Okuwa, R. v [2010] EWCA Crim 832

[2010] EWCA Crim 832Case No 200806240 D5IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Pontius
T200477852
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/04/2010
Before
LADY JUSTICE HALLETTMR JUSTICE DAVISMR JUSTICE TUGENDHAT
Between
ReginaRespondentAlex OkuwaAppellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
D Enoch QC and K Inyundo (instructed by Russell Cooke) for DefenceE Brown QC and A Darlow (instructed by the Crown Prosecution Service) for ProsecutionHearing Hearing date: 14 th April 2010
Judgment
[1]Horace Barnett (also known as ‘Short Man’) was a drugs dealer. He lived in a bed-sit on the second floor of 38 Chestnut Road, West Norwood. At about 1.00 am on 8th November, 2004 he was beaten around the head, stabbed, shot and killed. His body was recovered from a path at the side of the house but it was not known whether he was pushed out of the window or jumped from a first floor room. The Prosecution alleged the Appellant and his two accused, Gbenebitse and Afiotor, acting in a joint enterprise, were responsible for the murder.[2]Reliance was placed upon the evidence of two witnesses known by pseudonyms as Mary Preston and Susan Reading. Mary Preston lived in a bed-sit on the first floor. Her evidence, in summary, was that on the evening in question she was in bed when she heard a noise outside. She heard a voice she did not recognise saying twice:
“Alex, look how you bust up my head.”
She thought the speaker was crying. She moved towards the door in order to lock it and a black man came in and took her mobile telephone from her hand. (The SIM card from this telephone was later found in the possession of Afiotor, who claimed in evidence that it was given to him by the Appellant.)[3]Through her open door Mary Preston saw Barnett with two other black men. Barnett had blood streaking down his face. One of the assailants was holding him in a headlock. The assailant had a gun in his other hand. The second man was hitting the deceased. She had never seen any of the assailants before. She never identified the Appellant as one of them.[4]The men pushed the deceased into her room. The man with the gun pointed it at her. The first man told her to take him upstairs which she did. It was while she was out of the room that she heard the sound of a gunshot. The man with her ran downstairs. A mobile phone rang in the deceased’s room and she answered it. A woman said “Tell Shorty I’m downstairs.” Later she looked out and saw a white girl in the street whom she had seen before sometimes with Horace Barnett.[5]A search of her room later revealed lumps of crack cocaine and a knife. The knife may have been the one which caused some of the stab wounds to Barnett.[6]Susan Reading was the white girl Mary Preston saw outside. She was 16. She said she had known the 45 year old Barnett for about five years. They were very close. He sold heroin and crack cocaine sometimes in her presence. His customers paid in money and kind. The Appellant was one of them. She said in November 2004 his habit was bad, costing hundreds of pounds a day. She had known him for about two years and had seen him quite a few times. Donna Carruthers was his girlfriend.[7]Shortly after midnight on the night in question she tried to telephone Barnett to tell him that she was coming to spend the night. Eventually, Mary Preston, whom she thought was seeing the deceased at the time, answered. Reading said:
“Can you tell Short Man I’m at the end of the road?” to which Preston replied “Yes, quick, come.”
[8]As she walked up to the house she saw a red car “like an old Bluebird” outside the driveway. Two black men came from the front driveway of number 38 and got into the car. She claimed she had quite a good view and recognised one as “Tall Alex” (the Appellant) who visited the deceased at the time of night to buy drugs. He ran or walked fast and got into the driver’s side. The other man also got in and they sped off. In February 2005 Susan Reading identified the Appellant at an identification parade as being “Alex”.[9]Susan Reading was challenged by leading counsel then acting for the Appellant, Andrew Radcliffe QC, on a number of matters. She admitted that initially she lied to the police about why she was in the area. She explained that she knew Short Man was in the house and involved with drugs. She was also worried that at 16 she was too young to be sleeping with him.[10]She denied making a conscious decision to lie about the Appellant and denied inventing her account of seeing the car outside number 38. She did agree, however, that it was only during her fourth account to the police that she said that it was Mary Preston who had answered her call and that she had not named “Alex” to the police until 12th November;[11]She had not mentioned the Appellant when she spoke to a police officer just hours after the killing, when she was first interviewed at the police station on 8th November and when she made her first witness statement that day. At that time she said she had not seen the driver’s face and would not be able to recognise him again. She told the jury that on 12th November, when she eventually gave his name, she was unaware the Appellant had been charged with murder. She agreed she had her fingers crossed when she picked out the Appellant at the parade;[12]Her telephone records showed that she received a telephone call at 1.10am. This call was made at a time when her telephone was using a cell site which was not the best serving site for the scene of the shooting. The significance of this for the defence was that this was at about the time that she claimed to be approaching the scene and saw the two men making their escape. Other telephone records put mobile telephones attributable to the three accused in the area of the shooting at the relevant time and, shortly after the murder, the Appellant’s mobile telephone moved to the vicinity of the home address of Afiotor.