Mahil & Ors v R. [2013] EWCA Crim 673

[2013] EWCA Crim 673Case No 201202000 B3201201842 B3201201763 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ WORSLEY QC
T2011700
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/05/2013
Before
LORD JUSTICE TREACYMR JUSTICE GLOBERECORDER OF LEEDS, HIS HONOUR JUDGE COLLIER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
Mundill Kaur MahilAppellantsHarinder ShokerAppellantDarren PetersAppellantReginaRespondent
M Birnbaum QC & N Griffin (instructed by Registrar of Criminal Appeals) for MahilS Bennett-Jenkins QC & G Young (instructed by Registrar of Criminal Appeals) for ShokerR Barraclough QC (instructed by Registrar of Criminal Appeals) for PetersA Jafferjee QC & S Whitehouse (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates : 18 - 19 April 2013
Judgment
[1]We regret the length of this judgment which has been occasioned by the number of grounds of appeal and the detail of them.[2]These Appellants were convicted on 24th February 2012 after a lengthy criminal trial before His Honour Judge Worsley QC at the Central Criminal Court. By the time of the jury retirement, there were three counts on the indictment. Count 1 – murder. Count 2 – causing grievous bodily harm with intent; a count added at the close of the prosecution case. Count 3 – manslaughter; an alternative to Count 1 added after all the evidence had been called.[3]The Appellant, Shoker, was convicted of Count 1 and sentenced to custody for life with a minimum term of twenty two years less time spent on remand. He appeals against his conviction. Mahil was acquitted of murder, but convicted of causing grievous bodily harm with intent (Count 2). She was sentenced to six years detention in a Young Offender Institution with time on remand and subject to curfew being credited. She appeals against both her conviction and her sentence. Peters was convicted of Count 3 (manslaughter), but acquitted on Counts 1 and 2. He does not appeal against his conviction, but does challenge his sentence of twelve years detention in a Young Offender Institution less time spent on remand. In each case the Single Judge granted leave.[4]The judge provided the jury with a route to verdict document. In relation to Shoker and Peters, on Count 1 (murder), he posed the question:
“Has the prosecution made you sure that he, intending to kill GS, participated in acts whereby GS was killed?”
[5]In relation to Count 2 (section 18), he posed the question:
“Has the prosecution made you sure that, intending to cause GS really serious harm, he participated in acts whereby GS was caused really serious bodily harm.”
[6]In relation to Count 3 (manslaughter), he posed the question:
“ Has the prosecution made you sure that: (i) he knew that GS was in the boot of the car and (ii) he failed to take reasonable steps to check whether GS was alive or not and (iii) he participated in setting fire to the car and (iv) he thereby caused the death of GS and (v) those actions gave rise to a serious and obvious risk of death and (vi) that conduct was so bad that it amounts to the crime of manslaughter? ”
[7]In relation to Mahil and Count 1 (murder), he posed this question:
“Has the prosecution made you sure that MM, intending that GS be killed, was party to a plan which resulted in him being intentionally killed?”
As already stated Mahil was acquitted of this count.[8]In relation to Mahil and Count 2 (section 18),

the judge asked:

“Has the prosecution made you sure that MM intending that GS be caused really serious harm was party to a plan which resulted in GS being caused really serious harm at 45 Gladstone Place?”
[9]No criticism was or is made of the terms of the route to verdict document.

The Core of the Case

[10]On 25th February 2011 the victim, Gagandip Singh, a young Sikh man, was lured by Mahil to 45 Gladstone Place, Brighton, an address shared by her with a number of fellow medical students. On arrival she took him to her bedroom in the basement, a place where he had sexually assaulted her some six months previously.[11]Shoker and Peters had travelled from London that day, been met at the railway station by Mahil, and taken to the house in readiness for the victim’s arrival.[12]The victim was assaulted in the bedroom. Mahil left the room as soon as the assault began. It went on for some time and other occupants of the house heard the noise and the victim’s cries for help. Eventually Gagandip Singh was rendered unconscious or semi-conscious. He was wrapped in bedding taken from Mahil’s room, removed from the premises and put in the boot of his sister’s Mercedes which he had driven to the premises.[13]A neighbour saw two men carrying the victim to the car. Mahil knew of this. The victim’s car was then taken back to London by the two male Appellants. It was driven to a quiet residential lane in Blackheath where it was set alight with petrol in the small hours of the morning. En route the victim’s hands appear to have been bound with wiring taken from the Satnav. The car having been torched whilst the victim remained locked in the boot, he died as a result of the fire.[14]The Crown’s case was that the earlier sexual assault provided the motive for a plan to lure the victim to the address so that he could be killed or at least seriously injured.[15]Mahil and Shoker were of previous good character. Peters was only lightly convicted. All gave evidence. All denied any intention to kill or seriously injure the victim. Mahil’s case was that she had been persuaded to invite the victim to her house for the purpose of him being spoken to for his inappropriate behaviour towards her and/or other women. The most she had contemplated in terms of violence was something minor such as a slap. The victim had been attacked in her bedroom without any warning. She had been shocked and surprised and had not wanted him to suffer any harm.[16]Shoker’s case was that he was in the bedroom with Peters. Peters had started an attack, which he had joined in using his fists, but not intending any serious harm. He admitted carrying the victim out of the premises and putting him in the boot of the car and then driving the car to London. He claimed to be confused, not having eaten or taken insulin for his diabetes, so that he did not appreciate fully what was happening.[17]Later Peters had poured petrol over the victim while he was in the boot and set it alight. He, Shoker, believed the victim to be already dead. He had not set fire to the body, and denied at any stage intending any serious harm, let alone death.[18]In contrast, Peters’ case was that he had been acting under a threat when he accompanied Shoker to Brighton. He had been in the kitchen in the basement of the premises while the attack must have been taking place. He played no part in the attack or carrying the victim to the car. He denied ever knowing that the victim was in the boot of the car. It was Shoker who had poured petrol on the car and set it alight. He had played no part, either in the attack, or in setting the fire.

Background

[19]There was a great deal of background evidence given at the trial. Mahil was a second year medical student at the time of Singh’s sexual assault upon her. It was described as attempted rape, although in legal terms it fell short of that. She had been much upset by that, and subsequently Singh had texted a friend of his, Sonny, admitting he had “attempted to rape” Mahil.[20]Thereafter he bombarded her with texts, which she ignored. But in November 2010 she confronted him with an allegation which she had heard to the effect that he had touched up another girl.[21]Mahil had been friendly with Singh for some time, but after the incident in August 2010, began to refer to him as “shit face”. She told a number of close friends what had happened to her, but did not contact the police. Some of those friends were members of the Sikh community. The evidence was that such conduct would be particularly unacceptable in that community. One of those whom she told was the Appellant Shoker. It was accepted that he was besotted with her. There was evidence that prior to 25th February he and others, including her brother, had tried to persuade her to set up Singh so as to teach him a lesson.[22]The evidence shows that she fluctuated in her views. There was certainly some positive evidence that on occasions she had indicated she did not want any harm to befall Singh. There was also evidence that many people viewed her as a naive and gentle person who would be unlikely to be part of a violent plan.[23]It is clear, however, that by 25th February there was a plan in place for Mahil to invite Singh to her home on false pretences. There had been a meeting on the topic on 23rd February involving Mahil, Shoker, her brother, and Sonny. Despite some reservations about his safety, Singh went to Mahil’s home, arriving by arrangement at around 11:00pm. As already stated, by then Shoker and Peters had travelled to Brighton, having purchased one way train tickets, to await his arrival.[24]Shoker, in his infatuation with Mahil, wanted to act as her protector. One of Mahil’s flatmates, Live Thorsen, gave evidence that Mahil had told her that Shoker had told her that he was willing to go to prison for twenty-one years to protect her. There was controversy at the trial as to when Mahil told Thorsen.[25]There were a number of Mahil’s flatmates in the house on the evening. The basement area, which contained a kitchen and a sitting room, was normally used as the area for socialising. Prior to Singh’s arrival, Mahil had asked others in the house to stay away from the basement. Some of them heard the noise of the assault. More than one heard a male voice calling out for Mahil in distress, but she did not respond. After what they later realised was an attack, they had seen Mahil looking shocked and distressed.

