Najib v R. [2013] EWCA Crim 86

[2013] EWCA Crim 86Case No 201104489 C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
READING CROWN COURT ( Her Honour Judge Smith)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/02/2013
Before
LORD JUSTICE PITCHFORDMR JUSTICE CRANSTONMR JUSTICE HADDON-CAVE
Between
AMAAR NAJIBAppellantREGINARespondent
Benn Maguire (instructed by Burton Copeland - Solicitors) for AppellantBenjamin Gumpert (instructed by CPS) for RespondentHearing Hearing date: 23 January 2013
Judgment

The Conviction

[1]Between 4 January and 4 February 2011 this appellant, Amaar Najib, stood trial at Reading Court, together with his co-accused, Kanwarpal Singh and Navera Ahmed, upon an indictment containing five counts. In count 1 they were charged with the murder of Saimah Ali; in count 2 with attempted murder of one or more of the other 15 occupants of no. 3 Moore Lane, Maidenhead; in count 3 with manslaughter, as an alternative to count 1; in count 4 with arson with intent to endanger life; and in count 5 with arson being reckless as to whether life would be endangered, as an alternative to count 4. On 4 February 2011 the jury returned verdicts of guilty in the appellant’s case upon counts 1 and 4. He was found not guilty upon count 2. His co-accused were found not guilty upon all five counts. On 21 February 2011 the trial judge, Her Honour Judge Smith, sentenced the appellant to custody for life upon count 1 with a minimum term of 20 years less 234 days, and 15 years detention concurrent upon count 4. The grounds of appeal[2]The appellant now appeals against conviction with the leave of the full court. Each of the grounds asserts that the trial judge gave the jury inadequate assistance as to the way in which they were permitted to apply and assess the evidence: i) The judge did not direct the jury that they should draw no adverse inference from the applicant’s ‘no comment’ interview; ii) She did not give a necessary bad character direction; and iii) She did not provide the jury with a warning that they should treat with caution evidence given by one accused against another. The evidence at trial[3]Shortly after midnight on 25 June 2010 an arson attack using petrol as an accelerant was carried out at the front door of 3 Moore Lane in Maidenhead. Numbers 3 and 5 Moore Lane were adjoining suburban properties occupied by an extended family. Living at no. 5 were Harun Hussain and Hussain Faizan. Their sister, Saimah Ali, who lived at no. 3 with her husband, was the victim in count 1. Harun Hussain was woken by his mother and escaped from no. 5. He managed to find a ladder to help others to escape from no. 3.[4]Harun Hussain gave evidence that in February 2009 his BMW car was vandalised in the street near to nos. 3 and 5. The windows were smashed. A month later, on 7 March, someone set fire to the car. Following each of these incidents a person using the profile ‘Moneymaker Amaar’ posted messages on Mr Harun Hussain’s Facebook page. They included the following: ‘Have you fixed a window yet’ and “Weren’t me you joker, was me boy. You can’t blow my car up, you joker, it’s garaged”. Mr Hussain replied to each of these messages but his replies could not be retrieved from his computer. Within hours after the arson attack on his car the same profile sent him a message which read: “You are in no current position to be making or calling the shots. You have got to learn this, you just don’t fuck with me homey, sooner the better”. The police made enquiries with Facebook and ascertained that ‘Moneymaker Amaar’ used the email address street_diamond@hotmail. That was an email address which the appellant Amaar Najib admitted he had used although he denied being the author of the messages. If Najib was the author of these messages the origin of his dispute with Harun Hussain was obscure.[5]In 2009 Najib received a police caution for making an indecent image. He explained the circumstances in his evidence. He and his ex-girlfriend, Miah, got drunk one night, removed their clothes and took photographs using Najib’s mobile phone. The images were circulated, Najib claimed, as a result of the theft of his phone.[6]On the afternoon and evening of 24 June 2010 Najib and his co-accused Kanwarpal Singh spent time together drinking. They were close friends. Each claimed that the other was the more dominant. For part of that night they were joined by Singh’s girlfriend, the third accused Navera Ahmed. Najib and Singh were captured on CCTV together shortly after 6.00 pm in Slough High Street. Najib was wearing a jacket which was to feature later in the evidence.