the jury had found that Taylor, A and B had intended to kill Stephen Mafolabomi, he had to proceed on the basis that C too intended to do so in the case of Paul Erhahron. We consider that it was not a necessary inference from the jury’s finding with regard to Stephen that C intended to kill Paul: he may have intended to cause serious harm. He did not carry or use a knife. The judge presaged his finding that C “joined in what you realised that [A] might do by attacking him with the baseball bat you had with you” with the statement that he “found it far more likely”; if this was the basis of his finding, it was not to the requisite criminal standard.[89]The appropriate starting point specified in Schedule 21 to the 2003 Act is 12 years. Having regard to his age, previous good character, and the lack of premeditation, together with the doubt as to whether he intended to cause death, we consider that the minimum period ordered by the judge was excessive, in that it gave insufficient weight to these mitigating factors, and that 9 years is appropriate. Having regard to the impact of the sentence on a very young man, we considered it right to grant the substantial extension of time required for his appeal. Deducting time served from that period results in a period of 7 years and 336 days being specified for the purposes of section 269 of the Criminal Justice Act 2003.