Sanghera & Anor v R [2012] EWCA Crim 16

Case No 201004875D4Case No 201004952D4Case No 201006872D4[2012] EWCA Crim 16
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM BIRMINGHAM CROWN COURT
MR JUSTICE JACK
T20107437
T20100665
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/01/2012
Before
LORD JUSTICE AIKENSMR JUSTICE MADDISONHIS HONOUR JUDGE STEPHENS QC
Between
(1) Sukwinder Singh SangheraAppellants(2) Jasbit Singh TakharAppellantRRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr David Spens QC and Mr Antony Dunkels for Sukwinder Singh SangheraMr O Pownall QC (who did not appear below) for Jasbir Singh TakharMr Christopher Hotten QC and Mr Philip Bradley for CrownHearing Hearing date: 16 th December 2011
Judgment
[1]On 5 August 2010, after a trial of some seven weeks before Jack J and a jury in the Crown Court at Birmingham, Sukwinder Singh Sanghera, (“Sanghera”) who is now 25, and Jasbir Singh Takhar, (“Takhar”) who is now 24, were convicted of murder. Both appellants were sentenced to life imprisonment. The judge set Sanghera’s minimum term at 28 years less time spent on remand and he set Takhar’s minimum term at 29 years less time spent on remand. Both Sanghera and Takhar appealed their convictions with leave. Takhar also appeals against the minimum term set by the judge. We heard the appeals on 16 December 2011 and announced at the end of the hearing that the appeals would all be dismissed. We said that we would give our reasons in writing. All members of the court have contributed to this judgment.[2]The two appellants were convicted of murdering Swinder Singh Batth, the owner of Gavin’s Sports Bar in Bilston, Wolverhampton. He died as a result of a single fatal bullet wound. The prosecution case was that Sanghera, with murderous intent, fired the fatal bullet towards a crowd and it hit Batth, although it was accepted that Sanghera did not intend to kill Mr Batth in particular.[3]Seven other defendants were tried with the two appellants. Five of those defendants were also accused of murdering Mr Batth but, at the close of the prosecution case, the judge accepted a submission of no case to answer in respect of each of them. Those five (as well as Takhar and Sanghera) were, however, all found guilty of conspiracy to commit violent disorder. Those other five defendants were sentenced to various terms of imprisonment or detention. The two further defendants were only charged with intimidation of a witness, namely Kieran Mark Taundry. They were convicted of that offence and were given custodial sentences.

The Facts

[4]The shooting that gave rise to the charges took place outside Gavin’s Sports Bar early in the morning of 28 July 2009, but the chain of events started earlier in the evening of 27 July. Takhar was with his girlfriend Neesha Dubb, whom we shall call “ND”. (She was one of those convicted of conspiracy to commit violent disorder). They and other friends had been at Gavin’s Sports Bar. Takhar left with ND in her Renault Clio at about 2100 hours. They gave a lift to three young men: Kieran Mark Taundry, (“KMT”, a key prosecution witness), Shiv Dubb (one of the two defendants convicted of intimidation) and Ravi Patel, who was neither a defendant nor a witness at the trial. As the Clio drove away it passed a stationary Fiat Punto car which had a group of young men standing around it. One of the young men shone a laser pen beam into the Clio, which was being driven by ND. The laser beam was a strong, green light. Takhar was unhappy about this. He told ND to turn the car around and they went back to where the Punto was. Takhar remonstrated with those in the Punto and was very angry. He told ND to drive the Clio to a car park at the rear of Gavin’s Sports Bar. The Punto then drew up alongside and the occupants told Takhar he should calm down but he did not. He argued with a young black man called Kieron Wynter. The Punto drove off and Takhar remained angry.[5]The prosecution case was that Takhar then resolved to gather together a group of people to go back to the bar and confront Kieron Wynter and his associates. It was said that Takhar recruited Sanghera as the gunman in order to deal with Keiron Wynter and that Takhar recruited the other four male defendants by mobile phone. The prosecution case was that Takhar, driven by ND in her Clio, collected Sanghera from his home in Melvin Road, Smethick and then another defendant, Narinder Kumar from his home nearby at 9 Slade Close, West Bromwich. It was the prosecution case that when Sanghera got into the Clio he had a gun, a pair of gloves, a full face balaclava hat and wore body armour and, importantly, that Takhar knew that Sanghera had a gun. All in the group collected at Marbury Drive in Bilston and they then travelled in two cars to Gavin’s Sports Bar. The larger car was a Seat Alhambra in which, on the prosecution case, Sanghera and Takhar were passengers. ND drove her Clio to the bar with three others in the car, including KMT. None of the occupants of the Clio got out of the car during the ensuing incident. However, the prosecution case was that all the defendants were well aware of the plan to use or threaten violence with a gun.[6]The two cars arrived at the bar very shortly after midnight. There were about 20 people in or outside the bar. Takhar and another defendant, Sangha, went into the bar and were looking for the young men who had shone the laser beam earlier that evening. Takhar asked for Kieron Wynter by name. He was not there. Takhar and Sanga both made threats against the laser users. They came outside the bar and there was then an argument between Takhar and a young white man called Craig Martin in which there were references to the earlier incident with the laser pen, threats of violence, allegations of racial abuse and Takhar indicated the Alhambra and said he had “not come alone”. The prosecution case was that Sanghera then got out of the Alhambra wearing gloves and a full face mask which had just eye holes, he walked towards the group on the steps of the bar, raised his arm and fired a shot from a handgun into the crowd. The shot struck Swinder Singh Batth and he died shortly afterwards. The group then fled in the two cars.[7]The prosecution case was that Sanghera was the gunman and that when he fired the handgun he intended to kill or at least to grievous bodily harm. The case against Takhar was that Takhar was a secondary party to the murder of Mr Batth, so he was party to a joint enterprise to Mr Batth’s murder. The prosecution advanced two alternative bases for Takhar being part of the joint enterprise. The first was that he called Sanghera out of the Alhambra with the intention that Sanghera should fire the gun and kill or cause serious injury. It is obvious that this basis presupposed that Takhar knew that Sanghera had a gun which he could and would use when asked to do so by Takhar. The second basis was that Takhar was a party to a plan to find, threaten and use violence against Kieron Wynter and his associates and that what was going on at the bar (when Takhar’s group returned) was a part of that plan. The way the judge put the prosecution case against Takhar on this second basis (which was in a formulation that was agreed to by all counsel at the trial) was that Takhar “…realised that one of those who had come with him had a gun and that there was a real risk that in the course of the plan the gunman might intentionally kill or cause really serious injury in putting the plan into effect”. That direction is criticised by counsel for Takhar and forms the first Ground of Takhar’s appeal.[8]The defence case for Sanghera was alibi. He said that Takhar had called at his house earlier in the evening but he refused to go out and he went to bed instead. The defendant Kumar identified Sanghera as the gunman in his police interview. KMT, who had originally been arrested on suspicion of murder and interviewed under caution, was then told that he was not to be prosecuted. He subsequently gave a statement to the police on 22 October 2009. In this witness statement he described meeting a person called “Suk” or “Suki” a short time before the incident. He also said that he was told by someone that “Suk” was wearing body armour. Subsequently, KMT took part in a video identification in which he identified Sanghera as the man to whom he had been introduced as “Suk”.[9]Sanghera said that others in the group had named him because they wanted to hide the true identity of the gunman. It was accepted at the trial by Mr David Spens QC, counsel for Sanghera, that if Sanghera was present outside Gavin’s Sports Bar, then he was the gunman.[10]Takhar’s case was that he had no knowledge that Sanghera had a gun or that it might be used.[11]The principal issues for the jury were, therefore:(i) was Sanghera present and did he use the gun;(ii) was Takhar liable as a secondary party to the murder of Mr Batth; and(iii) were any of the other defendants accused of murder guilty as secondary parties.