[7]At 9.28 pm they were confronted in the High Street by two men, a confrontation which was also partly captured on CCTV film. What was not captured was the violence which followed. The first of the two men, Najib accepted in evidence, was Hussain Faizan, the brother of Harun Hussain whose car had been damaged, and the second was his former girlfriend Miah’s brother, Abdanoor. Najib said that Abdanoor was not pleased to see him because he knew about the indecent image of his sister on Najib’s phone. Evidence was received from one of Hussain’s cousins, Ali Mansoor, who lived at no. 3, that the family had been aware of the rumour that the appellant was responsible for the damage to Harun Hussain’s car and the Facebook postings that followed. According to Najib’s evidence, Abdanoor punched him more than once to the face and followed up with kicks while Najib was on the ground. Najib said he was aware that at the same time Hussain Faizan attacked Singh having asked Singh whether he was responsible for the damage to his brother’s car. Najib claimed that after the beating Singh admitted that he had indeed set fire to the car.[8]Singh’s account of the incident differed markedly from that of Najib. Singh said that Hussain Faizan accused Najib of burning his brother’s car. Najib was beaten up by both Faizan and Abdanoor, while Singh was told to stay out of it. At trial Singh and Najib each denied damaging Harun Hussain’s BMW and sending him messages, and blamed the other. Singh sought to establish that Najib was the only one with a motive to take revenge upon Harun Hussain’s family for the beating he received in Slough High Street. Najib sought to establish that although they both received a beating it was Singh who had damaged Harun Hussain’s car.[9]At 10.34 pm Singh’s car was captured by automatic number plate recognition equipment and CCTV cameras making its way westwards along the A4 Bath Road and, at a roundabout, turning into Cookham Road. Moore Lane, where the arson took place, was off Cookham Road. Some minutes later the car was to be seen making the return journey. The prosecution suggested that this was a journey made for the purpose of reconnaissance.[10]The jury heard from Ali Mansoor that his Volvo motor car was parked on the path immediately outside no. 3 Moore Lane at 10.45 pm.[11]At 11.53 pm Mr Singh’s car was at a Macdonald’s drive-in. The CCTV film recorded the driver wearing a T-shirt. At 12.16 am on 25 June the car entered a small petrol station in Maidenhead. Inside were two men and a girl. The girl was Navera Ahmed who was sitting in the front passenger seat alongside Mr Singh. The second man, the appellant, was sitting in the rear. At the pumps £8 worth of petrol was extracted. Navera Ahmed tried unsuccessfully to pay with a card. She was required to leave an IOU acknowledging the liability to pay. The name of the customer was given as Kanwarpal Singh and Singh gave evidence that he probably went to the kiosk and signed the IOU. The receptionist, Mr Faisal, described the driver as wearing a black woolly jumper. The amount of petrol purchased was 6.73 litres. In evidence Singh admitted providing Najib in the back seat with a bucket containing petrol. Singh drove away, proceeded to the roundabout, joined Cookham Road and turned into Moore Lane.[12]The fire at no. 3 Moore Lane was lit at about 12.33 am. Seven minutes after Singh’s car had driven up Cookham Road, it was to be seen on the CCTV recording to be returning and making off in the direction of Slough.[13]Tomaz Fal lived at no. 1 Moore Lane, the adjoining property on the other side of no. 3. He heard a noise and saw a flash. He looked out of the window to see a person wearing dark clothing run from number 3 and jump into the rear seat of a car which drove off at speed. He could not be 100% sure it was the rear seat but “pretty close to that”, he said. It was certainly not the driver’s seat the man entered. He saw no other person returning to or entering the car.[14]Subsequently, the jacket earlier worn by the appellant was recovered from a hedge in Farnham Lane nearby. The appellant’s full DNA profile was recovered from analysis of a swab taken from the collar. In addition there were components in the swab which indicated contact with at least two other people. Singh could not be excluded as one of those contributors. There was damage to the jacket which was the product of fire and heat.