After The Attack

[26]A neighbour witnessed two men carrying a long object wrapped in a duvet, consistent with a body shape, being carried to a car and put in the boot. The witness thought she saw a head of hair protruding. The car then drove off at about 11:20pm.[27]It was at about 2:00am the following morning that two people were observed on CCTV running away from the torched vehicle. The expert evidence showed that petrol had been used. It appeared to have been poured onto the body and also inside the rear of the car.[28]In the meantime Singh’s sister had become concerned about her brother’s whereabouts. She phoned Shoker, who was laughing and seemed to treat matters as a joke. Eventually she spoke to Mahil, who said she did not know where Singh was, and then went on to say that he had come to her house, but that she had not seen him. The impression was given that he had visited, but had left without seeing her.[29]There was evidence to show that in the small hours after the car had been set ablaze, there was a lengthy telephone call lasting more than an hour between Shoker and Mahil. The Appellants were arrested. Mahil contacted the police. She lied or concealed a number of important matters when interviewed. She stated on a number of occasions that she had not wanted any harm to come to Singh, and had disagreed with rumours she had heard that people were out to get him.[30]Shoker declined to answer questions. Peters produced a prepared statement denying involvement in violence and saying he had been pressurised into going to Brighton. He thought he was going to steal a car.[31]Two 5 litre petrol cans containing petrol residue were found at Peters’ home.

Medical Issues

[32]The pathologist found evidence that Singh’s hands had been bound. His evidence was that Singh had still been alive when the vehicle was ignited. Petrol particles in a lung showed that they had been inhaled.[33]However, there was also evidence of brain injury in the form of a subdural haemorrhage consistent with at least five or more blows to the head. A damaged camera tripod found in Mahil’s bedroom could have caused some of the injuries. There was bruising to various parts of the head, but no skull fractures, as well as deep bruising to the right side of the body.[34]The cause of death was inhalation of poisonous fumes from the fire. However, the head injury was described as significant and of sufficient severity potentially to lead to unconsciousness and possible death if not attended to in good time. However, these injuries had not played a part in the death, and if treatment had been received, Singh could well have recovered from them.

Defence Evidence

[35]Mahil said she had summoned Singh because she wanted to speak to him and end their relationship. She thought Shoker and Sonny were going to come and speak to him about his behaviour and the Sikh religion, but that there would be no violence. When Sonny did not arrive with Shoker, but Peters did, she thought Singh might be intimidated into going with them so that Sonny could deliver a lecture about moral behaviour.[36]She agreed that she had told her flatmate, Live Thorsen, that something was going to happen that night, but she had not known what was going to happen. After Peters, who was not previously known to her, and Shoker arrived, they pulled out sheets from a bag and put on black fingerless gloves. It was Peters who first assaulted Singh. At this point Mahil left the room in panic. She knew that Singh had been taken to the car. She thought he had merely been hurt and was being driven away to see Sonny.[37]She agreed that she had lied to Singh’s sister. She had not contacted the police in case they accused her. She denied having given the impression to some of her flatmates that something serious was going to happen to Singh that evening. Her case was that Shoker may have had his own secret agenda.[38]Shoker said he had agreed to go to Brighton with Sonny to speak to Singh and make him realise that his behaviour was wrong. However, on 24th February Sonny had suggested that he and Peters bring Singh to south east London to see him, coming back with Singh in Singh’s car. Although a threat of force might be required to make Singh comply, he did not intend any serious harm to him. At the house Peters had hit Singh first, and then he had himself struck Singh several times to the head with his fist, fracturing his hand, while Peters continued to hit him. He then saw Peters use the tripod on Singh’s head.[39]Peters wrapped Singh in a duvet and told him to carry Singh to the boot of the car with him. He was low on blood sugar and did not remember much about the return journey. He drove on autopilot. It was Peters’ idea to secure Singh’s hands.[40]On their return to London, Sonny told them to get rid of the car and Peters got some petrol. The pair then drove to Blackheath. When they opened the boot he believed Singh was dead. It was Peters who set light to the car. He did not inform the police as he was too frightened. Although his defence statement referred to beating Singh at the house, he had merely intended a talk or a lecture, and Peters had simply been taken along as backup.[41]Peters’ case was that he was a car thief and it was for that reason he had gone to Brighton with Shoker. They would steal a car, bring it back to London, and Sonny would sell it. Threats were made to him in order to persuade him to go. When they got to the house, Shoker took clothing out of a bag and told Peters to put it on over his own clothing and to wear gloves. He had waited in the kitchen while Mahil and Shoker were in the bedroom. He heard noises and banging for about five minutes, but remained in the kitchen throughout and used no violence.[42]He had not taken the body to the car. Shoker and some other person must have done that. The burning of the vehicle was done by Shoker and was his idea. He had only later learnt that there was a body in it. Shoker had told him to keep his mouth shut. Shoker had later given him a cash card and pin number and asked him to withdraw £300.00. They had in fact been taken from Singh, but he denied that the money represented payment for his part in the matter.[43]It is clear from the foregoing that there was a serious degree of conflict between the Defendants. Each denied, contrary to the primary prosecution case, that there was a joint plan to lure and kill Singh. Each denied agreeing to or carrying out any serious violence at the house. In relation to the burning of the car, Shoker and Peters blamed one another. In relation to Mahil and this latter aspect, the jury had to consider whether she intended Singh to be killed and was part of a plan to do so.[44]The task for judge and jury was therefore not a straightforward one. Both had to contend with a large body of evidence and conflicting interpretations of it, and different inferences sought to be drawn from it by the various parties. We set out at the start of this judgment the agreed framework of the way in which the core issues against the various Appellants on the various counts were left to the jury.[45]As far as Mahil was concerned, Count 2 was an alternative to Count 1, but it limited her exposure to conviction to violence taking place at her home. As a matter of law the case could have been put more widely, but that is how it was left to the jury. As far as the two male Appellants are concerned, manslaughter (Count 3) was left as an alternative to Count 1 on the basis of gross negligence in setting the fire.

Mahil’s Appeal Against Conviction

[46]Mr Birnbaum has advanced a large number of grounds accompanied by voluminous written submissions foreshadowing his oral submissions. Ground ten of Mr Birnbaum’s grounds related to the asserted inconsistent or unsatisfactory nature of the jury’s verdicts. This was the central ground in his submissions and he was forcefully supported in his argument by Ms Bennett-Jenkins QC, representing Shoker. We therefore deal with both submissions together in the ensuing paragraphs.