The Trial: how the grounds of appeal arise

[12]Prior to the start of the trial Takhar had pleaded guilty to the charge of conspiracy to commit violent disorder, viz count 2 on the Indictment.[13]The trial began on 14 June 2010. The prosecution applied, without notice, to permit the jury to see the material parts of the defence statements of all nine defendants, pursuant to section 6E of the Criminal Procedure and Investigations Act 1996, which provision had been added by section 36 of the Criminal Justice Act 2003. The application was supported by two defendants, Kumar and Ottalan so far as their defence statements were concerned. It was opposed by the appellant Sanghera and by ND. Counsel for the other defendants took a neutral stance. The judge ruled that all the defence statements should be shown to the jury. He rejected the argument of Mr Spens, on behalf of Sanghera, which was that the statements of Ottalan and Kumar should not go before the jury because it was asserted in them that Sanghera had fired the shot, yet they might not give evidence either at all or even in support of that allegation. The judge also rejected a further argument of Mr Spens based on the construction of section 6E(4)(b) of the 1996 Act. This was to the effect that the judge should direct that the defence statements of Ottalan and Kumar should be edited so as to omit the references to Sanghera being the gunman, because that was a matter “evidence of which would be inadmissible” within the meaning of that section. The judge held that Mr Spens’ argument was based on a mis-reading of the provision. He pointed out that evidence that Sanghera was present, had the gun and had fired the shot would all have been admissible. The judge also ruled that, in the circumstances of this case, the proper exercise of his discretion was to permit the jury to have the material parts of all the defence statements. The jury were given the defence statements in a separate bundle and they retained them throughout the trial and when they retired to consider their verdicts.[14]Ground 1 of Sanghera’s appeal is that the judge erred in this ruling.[15]The prosecution then presented its case. After the prosecution opening, in which there was reference to the interviews of all the defendants, the judge told the jury that what a defendant said in interview was not evidence against another defendant. The prosecution read out the contents of the defence statements. The judge did not say anything to the jury about the status of the defence statements; in particular he did not point out to the jury that they did not constitute evidence.[16]On 6 July 2010 the prosecution proposed calling Sharanjeet Kaur to give evidence. She is the wife of Narinder Kumar, who was one of the defendants. She had given a statement to the police on 30 September 2009. The statement related an account given by him to her shortly after the incident in which he explained how he had become involved in the incident. In the statement Kaur reports Kumar as saying that Sanghera had the gun and fired the fatal shot. The prosecution wished to adduce the evidence from her because the account was made so soon after the incident and because, it was said, the account of Kumar given to his wife constituted a confession by him to her. It was accepted that section 76 of the Police and Criminal Evidence Act 1984 (“PACE”) applied but there were no grounds on which the evidence could be excluded under that section. It was conceded by the prosecution that this evidence, which it said was evidence against the interest of Kumar, was evidence only against him, unless Kumar himself gave evidence and adopted what his wife had recited he had said about the incident, in particular the fact that Sanghera was present and fired the gun.[17]On behalf of Sanghera, Mr Spens objected to this evidence being admitted. He did so on the ground that it would have such an adverse effect on the fairness of the proceedings so far as his client was concerned so the court should exclude it using its powers under section 78 of PACE. The judge rejected Mr Spens’ submissions. He said that they were founded on the proposition that the jury would not follow a direction that (unless Kumar gave evidence) the statement could only be evidence against Kumar and not against Sanghera.[18]Two witnesses were called by the prosecution to prove that Sanghera was both present and the gunman. The first was KMT, who had been present at the argument between Takhar and Wynter earlier in the evening and who was also present in the Clio on the group’s return to the bar.[19]The second witness was Anthony Scott. Scott was, at the relevant time, serving a prison sentence for the violent robbery of a drugs dealer. Scott had met Sanghera in prison when Sanghera was on remand. Scott said that Sanghera had talked about the case and had shown him some papers. He said that Sanghera had admitted that he had shot Mr Batth but Sanghera had said that it was an error. Scott’s evidence was that Sanghera wanted Scott to ensure that witnesses did not give evidence either by offering them money to go abroad for a period or by other means if that failed. Scott’s evidence was that he was not interested in helping Sanghera. Scott also said in evidence that one month after he came out of prison (on 9 April 2010) he met Mr Batth’s son, Gavin Batth and Scott told him of his involvement with Sanghera in prison. Scott made a statement to the police on 28 June 2010, that is some two weeks after the trial had started.[20]The prosecution also put in evidence the police interviews of those who faced the charge of murder. All save ND had, in their interviews, identified Sanghera as being present outside the bar, if not as the gunman. The prosecution also adduced three plans of the interior of the Alhambra car, showing where various persons were sitting in the car, including Sanghera.[21]On 15 July 2010 the judge ruled that there was no case to answer on the charge of murder against Ottalan, Sanga, Kumar, Bajwa and ND. He did so on the ground that, in respect of those defendants, the jury could not be sure on the basis of the prosecution evidence that Sanghera had a gun prior to him firing it. But he held that the jury should still consider the second count against those defendants, viz. that of conspiracy to commit violent disorder. Following this ruling all of those defendants bar ND indicated that they would not be giving or calling evidence.[22]On 16 July 2010 Mr Spens, on behalf of the appellant Sanghera, applied to discharge the jury from further consideration of the case against him and to sever his case from the main trial and for an order that there be a separate trial of his case. The basis of those applications was that there would now be a large quantity of statements, in particular the co-defendants’ interviews, diagrams and defence statements which the jury had seen and read, but which were all inadmissible as evidence or material as against Sanghera. Therefore any trial of Sanghera in such circumstances would be unfair, notwithstanding any direction from the judge that the jury must not treat those statements or materials as not being evidence against Sanghera. It was submitted that those statements or materials that were inadmissible against Sanghera were so preponderant in weight that the jury would be influenced by them so that Sanghera could not have a fair trial.