[15]At 1.42 am on 25 June, about one hour after the fire was started, the appellant attended Wexham Park Hospital with his mother and sister. He had suffered flash burns to the face of a type which would be caused by the explosion of petrol vapour and, to his hand, a burn which was consistent with the direct exposure of the hand to flame. The appellant gave an account to the triage nurse, recorded in the hospital record, that he had been splattered with petrol and lit up. He did not remain to be seen by a doctor. To a police surgeon, Dr Ostle, following his arrest, the appellant gave an admittedly false account of being attacked with an aerosol spray which had been lit.[16]On 30 June the appellant and Singh, who had spent much of the time since the fire together, travelled by train to Telford. From there the appellant went to Birmingham airport where he paid in cash for a one-way ticket to Karachi. He was arrested before he was able to board the plane. Singh went to India from which country he later returned voluntarily.[17]The scene of the fire was examined by a forensic scientist, Mr Manners. A quantity of petrol had been poured on the mat in the porch of no. 3 and against the front door. The door was destroyed and the fire spread rapidly within. All of the occupants managed to escape save Saimah Ali who was trapped in the second floor loft area. She died from smoke inhalation. Mr Manners explained the features of the flash caused by the lighting of a petrol vapour cloud. Potted shrubs on either side of the porch had been heat-seared. On the other hand, neither the paintwork nor the rubber fittings of Mr Mansoor’s Volvo car which was parked, Mr Manners estimated, between one and two metres from the porch in which the fire was ignited, was damaged by fire or heat. The wall against which Najib was later to claim he had been standing was approximately four metres from the centre of the porch.[18]On 1 July 2010, when interviewed under caution, the appellant declined to answer questions. The judge informed the jury that that was his entitlement. In a later interview the appellant claimed that in November 2009 his own BMW car had been burned out. It had occurred to him that Kanwarpal Singh might be responsible. He said that he had been with Singh on the night of 24 June. He had been attacked because the sister of one of the men had been his girlfriend. Najib said that they were driving around in Singh’s car that night when Singh and his girlfriend purchased petrol. He claimed that at this time he was drunk. Later in his interview, Najib claimed that Singh had on an earlier occasion damaged Harun Hussain’s car but he, Najib, had been blamed for it. He returned to the night of 24/25 June, saying that Singh drove the car to Moore Lane. It was, he thought, the same location as that at which Harun Hussain’s car had been damaged. At first Najib said he remained in the car while Singh went out to do something. Then he claimed that he too left the car but only to urinate in the garden of the house next door. As he was returning there was an explosion which had caused burns to his face. He had put up his hands to protect his face and as a result suffered a further injury to one of them.[19]The defences of Najib and Singh were incompatible. Each blamed the other for pouring petrol in the porch and lighting the fire. Singh said that he understood Najib was going to pour petrol over the Volvo in the drive of no. 3 while Singh and Ahmed remained in Singh’s car. Najib said that he left the car only to urinate in the next door garden and thought that was Singh’s intention too. He happened to be within reach of the explosion when it occurred. The male defendants each accused the other of wearing the jacket at the time of the fire.[20]In evidence Najib estimated that he was up to about 5 metres away from the explosion when he was injured. Live issues at trial for the experts included(i) whether the explosion could have caused injury to Najib while causing no damage to the paint and rubber fittings of the Volvo car unless it was Najib who ignited the vapour; and(ii) whether, if, as Najib claimed, Singh was wearing the jacket, it was feasible for Singh to have escaped without injury. Professor Myers gave evidence for the prosecution. He was provided with photographs of Najib’s injuries and was informed of the fact that Singh had suffered no burn injuries at all. The overwhelming probability was, he said, that the person who was injured had lit the fire and that he was wearing the fire damaged jacket at the time. Najib’s hand was, in Professor Myers’ opinion, inches rather than yards away from the flame to have been burned as it was. Dr Pape, a consultant plastic surgeon whose statement was read on behalf of Najib, said it was reasonable to suspect that Najib was closer to the fire than someone