Ground Ten/Shoker Submission – Inconsistent or Unsatisfactory Verdicts

[47]Both Mr Birnbaum and Ms Bennett-Jenkins argued that the different verdicts returned by the jury reflected inconsistency, which showed that they were not true verdicts on the evidence, but reflected a failure of the process. It was common ground that an Appellant seeking to quash a conviction on the ground that the verdict is inconsistent with another count must not merely show that verdicts on different counts were inconsistent, but that they were so inconsistent as to call for interference by this court. Logical inconsistency of itself does not make a verdict complained of unsafe unless the only explanation of that inconsistency must or might be that the jury was confused or adopted the wrong approach.[48]It was argued by both Appellants that the asserted inconsistency in the verdicts reflected a compromise intended by the jury to reflect the relative moral culpability of the Appellants rather than the result of a reasoned process following the judge’s directions as to the law.[49]In support of that it was submitted that the verdicts in Peters’ case were “sheer nonsense”. Peters’ case in relation to the burning of the body in the car was that he had not realised the victim was in the car at all. The jury must have rejected that in order to convict him of manslaughter. Yet they had, unaccountably according to Mr Birnbaum, believed other parts of Peters’ evidence when he denied being recruited for any violent purpose or participating in any violence at the house.[50]We point out that the jury’s verdict as to what took place at the house does not necessarily mean that they believed Peters’ account, only that they were not sure that he was guilty in relation to those matters as the prosecution alleged.[51]Secondly, it was argued that the conviction of Shoker of murder and that of Peters of manslaughter was illogical and must have involved a transposition of Shoker’s defence on what happened at the car to Peters.[52]Further, it was argued that the different verdicts returned on Mahil and Shoker made no sense. Our attention was drawn to a passage at page 14 of the summing up in which in the case of Mahil, the judge said that the prosecution had to be sure that she intended really serious harm to be caused to the victim that night and played a part in that by luring him to the house and leading him to the bedroom “where the other two defendants set upon him and caused him harm which can properly be described as really serious”. The emphasis is on the phrase “the other two defendants”. Since Peters was acquitted of the Section 18 offence, the jury must have ignored the judge’s direction. For these reasons the court should have no faith in the jury’s verdicts which cannot properly be rationalised.[53]Ms Bennett-Jenkins adopted and added to these submissions by reminding us that there was prosecution evidence contradictory of Peters’ account as to what had occurred in the house, namely the evidence of Becky Edwards, that she had been the sole person in the kitchen on the night, and the evidence of a neighbour which was inconsistent with Peters’ denial of moving the body to the car. In addition she argued that the verdict on Peters imported a state of mind claimed by Shoker, but not claimed by Peters.[54]We do not accept these arguments. The evaluation of the evidence was entirely a matter for the jury. Each of the Defendants had given evidence. There were elements of their cases which were inconsistent with one another, for example, there was strong disagreement between Peters and Shoker as to who was responsible for burning the car and the circumstances of that event. Quite apart from the differences between the Defendants’ accounts, a jury is entitled to accept or reject different parts of any witness’ evidence. In the case of Peters’ role at the house and his claim not to have prior knowledge of or participation in the violence there, all that the verdicts relating to that demonstrate is that the jury were not sure that the Crown’s case was proved in that respect. That does not mean that they accepted Peters’ account.[55]Whilst it is true that the evidence of Becky Edwards pointed away from his account, the jury had Peters’ own evidence, the fact that he had been taken along as a late replacement, the fact that he was not a Sikh and was not engaged with the background events, and the judge’s warning that the evidence of co-accused should be viewed with care in looking at a fellow accused’s case to take into account. It may be that Peters was fortunate in his verdict relating to the house, but it is not illogical or beyond comprehension. The jury may have felt unable to say that it was sure that his version of events was incorrect.[56]As to the burning of the car, Shoker’s defence was that he thought that a dead body was being burnt. Peters’ defence was that he did not know there was a body in the boot at all. The evidence of a neighbour seeing two men carrying the victim out to the boot of the car from Mahil’s house provides evidence from which the jury could infer that Peters knew there was a body in the boot of the car. In Shoker’s case the jury must have rejected his claim that he thought it was a dead body. In Peters’ case they must have concluded that he was aware the victim was in the boot, and participated in setting fire to the car, having failed to take reasonable checks to check whether the victim was alive or not.[57]There was no logical inconsistency between the two verdicts. The jury were entitled to look at the background to the burning of the car as well as what happened there in deciding what the intentions of the two actors were. It was never submitted that the only verdicts open to the jury in relation to Counts 1 and 3 were that either both male Defendants were guilty of murder or both guilty of manslaughter. We see no illogicality in the verdicts. They represent an assessment of the evidence by the jury in the different cases consistent with the route to verdict document.[58]As to the further point based on the passage cited from page 14 of the summing up, we are not impressed by it. As a matter of law it would have been quite sufficient for the judge to direct the jury that if either Defendant had set upon the victim and caused him grievous bodily harm, that would be sufficient if Mahil had the requisite intent and had played a part in that. Indeed only a few sentences before, at page 13, the judge had said:
“To establish this charge the prosecution must prove that a defendant, intending to cause Gagandip really serious harm was party to a plan whereby deliberately and unlawfully Gagandip did sustain such really serious harm. It matters not that a defendant did not strike a blow provided that he or she was party to a plan…”
[59]Moreover, the route to verdict document, insofar as it related to Mahil and Count 2, was consistent with that direction. At the time nobody commented on the difference between what the judge said at page 13 and page 14, no doubt because the matter went unnoticed as having any significance. To the extent that there was a slip by the judge, it was an immaterial one which cannot have any impact on the safety of the convictions. It does not, in our judgment, provide material to support a submission that the jury must have ignored the judge’s directions in the case generally.[60]In seeking to persuade us that the verdicts of the jury were illogically inconsistent, reliance was placed on the fact that this was a trial which had considerably overrun its original estimate. As it approached its end, on the Tuesday of the final week in which the verdicts were returned on Friday, two jurors expressed concerns about pressure they were receiving from employers to return to work. The judge discussed the position with counsel and then addressed the jury. He allowed them to have their phones back briefly in order to obtain contacts details for their employers so that a senior member of staff at the court could speak to the employers to say that each juror was performing an important public duty and that it would be wholly wrong for them to feel under pressure to return verdicts.[61]The judge emphasised the importance of the jury taking all necessary time to come to their decisions. He reassured them that if the pressure was real, he would deal with it. Having given the jury that reassurance, the judge invited them to tell him if any of them still felt under pressure. In our judgment, the judge had acted entirely appropriately and left open the question of further investigation if any juror continued to feel pressure. There were no further representations from the jury about this matter. A majority verdict was given at around midday on the Thursday, and verdicts were delivered around 1:00pm on the Friday.[62]In the circumstances we do not consider that there is any sound basis for a submission that the jury’s verdicts reflect a compromise because they felt under pressure.[63]There is a further matter relied on in challenge to the jury’s verdicts. It appears that a person accepted by all the parties to be a juror went on a Facebook site dedicated to the memory of the deceased. There was no formal application to admit fresh evidence under Section 23, but all parties invited the court to proceed as if the facts revealed were before the court by way of admission. The juror, after verdicts and sentence, posted the following comments: On 5th March - “Disgusting sentence for M. Can’t believe that girl is almost free…and I’ve been there to hear her lies for three months. Devastated.” On 8th March at 9:50am - “What a fucking bitch. Rape allegation so wrong. I was on the jury and wanted her for murder. Unfortunately we didn’t all agree.” On 8th March at 10:06am - “Feel sorry for Ravi and Peters [the two males]. That bitch set it all up.” On 15th March at 9:11am - “Had so many tears during three months of jury service. Having to listen to their lies was awful. Thought of poor Gagan all the time and still do. My mind was made up as soon as deliberations started. So was certain others but some fell for her lies. She wasn’t raped either. Just an excuse. Thought her barrister might get her off on that. Attempted rape is nothing. That’s why she didn’t go to police. Bet he didn’t even touch her. That cow needs to be in Holloway Prison. Them old roughs will sort her out.”[64]Ms Bennett-Jenkins also drew attention to another posting which she asserted must have been very shortly after verdict. Having regard to the way in which postings are recorded on the site, we are very doubtful that that is the case. It would be wholly wrong to proceed on that basis on the information before us. That other posting was relied on as showing access to the Facebook site very soon after verdict, leading to the suggestion that the juror must have been accessing the site during the trial.[65]As already stated, we are unconvinced by the argument as to the timing of the posting. In any event there is simply no evidence whatsoever that the juror accessed the site during the trial.[66]The primary focus of the Appellant’s submissions has been on the March postings, and in particular, the last one. It is argued that the juror, quite apart from the impropriety of her actions, has demonstrated hostility to the Appellants and has ignored what was common ground at the trial, namely that in August 2010 Singh had sexually assaulted Mahil.[67]The matter is, in our judgment, more nuanced than that. It is clear that the juror took against Mahil; but it is equally clear that this was as a result of the evidence she had seen and heard. She clearly saw Mahil as primarily responsible for what had happened and entertained a degree of sympathy for the two male Defendants. Ill-advised and reprehensible as her comments were, they were made after verdict and after sentence, and reflected her views on the trial. They represent inappropriate venting of emotion after the event, but do not provide a basis for inferring that the jury failed to follow the judge’s directions, or carried out impermissible extraneous research, or that this juror was discussing the events surrounding Singh’s death on Facebook with others prior to delivery of verdict.[68]Turning to the comments about the sexual assault, no one had suggested that Mahil had been raped. For understandable reasons the detail of the assault was not investigated at trial. Mahil’s evidence was summarised thus: Singh came to her bedroom and asked for a hug, which she refused. He pinned her down. There was a sexual assault on the bed. “He did not penetrate me. He stopped and I stopped him. I kicked him off with my right leg.” Singh changed from being aggressive to being vulnerable and apologised. We take the juror’s comments as demonstrating that she did not regard the sexual assault as serious and took the view that Mahil was making an unnecessary fuss about it.[69]Those informal and emotional comments on Facebook are not to be construed like a statute. The fact that she did not think much of Mahil’s complaints is clear. If she chose to express those views in the jury room, others were free to disagree. We note that Mahil was acquitted of murder. Deeply regrettable as this episode is, we are not persuaded that it contributes to the argument that the verdicts were inconsistent or unsatisfactory.[70]The summing up and the route to verdict document both proceeded on the basis that different verdicts against different defendants were possible. Some counts were to be viewed as alternatives to others. In the case of Mahil, the verdict showed that she was party to a plan to do serious violence to Singh at the house; in Shoker’s case, that he brought about Singh’s death with the necessary intent; in Peters’ case, that he was criminally negligent in participating in burning the car knowing that Singh was in the boot. In Peters’ case the jury were unsure that he was party to or involved in the violence at the house. In our judgment, the verdicts reflect the burden and standard of proof and a view of the evidence in the case to which the jury was entitled to come. The matters raised about pressure and about the conduct of one juror do not in our judgment suffice to call into question the validity of the verdicts.