[23]The judge ruled against this submission and gave brief reasons when he did so. He handed down a fuller written ruling on 20 July 2010. The judge stated that he appreciated that this was a case where the jury would have to be directed that, so far as Sanghera was concerned, they must put out of their mind material which they had seen and heard. But he said that in this case Sanghera had alleged that various defendants made the false accusation against him that he was present and the gunman. But now it was clear that they were not prepared to give evidence to back up those allegations against Sanghera. The key evidence against Sanghera was that of KMT. If the jury believed that then they would not be bothered by unsubstantiated allegations of others against Sanghera. There was also the evidence of Scott. The jury should be trusted to follow the directions that the judge would give. The judge also said that he did not regard the defence statements as a problem. They had been referred to once in the opening and had not been referred to since then and it was likely the jury had forgotten about them.[24]Ground 3 of Sanghera’s appeal is that the judge erred in his ruling that the jury should not be discharged as against Sanghera or that his trial should be severed from that of the other defendants.[25]The appellant Sanghera then gave evidence. On 19 July 2010 the appellant Sanghera was cross-examined by counsel on behalf of Takhar. During this cross-examination counsel presented, without prior notice, three original pages of a note which was in Sanghera’s handwriting (“the Note”). Copies had not been previously been produced for either the judge or other counsel. Upon its production there was an adjournment to allow copies of the three pages to be made. But, at the time, no objection on behalf of Sanghera was taken to the production of this Note. In this Note Sanghera set out an account of the events of 27 July up to the point at which the Alhambra was travelling towards the bar, so far as they concerned him. It described Sanghera as being in the Alhambra car and how he had come to be there. It accepted that he was one of the team recruited by Takhar. The Note also contained diagrams of where people (including Sanghera) had been sitting in the Alhambra on the way to the bar.[26]Sanghera was then cross-examined by counsel on behalf of Kumar. Sanghera was asked directly whether he knew that, in his police interview, Kumar had said that Sanghera was the gunman. Sanghera denied knowing this and said that he had not received the interview transcripts until November 2009. It was then put to Sanghera that seven of the defendants had said in their interviews that “Suk”, viz Sanghera, was the gunman. Counsel for Siv Dubb then rose to point out that his client had not named Sanghera as the gunman in his interview. Counsel for Kumar corrected himself but said that six defendants had named Sanghera as the gunman. At that point a number of the jury laughed. Mr Spens interpreted that as their comment on the meagre difference between six and seven defendants identifying Sanghera as the gunman.[27]Mr Hotten then cross-examined Sanghera and dealt with the Note. Sanghera said that the Note had been devised by both Takhar and him but at Takhar’s instigation and it was written in Sanghera’s hand in the cells at court. He said that it was written when he thought that his co-defendants, including Takhar, were likely to give evidence and some might implicate him. He said that Takhar was also concerned about the evidence of two witnesses, Balran and Woollery, to the effect that he (Takhar) had gone to the car just before the gunman emerged and that if those witnesses were believed then Takhar was likely to be convicted of murder. Hence the production of the Note. He said that the three pages produced were part of a seven page note. Sanghera stated that Takhar had kept the Note so as to ensure Sanghera kept his side of the deal. In the remaining four pages there was a part about a revolver, which was intended to fit in with the evidence of Scott that Sanghera had mentioned a revolver. Sangera agreed with Mr Hotten that the Note “…was a squalid deal between him and Thakar to lie to a jury”.[28]We have seen the three pages of the Note. The narrative stops at the point when the defendants and the rest of the group got into the Alhambra and Clio. It includes a diagram of where everyone sat in the two cars, including Sanghera and Takhar and it says “this was the seating of the cars on the way to the club”. No other pages of the Note were ever produced and there was no further evidence about it.[29]After this cross-examination had finished Mr Spens applied again for the discharge of the jury as against Sanghera and for severance of Sanghera’s trial from that of the other defendants and an order for a separate trial. The basis for this was that the cross-examination by counsel for Kumar had been improper, relying on evidence inadmissible against Sanghera. The judge said that he would defer a ruling until the close of evidence because he wished to take account of any further evidence. Following Sanghera’s evidence two further witnesses were called on his behalf but none gave evidence in support of his alibi. No other defendant gave evidence.[30]Mr Spens then renewed his application, but it was rejected by the judge. He handed down a written ruling on 23 July 2010. The judge analysed the position as follows:(a) Sanghera’s case remained that of alibi. His evidence was that the Note was not true.(b) The Note (which Sanghera had admitted was actually written by him) was apparently the result of a deal between Sanghera and Takhar, because, according to Sanghera, he felt he needed to find a story which was to be consistent with the other evidence and with what other defendants were expected to say if they gave evidence. Sanghera was prepared to give evidence in accordance with the Note.(c) However, that plan had now collapsed because the other defendants had not given evidence. Sanghera’s evidence was that Takhar therefore gave his counsel three pages of the seven page note.(d) The result of the revelation of the existence of the Note, which, at least implicitly, placed Sanghera at the scene, was that Sanghera had to explain that. His explanation for the Note was that he had felt compelled to produce a further account that would fit in with what he expected other defendants to say but which would still exculpate him from the murder. Accordingly, the judge reasoned, what the co-defendants were expected to say had become “the corner-stone” of Sanghera’s explanation for a document that was otherwise fatal to his case.(e) Therefore, “…the subject matter of Mr Spens’ objection, namely the co-defendants’ accusations made in interview, has become an essential part of Sanghera’s case”.(f) The unfortunate statement by counsel for Kumar about the number of defendants that had placed Sanghera at the scene could be dealt with by an appropriate direction to the jury.(g) The jury would have to assess the evidence of KMT and Scott on whether Sanghera was present.