[13]The relevant scientific evidence was as follows: blood was found on the knife recovered from Mary Preston’s room from which a DNA profile was obtained which matched the Appellant. There was also a weak match to the deceased’s DNA on material found on the blade of the knife. A leather glove recovered from the iron staircase outside the house was found to contain a high level of firearms residue suggestive of being worn by someone whilst firing a gun. Material, not confirmed as blood, matching the DNA of the deceased was found on the outside of the glove. A weak finding of DNA material matching the Appellant was traced inside the glove.[14]Thus, two of the items which the Appellant later admitted taking to Chestnut Road were used in the fatal attack. Okuwa’s explanation was that he took two gloves with him to buy drugs and Barnett wanted them. The assailant must have picked them up, used them in the shooting and left one behind. The Crown argued this version of events was nonsensical.[15]A grey Volvo motor vehicle belonging to Afiotor was found to have blood staining in the rear, including heavy contact stains on the passenger seat, which gave a full DNA profile for the deceased.[16]The Appellant was arrested on 10th November, 2004. At the police station DC Watson took him for a cigarette break. Accordingly to DC Watson, the Appellant said “Small Man. I was at his flat on Sunday morning. I bought from him”. Reminded he was under caution he continued “He took a knife off me, a Leatherman thing and a Burberry hat and scarf and a pair of leather gloves”. Reminded again that he was under caution he said “This shouldn’t have happened. It was not supposed to go this far. There is others involved. See George and Mark with the Z4”.[17]Afiotor and Gbenebitse were arrested on 17th November, 2004 and 5th January, 2005 respectively. Each gave a no comment interview. They later presented the police with prepared statements[18]The Appellant gave evidence that he funded his drug habit through credit card fraud. He often bought drugs from Short Man paying with shoes, clothes and phones. In November, 2004 he was taking half a sixth of heroin and .8 of a gramme of cocaine a day. He had known Gbenebitse for 1-2 years. He did not know Afiotor but had seen him before and referred to him as Black Man. His memory of 7th-8th November, 2004 was not too clear. He went to Short Man’s house during the day and bought heroin. He gave him a phone in payment. He asked Gbenebitse for a lift that evening to go and buy more drugs from Short Man. Gbenebitse arrived with Black Man in a Volvo. A man called Solomon was in the car. At about 11.05 pm the car stopped by a petrol station. He got out and phoned Short Man from a phone box.[19]When they arrived at number 38, he went around the back of the house. Short Man was at the door. He started walking up the staircase but did not go inside. Short Man had the drugs on him. He paid him cash to get his phone back and also a hat and a scarf to pay for the drugs. Short Man then wanted gloves and a knife. He told him that he had friends with him who wanted something and who were nearby. They went to the driveway. He waved them across and then walked away to the right to make his spliff.[20]He was in a side road when he next saw the others. They came along and he followed them. He saw the Volvo car and jumped in. They appeared perfectly normal and the car was driven to Black Man’s address where Donna Carruthers’ ex boyfriend Shay collected him to drive him home. He insisted he did not kill Barnett and was not present when he died[21]He admitted that some of the answers he gave in interview were untrue and that he was with Gbenebitse and Afiotor and that they all left together. When he used the phrase “There is others involved” to DC Watson he said he was referring to Short Man’s drug dealer friends, not those involved in his death .[22]The co-accused ran what is colloquially known as a “cut throat defence”. Although they did not expressly name the Appellant as the killer, that was the effect of their evidence. Their counsel placed the blame for the murder on him.[23]On 13 December, 2005 at the Central Criminal Court before His Honour Judge Pontius, the Appellant was convicted of the murder. His co-accused were acquitted. The Appellant appeals against conviction by leave of the single Judge who granted an extension of time of nearly three years. The four grounds are: i. The judge should not have granted an anonymity Order in respect of the witness ‘Mary Preston.’ ii. The judge should not have granted an anonymity Order in respect of the witness ‘Susan Reading’. iii. The judge should have warned the jury as to the disadvantages caused to the Appellant’s case by the grant of the anonymity orders. iv. The judge should have warned the jury to approach with care the evidence of the co-defendants adverse to the Appellant.[24]We must begin with disclosure. Mr Edward Brown QC for the Crown (who did not appear in the court below) explained that a recent thorough review of the unused material had revealed deficiencies in the process. He apologised unreservedly for the fact that material which should have been disclosed was not disclosed in time for the trial.[25]We were astonished that in a case as serious as this, in which the prosecution sought anonymity orders for its witnesses, greater care was not taken with the disclosure process. Many years before, in R v Taylor 1995 Crim L R 253, the Court of Appeal Criminal Division provided guidance on the factors relevant to the making of anonymity orders. The Court emphasised the fact that the trial judge must be satisfied there has been both a thorough investigation into the witness’s creditworthiness and full disclosure consistent with anonymity.[26]The duty of full and fair disclosure in the context on anonymity orders was re-enforced by Lord Judge CJ giving the judgment of the court in R v Mayers 2009 1 WLR 1915. At paragraph 10 he stated:
“the obligations of the prosecution in the context of a witness anonymity application go much further than the ordinary duties of disclosure…a detailed investigation into the background of each potential anonymous witness will almost inevitably be required.”
[27]In paragraph 12 Lord Judge observed that the possibility of collusion between anonymous witnesses should be “specifically investigated and addressed in the context of disclosure” and he concluded the paragraph with these words:
“In short the Crown must be pro-active, focussing closely on the credibility of the anonymous witness and the interests of justice.”