Ground One – Hostile Witness

[71]This ground is concerned with Live Thorsen. Ms Thorsen was a housemate of Mahil who was in a position to give evidence about relevant background and about events taking place in the house on the night in question.[72]Mr Birnbaum argued that the judge should not have permitted the Crown to make Ms Thorsen hostile, and that additionally, he misdirected the jury about her status. Mr Birnbaum was critical of the fact that the application came after Ms Thorsen had responded to questions about a particular conversation that she had had with Mahil in which Mahil indicated that she knew something was going to happen shortly at the house. Thorsen’s evidence was that nothing was going to happen to the victim. Mr Birnbaum was arguing that because she had previously given two different dates for when this conversation had taken place, it was wrong to treat this as the trigger for making her hostile.[73]We are extremely doubtful about that proposition because it seems to us that the essence of her answer on this topic was that Mahil’s saying that nothing was going to happen to the victim did not accord with what Thorsen had said on previous occasions. To some extent this is beside the point because we have read the full transcript of Thorsen’s evidence in chief up to this point. It is perfectly clear to us that she was giving evidence in a way which was inconsistent with earlier statements she had made to the police, and which was intent on minimising any harmful evidence that she might give against Mahil.[74]That this was the case is confirmed by the fact that as soon as the application was made, the judge indicated that he had strong sympathy with it. The witness had already had opportunity in the witness box to refresh her memory from her witness statements, which had gone into a considerable degree of detail. Yet on many occasions, despite having the opportunity to consider her witness statement, was refusing to give evidence in accordance with it. He described her as an intelligent young woman who had been “taken to water from the trough many times”, but for some reason was refusing.[75]Mr Birnbaum himself commented to the judge that “the paradox is we are longing for her to come up to proof.” He acknowledged that if the judge thought it appropriate, the Crown would be entitled to treat her as hostile, and said that whether she was treated as hostile or not, he would cross examine a great deal of the material in her statements into evidence. The other defence counsel were neutral in this application.[76]In those circumstances we do not think there is anything in the criticism of the judge’s decision to permit the witness to be treated as hostile. It is recognised that the discretion of a judge to give a party leave to cross examine his own witness is absolute, and can only be raised on appeal in exceptional circumstances (see R v Williams (John) 8 Cr App R 133). These are not exceptional circumstances, but in any event we regard the judge as having correctly exercised his discretion.[77]Mr Birnbaum also criticised the way in which the judge put hostility to the jury. The judge said that being treated as hostile meant that when a witness was called by a party, if they failed to adhere to the statement they have made, and it appears that they may be doing that deliberately, then the party calling them is entitled to cross examine them and take them back to the statement. This direction and a similar one are criticised on the basis that there was no reference to a hostile witness as one who lied or wished to conceal the truth out of animus to the prosecution.[78]We do not accept this criticism. The use of the word “deliberately” by the judge, in our view, is sufficient encapsulation of the essential quality of a hostile witness, which is one not desirous of telling the truth to the court at the instance of the party calling him. The judge’s words were entirely adequate to convey to the jury the flavour of what is meant by a hostile witness. His further directions as to the use to which her evidence might be put cannot, in our judgment, be criticised.[79]After the witness was turned hostile, she proved largely compliant in coming up to proof. The fact that the evidence which she gave was not significantly different after being made hostile to that which appeared in her witness statement is neither here nor there. Nor is the fact that the Crown, in closing, relied on aspects of Ms Thorsen’s evidence. The jury’s task was to evaluate the whole of the witness’ evidence in deciding what they could rely on. That will have included the evidence she gave before being turned hostile as well as that given afterwards. Contrary to Mr Birnbaum’s submissions, the judge was not in error in permitting the jury to rely on what Ms Thorsen had said in her statements to the police. Nor was he in error in failing to direct the jury that the Crown had relied on aspects of her evidence. There is nothing in these criticisms.[80]Allied to this were criticisms of comments made by the judge about the evidence of all the housemate witnesses. He invited the jury to look carefully at their evidence and assess if they were accurate and reliable and had set aside feelings of loyalty to Mahil, in which case their evidence would be impressive. On the other hand, they had to consider if those witnesses were attempting to help Mahil, in which case their evidence might be less reliable. We consider that these balanced questions were legitimately posed in a case where those considerations were relevant.