who was uninjured, but she could not exclude Najib’s explanation. In the absence of scientific proof to the contrary, she concluded the Najib could have suffered flash burns without suffering damage to his clothing, while Singh could have worn the fire-damaged jacket without suffering burns to his face or hands. Application to adduce bad character evidence[21]Mr Birnbaum QC, for the accused Singh, made a successful application, under section 101(1)(e) of the Criminal Justice Act 2003, for the admission of evidence which tended to establish that in early 2009 the appellant was responsible either solely or jointly with another for the damage done to Harun Hussain’s car. The application was made to rebut Najib’s defence that Singh was responsible for lighting the fire at 3 Moore Lane. Singh wished to establish, if he could, that as between these two defendants it was Najib who was the more likely fire raiser. While it was the prosecution case that the three accused were in a joint enterprise to set fire to 3 Moore Lane, each of the male accused claimed that the other was responsible and maintained that he was himself innocent of any such purpose. Mr Birnbaum sought leave to adduce evidence which established that Najib was the author of the ‘Moneymaker Amaar’ Facebook postings. That evidence tended also to establish that Najib was the person who damaged Harun Hussain’s BMW on two occasions. Further, the evidence supported Singh’s case that Hussain Faizan believed Najib to be the person who had damaged his brother’s car; both Faizan and Abdanoor had, therefore, reason to attack Najib and no apparent motive to attack Singh. If that was the jury’s conclusion, they might also conclude that Najib had animosity towards an occupant of no. 3 and a motive to commit arson at that address. These facts, if established, made it more likely that Najib was the fire raiser.[22]The judge accepted that evidence which tended to prove that Najib had attacked Harun Hussain’s car was evidence of bad character within the meaning of section 98 of the Criminal Justice Act 2003, and that the evidence had substantial probative value in relation to an important matter in issue between a defendant and his co-defendant within the meaning of section 101(1)(e). The judge declined to require the prosecution to call Hussain Faizan and Abdanoor and, in the result, they did not give evidence. Mr Birnbaum was also given leave to adduce the evidence of a former girlfriend of Najib to whom Najib had allegedly admitted setting fire to a car, but she was not called to give evidence. The evidence on which Singh invited the inference that Najib was the author of the Moneymaker Amaar messages was received in the form of formal admissions. Directions to the jury[23]The judge commenced her summing up on 27 January 2011. Following her preliminary directions, her explanation as to the contents of the indictment and the case the prosecution had to prove in respect of each count, the judge summarised the defence cases for the jury as follows:
“I shall be reminding you, members of the jury, of the prosecution evidence in this case, and the case of each of the defendants in detail. But in a nutshell, the cases of the defendants are as follows. The first defendant said it was Mr Singh who, with the third defendant, purchased the petrol and it was Mr Singh who set fire to the house. Mr Najib said he had just been hanging around with Mr Singh, and whilst he was present at the scene he had not encouraged or participated in any plan to burn the house. If what he says, members of the jury, is right or may be right then he would be not guilty of any count in this indictment. The second defendant says that he had agreed, with Mr Najib, to assist him in a plan to pour petrol over a car. The plan, he said, had excluded setting fire to the petrol. He said it was Mr Najib who, of his own volition, decided to set a fire in the porch of the property and, in doing so, Mr Najib was acting entirely on his own. He says he did not participate or encourage any plan to burn the house. If that is right, members of the jury, or may be right, then he, too, would be not guilty of any counts on this indictment. The third defendant has not given evidence before you. I shall in due course direct you as to how you approach that. It is her right not to give evidence. But you know that she has pleaded not guilty to each of the charges, and that she therefore denies being involved in any plan to burn the house. As I have already said, if that is right, or may be right, then she, too, would be not guilty of any of the counts of this indictment.”