The judge concluded that Sanghera could still have a fair trial.

[32]In the same ruling the judge recognised that he had to reconsider the issue of the defence statements, which were still in the jury bundles. Counsel for four of the defendants indicated that they would wish to refer to the defence statements in their final submissions. Mr Spens for Sanghera wanted them removed and counsel for the prosecution was content that they should be removed.

The judge ruled:

[33](a) that defence statements were not, of themselves, evidence of anything;(b) a defendant was not entitled to rely on his defence statement in support of his case, particularly if he had not given evidence;(c) before ruling on whether counsel could refer to his client’s defence statement in the course of his address to the jury he wished to know what form this would take and then he would rule on whether counsel could refer to them; and(d) in the light of such further ruling, he would decide whether the defence statements should be withdrawn from the jury before they retired.[34]Ground 4 of the appeal of Sanghera is that the Note should not have been put before the jury by those representing Takhar without advance warning having been given to those representing Sanghera, because it constituted a confession for the purposes of section 76A of the Police and Criminal Evidence Act 1984. If notice had been given, counsel for Sanghera would have been able successfully to resist the Note being put to Sanghera and so introduced to the jury, by virtue of section 76A(2) of PACE.[35]Ground 5 of the appeal is that, as a result of the judge’s ruling not to discharge the jury or order a severance after Mr Spens made his submissions following the Note incident, when the jury retired to consider the case against Sanghera there was more inadmissible evidence before the jury than the jury could have ignored. Particular reliance is placed on the five co-defendants’ interviews in which Sanghera was implicated as the gunman; the two defence statements (Ottalan and Kumar) in which he was implicated as the gunman; evidence from Sharanjeet Kaur of what Narinder Kumar told her about Sanghera’s involvement in the shooting; Keiron Taundry’s evidence about what he was told about Sanghera on 28 July 2009 and on 18 November 2009; the evidence of Anthony Scott. Because of this, Sanghera did not get a fair trial and his conviction is unsafe.[36]Immediately prior to counsel’s final addresses to the jury Jack J made a further ruling on the defence statements. He noted that the defence statements had not been referred to since the prosecution opening and that there had been no evidence from any defendant other than Sanghera in support of his statement; nor had there been any cross-examination on the defence statements. The judge also noted that there would be no reference to them in the closing submissions of prosecuting counsel. However counsel for Kumar wished to refer to Kumar’s defence statement in order to show that statements in it were supported by evidence that was before the jury. The judge ruled that such an exercise would be an illegitimate use of the defence statement because it would accord to the statement a status which it did not have, which was, to use the judge’s phrase “quasi-evidence”. We agree with that analysis.[37]However, the judge ruled that counsel for ND was entitled to refer to her defence statement in order to bolster an argument that her defence statement did cover matters which she declined to answer questions on in interview. We are not sure that this was correct. Answers by a defendant in a police interview have an evidential value because they are statements by a defendant under caution. What is said in a defence statement is not any kind of evidence. To say that there can be reference by counsel to the fact that a defendant’s defence statement “covered the matters on which she declined to answer in her interviews” seems to us to run the very same danger that the judge identified in relation to Kumar’s defence statement, viz. that of giving to the defence statement a status which it did not have of “quasi-evidence”. The judge also ruled that counsel for Narwal could inform the jury that Narwal’s defence statement accepted that he had lied in a prepared statement he had made in his police interview, but he could not rely on that statement to suggest a reason for the lie. It would have been better if that had simply been the subject of an admission, for the same reason of the danger of affording the defence statement a status it did not have.[38]The judge rejected a submission made on behalf of counsel for Shiv Dubb to refer to his defence statement in closing submissions.[39]Lastly the judge decided that he would not order that the defence statements be taken from the jury. He noted that it was unlikely that the jury had referred to them since the opening by the prosecution. He said that, after anxious thought, he had decided that to remove them with the explanation that would have to be given “might be to a defendant’s disadvantage by carrying with it the possibility of suggestion that his case had not been established”. The judge added that the jury would have to be directed that the case statements were not evidence. The judge did give a direction to the effect that the defence statements were not evidence and he directed the jury not to look at them in the course of their deliberations: see page 107C-E of the summing up.[40]Ground 2 of Sanghera’s appeal is that the jury should not have been permitted to retain the defence statements once they retired to consider their verdicts.[41]The sixth and last ground advanced by Sanghera is that his conviction was unsafe because the only admissible evidence against him was that of KMT and Scott but their evidence was not reliable and would not or should not have been enough, on its own to convince the jury to convict Sanghera. In the absence of the evidence or material which was all inadmissible as against Sanghera, this court could not be sure that the jury’s verdict against Sanghera would have been the same.[42]As already noted, Takhar’s first Ground of appeal relates to the agreed direction that the judge gave on what was called “the second route to murder” in relation to the appellant Takhar. It is submitted that the flaws in the direction make the conviction of Takhar on the murder charge unsafe.[43]The second Ground of appeal of Takhar also relates to a direction given in the summing up. It concerns the way the judge dealt with certain evidence given by KMT. The relevant passage of the summing up is at page 70B-E. The judge said:
“Looking at the stills of the Clio and the other cars he said he didn’t recognise any of the men shown standing at the rear of the Clio. He recognised Shiv and Rabi. He said that when they came out [of] the green mini-van was there – obviously the Alhambra. There were seven or eight people there excluding the three of them. The men, he said, were greeting each other, shaking hands. He was introduced to two of them by Shiv. He named those two as Suk and as Honkar. He said he had not seen Suk before. He described him as Asian, brown-skinned, early twenties, short curly hair, a big coat and as the only one there who was wearing glasses. Somebody – he couldn’t remember who it was – had said that Suk was wearing body armour. He thought that they were joking. However, he looked at Suk and his upper body looked big in comparison with the rest.”
[44]The complaint is that whilst KMT’s evidence that he was told by someone else that “Suk” viz. Sanghera, was wearing body armour was admissible against Sanghera because he was present and he did not contradict it, it was not admissible against the appellant Takhar, who was not, because it was hearsay evidence. It is said that the judge therefore wrongly permitted the jury to use this evidence as of general application and so it could, somehow, be used to support the prosecution case that Takhar knew Sanghera had on body armour and there could have only been one reason for that, viz. that Sanghera had a gun and was anticipating it being used. Therefore, it could be wrongly used to support the prosecution case that Takhar knew Sanghera had a gun before the shooting took place.[45]The third Ground of appeal of Takhar also concerns the judge’s summing up and relates to his treatment of the evidence of Anthony Scott about a conversation that Sanghera had with him whilst Scott was a serving prisoner in Winson Green prison where Sanghera was being held on remand. The relevant passage of the summing up is at page 82E-H, as follows: “…Sanghera said [to Scott] that a conviction rested on the evidence of Kieron Taundry. He said that [TMK]could take a flight to wherever he wanted. All would be taken care of. But he was not to come back until after the trial. Sanghera said that if that didn’t work maybe he, Scott, could work out something else to make sure that he didn’t turn up at court. Scott said that over a few conversations Sanghera told him about the case: that he was in for murder, there had been an argument in the bar about laser pens, someone took off, the shooting happened and somebody he knew had died. He wasn’t the intended victim. He, Sanghera, had killed the wrong man. The intended victim was Craig Martin. He also told him that he’d got the gun and body armour from a safe house just north of Wolverhampton, and that’s where they’d gone off to afterwards”.[46]It is said that the evidence may have been interpreted by the jury to mean that the gun was collected after Takhar had picked up Sanghera and thereafter the gun was returned to the same house after the shooting. Thus, the thinking runs, if Takhar knew why they were going to that house in the first place, viz. to get the gun, he would have known that Sanghera had the gun. The judge should have given a specific direction that this evidence was not admissible against Takhar but he did not.