Ground Two – Submission of No Case

[81]The judge rejected a submission of no case to answer at the close of the prosecution case. Mr Birnbaum argues that the case against her on murder was fundamentally weak. He points to evidence that at times during the months preceding the killing, Mahil wanted to avoid harm to Singh. This therefore could not be reconciled with a plan to kill him. He pointed to the unlikelihood of a planned killing at a house full of friends of Mahil. There was evidence of her distraught reaction after the violence in the house. After the event she had gone to the police. Although she had initially lied, that was because of her brother’s instructions, and she later substantially told the truth.[82]The act which caused the death of Singh, namely the burning of the car, must have been spontaneous, and thus not part of a plan to kill him. Taken at its very highest, the evidence merely showed a plan that some harm, albeit not serious, was all that Mahil had assented to.[83]These arguments seem to us to be essentially matters for a jury to consider. The judge rightly left Count 1 for the jury’s consideration. There was, in our judgment, sufficient evidence. This Appellant had a motive to wish harm to the deceased. Although at times her wishes had fluctuated, she met Shoker and Sonny on the Wednesday before the attack, having previously sent a compromising text to Shoker suggesting that she was prepared to go through with an attack on Singh. There was a similar text to another friend, Gurpal, sent on the following day. The evidence showed that she had lured the deceased to her house late on the fatal night. A housemate, Becky Edwards, and Live Thorsen (depending on the jury’s view of her), had given evidence that the Appellant had indicated that something was going to happen to the deceased on the Friday night. The Appellant collected Peters and Shoker from Brighton station and took them to her house. After the deceased arrived, she led him to the room in which he was attacked, having asked her housemates to vacate the ground floor before he arrived.[84]She later discouraged them from going to investigate the struggle taking place downstairs. She ignored cries from the deceased for help while he was being attacked. She was aware of his body being removed to the Mercedes and took no step to prevent its removal. She made no call to the deceased or Shoker in the immediate aftermath. She had seen Peters and Shoker produce gloves and a sheet beforehand. She did not report those events to the police on the night, and when later interviewed, told significant lies. There was, in our judgment, quite sufficient evidence to support Count 1.[85]At the close of the evidence the murder submission was repeated. By then Count 2 had been added as an alternative to the indictment and a submission was made in relation to that as well. By this point all three Appellants had given evidence, and evidence had been called from some witnesses on Mahil’s behalf supporting her case that she was reluctant to have Singh harmed. There was also evidence from her brother, accepting that he had encouraged Mahil to go through with a plan to discipline Singh, and that he had told her to lie to the police.[86]As to the murder, we take the view that the position had not materially changed. Such evidence as was helpful to the Appellant was merely evidence for the jury’s consideration to be evaluated alongside evidence adduced by the Crown which implicated her. The matter remained one for a jury to consider.[87]As to Count 2, this had been added in Mahil’s case on the basis that it would be limited to violence occurring in the house. We note that Mr Birnbaum’s submissions on this count at this stage to the judge accepted that there was a case that Mahil intended some harm to be done to Singh. Once that was accepted, it was, in our judgment, a matter for the jury to assess on the totality of the evidence whether that harm encompassed really serious bodily harm. Even in the absence of such a concession, it was clearly a matter for the jury to assess whether there was a plan involving the infliction of grievous bodily harm of which Mahil was part.

Ground Four – Sonny’s Lies

[88]There was an older and apparently respected Sikh man referred to as Sonny who was a friend of Shoker and known to Mahil, and who had become involved in this affair. He was said to have taken a poor view of the deceased’s behaviour towards women. He was going to be one of those who attended at Mahil’s house when the deceased was lured there. However, late in the day Sonny withdrew and Peters was brought in to accompany Shoker instead.[89]On any view Sonny was involved in the matters surrounding the case. He also met the male defendants after the driving of Singh’s car back to London, and before the car was burnt. He was interviewed by the police, but not charged, but his name naturally featured in the trial, and the jury asked if he was going to be called as a witness.[90]Mr Birnbaum wanted to make use of the fact that Sonny had lied to the police in his interviews. However, he did not want to call Sonny because Sonny was an untruthful witness. Accordingly, he sought to secure admissions of facts setting out a series of lies which he asserted Sonny had told in his interviews. He argued that if the fact of lies was relevant, then the other Defendants had no locus to object. See Lobban v The Queen [1995] 1 WLR 877.[91]He submitted that the relevance of Sonny’s lies to Mahil’s defence was(a) they were consistent with the theory that Sonny was involved both in a plan to attack Singh and in his killing, and that he deceived Mahil about the purpose of getting him down to Brighton;(b) to demonstrate that Mahil had been let down by a number of men, including Sonny, who had lied to protect himself to the point of denying that he even knew Mahil;(c) to consider whether the abduction of Singh was linked to a plan by Sonny to blackmail him over the text he had sent admitting attempted rape of Mahil;(d) to show that Sonny’s lies to the police were much more extensive than those told by Mahil.[92]The Crown objected on the basis that this evidence was not relevant. Mr Birnbaum submitted in line with Lobban, that the threshold of relevance is a low one where a Defendant is seeking to adduce evidence.[93]It was common ground between all parties that Sonny was in some way involved in these events. Each of the Defendants gave evidence giving an account of his involvement insofar as it affected them. Assuming he had lied to the police, as appears not to have been seriously in issue, we have come to the conclusion that that fact was not relevant to Mahil’s defence in any of the ways contended for by Mr Birnbaum. The theory that he lied because he had deceived Mahil about the purpose of getting him to Brighton is simply speculative, as is the blackmail theory.[94]A comparison of who had told more lies to the police had no relevance at all. The assertion that Mahil had been let down by a number of men including Sonny would not be evidenced by the fact that he had lied to the police. At one point in the argument, as Mr Birnbaum submitted to the judge that the relevance of Sonny’s lies was that they supported the theory that he was involved, both in a plan to attack Singh and in his killing, and that he deceived Mahil about the purpose of getting him down to Brighton, Mr Birnbaum posed the question “if he had nothing to hide, why tell so many lies?”[95]It seems to us, as the judge himself observed, that there may be many reasons for lies told by Sonny, and it was speculative to assume that they supported the theory put forward by Mr Birnbaum. Mahil had, in her own evidence, had asserted that she had been deceived by Sonny into luring Singh to her house. But the fact that he may have lied in interview to the police about matters relating to this case cannot of itself support her.[96]Sonny was, it was admitted, physically available to give evidence. He might have explained why he lied, but Mr Birnbaum was, understandably, unwilling to call him. What he sought was to deal with the matter by way of admissions.[97]The judge refused the application, saying that he was not persuaded that the evidence had such relevance as Mr Birnbaum submitted. He took the view that the jury could be misled if the evidence went before the jury in the form proposed. Since the witness was available, Mr Birnbaum had to decide whether he wished to call the witness. He did not think it appropriate that the evidence in respect of Sonny should go before the jury in the form advanced.[98]The judge’s ruling seems to be premised on a mixture of the irrelevance of the proposed evidence and the proposed method of proof, namely by admissions which the other parties were not prepared to make. After careful consideration we have come to the conclusion that the Crown and the judge were correct in saying that the proposed evidence was irrelevant. To show that a person not before the court, but who was involved in events, had lied to the police, did not evidence the reason for lying other than perhaps a general desire not to be implicated in the events. However, what it could not demonstrate was any of the specific matters upon which Mr Birnbaum wanted to rely. Thus, the evidence was irrelevant and rightly excluded.