The judge explained the prosecution’s case of joint enterprise but acknowledged that the jury would wish to decide which of the male defendants was the principal offender. Upon that decision would depend the jury’s decisions as to the secondary liability, if any, of the other two defendants.[24]The judge proceeded to provide the jury with a crystal clear narrative of events in roughly chronological order. She began with the known and undisputed facts and inserted within it her summary of the evidence upon matters of controversy.[25]Having described background events leading to and including the fire

the judge said this:

“So who did set the fire? It is to resolve this issue that you have had put before you evidence as to background matters which have involved the burning of cars or the threat of burning of cars, which each say the other has been engaged in, which might assist you, they each say, as to who had a motive to set the house on fire.”
The judge proceeded to examine the evidence relevant to the fire-setting of Harun Hussain’s car. The judge pointed out to the jury that it was not absolutely established that Najib posted the messages on Harun Hussain’s Facebook page. That was an inference drawn by the prosecution (which the judge called an assumption) but she continued:
“Is that all just a coincidence or was this name “Moneymaker Amaar” used by him? If it was not a coincidence, then Mr Najib has lied about this matter. If you were to conclude that, members of the jury, how should you approach the question of a lie? You will appreciate that people do lie for many reasons and they may be for innocent reasons. People can lie out of panic, out of confusion or because the truth would make other matters very difficult to explain. What it does not mean is that because he has lied about this that it follows he must have set fire to the house. But it may assist you in determining what did happen when Mr Najib, with Mr Singh, met up with Mr Fazan, Harun’s brother, and Abdanoor on the evening of the 24th. Mr Najib says Faizan, the brother, accused Mr Singh of burning his brother’s car. He, Mr Najib, had put inappropriate pictures of Abdanoor’s sister on Facebook and they had both been beaten up, Mr Singh by Fazan and he by Abdanoor. Mr Singh says it was Fazan who accused Mr Najib of burning his brother’s car and Mr Najib got beaten up whilst he, Mr Singh, had been told to keep out of it. The injury that Mr Singh had sustained on that day, an abrasion to the side of his chest, he said had been caused by tripping over a bollard and not as a result of any assault.”
The judge was thus inviting the jury not to consider whether Najib was a fire-raiser and, therefore, the more likely to be the defendant who physically set the fire at no. 3 Moore Lane, but whether it assisted them to resolve whether it was Najib or Singh who had the motive. We shall need to return to this direction and its effect later in our judgment. The judge proceeded to explain the significance, in the context of the cross allegations as to the assault in the High Street, of the belief within the households of nos. 3 and 5 that it was Najib who was responsible for the messages to Harun Hussain.[26]Called on behalf of Najib was Hussain Mahmood. He claimed that in January 2010, as a result of a dispute, Kanwarpal Singh had threatened to burn his van. Cheryl Green was called on behalf of Singh. She said she saw the argument and separated the two men, only for Mr Mahmood to punch her in the face. The evidence was summarised by the judge in some detail, as was the expert evidence going to the issue whether Najib’s account of his face burns was realistic, and whether it was feasible that Singh had been wearing the fire damaged jacket but had not suffered any injury from the fire.[27]At the end of that day’s summing up, 27 January 2011, Mr Birnbaum QC raised on behalf of Singh the directions which the judge had given about the significance of the damage to Harun Hussain’s car. He acknowledged that the judge had given her direction about Najib’s denial but he continued:
“But in my submission it goes somewhat further than that: when I gave you my note of suggested directions, what I suggested you should say to the jury about that was along these lines: that if they were sure that the defendant X had burnt Harun’s car and then tried to pretend that Y did it that might help them in deciding whether X could be believed when he said that Y had set the fire at Moore Lane. In other words, it could go directly to the question of who was more likely to have started the fire at Moore Lane and who had a motive to do so. In my submission, something along those lines is the real significance of the dispute about Harun because it is not simply that he is denying being “Moneymaker Amaar”; he said Singh is “Moneymaker Amaar” and Singh is therefore more likely to have started the fire as I say [Najib] did. Your Honour might also want to balance it by saying something about the potential significance of [Hussain’s] evidence. If the jury accepted the evidence of [Hussain Mahmood] about the threat to burn the car, you might want to say something in favour of [Mr Najib] about the significance of that. In my submission, in particular the evidence of Harun and the cross allegations, takes it far beyond the realm simply of a Lucas direction and goes directly to the probability of which of the two started the fire. I invite you to give a direction along those lines please. Judge Smith: I think we have further to go, Mr Birnbaum, because we have coming up a false allegation that Mr Singh burnt Mr Najib’s car. So does it not come to this that really he is … Mr Birnbaum: I appreciate. I left leave it in your hands. We have further to go.”