[28]Given the heavy duty of investigation and disclosure, counsel invited us to consider how the material now disclosed (that should have been disclosed at trial) impacts, if at all, on the decision of the judge to grant anonymity and the way in which the defence at trial would have been conducted. If any of the ‘new’ material could been deployed at trial, might it have materially affected the view the jury took of either of the witnesses and their evidence? Has the failure to disclose coupled with the making of the anonymity orders undermined the fairness of the trial process?[29]We have been through a very helpful schedule of the undisclosed material. We do not intend to rehearse the detail of its contents. In summary the freshly disclosed material reveals intelligence to the effect that Susan Reading was a crack cocaine user, that she was involved with the deceased and others in the supply of drugs (possibly importing it from abroad), that she was selling stolen goods, and that she was involved in prostitution. She was offered Witness Protection.[30]One entry records her saying or being told (it is not clear which, to whom or by whom) that a man called Richie shot the deceased. However, when this was put to her, she specifically denied saying it. There are other entries which suggest she was not consistent about her knowledge of “Richie” and also that she may have been less than forthcoming to the police about attending the deceased’s wake.[31]As far as Mary Preston is concerned, the material reveals that at the time of the trial, her visa had expired and she was an “over-stayer” facing deportation. The prosecution persuaded the Home Office to delay her deportation until after the trial, pending which she was put into Witness Protection. This involved her being given a studio flat outside London under her own name. It was made clear to her that, after the trial, she would be returned to her home in Jamaica, where there would be no special measures for her.[32]The material also shows that in the immediate aftermath of the shooting she told police she saw and heard nothing. However, Mr Brown informed us that she was later on the same day taken to a police station (different from the one to which Susan Reading was taken) and within a very short time she volunteered her account of the assault on Barnett and his use of the name Alex.[33]In the years since the trial, the judge’s note book and a tape recording of an ex parte hearing at trial have gone missing. We have no idea, therefore, how much, if anything, the judge was told of this information, for example whether he was told about Mary Preston’s being on the Witness Protection scheme or Susan Reading’s decision not to go on it.[34]Had all or any of this been disclosed, Mr Dafydd Enoch QC, who now represents the Appellant, argued, there could have been exploration at trial of the extent of Susan Reading’s criminal activity, her relationship with the deceased, her taking drugs, and whether she was under the influence at the time of the incident or on the previous disputed occasions when she claimed to have seen the Appellant with the deceased.[35]Further, Mr Enoch claimed that the new material on Mary Preston would have enabled the defence to explore her motives for lying and for helping the authorities and would have enabled the defence to challenge her account with her first version of events. The defence may have decided to approach her as a lying witness rather than a mistaken one.[36]Mr Enoch suggested the new material lent support for a new line of attack on the anonymous witnesses: namely collusion. He asked us to note the way in which each witness gradually revealed the identity of the other to the police (all of which was known at trial), in the context of the fact that in the recent disclosure bundle it is revealed that Mary Preston had recently spoken to a friend of Susan Reading’s. The significance of this is said to be that the two anonymous witnesses appear to have at least one friend in common. The material, it is said, would have affected the conduct of the trial and the outcome[37]We confess we were at a loss to follow this particular line of argument given the fact the defence at trial were well aware the two women knew each other; they said so. The defence also knew by the conclusion of the evidence that they were both apparently close to the deceased. Any discrepancies in their accounts about their relationship or their wish to see the killers caught were there to be explored. There is nothing in the new material which provides evidence of possible collusion as Mr Enoch alleged.[38]The scope for collusion was either non existent or minimal. Had Mr Radcliffe put to Mary Preston that she said nothing to the police when first asked and only provided an account which included Alex’s name after she had got together with Susan Reading falsely to implicate him, he would have been met with the evidence that within hours of the killing and before she had any opportunity to talk to Susan Reading, Mary Preston had made a full statement of what happened, including the name Alex.[39]Further, there is, in fact, nothing in the new material which would have added significantly to the Appellant’s own knowledge of the witnesses. The Appellant correctly guessed the identity of one (Susan Reading) and knew quite a lot about the other including her address (to which he was a regular visitor) and where she originated. He could hear both witnesses give evidence in undisguised voices. Susan Reading realised at trial that his counsel’s questions meant he knew who she was. Rather than give the Appellant ammunition in this appeal, she has since agreed to her identity being revealed.[40]Thus, we now know for certain that the Appellant knew the witness well. He claimed she took drugs in his presence, that they had a sexual relationship and discussed committing offences together. If so, it would have been possible, without offending the anonymity order, to apply to the judge to put to her any part of this background which was relevant and/or met the requirements of section 100 of the Criminal Justice Act 2003 (non-defendant’s bad character).[41]True it is that some of the previously undisclosed material suggests Susan Reading may have been involved in more serious crime than the Appellant may have known about but that is all it does: it suggests. The material records intelligence not proven facts. Even if there was any substance to the allegations, given the issues at trial (which is whether she correctly identified the Appellant as rushing out of number 38 and getting into a red car) it is difficult to discern how the material would have met the criteria in section 100.[42]As far as Mary Preston was concerned, she could have been cross-examined on her previous inconsistent statement that she saw and heard nothing. She might also have been cross-examined on the fact that her immigration status gave her a possible reason to want to help the authorities. However, to our mind this material may have hindered rather than advanced the defence and would not necessarily have been deployed. We consider it far more likely the defence would have kept to their trial tactics of suggesting to her that in the heat and distress of the moment she misheard the one word “ Alex” which was the only evidence she gave against the Appellant.[43]Had the jury been alerted to the fact Mary Preston was in Witness Protection the jury may have thought it added support to her assertion she was terrified of those responsible. They may also have felt that a woman who was prepared to give evidence despite her fears, knowing she was liable for deportation to a country where there would be no protection for her, indicated a woman more likely than not to be telling the truth. Further, it is not clear to us the basis for the assertion that by naming Alex on the day of the killing she would have thought she was helping the authorities.