Ground Five – The Structure of the Summing Up

[99]Mr Birnbaum, who had presented his submissions on behalf of Mahil to the jury in chronological form, submitted that that was the only proper way of fairly putting the matter to the jury. Since the judge had not adopted that approach, the summing up was inadequate and unstructured.[100]Each member of the court has considered the summing up in its entirety. The judge chose to deal with the matter by themes as opposed to a strict chronological survey. That is a choice which is open to a trial judge, who will present the matter to the jury in the way he judges is best calculated to help them. We have to take a view on this. This was not a summing up read from the judge’s notebook from start to finish. It was a summing up arranged by topics which dealt with discrete issues or areas of the case in a balanced way. We are not persuaded that there is anything in this ground.[101]Mr Birnbaum made some additional factual criticisms which, to us, appeared to be little more than jury points which a judge is not obliged to make at every available opportunity. This ground must fail.

Ground Six – The Twenty-One Years Remark

[102]Live Thorsen had given evidence that Mahil had told her that Shoker had said to her that he was willing to go to prison for 21 years to protect her. The judge had directed the jury that this was not evidence admissible against Shoker, but had not directed the jury in those terms with regards to Mahil. Mr Birnbaum argued that he should have done so and that failure to do so would involve the jury indulging in unacceptable mental gymnastics.[103]It seems to us that the significance of this remark depends on when it was said. Mr Birnbaum contends that it was not made until the morning of the 26th February, that is the morning after the murder. By this time Mahil had had a lengthy overnight conversation by telephone with Shoker. If so, it would not be probative evidence.[104]Mr Jafferjee QC took us through Thorsen’s evidence. It seems to us that Thorsen’s evidence did not necessarily show that the remark, (which was not itself disputed by Mahil), was made in the conversation on the morning of 26th February. It was open to the jury to conclude that the remark had been made before the murder and/or if mentioned on 26th February was in confirmation of an earlier discussion. Becky Edwards, another housemate, had given evidence that on the evening before the murder, Mahil had spoken to her, talking in terms of Singh being killed and that amounting to justice. Mahil would not be directly involved.[105]This evidence was supportive of the Crown’s submission that the remark to Thorsen had been made prior to the murder. There was material upon which the jury could have concluded either way. As we understand it, there was no objection to this evidence being left to the jury at the time of the trial; it is a matter which has subsequently occurred to defence counsel. That may be an indication of its relative unimportance in the general scheme of things, but in any event the direction now proposed by Mr Birnbaum was not required. The parties dealt with it at trial by submissions to the jury as to whether the remark was relevant or not.[106]We are unpersuaded as to the point about mental gymnastics. The judge explained clearly why evidence relating to the remark could not be evidence against Shoker. That left it open to the jury to act upon it in the case of Mahil. The jury acquitted her of murder which suggests they did not use this evidence against her. A minor point is reduced to vanishing point.

Ground Seven – An Unfair and Illogical Comment?

[107]Specific criticism was made about a comment made by the judge in inviting the jury’s attention as to the defence point as to why Mahil might have invited the deceased to her house at a time when her flatmates were present. We have read the relevant passage. The judge put forward a point made on behalf of the Appellant and put a counter-suggestion, making it plain it was for the jury to consider which points they accepted and which they rejected. We do not think there is anything in this point.

Ground Eight

[108]Mr Birnbaum alleges a misdirection in the summing up by failure to direct the jury that there could be no joint enterprise to commit the Section 18 offence if she had been prevailed upon to join a plan merely to beat up the deceased in circumstances where another party to the plan intended that he be killed. We do not consider that there was a misdirection.[109]If A and B agree to attack and cause serious injury to C, and carry out that plan but B then goes further and kills C, that does not absolve A from responsibility for the initial attack with intent to do serious injury. A is in those circumstances not responsible for the killing of C. Even if B harboured the secret intent to kill at the time of the attack, that would necessarily include the intention to cause grievous bodily harm, so a joint enterprise to that effect would exist. The fact that B misled A as to his ultimate intention would not preclude a shared intention.

Ground Nine – Brain Damage

[110]Mr Birnbaum argued that there were no grounds upon which a reasonable jury could be sure that the deceased sustained brain damage at the Appellant’s house rather than after he left it. We disagree. This was entirely a matter for the jury’s assessment of the evidence. A neighbour saw two men removing an unconscious man wrapped in a duvet. Shoker had given evidence that he had struck a number of blows to the head of the victim. He said that the camera tripod had been used to hit the victim’s head as well (he said by Peters). The tripod undoubtedly had damage consistent with such use. There was evidence from the flatmates of noise consistent with a prolonged attack. Medical evidence was that the brain injury was consistent with at least five or more blows to the head. It was an injury of sufficient severity, potentially to lead to unconsciousness, and death if not attended to. We consider that in the circumstances it was open to the jury to infer that the brain injury had been sustained during the attack in Mahil’s house.[111]It follows therefore that none of the grounds advanced by Mr Birnbaum have any cogency. We are in the circumstances satisfied that Mahil’s conviction was safe. Her appeal against conviction is dismissed.

Shoker’s Appeal Against Conviction

[112]Shoker advanced two grounds. The first related to the asserted inconsistency or unsatisfactory nature of the verdicts. As noted, Ms Bennett-Jenkins advanced arguments in support of Mr Birnbaum’s. We have dealt with these matters under Mahil’s ground ten, starting at paragraph 46(above). Our conclusion was that this ground does not succeed.