[28]When the judge resumed her summing up on 28 January she completed her summary of the expert evidence and returned to the cut throat defences of the male defendants. She summarised concisely the heads of dispute between them as to: i) who burned Harun Hussain’s car; ii) who sent messages to Harun Hussain’s Facebook page; iii) whether Singh threatened to burn Hussain Mahmood’s van; iv) which of them had the motive to take revenge act in Moore Lane that night. She concluded her summary with these words:
“These matters are matters that you must resolve, members of the jury, as I say, in order to determine, those seven minutes that the car was going towards Moore Lane and then returning, as to what happened.”
During the remainder of 28 January the judge completed her chronological summary of the evidence of Najib’s interviews and her summary of the evidence of Najib. On 31 January she summarised the evidence of Singh and the defence for Miss Ahmed. Having read into the transcript her written route to verdict, the judge invited the jury to retire. Navera Ahmed was found not guilty upon all five counts on 3 February 2011. On 4 February the jury returned guilty verdicts upon counts 1 and 4 in respect of the appellant and, on 7 February, not guilty verdicts in respect of Singh. Grounds of Appeal: Discussion Ground 1: Adverse inference[29]We find it convenient, first, to consider the appellant’s grounds 1 and 3. Mr Maguire, who was not counsel at the trial, submits that the judge was in error in failing to give, in the appellant’s case, the same direction that she subsequently gave in respect of Singh and Ahmed. Following the judge’s summary of the appellant’s interview on 28 January, Mr Birnbaum, during a break, noted that the judge had not given a direction as to adverse inferences that the jury might draw under section 34 Criminal Justice and Public Order Act 1994. Mr Singh had submitted prepared statements in interview but had answered no questions. Miss Ahmed also exercised her right to silence in interview. Anticipating that the judge may have reached a similar conclusion in their cases, Mr Birnbaum invited her to give the positive direction that the jury should not draw any adverse inference from silence in interview in accordance with McGarry [1991] 1 Cr. App R 377 (CA). Mr Birnbaum was not joined in this application by Mr Hynes QC or Mr Femi-Ola for the appellant, either then or later, notwithstanding the judge did not return to the appellant Najib’s interviews. When she came to deal with the interviews of Singh and Miss Ahmed the judge directed the jury that they must not treat their silence in interview as any evidence against them.[30]Mr Maguire submits that there was an unfair disparity between the treatment of Najib and the treatment of the other defendants.[31]Mr Maguire’s submission depends for its force upon an inference that the jury may have held against Najib his silence when first asked questions, while regarding the equivalent silence, throughout, of Singh and Ahmed as an entitlement which they should not hold against them. We regard that risk as negligible. The jury had been told that Najib’s silence in his early interviews was his entitlement. Had the appellant been silent in interview and remained silent Mr Maguire might have had grounds for conjecture. However, we have no doubt that no unfairness resulted. Najib was not in the same position as the other defendants because he did answer questions later in interview in which he revealed the defence which he was later to advance at trial. We regard the chance that the jury treated Najib in this respect less favourably than his co-accused as vanishingly small. We reject the proposition that the judge’s omission affected the safety of the verdict. Ground 3: Defendant’s interest to serve[32]In ground 3 Mr Maguire submits that a direction was required to the affect that the jury should not act in the case of either Najib or Singh upon the evidence of the other without exercising caution because each had a strong motivation to exculpate himself by blaming the other. In Jones and Jenkins [2004] 1 Cr. App R 60 the court held that it was desirable and, in that case, essential, for the jury to receive such a warning even where the cut-throat defences were mirror