Sanghera: Appeal against Conviction

[47]Ground 1: the defence case statements should not have been put before the jury or included in the jury bundle by virtue of section 6E(4) of the 1996 Act. The relevant provisions of the 1996 Act are:
“(4) The judge in a trial before judge and jury – (a) may direct that the jury be given a copy of any defence statement, and (b) if he does so, may direct that it be edited so as not to include references to matters evidence of which would be inadmissible. (5) A direction under subsection (4) – (a) may be made either of the judge’s own motion or on the application of any party; (b) may be made only if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case.” (a) may direct that the jury be given a copy of any defence statement, and (b) if he does so, may direct that it be edited so as not to include references to matters evidence of which would be inadmissible. (a) may be made either of the judge’s own motion or on the application of any party; (b) may be made only if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case.”
[48]It is accepted that the application was made properly pursuant to section 6E(5)(a) and the Criminal Procedure Rules. However, it is submitted that the judge erred in concluding that the jury would be helped in understanding the case or in resolving any issues in the case by seeing a copy of the defence statements that were placed before them. It is said that the prosecution’s recital of their content was both unnecessary and prejudiced the jury against the defendant Sanghera. Moreover, it is submitted that the decision to direct that the defence statements be put before the jury was premature because it was not known at that stage whether or not the other defendants would give evidence. Although the judge did tell the jury after the prosecution opening that the defendants’ interviews were not evidence against other defendants, he did not refer to the defence case statements at that stage.[49]It is clear from section 6E(5)(b) that the judge can only make an order directing that the jury be given a copy of defence statements if the precondition set out in that paragraph is met. But it is important to note its terms:
“if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case”
. The judge has to form an opinion. Unless it can be shown that his opinion was an unreasonable one such that no judge could properly have reached the view that seeing the defence statements would help the jury to understand the case or resolve issues in the case, then the judge’s conclusion that it would help the jury to understand the case or resolve any issue in the case cannot be attacked on appeal.[50]We appreciate that, even if the judge has properly reached his opinion that it would help the jury, the judge has to exercise a judgment on whether or not to direct that the defence statements should go before the jury. The judge has to make a judgment on whether, overall, he should make the direction sought and he may also have to exercise a judgment as to when and on what terms the defence statements are to be put before the jury.[51]We have read the judge’s ruling. We think that it was a reasonable conclusion on the facts of this case where, at the start of the trial, there were seven defendants facing a murder charge and two others facing a witness intimidation charge and they had different cases. The judge considered the issue of the construction of section 6E(4)(b). In our view his conclusion on that issue was also correct. In other words, that paragraph makes it clear that the judge has a discretion on whether or not to direct that the defence statement that goes before the jury should be edited so as not to refer to matters “evidence of which would be inadmissible”. That is a reference to evidence of matters such as hearsay evidence or the bad character of prosecution witnesses. But, it is to be noted that the paragraph confirms that the defence statement itself is not evidence. All it can ever do is to refer to matters which may become the subject of evidence. Plainly there may be cases where a defence statement will refer to matters of which evidence may be admissible against one defendant but not another. In that case the judge will have to exercise his discretion under section 6E(4)(a) as to whether or not to direct that the jury be given copies of that statement.[52]This ground is therefore rejected.[53]We will consider Ground 2 at its proper point in the chronology of the trial.[54]Ground 3: that the appellant was so prejudiced by the volume of inadmissible evidence put before the jury that the applications to sever his case from his co-defendants and to discharge the jury from further consideration of the case against him at those stages should have been allowed. The principles relating to severance and ordering separate trials of one of a number of defendants charged with the same offence are well established and are not in issue. The discretion to sever and order a separate trial is contained in section 5(3) of the Indictments Act 1915 which is so well known we do not need to set it out again. There are sound public policy reasons for having a single trial of two or more defendants who are jointly charged with the same criminal offences arising out of the same central facts. It is only in very exceptional cases that a judge should exercise his judgment in favour of ordering a separate trial for one or more defendants pursuant to section 5(3). There are only two questions to consider: are the factors relied on by Mr Spens on behalf of Sanghera such as to take his case into the realms of “very exceptional” and, if they were, was the consequence of the judge’s decision not to discharge the jury from considering Sanghera’s case and of not ordering a separate trial such that the verdict of the jury in his case is unsafe.[55]It is for the judge to exercise a judgment on these issues. This court will only interfere if it takes the view that the judge’s exercise of his judgment was clearly wrong or unreasonable. We have reviewed the judge’s ruling of 20 July. He took all relevant factors into account. He appreciated that the key issue was whether the jury accepted KMT’s evidence and that of Scott. The judge rightly pointed out that the jury would be given directions on what was and was not admissible evidence as against Sanghera. He said, correctly, that the jury must be expected to follow those directions. There is no submission that proper directions in this regard were not given with regard to Sanghera.[56]We reject this ground.[57]Ground 4: the “Note” should not have been put before the jury by those representing Takhar without advance warning being given to the appellant. Mr Spens accepted that this ground depended on whether, assuming the Note fell within the ambit of section76A of the Police and Criminal Evidence Act 1984, he would have been able to persuade the judge not to allow the Note to be given in evidence because the requirements of section 76A(2) had not been fulfilled. Section 76A(1)-(3) provide: 76A. -(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.(2) If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained.(3) Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above to be proved in the proceedings on the balance of probabilities.[58]Section 82(1) of the same Act provides: “ “Confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”.[59]Mr Spens disarmingly admitted that an argument based on section 76A(2) did not occur to him until after Sanghera had been convicted. The argument is that because counsel for Takhar did not give him advance notice that the Note was going to be put to Sanghera in cross-examination, Mr Spens was so taken by surprise that he did not have the opportunity to consider and take instructions on whether to represent to the judge that the Note had been or might have been obtained in consequence of something said or done which was likely, in the circumstances existing at the time, to render that “confession” unreliable. If Mr Spens had so represented then, he argued, there would have had to have been a voir dire, in which the judge would then have to investigate those issues in order to decide whether, on a balance of probabilities, the “confession” was unreliable and so should not be admited. Mr Spens submitted that the judge would have ruled against admission of the Note.[60]We will assume for present purposes that the three pages of the Note that were put to Sanghera constitute a “confession” for the purposes of section 82(1) because, at least inferentially, those pages put Sanghera at the scene and that would be “adverse” to him. We will also assume that section 76A(2) does apply to this case, despite the fact that Takhar was not going to give evidence and it was not proposed that he was going to give evidence about the Note.[61]But, even assuming counsel for Takhar had given Mr Spens notice that he was going to put the Note to Sanghera and that Mr Spens had invoked section 76A(2) and then there had been a voir dire about the circumstances in which the Note had been produced, we are quite satisfied that the judge would have permitted the Note to be adduced in evidence. It is clear from the evidence that Sanghera did give about the Note in answer to questions from Mr Hotten that Sanghera and Takhar did a “deal” between themselves in a way that they thought would be advantageous to both of them. Sanghera would support Takhar’s case that he did not call Sanghera out of the Alhambra and Takhar would say that it was the revolver, not a handgun, which fired the fatal shot. Accordingly, we are satisfied that the judge would have ruled that it had been demonstrated, on a balance of probabilities that the “confession” had not been obtained in consequence of anything said or done, which was likely in the circumstances existing at the time, to render unreliable that “confession” made by Sanghera. It is difficult to see on what basis the judge could have prevented it being put to Sanghera in cross-examination.[62]We therefore dismiss this ground.[63]Ground 5: The appellant did not receive a fair trial – there was more inadmissible evidence before the jury than could be ignored. Ground 5 is aimed at the position overall, at the time that the jury retired to consider its verdicts. Mr Spens submitted that there was just too much evidence and material before the jury which was inadmissible against Sanghera but which was prejudicial to him and that the jury could not realistically be expected to ignore it when considering Sanghera’s case. If there was a realistic possibility that they might have done so, then, Mr Spens submitted, that must render Sanghera’s conviction unsafe.[64]Mr Spens relied on six particular areas of inadmissible material or evidence. First, he relied on the defence interviews, five of which had implicated Sanghera as the gunman. However, it is commonplace for a defendant to make an exculpatory statement in interview and at the same time to implicate a co-defendant and then not to give evidence. The judge had warned the jury at the outset of the trial that statements of a defendant in interview were only evidence against that defendant. He did so again in detail in his directions at page 102-103H. We must assume that the jury followed his directions.