Shoker’s Second Ground

[113]This is a discrete ground based on an incident which occurred early in Shoker’s cross examination by Mr Jafferjee QC for the Crown.[114]Mr Jafferjee asked this Appellant what he had said to a man in court a few days before when he left the dock. The thrust of the question and the brief exchanges which followed were to suggest that the Appellant had made an aggressive remark to the individual along the lines of “what’s your problem?” That individual was sitting in counsel’s row and was a pupil of Ms Whitehouse, the Crown’s junior counsel. The Appellant accepted he had said something along those lines because the person was giving him a funny look. He denied saying it or meaning it in an aggressive way. Counsel then suggested that this behaviour contradicted the image the Appellant had painted of himself as a mild mannered individual.[115]No advance notice of this line of questioning had been given under the bad character rules. Ms Bennett-Jenkins made submissions to the judge couched in vehement terms and highly critical of the Crown. Mr Jafferjee indicated that he had given the matter consideration, that he had asked the questions to counteract the Appellant’s portrayal of himself, and that he had considered he was entitled to do so without notice pursuant to Section 98(1)(b). That subsection deals with evidence of misconduct in connection with the investigation or prosecution of the offence.[116]The judge immediately indicated that he was not impressed with this justification. Whereupon Mr Jafferjee submitted that he would have been entitled to adduce the evidence pursuant to Section 101(1)(e), that is evidence to correct a false impression given by a defendant. However, he had not laid the ground for that by giving the required notice.[117]Ms Bennett-Jenkins’ submission to the judge was that her client’s trial had been irremediably prejudiced and that the jury must be discharged in his case. Her client was a young man of good character with supportive character references and what had happened would be very damaging to him. The absence of notice had deprived her of the opportunity of considering the matter in advance and marshalling evidence to deal with the situation if leave had been given.[118]We are content to proceed on the basis that the judge’s reaction that this matter did not come within Section 98(1)(b) was correct. Leave had not been granted under Section 101(1)(e). On the basis of our assumption as to Section 98(1)(b), the Crown had made a misjudgement, but we do not think that this was a deliberate ambush. The question for us and for the judge was how the situation which had emerged should be handled in the absence of justification for the question. The judge’s conclusion was that the matter could be handled by appropriate directions to the jury in due course. That decision is challenged on the basis that there was no measure which the judge could take which could remedy the position.[119]The exchange between counsel and the Appellant was a short one, in which the Appellant acknowledged his remark, explained that it was not intended to be confrontational, and was in response to looks he had been given. He said he was not an aggressive or violent person when asked by Mr Jafferjee “you are not the gentle charming person you led others to think you are?”[120]The judge rightly said that there has to be a high degree of necessity before a judge will discharge a jury. If such necessity arose then the jury would be discharged irrespective of the stage the trial had reached. However, he did not believe that such action was warranted. According to the transcript Mr Birnbaum QC’s reaction at the time was that Ms Bennett-Jenkins was making a mountain out of a molehill. We know not, but it may be that he had tactical interests of his own to serve.[121]It is, however, instructive to note that at the time the judge had made no note about the episode since he did not regard the exchange as one worthy of inclusion in it. He said that Shoker had maintained his composure throughout his evidence, and had not been unsettled by the question, as had been submitted. In any event it was the witness’ response to the questions which was the evidence, not the questions. He regarded the mischief done as “very minimal” and said he had no hesitation in finding that the application was misconceived.[122]In our judgment, the handling of this matter was very much within the discretion of the judge. His feel of the case is important, as was his appreciation of the impact or lack of it that this episode had had. He offered to say something to the jury at that stage if Ms Bennett-Jenkins desired, but pointed out that that might be counterproductive in highlighting something to which they had attached no significance. It does not appear that that invitation was taken up. He also indicated that he would consider sympathetically an application by Ms Bennett-Jenkins to adduce evidence on the matter. Such a course was not taken.[123]When the judge came to sum up, he gave Shoker a full good character direction. We do not criticise that direction, but we note that during the course of his evidence, the Appellant acknowledged being party to a deceit being practised on the deceased, going to the house to beat him up, (in defence statement but retracted in evidence), and gratuitously hitting him with sufficient force to fracture his own hand. He had also allowed, what he claimed was a dead body, to be burnt in a stolen car.[124]In addition to giving the Appellant a full good character direction, the judge referred to the exchange with Mr Jafferjee. He repeated Mr Shoker’s account that this was an enquiry rather than aggression. He told the jury that the episode in no way constituted evidence against Shoker, and told them to put it entirely out of their minds. This was an emphatic direction.[125]We have come to the conclusion that the significance attributed to this episode by Ms Bennett-Jenkins is, notwithstanding her submissions, much overstated. We are satisfied that the judge’s handling of the matter was the appropriate course to take. That includes the way in which he dealt with the matter in the summing up. This was not a situation which required discharge of the jury; the matter could properly be dealt with in the context of a continuing trial. Accordingly, this ground does not succeed.

Conclusions As to Appeals Against Conviction

[126]None of the grounds advanced before us, whether taken individually or cumulatively, begins to make us doubt the safety of these convictions. As analysed, none of the grounds begins to advance either Appellant’s case in this respect. Accordingly, both appeals against conviction are dismissed.

Mahil

[127]Mahil appeals against her six year sentence for causing grievous bodily harm with intent by leave of the Single Judge.[128]In accordance with the judge’s direction to the jury, she was convicted on the basis of the jury being sure that she intended really serious harm to be caused, that she played a part in bringing about such harm by luring the deceased to the house and leading him down to the bedroom where he was set upon and caused the really serious harm of brain damage.[129]In assessing the seriousness of her offending, the judge made the following additional findings of fact. After having been sexually assaulted by the deceased, and notwithstanding the fact that her brother was a police officer, she had not reported the incident to the police. Her claim that the deceased had been harassing other women had not been supported by any independent evidence in the trial except from one University student who had shrugged off his advances. Prior to the night of the incident, she had decided that the deceased should be seriously harmed and had enlisted the support of Shoker whom she knew was besotted with her. The offence involved planning and the betrayal of the trust of a man whom she had described as depressed. She had lured him to her home in Brighton at eleven o’clock at night. Prior to his arrival, she had collected Shoker and Peters from the railway station and taken them to her home. When the deceased arrived early, she had made him wait outside her home for nearly two hours before letting him into the house. She had led him to her bedroom where she knew Shoker lay in wait. She had seen the beginning of the attack and had then left. As the noise of the attack continued and the deceased was shouting her name she had done nothing to help him. The attack had caused a significant brain injury which was potentially life threatening. She had seen Shoker and Peters drive away in the deceased’s car knowing that they had forcibly removed the deceased from the house and had put him into the car. When she had found out what had later happened in a lengthy telephone conversation with Shoker she had showed no remorse. She had lied to his sister about what had happened and had lied to the police. Her account to the jury had been rejected. From all of this, the judge was satisfied that she was manipulative, vengeful and deceitful.[130]The judge stated that he bore in mind matters relied upon by Mr Birnbaum, the significant features of which can be summarised as follows. There was evidence that she was a naïve and trusting twenty year old Sikh woman who was a promising medical student of exceptional good character. Prior to the incident in August 2009, she had helped the deceased and had prevented him from committing suicide when his father had been murdered in 2009. In August 2009, she had been sexually assaulted by the deceased and had thereafter been subjected to psychological abuse by being bombarded with messages and texts from him. For months she had resisted and discouraged suggestions by others that he be harmed. By February 2011, she believed that he had been harassing other young Sikh women. Texts and phone evidence established that she had been reluctant to arrange and go through with the meeting at her home. There was evidence from her housemates that she was shocked and upset once the violence commenced. She voluntarily went to the police. She had been charged with murder and had spent months preparing for and being part of a murder trial in respect of which she was eventually acquitted.[131]The judge stated that he had carefully considered the Sentencing Council’s Assault Guideline. He specifically stated that the seriousness of the injury was a factor indicating greater harm. By itself, that would have led to a starting point of six years imprisonment prior to consideration of aggravating or mitigating factors. Having taken into account all of the above facts, the judge concluded that the appropriate sentence was one of six years.[132]Mr Birnbaum submits that, in arriving at six years, the judge gave insufficient weight to the mitigation and made factual errors in assessing the seriousness of her offending. The judge ignored the cultural dimension of the case when stating that she failed to contact the police and change her phone. He failed to take into account evidence from her friends that she genuinely believed the deceased was harassing other women. He forgot he had been told there was evidence of harassment in the unused material which did not need to be deployed in the trial. He failed to accept powerful evidence of her shocked reaction to what had happened. He submits that a sentence of six years is manifestly excessive.[133]We are not persuaded that the judge incorrectly assessed the overall seriousness of the offending or failed to take into account all relevant mitigating factors. In accordance with the Guideline, there were two factors indicating greater harm, namely, an injury which was serious in the context of the offence and a sustained assault. There were factors indicating higher culpability, namely, significant preparation, deliberate targeting of a vulnerable victim and, by her actions in luring the deceased to her home and involving herself with Shoker and Peters, she was also taking a leading role in a group. The starting point for a S.18 offence with greater harm and higher culpability is twelve years imprisonment. There were additional aggravating factors as particularised by the judge. Even allowing for all matters raised in Mr Birnbaum’s submissions before the judge and before us, six years imprisonment cannot possibly be regarded as a manifestly excessive sentence. Mahill’s appeal against sentence is dismissed.