[44]All the objective evidence supported her description of the attack. It was common ground at trial she must have seen part of it. It was not necessary to call her a liar. Thus, establishing a closer friendship with Susan Reading or the deceased or the fact that in the immediate aftermath of a bloody and terrifying ordeal Mary Preston initially denied seeing anything would not, in our view, necessarily have been very helpful to the defence.[45]We have already expressed our concern about the disclosure process but, having scrutinised it with care, we were not satisfied that the failings were anywhere near as significant as Mr Enoch alleged. We doubt that the material would have changed anything in substance as far as the defence’s conduct of the trial was concerned.[46]With those observations in mind we turn to the judge’s rulings on anonymity. Mr Enoch argued the judge was wrong to rule as he did on the material before him and the rulings would have been different had he known what we now know. We shall consider that last point first. In our judgment, there was nothing in the material which would have significantly added to the judge’s knowledge of the lifestyle of the witnesses, their reliability or their credibility. He is an experienced criminal judge. He is sadly all too familiar with the drugs underworld and its effect upon people’s lives. He was well aware that one witness was living in a house from which Class A drugs were sold on a regular basis and that the other at aged 16 was sleeping with a 45 year old Class A drugs dealer. If she had not admitted playing a part in drug dealing, she had admitted being present when it occurred.[47]We turn to the material before the judge. Both Susan Reading and Mary Preston made written statements describing their terror at the prospect of giving evidence. Both indicated that they wished their identity to be withheld. Given the circumstances of Barnett’s murder and the area and culture in which they lived this was hardly surprising. Witnesses in this kind of environment often refuse to help the authorities for fear of repercussions. It is, as the judge observed, a sad fact of life in contemporary London.[48]Although the defence at trial opposed the applications for anonymity on the basis the prosecution were approaching the matter in a ‘cavalier manner’ they did not dispute the fact that the witnesses were genuinely in fear of their lives and that their fears were justified. It was only faintly queried whether the witnesses would positively refuse to give evidence if the orders were not made. The principal reliance was upon the general principles of allowing anonymity to a witness in a criminal trial. To permit any witness of real significance to remain anonymous is an extreme step to take. Mr Radcliffe emphasised what he said was the importance of the witnesses’ evidence and claimed anonymity would infringe Strasbourg jurisprudence to the effect that a conviction should not be based solely or decisively upon evidence given anonymously.[49]Mr Radcliffe took the judge to Kostovski v Netherlands 12 EHRR 434 which highlighted the importance to the defence of the particulars they need to enable them to demonstrate if a witness is prejudiced, hostile or unreliable.[50]In his ruling, with the fairness of the trial uppermost in his mind, the judge referred to the “potential disadvantage to the defence at its lowest and the unfairness at its highest” of allowing the witnesses to remain anonymous, as set out in the Kostovski judgment at para. 42. However, he also derived assistance from the judgment put before him by the Crown in The family of Derek Bennett v Officers ‘A’ and ‘B’ and HM Coroner and Commissioner of Police for the Metropolis [2004] EWCA Civ 1439 and the threefold test approved therein.[51]The judge held that it was common ground and could not be disputed that both witnesses had genuine and very real fears for their safety. He was satisfied that, objectively viewed, these were wholly justifiable fears. The judge also found there was no compelling justification for naming either woman (a test taken from Bennett). The judge noted that so far as Susan Reading was concerned it was likely that the Appellant would be able to guess her identity. The countervailing feature militating against the naming of her was that neither of the two remaining accused knew her. So far as Mary Preston was concerned she knew none of the accused. However, it was important to bear in mind that she was someone who lived in the building and it was quite likely that in any event her identity might well be known to the accused. The judge saw no need to confirm their suspicions.[52]However, he acknowledged, it was important that safeguards were put in place to counterbalance any potential disadvantage or unfairness to the defence. He wanted the real names of the two witnesses. He made it plain he would not prevent the defence questioning the witnesses on any legitimate avenue of inquiry, for example, they would be able to question Mary Preston not only about her viewpoint but also about the contact she had with the deceased and Susan Reading as to her knowledge of and contact with the deceased.[53]In those circumstances the judge felt any potential disadvantage or unfairness to the defence could be fully and effectively obviated. He concluded the answer to all questions in the threefold test in Bennett should be answered in a way which gave both witnesses the benefit of anonymity and allowed them to give their evidence with a little more confidence and at a little greater ease than plainly they would otherwise feel.[54]Before screens were put in place and the witnesses were called, the judge gave the jury a full and fair direction on special measures. He explained that they were often deployed in cases where shootings occurred, because they generated such fear in witnesses. He explained their use was nothing to do with the accused and should not be held against them. Further he explained that the use of pseudonyms would hamper the defence, to an extent, in the way they could question the witnesses, simply because they did not know the identity of the two witnesses.[55]Mr Enoch complained about the fact of the orders and the directions given. He reminded the court the reliability and credibility of both witnesses was very much in issue. He insisted there were real grounds to question their reliability: they each had a relationship with the deceased and may have had a strong desire to see the conviction of his alleged attacker. They were each associates of drugs dealers and users if not drugs dealers themselves.[56]Had the anonymity orders not been made, Mr Enoch would have expected the possibility for collusion and contradictions in the witnesses’ accounts to have been explored in greater depth. In addition, the defence could have asked Mary Preston why she failed to recognise and identify the Appellant or to appreciate the significance of the name Alex, if, on Reading’s account, the Appellant was regularly in contact with Shortman and well known to Shortman and Mary Reading.