[65]Secondly, Mr Spens relied on the co-defendants’ defence statements, in which two of the co-defendants implicated Sanghera as the gunman. But the judge made it clear to the jury that the defence statements were not evidence and neither Ottalan nor Kumar had given evidence to back those up. We must assume that the judge’s directions were followed by the jury.[66]It is also important that, as a result of the Note being introduced and Sanghera’s evidence in relation to it, his case really had to be judged on what the jury thought of all the evidence, including Sanghera’s evidence about the Note and the reason for its production. That would involve the jury considering his evidence that one reason for its production was what he thought his co-defendants might have said had they given evidence.[67]Thirdly, Mr Spens referred to Sharanjeet Kaur’s evidence of what Narinder Kumar told her about Sanghera’s involvement in the shooting. We have already related the circumstances in which this evidence came to be adduced. As things turned out, Kumar did not give evidence. The judge dealt with Sharanjeet Kaur’s evidence at pages 104-5 of his summing up. He directed the jury that her evidence about what Kumar told her concerning Sanghera’s involvement in the shooting was “certainly” not evidence against either of the appellants because it was not said in their presence and it had not been supported by Kumar because he had not given evidence: see 105C-D. The direction was impeccable. We must assume the jury would and did follow it.[68]Fourthly, Mr Spens referred to KMT’s evidence of what Shiv Dubb or Ravi Patel said to him on 28 July 2009. Counsel for Kumar had asked KMT in cross-examination when Kumar first heard that it was suggested that Sanghera (Suk) was the gunman. KMT’s reply was that it might have been when he was walking home after the shooting incident or in the next day or so. He said that, in either case, he heard it from Shiv Dubb or Ravi Patel. The judge directed the jury (at 76B) that what may have been said to KMT about who the gunman was did not constitute evidence of anything save as to KMT’s own state of mind. What others had said about who was the gunman, was not something that he was able to tell the jury about directly. The direction is clear and comprehensible. Again we have to assume the jury would and did follow it.[69]Fifthly, KMT’s evidence of what he was told by Amardeep Narwal and/or a third man on 18 November 2009. This relates to evidence that KMT gave about a conversation that he had had with Amardeep Narwal (Amo) and another man near KMT’s house on 18 November 2009 when they tried to persuade him to change his witness statement and apparently threatened KMT and his family with reprisals if he did not. The judge summarised the relevant part of KMT’s evidence (at 75C) as being that the unknown man had said that KMT was “on Suki’s list or something like that”. Mr Spens cross –examined on this point and KMT agreed that he had been told that he was on “their list” rather than on “Suki’s list”. KMT said that he was told to sort the matter out within the next two days.[70]The Crown accepts that the judge did not give a specific direction as to the status of KMT’s evidence that the man told him he was on “Suki’s list” or “their list”. But, just after summarising this evidence, the judge did direct the jury at page 76A-B in the following terms: “Mr Singh for Kumar investigated when [TMK] first heard that it was suggested that Suki was actually the gunman. He said that it might have been walking home after the shooting or in the next day or so in either case from Shiv Dubb or Ravi Patel. What may have been said to [TMK] about who the gunman was is not evidence of anything save as to [KMT’s] state of mind. It not something that he’s able to tell you about directly”.[71]That direction is clear enough.[72]Sixthly: the evidence of what Anthony Scott told Gavin Batth, DC Fulger and DC Evans. Gavin Batth, the deceased man’s son, gave evidence that he was told by Scott that Sanghera had asked Scott if he knew Anastasia McDermott or Craig Martin. In order to identify the latter, Sanghera had taken Scott to his cell and showed Scott some papers. Gavin Batth’s evidence was also that Scott had said that Sanghera had offered him £10,000 if he would finish the person and make sure that he (or they) did not come to court.[73]DC Fulger gave evidence that Scott had told her that Sanghera had come to Scott and told him that he was responsible for shooting someone outside the bar and it had been about an argument over a laser pen and that the shooting had been a mistake; the intended victim was Wynter or Martin. Her evidence was that Scott had also said that Sanghera had offered Scott £5,000 to get the main witnesses (Wynter and/or Martin) to drop their statements. Scott also told DC Fulger that he had been to Sanghera’s cell and there seen witness statements and witnesses’ phone numbers. Scott said that others were being asked by Sanghera to ring witnesses to prevent them from coming to court to give evidence.[74]DC Evans gave similar evidence about what Scott had told him concerning conversations with Sanghera and the latter’s attempts to prevent TMK from giving evidence.[75]The judge directed the jury (at 89F-H) that what Scott had told Gavin Batth, DC Pulger and DC Evans was not evidence against Sanghera. The only evidence of Scott that was against Sanghera was the evidence that Scott had given from the witness box. The judge explained to the jury that the evidence of what Scott had said to Gavin Batth, DC Pulger and DC Evans was(a) to show how Scott’s evidence had emerged; and(b) to see if his evidence was consistent. The judge also reminded the jury of Scott’s background and that this meant that they should consider his evidence with particular care before relying on it: see summing up page 92E.[76]We have considered these points both individually and collectively. We are satisfied that, given the directions that the judge gave the jury, they were in a position to see and act on the admissible evidence against Sanghera and only that evidence. This ground is rejected.[77]Ground 2: the defence statements should not have been allowed to remain with the jury once they had retired when no reference had been made to them at any stage during the evidence. It will be recalled that on 23 July 2010 the judge made a first ruling on the future possible use of defence statements. At paragraphs 12-18 of that ruling he decided he would wish to see what use various counsel wished to make of the defence statements before he made a definitive ruling on whether they could do so. On 26 July 2010 the judge heard further submissions from counsel on the use they wished to make of the defence statements in their closing addresses and he made a ruling on that issue. He did not rule that the statements should be removed from the jury and they were not. He said that, after anxious thought, he had decided that to remove them with the explanation that would have to be given “might be to a defendant’s disadvantage by carrying with it the possibility of suggestion that his case had not been established”.[78]We find that reasoning difficult to follow. The defence statements were not evidence at any stage of the proceedings. They could not, in themselves, assist a defendant in establishing his case. If there was evidence that supported allegations set out in the defence statement, then it would be that evidence that either did or did not “establish” the particular defendant’s case. Therefore, if the judge had directed the jury that they no longer needed to have the defence statements because they were not evidence and they did nothing either to establish or disprove the case of the defendant concerned or any other defendant, we think that there would have been no prejudice to any defendant.[79]However, the judge did give a specific direction to the jury about the defence statements at page 107D-E of the summing up. He said: “…in the way this case in fact turned out it won’t help you, in my view, to look at the defence case statements or defence statements and for safety’s sake that is why I’m going to ask that you should not do so”.[80]Therefore, even if, as we think, it would have been more sensible for the judge to have ordered the defence statements to be taken from the jury before they retired, we cannot see that a failure to do so could affect the safety of the conviction. The judge specifically told the jury not to look at them. We have nothing to suggest that they did not obey his direction. This ground is therefore rejected.[81]Ground 6: the convictions for murder and conspiracy to commit violent disorder were unsafe. Mr Spens submitted that the only admissible evidence against Sanghera was that of KMT and Scott and that each was unsatisfactory to such an extent that, absent the inadmissible material and/or evidence, the court could not be sure that the jury’s verdicts against Sanghera would have been the same. Therefore his convictions must be unsafe.[82]In response, it was submitted on behalf of the Crown that there was compelling evidence against Sanghera. In his written submissions, Mr Hotten relied in particular on:(i) the pattern of telephone calls, which he submitted supported the prosecution case that Sanghera was collected from his home address and thence driven to Maybury Drive and the bar;(ii) the evidence of Scott and TMK; and(iii) the fact that Sanghera’s alibi was unsupported and undermined by his evidence about the Note, which was, it was submitted, a transparent attempt to meet the damaging evidence of Scott.[83]The judge described TMK as an “important witness” not least because he was the only witness who gave evidence for the prosecution who said that Sanghera was present at the bar at the time of the shooting and he picked out Sanghera at an ID parade: page 79B. But the judge also set out Sanghera’s case with respect to the evidence of TMK. He reminded the jury that Sanghera said he had met TMK six or seven times before the incident; and that the prosecution accepted that he may not have told the whole truth about events of 27/28 July: page 79F of the summing-up.[84]We have already pointed out that the judge explicitly warned the jury to take particular care before it concluded that it could rely on the evidence of Scott and that they needed to consider to what extent he had been consistent or inconsistent in what he had said to others, viz. Gavin Batth, DC Fulger and DC Evans by comparison with his evidence in the witness box: see the directions at page 92D-E.[85]In effect, this Ground is attempting to urge that the jury must have both disregarded the judge’s directions as to what evidence was admissible against Sanghera and that the jury failed also to heed the judge’s directions as to the caution they should exercise in relation to both TMK and Scott’s evidence. We do not accept that this was the case.[86]We reject this ground also. Accordingly, we dismiss Sanghera’s appeal against conviction.