Peters

[134]Peters appeals against his twelve year sentence for manslaughter by leave of the Single Judge.[135]In accordance with the judge’s direction to the jury, he was convicted on the basis of gross negligence in that the jury were sure he knew that the deceased was in the boot of the car, he failed to take reasonable steps to check whether he was alive or dead, he participated in setting fire to the car, he thereby caused his death, that those actions gave rise to a serious and obvious risk of death and the conduct was so bad that it amounted to the crime of manslaughter.[136]In assessing the seriousness of his offending, the judge made the following additional findings of fact. The psychological reports established that Peters had significant learning difficulties and would have been more easily coerced into acting than others. In this regard, he had played no part in any planning. He had gone from London to Brighton and had been present at the house as backup if needed. He had done nothing in the house. He and Shoker had left the house together with the deceased inside the boot of the car. He had not intended death or serious injury by his actions after that, but he had played his part in setting fire to the car and the deceased in circumstances where the car had been driven to a secluded area, the deceased had been doused in petrol taken to the scene and both had been set alight. After burning the car, he had taken the deceased’s credit card and using a PIN number which had been extracted from the deceased earlier that night he had withdrawn £300 as payment for his services. He had shown remorse during the trial. He was of effective good character.[137]In passing sentence, the judge indicated that he had considered a number of manslaughter sentence cases relating to deaths after houses had been set on fire. They indicated that a sentence in the region of twelve years imprisonment might be appropriate after a discount for a plea of guilty. The judge distinguished those cases on the basis that such convictions were for unlawful act manslaughters where there was danger of neighbours being put at risk by the fire. The conviction here was for gross negligence manslaughter where there was no risk to neighbours, but knowledge that there was someone in the boot and that there would be certain death from the fire if the person in the boot was not already dead. He concluded that the appropriate sentence was twelve years.[138]Mr Barraclough has drawn our attention to the case of Mahmood [2012] 2 Cr App R (S) 63, which he submits supports the judge’s analysis as to the appropriate range of sentences for manslaughter in deliberate arson cases and indicates a higher range of sentence than is appropriate for gross negligence manslaughter. In Mahmood, reference was made to there being a fairly consistent pattern of 12 to 15 year sentences being imposed in manslaughter arson cases. We make no findings in relation to whether such a range remains appropriate. The cases cited in Mahmood in support of the range did not include any of the cases referred to below, all of which indicate an uplift in manslaughter sentences generally. In any event, we derive little assistance from the manslaughter arson cases. In our judgment, the judge rightly distinguished them from the facts of this case. We do not accept that one can infer any hierarchy of sentences between unlawful act manslaughter cases and gross negligence manslaughter cases. Both involve different aspects of involuntary manslaughter. Each covers a very wide spectrum of cases in respect of which there is no Guideline as to what sentence should be imposed. Each case will turn on its own facts. The ultimate sentence will depend on the court’s assessment of the seriousness of the offence having considered harm and culpability issues and all mitigating factors.[139]Two clear principles which follow the implementation of the Criminal Justice Act 2003 have been identified in sentencing decisions of this court in relation to manslaughter cases. First, Section 143(1) of the Act focuses direct attention on the harm actually caused by the offence which in such a case always involves harm at the highest level. Secondly, the effect of Schedule 21 of the Act has been to increase the punitive element in sentences for murder and this has had an inevitable effect on sentences for manslaughter on the basis that the statutory intention was to underline that crimes which result in death should be treated more seriously and dealt with more severely than before. Support for these propositions comes from cases such asWood (Clive) [2010] 1 Cr App R (S) 2; Appleby (Attorney General’s Reference No 60/2009; Barrass [2012] 1 Cr App R (S) 80; Holtom [2011] 1 Cr App R (S) 18; and Garg [2012] EWCACrim 2520, the last threedecisions involving gross negligence manslaughter.[140]Barrass was a manslaughter case where the defendant was the deceased’s brother and carer who was grossly negligent in looking after his sister. In dismissing the appeal against sentence on the particular facts of that case, Rix LJ observed:
“… Appleby we consider has created a situation in which there has now been a step change in the tariff in sentencing in such cases (that is gross negligence manslaughter cases) each of which of course ultimately rests on its own particular facts, but in general by reference to a proper consideration of the … fatal consequences of the offences.”
[141]Holtom was a manslaughter case where the deceased was killed by the collapse of a brick wall as a result of gross negligence in the workplace. In dismissing the appeal against sentence on the particular facts of that case, Sweeney J observed:
“… there is now greater emphasis to be placed on the fatal consequences of a criminal act … A similar consideration applies to cases of manslaughter by gross negligence in the work place.”
[142]Garg was a manslaughter case where the deceased was killed by gross medical negligence. In the course of dismissing the appeal against sentence on the particular facts of that case,

Lord Judge LCJ referred to the above principles and all of the above-mentioned cases and observed:

“The decisions in Holtom and Barrass demonstrate that the principles enunciated in general terms in relation to sentencing in manslaughter cases in Wood and Appleby apply to cases involving gross negligence manslaughter generally.”
[143]In his submissions before us, Mr Barraclough conceded that the jury’s verdict means that Peters’ offending involves a high degree of harm and culpability. Nonetheless, he submits that, in deciding what the appropriate sentence should be, the judge failed to give sufficient consideration to Peters’ learning difficulties, his high degree of suggestibility as set out in the psychological reports, the fact that the jury must have accepted that it was at least possible that he had been threatened with violence which had caused him to go to Brighton, his good character, the fact that he was not part of any plan to harm anyone, and the possible involvement of Sonny in the removal of the body from the house. In all the circumstances, he submits that a sentence of twelve years is manifestly excessive.[144]In the context of the case, the harm was at the highest level. An ambitious, talented young man died. The victim personal statements underline the great loss that has been and continues to be suffered by his family and friends. There was no intention to kill or cause serious injury. However, the basis of conviction included particular factors of high culpability. Peters knew that the deceased was in the boot of the car. He failed to take any reasonable steps to check whether he was alive or dead. He nonetheless participated in setting fire to the car in circumstances where petrol taken to the scene was poured over the car and the deceased. There was a serious and obvious risk of death such that the jury were sure that the conduct was so bad that it amounted to the crime of manslaughter. Put simply, there was a virtual certainty of death arising from the failure to take any reasonable steps to check he was alive. In our judgment, the combination of great harm and high culpability lead us to conclude that, even allowing for the mitigation, this is a case of particular gravity which fully justifies a sentence of twelve years imprisonment. Peters’ appeal against sentence is also dismissed.