[57]Mr Enoch relied again upon Taylor and the strict conditions set out therein applicable at the time of trial before an order for anonymity was made. The Court in Taylor stated in terms that the right of an accused to see and to know the identity of his accusers should only be denied in rare or exceptional circumstances. There must be real grounds for fearing the consequences if the identity of the witness is revealed. The evidence must be sufficiently compelling to make it unfair to compel the prosecution to proceed without it. The greater the importance, the greater the potential unfairness to the defendant. A distinction can be drawn between cases where the creditworthiness of the witness is or is likely to be in issue and others where the issue for the jury is reliability and accuracy. The Court must be satisfied that no undue prejudice is caused to the defendant, some prejudice being inevitable if the order is made. The Court must balance the need for anonymity against the unfairness or appearance of unfairness in the particular case.[58]Mr Enoch also prayed in aid the post trial decision in R. v. Davis [2008] UKHL 36 in which it was held that it is a long-established principle of the English common law that the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence.[59]However, their Lordships’ observations in Davis were followed swiftly by the enactment of the Criminal Evidence (Witness Anonymity) Act 2008 which provided specifically for the making of anonymity orders where certain conditions are met. Section 11 makes provision for appeals against conviction in cases where anonymity orders were made before the commencement of the Act. It was common ground before us Section 11 remains unaffected by the Coroners and Justice Act 2009 which now applies. Although many sections of the Criminal Evidence (Witness Anonymity) Act 2008 have been repealed Section 11 we are told is not one of them.[60]Section 11(2)(a) provides that the Court of Appeal may not treat a conviction as unsafe solely on the ground that the trial court had no power at common law to make an anonymity order. Section 11(2)(b) provides that the court must treat the conviction as unsafe if it considers(i) that the order was not one that the trial court could have made if the 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.[61]The present statutory regime for making anonymity orders (as relevant to this appeal) is contained in Sections 88 and 89 of the Coroners and Justice Act 2009.[62]Section 88 reads:
“(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 proposed order is 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 effect of the proposed order would be consistent with the defendant receiving a fair trial. (5) Condition C is that the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify and- a. the witness would not testify if the proposed order were not made, or b. there would be real harm to the public interest if the witness were to testify without the proposed order being made. (6) In determining whether the proposed order is 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.” 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. the witness would not testify if the proposed order were not made, or b. there would be real harm to the public interest if the witness were to testify without the proposed order being made. 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.”

Section 89 reads:

“(1). When deciding whether Conditions A to C in section 88 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 reasonable practicable to protect the witness by any means other an by making a witness anonymity order specifying the measures that are under consideration by the court.”
[63]It is necessary for us to consider whether His Honour Judge Pontius could have made the anonymity orders if these sections had been in force and Conditions A, B and C applied. It is then necessary to consider whether the anonymity orders denied the accused a fair trial and whether the convictions are safe.[64]In Mayers the Court’s guidance included a re-statement of the important principle that an anonymity order should be a measure of last practicable resort. The Court confirmed that all three of the crucial conditions A, B and C must be met and if, for example, only two out of three are met the order cannot be made. Where, in the empowering section, Parliament used the word “necessary” the Court must be satisfied to the highest standard. “Probably” necessary will not suffice.[65]Despite the fact the defence at trial said little or nothing about Condition C, Mr Enoch argued condition C (a) does not appear to have been made out. Mary Preston said “because of the nature and violence of this incident I am scared of anyone finding out who I am, therefore I would now like to be known as Mary Preston. I am scared for my safety should anyone find out who I am and I am scared of any reprisals that may happen.”[66]In a later statement she added she was “…extremely scared. If I had to give evidence and everyone could see me then I could not do it. I would not be able to give my evidence properly if everyone could see me. Because of this I do not want people to see me or to know who I am. I do not want my name read out in court. I am scared of what would happen to me and would fear for my safety if people knew who I was or could see me…” Mr Enoch pointed out that although she said she did not want her identity to be revealed, she did not say expressly that, without anonymity, she would not testify. If so, she may have been content with a screen alone.[67]Mr Enoch reminded us of the observations in Mayers that it must be clear that the witness will not otherwise testify:
“The test is stark. That the witness might prefer not to testify, or would be reluctant or unhappy at the prospect, is not enough.”
[68]We respectfully agree but when considering whether or not to make an anonymity order a judge is entitled to look at all the material before him and draw proper inferences. Here he considered everything he knew about the offence and about the witness and in our view drew the proper inference that whatever precise words she used her meaning was clear: she would not testify if her identity was revealed. We now know he was right. She has recently been traced and has confirmed that she would give evidence again if a retrial was ordered but only on the same terms. In any event in our judgment it was open to the judge to find as he did that the strict terms of Condition C were satisfied.[69]We move to Condition A. The Court in Mayers at paragraph 29 stated:
“The order must be necessary…this is a requirement that goes well beyond what may be described as “desirable” or “convenient”
. Mr Enoch suggested that the judge allowed the subjective nature of Mary Preston’s professed fear to over-ride the essentially objective test in section 88(3). It is not enough for a witness genuinely to fear for their safety. Their fear must be justified.[70]Mr Enoch observed that there was no evidence of any threat having been made to the witness (a factor which was taken into account by the judge). He attempted to portray the Appellant as a harmless chronic drug addict. Moreover, he complained that no risk assessment was presented to the judge testing whether the witness really was at risk and if so the extent of that risk. However, it is clear from the documents before us that the prosecution were prepared to call an officer to give evidence as to the risk but because the point was not taken in the court below it was not considered necessary to hear from him.[71]It should also be remembered that the risk to the witness may have come from any number of quarters not just from the Appellant: for example the other accused, friends and relations of the accused, and those who dwelt in the drugs underworld and who would see anyone who helps the police as a “grass” and deserving of brutal treatment.[72]Mr Enoch also relied on fact that we now know Mary Preston was in a Witness Protection scheme. It was his contention that this will have greatly reduced the risk to her safety. We disagree. She had not been given a new identity or re-housed permanently in a new location. She was re-housed, for as long as the case lasted but under her real name. If deported, she would be deported under her real name.