Appeal against conviction of Takhar

[87]Ground 1: At the outset of his submissions on behalf of the appellant Takhar, Mr Pownall QC (who had not appeared at the trial) emphasised the facts that:(1) the initial argument had been between Takhar and Kieron Wynter;(2) upon the return of Takhar’s group to the bar the argument was between Takhar and Craig Martin and Wynter was not present at the bar;(3) KMT’s evidence was that Takhar was arguing with Craig Martin when the fatal shot was fired;(4) when sentencing the judge observed that he could not be sure that Takhar opened the door of the Alhambra for Sanghera to get out or that he called him out.[88]Mr Pownall accepted that the prosecution had put its case against Takhar on two alternative bases and that the judge’s directions were intended to reflect that fact. Mr Pownall does not take any issue with the first basis on which the prosecution put its case against Takhar for being a party to a joint enterprise in the murder of Mr Batth. But he submits that there is a fatal flaw in the judge’s direction concerning the third of the sub-paragraphs of the “second basis” on which the prosecution put its case that Takhar was a party to the joint enterprise to the murder of Mr Batth.

The judge’s directions were in the following terms:

“18. The prosecution assert that he is liable on one of two bases 19. The first basis is that he called the gunman out of the Alhambra with the intention that the gunman should fire the gun and should kill or cause serious injury. If you are sure that he called the gunman out and that he had that intention when he did so, you will find him guilty of murder. You need not then consider the second basis. 20. The second basis is that: (a) Takhar was party to a plan to find, threaten and use violence against Kieron Wynter and his associates; (b) What was going on at the bar was part of putting the plan into effect; (c) He realised that one of those who had come with him had a gun and that there was a real risk that in the course of the plan the gunman might intentionally kill or cause really serious injury in putting the plan into effect. If you are sure of each of those three, you will find Takhar guilty of murder.” (a) Takhar was party to a plan to find, threaten and use violence against Kieron Wynter and his associates; (b) What was going on at the bar was part of putting the plan into effect; (c) He realised that one of those who had come with him had a gun and that there was a real risk that in the course of the plan the gunman might intentionally kill or cause really serious injury in putting the plan into effect. If you are sure of each of those three, you will find Takhar guilty of murder.”
[90]Mr Pownall accepts, of course, that Takhar, as a secondary party, would be guilty of murder if he participated in a joint enterprise realising in the course of it that the principal (in this case the gunman) might use force with intent to kill or to cause really serious bodily harm and the principal (ie. the gunman) did kill with such intent. That is clear on the well – known authorities of R v Powell [1999] 1 AC 1 and R v Rahman [2009] AC 129, which have very recently been confirmed by the Supreme Court in R v Gnango [2011] UKSC 59. But, Mr Pownall emphasised, if the principal goes beyond the scope of the joint enterprise and does an act which is not foreseen as a possibility by the alleged secondary party, then that person cannot be guilty of murder or even manslaughter.[91]In terms of the facts of this case, Mr Pownall emphasised that when the Takhar group returned to the bar, the person that Takhar wanted to find (and for whom he asked by name) was Kieron Wynter, but he was not present and so no reprisals could be taken against him. Others, including Craig Martin, were present and it was Craig Martin with whom Takhar started to argue before the fatal shot was fired. Mr Pownall thus submitted that the original plan, which was to seek out Kieron Wynter and punish him with force, was no longer in operation. Therefore anything that the gunman did was outside the scope of the original plan.[92]Accordingly, Mr Pownall said that the problem with the direction the judge gave on the “second basis” of the prosecution’s case was that it did not sufficiently focus on the fact there a new situation existed when Takhar and the others reappeared at the bar. The jury should therefore have been asked:(a) are you sure that what Takhar did upon arriving at the bar was in furtherance of the joint enterprise plan to seek revenge against Kieron Wynter; if not, then(b) are you sure that Takhar realised that the gunman might leave the Alhambra and fire upon those with whom Takhar was arguing in furtherance of the original joint enterprise, with intent to kill or do really serious harm; if not, then(c) did Takhar realise that there was the risk of at least some harm short of really serious harm, in which case there would be a verdict of manslaughter.[93]Effectively, therefore, Mr Pownall criticises the use of the words “ the plan” in sub-paragraph (c) of paragraph 20 of the written directions. He submitted that the use of that phrase assumed that there was only one “plan” which was to threaten and use violence against Kieron Wynter and his associates and that the same “plan” existed when the Takhar group returned to the bar even though Keiron Wynter was no longer there and it was with Craig Martin that Takhar engaged in argument before the fatal shot was fired.[94]We asked Mr Hotten whether it had been the case of any of the defendants at the trial that there were two “plans”, viz. an original plan as identified in paragraph 20(a) of the written directions and a second “plan” or “situation” which was what developed when the Takhar group came back to the bar and there was the argument that led up to the fatal shot. His straightforward answer was “No”. We were not surprised to hear that answer. It is quite clear from the evidence that the situation that developed after the Takhar group arrived back at the bar was a continuation of what had happened beforehand. Takhar was, of course, looking for Kieron Wynter. He remained very angry about the incident with the laser and he went around asking questions of people at the bar on the whereabouts of Wynter. Takhar argued with Craig Martin about lasers, according to some witnesses. It is impossible to suggest now that there were really two different, compartmentalised, incidents so that even if Takhar realised that there was a risk that the gunman might shoot as a part of incident one, involving Keiron Wynter, it did not follow that Takhar would realise that there was a risk that the gunman might shoot as a part of incident two, involving Craig Martin and others but definitely not Keiron Wynter.[95]The fact that it was accepted by all at the trial that this was all one incident and there was only one “plan” is borne out by the fact that paragraph 20(b) of the written directions, to which neither anyone at the trial took objection and nor Mr Pownall now do so, stated that “what was going on at the bar was part of putting the plan into effect”. It must also be recalled that Takhar pleaded guilty to conspiracy to commit violent disorder. There was only one such conspiracy, that is there was only one agreement or “plan”; and that one agreement was to commit violent disorder at the bar when the Takhar group arrived there shortly before the fatal shot.[96]Mr Pownall had to accept that counsel for Takhar at the trial had conceded in his closing speech to the jury that “..it might be reasonable…in the circumstances to think that Takhar knew there was a gun [but] he rightly said that was something that you [the jury] had to be sure about”: page 131F-G of the summing up. Mr Pownall submitted that concession was wrongly made. With respect we think that it was an entirely realistic concession. It more or less had to be made given Mr Spens’ concession that if Sanghera was present at the scene, he was the gunman. Therefore, if the jury accepted the prosecution case that Takhar had recruited Sanghera and he was there, then it is unrealistic to suggest that Takhar did not realise from that point that Sanghera had a gun.[97]The two “bases” for the case against Takhar, as summarised in the judge’s written direction to the jury therefore only differ in relation to(a) whether or not Takhar deliberately called the gunman out of the Alhambra; and(b) whether Takhar did so with an intention that the gunman should fire the gun to kill or cause really serious injury. The second basis dealt with the possibility that the jury were not satisfied that Takhar had deliberately called the gunman out of the Alhambra and/or had an intention that the gunman should fire to kill or cause really serious injury. If the jury were unsure on those matters, then it seems to us that it was a perfectly proper direction to the jury to ask them to consider whether Takhar realised that one of those who had come with him, had a gun and that there was a real risk that “in the course of the plan” the gunman might intentionally kill or cause really serious injury in putting the one and only plan that existed into effect. That formulation was sufficiently broad to enable the jury to consider the case against Takhar on the basis that either they were satisfied that Sanghera was present (and so, by concession, the gunman) or was not and there was another, unidentified, gunman.[98]We therefore conclude that there was no fault with the written direction as formulated and we must reject the first ground of appeal.[99]Ground 2: We have already set out the relevant passage in the summing up (at 70B-E) that is criticised and the argument made on behalf of Takhar. In our view the argument raised on behalf of Takhar misses the point. The prosecution was not trying to prove that Sanghera was wearing body armour but that he had a gun from the moment that he was picked up by Takhar and that Takhar knew that fact. It was not suggested in this passage that the person who spoke to TMK expressed an opinion that because “Suk” was or might have been wearing body armour therefore he had a gun. Nor is it suggested that TMK drew such a conclusion from seeing that Suk’s upper body looked big by comparison with the rest. It stretches imagination to think that the jury might regard that passage as possible evidence against Takhar to support the conclusion that he knew Sanghera had a gun. It is noticeable that counsel for Takhar did not raise this as an issue at the time. We reject this ground.[100]Ground 3: We have also set out the passage of the summing up (82E-H) that is criticised under this ground and the argument made on behalf of Takhar. It is accepted by Mr Hotten that the judge did not give a specific direction that the evidence of what Sanghera told Scott was not evidence against Takhar, although it is fair to point out that the judge did refer, at 89F of his summing up to “Scott’s evidence against Sanghera in this case…”, being that which he gave from the witness box. It is implicit in that statement that Scott’s evidence was not therefore evidence against other defendants, including Takhar.[101]More importantly, there is no mention of Takhar in the passage complained of so we fail to see how, realistically, the jury could reasonably have regarded this passage as constituting evidence that Takhar knew that Sanghera had a gun. It is not possible to deduce from that passage that Sanghera had got the gun from the safe house with Takhar’s knowledge. Once again we note that counsel for Takhar did not take any objection to the statement of the judge or his direction at 89F-G. We reject this ground also.[102]Accordingly, we reject Takhar’s appeal against conviction.