[73]Condition B requires the court to be satisfied that the taking of the measures will be consistent with the defendant’s receiving a fair trial. In Mayers it was stated that the Court must be “satisfied to the highest standard”. Mr Enoch criticised the prosecution at trial for relying on the Bennett case. Bennett stemmed from proceedings for judicial review of the decision of a Coroner refusing to grant anonymity to witnesses at an inquest. It did not involve a criminal prosecution and did not engage the right of an accused person to a fair trial at common law and under article 6.[74]Mr Enoch submitted that in the Appellant’s criminal trial the adoption of the Bennett tests served to lower the hurdle for the Crown. To pose the question is there a compelling justification for naming the witness was the wrong way round for a criminal trial. The correct approach in a criminal trial is to start from the presumption that a witness’s identity should always be known unless there is a compelling justification for withholding the identity.[75]We turn to Mr Enoch’s submissions on the ruling in respect of Susan Reading. It seemed to us that this ground was somewhat taken from underneath his feet by the revelation of her real identity. The Appellant was right all along. He knew who the witness was and could have provided his lawyers with full instructions. He told them he discussed committing offences with Reading and they took drugs together. He did not tell them, as he now claims, they had a sexual relationship. In a statement for this court he explains this by saying he did not want to admit to sex with an under age girl and or to upset his girlfriend. Mr Enoch valiantly attempted to deflect criticism from the Appellant by claiming that where a judge imposes an anonymity order on a witness it is understandable if the defendant is less than truthful with his trial lawyers and fails to give details of his relationship with the witness. Such details if stated publicly could have revealed the witness’s identity to others present. To our mind this does not come close to explaining why the Appellant did not tell his lawyers the truth and give them the chance to consider their position. Putting to the witness at least some of things the Appellant says he knows about her would not necessarily have led to her identification.[76]We found the Appellant’s explanation for failing to tell his lawyers the truth when faced with a murder charge less than convincing. Despite the obvious inadequacies of the Appellant’s explanation for the very belated change in instructions and the fact he could not point to a single significant issue which the anonymity order prevented the defence from exploring properly, Mr Enoch took us through Conditions A, B and C as they relate to Susan Reading.[77]In her statement dated 12th November 2005 she stated that she was scared and wanted her identity withheld. She said she would not be able to give evidence unless she had a screen to protect her identity. She said she did not want anyone to know who she was. However, she did not say in terms that without anonymity she would not testify. If she is now prepared to reveal her identity Mr Enoch claimed the anonymity order was not necessary.[78]He also placed reliance on the recently disclosed unused material suggesting she was associating with serious criminals, was herself a drug dealer and may have been involved in prostitution. Mr Enoch commented this disclosure suggests she chose to live in a dangerous world which is relevant in considering whether or not her expression of fear was genuine and, as the Act requires, reasonable. During the anonymity application at trial the prosecution characterised the two witnesses as “vulnerable young women”. Had the judge known what we know, it is said he may not have agreed Susan Reading was vulnerable.[79]In relation to Condition B, and the question of whether anonymity consistent with the Appellant having a fair trial, Mr Enoch categorised Susan Reading’s evidence as decisive. In their special measures application the Respondent described her evidence as so important that “without her evidence there would be no case.” It should be said that Prosecuting counsel later retracted that remark, for good reason in our view. Nevertheless her evidence was plainly important.[80]Further, it remains a relevant consideration under section 89 as to whether the witness has a motive to be dishonest. Mr Enoch relied on the Appellant’s recent witness statement about not treating the witness well as establishing a motive for the witness to lie. However, the Appellant stated baldy that he had a sexual relationship with her and had not treated her well. He did not condescend to detail and as we have indicated he provides no sensible explanation of why he did not say this at the time of trial. We see nothing in this to provide a motive to lie in a murder trial.[81]Mr Enoch continued that had the witness’s identity been known various issues could have been explored in evidence, namely, the background between the witness and the Appellant, the nature and extent of any relationship between them and knowledge he had about her. Defence counsel clearly took the view that the best course was not to ask any questions at all on these topics. If anonymity had not been granted then as Mr Enoch would have it the whole dynamic of the case would have changed. The defence would have focused on the witness and “taken the gloves off”. He insists that whilst there remained uncertainty as to the identity of the witnesses the defence were hamstrung.[82]Yet, to our mind, the witness’s evidence at trial was nowhere near as prejudicial to the Appellant as might at first sight have appeared. True it is, she identified the Appellant as being present at the scene, but he admitted to being present. He admitted visiting number 38 and leaving with his friends. His case was that she was wrong on timing and the circumstances in which he left the scene. There were many ways in which the defence could legitimately undermine her reliability as a witness: her timings were not necessarily consistent with the prosecution case and her evidence was not always consistent. In one way, her very unreliability helped the Appellant, albeit her evidence in this respect was not consistent with his case. She claimed the Appellant left in the red Bluebird type car. The damaging blood stains were found in the grey Volvo.[83]However, we do not need to dwell upon the extent to which she may have helped the Appellant, because as we have already observed, and the judge observed, the Appellant guessed who the witness was. Had the Appellant given his defence team proper and truthful instructions he could have told them of any relationship between the parties, motives to lie and the possibility of collusion.[84]We pressed Mr Enoch on any aspect of the defence that would have been conducted differently if the judge had not made the anonymity orders. He failed to identify any significant changes to our satisfaction. The witnesses were cross-examined robustly. Everything that could sensibly be put to them was put to them.[85]Susan Reading was cross examined on every possible inconsistency, her intimate association with the deceased, including her knowledge of his drug dealing, the existence of another boyfriend and his role in the events, her telephone call to Mary Preston and its timing (which allowed the defence to suggest that the events in the street could not have occurred as she set out), that she knew Mary Preston and Mary Preston’s apparent relationship with the deceased, the circumstances of her observation outside the house at the time she said a car drove off with two men, distances, times, conditions, viewpoints , the car, the circumstances and extent of her knowledge of “Tall Alex”, his drug taking, his relationship with the deceased, and her identification/recognition of “Tall Alex” at the Identification Procedure.