Appeal against sentence of Takhar

[103]Takhar also appeals by leave of the single judge against the term of 29 years, less reduction for time served on remand, which the judge ordered that Takhar should serve in custody before the question of his release might be considered by the Parole Board.[104]Takhar was born on 1 June 1987. He was therefore 22 at the time of the offences and 23 when convicted and sentenced. He had made eight previous court appearances between 2003 and 2009. His convictions included six offences of robbery, one of possessing an offensive weapon in a public place and one of affray. He had served two previous custodial sentences, the longest being a Detention and Training Order of two years in 2005.[105]In passing sentence, the judge said that Takhar had been responsible for recruiting Sanghera to join his team to exact revenge on or punish Kieran Wynter and his associates over the trivial matter of the laser pen. Sanghera had been recruited as the man who would bring a gun to be used if need be, although other weapons were also available to the team. In the event, Wynter and his associates were not at the bar when the group returned. An argument developed between Takhar and Craig Martin, whereupon Sanghera had got out of the Fiat Alhambra with the gun, aimed at Craig Martin intending to hit him, but missed and struck and killed Mr Batth. The judge stated that he could not be sure that Sanghera intended to kill Martin, but he was at least reckless as to whether Martin lived or died.[106]With some hesitation, the judge said he would sentence Takhar not on the basis that he opened the door of the Alhambra for Sanghera, or pulled him from the car, so that he could carry out the shooting, but on the basis that Takhar knew that there was a real risk that in the course of the punitive expedition Sanghera might fire with intent to kill or cause really serious injury. However, he did find that when Sanghera got out of the vehicle with the gun, Takhar intended that Sanghera should fire. As the leader of the expedition, Takhar could have stopped Sanghera, but did nothing to do so.[107]The judge referred to Takhar’s poor criminal record, but said that his age at the time of the offence provided some mitigation. As the man who initiated and planned the expedition and recruited Sanghera, the judge considered that the minimum term for Takhar must be longer than the 28 year term imposed on Sanghera, and he therefore imposed the 29 year minimum period to which we have referred.[108]On behalf of Takhar it is conceded that the degree of planning involved and Takhar’s leading role in the enterprise were aggravating factors, as was the fact that the murder was committed in a busy public place, although the judge did not expressly refer to this when passing sentence. It is submitted that there were no other aggravating factors. In our view, however, Takhar’s criminal record was an additional aggravating factor. Section 143(2) of the Criminal Justice Act 2003 requires the court to treat each previous conviction as an aggravating factor if the court considers that it can reasonably be so treated. We are satisfied that they can be so treated. It is further submitted that the sentence failed properly to reflect the mitigating factors; in particular Takhar’s age and the absence of a finding that Sanghera intended to kill or that Takhar intended that anyone should be killed.[109]The starting point, as is accepted, was one of 30 years. As we have said there were significant aggravating factors. Although the judge was not satisfied that there was an intention to kill, it was Takhar’s intention from the outset that a gun should be used, if need be, to cause at least grievous bodily harm, and as events unfolded it became Takhar’s unconditional intention that the gun should be used for this purpose.[110]Having considered all the circumstances of this case, and all the submissions made on Takhar’s behalf, we have concluded that the judge was right to impose a minimum term on Takhar greater than that imposed on Sanghera, for the reasons he explained. Given the statutory starting point of 30 years, to which the judge had to pay proper regard in the case of both Sanghera and Takhar, the minimum term of 29 years that was imposed on Takhar, although severe on a young man of his age, properly balanced the aggravating and mitigating factors in his case. It cannot properly be described as either wrong in principle or manifestly excessive.[111]Accordingly, Takhar’s appeal against sentence is dismissed.