[86]Any motive the witness Susan Reading had to lie or embellish (perhaps that she knew the deceased and was in a relationship with the deceased who was a much older man and a drug supplier) would have been readily apparent to the defence teams, was not disguised by anonymity nor did it cause any impediment to full and open cross-examination.[87]As far as Mary Preston is concerned we repeat that essentially the only damning evidence she gave against the Appellant was her claim to hear the name Alex. Otherwise what she said was not significantly in dispute. It was not in dispute she was there, she saw the attack and her phone was taken. It was not in dispute the circumstances in which she could see the faces and hear the voices of the assailants. By the close of the evidence the defence knew she had a relationship with deceased and could explore the extent of it if they so wished.[88]She was subjected to close examination as to the words allegedly heard and her ability to hear and understand them, her tape recorded interview and statements, her background and connection with the deceased, close details of the attack itself including her view, the lighting, whether she had seen the men before, descriptions and comparisons, clothing, her opportunity to observe the three men, positions, accents, timing between shot and telephone call, the aftermath and her demeanour and the fact that contradicting Susan Reading she heard no car drive off.[89]Thus, even if we had reservations about whether the orders would be made today in the present climate and under the current statutory regime (which we do not) it would not follow that the fairness of the trial has been affected significantly or at all.[90]We have given the case anxious consideration in the light of the unsatisfactory disclosure, and the judge’s misplaced reliance on Bennett. However, for all the reasons given we conclude there is nothing in the non disclosure point and anonymity grounds.[91]We turn to ground 3, the warning to the jury on the anonymity orders. In summary, Mr Enoch’s argument was as follows:(a) the judge’s direction was insufficient, and(b) it was given nearly three weeks before the jury retired and for that reason will have been wholly inadequate to ensure that the jury adopted a fair approach in their eventual deliberations. It should have been repeated in the summing up.[92]In Al-Khawaja v. United Kingdom (20th January 2009), the European Court emphasised the importance of the warning which should be given when anonymous evidence is presented (see para. 47). Reference was made to Doorson v. the Netherlands (1996) 22 EHRR 330 at para. 76, and the need to treat such evidence with “extreme care”.[93]By virtue of section 32 of the Youth Justice and Criminal Evidence Act 1999, now section 90 of the Coroners and Justice Act 2009, where any evidence has been given by a witness at a time when a witness anonymity order applied to a witness, the judge must give the jury such a warning as the judge considers appropriate to ensure that the fact the order was made does not prejudice the witness. The Judge certainly did give such a warning and also told the Jury that the defence might be prejudiced by the anonymity order (see paragraph 54 above).[94]Mr Enoch wished the judge to repeat his warning the jury in the summing-up that the defence was unable to explore whether the witnesses had any reason to lie or collude and that for that reason their evidence should be treated with care. A direction as to the unfairness caused could have highlighted, he said, the inability to explore the reliability of the witnesses and to try to identify a motive for the witnesses to lie.[95]To our mind, given the way the case was conducted and having considered the evidence called the warning previously given was adequate to address the possible prejudice to the Appellant. Had the judge descended to any greater detail it may have become apparent there was in fact relatively little disadvantage to him in the anonymity order. This was not a case where the defence knew very little about the witnesses. Here they knew a great deal. They knew where one lived, the background of the other and the fact they each knew the deceased. They knew all they needed to know on the circumstances of the identifications. They were not prevented from asking any questions and made no complaint about being inhibited form conducting the case fully and fairly. Even if it would have been preferable had the warning about anonymity been repeated in the summing up, (as we think it would have been) the direction was given and the jury was alerted to the possible danger as required by European jurisprudence and domestic statute. There was little more, if anything, to be said.[96]Finally we turn to the complaint that the judge failed to give the jury a warning that the co-accused may have an “axe to grind” in giving evidence against the Appellant. The evidence given by the two co-defendants undermined the case for the Appellant in several material ways. They denied that a person called Solomon was in the Volvo, as asserted by the Appellant. They claimed that in Chestnut Road the Appellant was away from the Volvo for a substantial period of time. They denied leaving the Volvo and going to meet with the deceased to buy drugs, as asserted by the Appellant. They denied that the Appellant travelled away from the scene with them in the Volvo. They asserted that the Appellant must have left the scene in another vehicle with others, the implication being that he was one of the attackers who escaped in the red Bluebird as claimed by the prosecution. They claimed the Appellant had possession of Mary Preston’s phone which he then gave to Afiotor. This suggested that the Appellant had been a party to the attack on the deceased.[97]The Appellant was cross-examined at length by counsel for Gbenebitse. It was repeatedly put to him that he was lying. It was also put to him in terms that he had shot the deceased. Counsel for Afiotor adopted “a great deal of” the cross-examination on behalf of Gbenebitse and his cross examination followed similar lines. Although counsel for the Appellant did not accuse the co-accused of murder in terms, it was suggested to them that they were lying about him to exculpate themselves.[98]Mr Enoch submitted that the jury should have been warned to treat with caution parts of the evidence of the co-defendants. However, the judge directed the jury to approach the evidence of the defendants in exactly the same way as the evidence of any witness. Furthermore, he directed the jury that what one defendant says about a co-defendant in interview or a prepared statement should not be held against the co-defendant and the evidence of a defendant at trial is evidence for all purposes.[99]He stated that the credibility of the three defendants as witnesses was an important matter in issue as between the prosecution and defence and “between Alex Okuwa and the other two defendants.”[100]Mr Enoch took us to the authorities from which he derived support for the proposition that the need for a warning is of long-standing. In R. v. Cheema (1994) 98 Cr. App. R. 195, Lord Taylor CJ, giving the judgment of the Court and having reviewed the case law stated (at page 203) that:
“The effect of this considerable body of case law is to show that in recent years time and again the Court has reiterated that although a warning in suitable terms as to the danger of a co-accused having an axe to grind is desirable, there is no rule of law or practice requiring a full corroboration direction….”
At page 204, he said this:
“Accordingly, in our judgment, what is required when one defendant implicates another in evidence, is simply to warn the jury of what may very often be obvious- namely, that the defendant witness may have a purpose of his own to serve.”
[101]In R. v. Mills [1993] Crim LR 210, the Court of Appeal considered a case involving “cut-throat defences” in which no such warning had been given. The conviction was quashed.[102]R. v. Burrows [2000] Crim LR 48 a slightly different approach was adopted in a case where the accused each fairly and squarely blamed the other. Judge LJ, as he then was, giving the judgment of the court described “the difficulty facing the judge” as “somewhat stark…each cast all blame onto the other”. If a warning had been given it would have meant treating all the evidence of each defendant with caution, something which could have led to complaint. The appeal was dismissed.[103]In R. v. Jones [2004] 1 Cr. App. R. 5, the Court of Appeal quashed the Appellants’ convictions following a trial in which they ran “cut-throat” defences and in which the judge gave no warning to the jury about treating a co-defendant’s evidence with caution. On behalf of the Appellant considerable reliance is placed upon Jones.[104]Giving the judgment of the Court, Auld LJ stated (at para 41 on page 67):
“a judge in exercising his discretion as to what to say to the jury should at least warn them, where one defendant has given evidence adverse to another, to examine the evidence of each with care because each has or may have an interest of his own to serve.”
[105]At para. 42 Auld LJ emphasised that there was a particular need for such a direction where an accused, who gave evidence against his co-accused, had refused to answer questions in interview and was therefore able, if he wished, to tailor his defence to the facts in evidence. In Jones the Court held that the failure by the trial judge to give a direction was “a serious omission and unfairly prejudicial to Jones’ defence.” This particular omission was sufficient in itself to render the conviction unsafe. Auld LJ considered Burrows and appeared to take the view that even in a case of mirror-image cut-throat defences, the warning should be given (see page 66-70).[106]In R. v. Farquar and Petkar [2004] 1 Cr. App. R. 22, all the authorities were again reviewed. Rix LJ giving the judgment of the Court, without strictly departing from the decision, questioned the validity of some of the propositions in Jones. He highlighted the risk that a direction to exercise caution before acting on the evidence of co-accused will have the effect of diminishing the evidence of all in the eyes of the jury.[107]Nevertheless, Mr Enoch argued the reason a direction is needed is because it is often not obvious to a jury that a co-accused might be lying because he has an interest of his own to serve. Mr Brown conceded that with the benefit of hindsight, the need for a warning ought to have been raised at trial and had it been raised, a tailored direction may have been given. Using the words of the most recent Judicial Studies Board Crown Court Bench Book (page 106) the judge may have been persuaded to add “bear in mind that each of them has his own interest to consider when giving evidence in his own defence”. Mr Enoch accepted these were the only words omitted. The judge directed the jury in accordance with the illustrative direction in every other respect. However, he asserted the inclusion of these few words would have made all the difference to the safety of the conviction.[108]The need for the direction here, he argued, was all the more acute, he submits, because of the prominence given by the judge in his summing-up to the issue between the Appellant on the one hand and the two co-accused on the other and the opportunity that the two co-accused had to tailor their accounts following their no comment interviews (regarded by the court as a significant matter in Jones).[109]We have considered those submissions with care. To our mind, this was, in effect, a mirror image cut throat defence of the kind discussed in Burrows. It would have been more than obvious to the jury that each accused had his own aims and interests in giving evidence. They were each charged with murder. It was the Appellant’s case his co-accused were lying to get themselves off the hook. They were cross-examined on that basis. The warning, if given, would have done no more than state what was already obvious. It might have diminished the evidence of the accused in the eyes of the jury. It might have had a particularly unfortunate effect on the Appellant’s case in that any comparison between the two versions of events would have shown that the version given by the co-accused was more likely to be true.[110]Prior to the summing-up, detailed discussions took place between the judge and all counsel regarding the ambit of legal directions to be given to the jury. At no stage during those discussions did counsel for any party raise the issue of a warning to be given as to the approach to be given to a co-accused’s evidence, when considering the case against any accused. The approach of counsel is, of course not determinative, but it is some extent indicative of the flavour of this trial. In those circumstances, even if we accept that it may have been preferable for a warning to be given, the failure to give one, in our judgment, does not come close to undermining the safety of the conviction either standing alone, or in conjunction with the other alleged failings.[111]In conclusion, despite being acutely conscious of the significance and exceptional nature of anonymity rulings and bearing very much in mind all the criticisms made of the trial judge, we are satisfied on the particular facts of this case that the Appellant did have a fair trial. Nothing has been put before us which, when properly analysed, renders the Appellant’s conviction for murder unsafe. The appeal must be dismissed.