images. The judge might consider directing the jury to consider each case separately; to direct them that the evidence against a defendant could include that of his co-accused; but that, when assessing the evidence of the co-accused, the jury should remember that he had his own interests to serve. It has been noted in a later decision of the Court that the effect of giving such a warning may be simply to diminish the evidence of both accused in the minds of the jury (see Petkar [2004] 1 Cr App R 270) which might itself act unfairly against them, particularly, we would add, when the prosecution’s case is based upon a joint enterprise between the defendants. We accept that the judge would have been wiser to consider giving such a direction not least because Najib had been prepared in the end to answer questions in interview casting blame on Singh. However, we are satisfied that this omission will have had no impact upon the safety of the verdict in the present case. It was perfectly obvious to the jury that each man had a motive to serve by blaming the other. The judge explained the respective cases for the defendants separately (paragraph 23 above) and the jury could not have missed the impact on each case of a finding that one rather than the other defendant had lit the fire. As to the lighting of the fire, one of them was lying. The jury had ample other evidence against which to test the reliability of each account. The issue of more difficulty for the jury was whether the defendants who had not lit the fire were guilty as secondary parties. We reject ground 3 also. Ground 2: Bad character directions[33]We turn, therefore to ground 2. No complaint is made about the admission of the bad character evidence. Mr Maguire points out that the learned judge directed the jury only upon the tendency of the bad character evidence to establish a motive for one of the defendants to attack no. 3 Moore Lane. However, Mr Maguire submits, the defendant Singh relied upon bad character evidence for the wider purpose of proving that, as between Najib and Singh, it was more probable that Najib had raised the fire at 3 Moore Lane. That averment depended for its force not just on establishing Najib’s animosity towards Harun Hussain and Hussain Faizan but also upon his propensity to commit the offence of arson against an occupant of no.3 or no. 5 Moore Lane. Mr Birnbaum QC made clear to the judge during her summing up that the issue as to which of the defendants was the more probable fire raiser was a wider issue than mere motive. Mr Maguire argues that the judge provided the jury with no assistance as to their approach to the issue of propensity. She merely directed the jury that they should ‘resolve’ the matters raised in order to determine which of the male defendants lit the fire at no. 3.[34]In Lafayette [2008] EWCA Civ 3238, [2009] Crim LR 809 the appellant was convicted of murder. The defence was self defence. One of the principal issues for the jury was who had produced the knife which caused the fatal injuries, the appellant or the deceased. The appellant had previous convictions for, among other offences, wounding with intent, and carrying a firearm with intent to commit an indictable offence. Those convictions were introduced by the appellant in his own evidence and were therefore admitted under section 101(1)(b) CJA 2003. The convictions were, however, of considerable age and it was the appellant’s evidence that he was a reformed character. The appellant’s partner, Samantha Daley, had made a much more recent statement to the police that the appellant had made a threat to slit her throat with a knife. Other aspects of the same incident had led to a conviction in 2003 for criminal damage but no proceedings had been taken for the alleged threat to kill. The prosecution made a successful application to cross-examine the appellant upon that threat. Ms Daley was called to give evidence in support of the appellant’s defence. She was cross examined upon the contents of her 2003 statement and grudgingly admitted that the appellant had at that time been in possession of a penknife and that the contents of her statement were true. Prosecuting counsel, in his final address, invited the jury to conclude that the appellant’s previous convictions and behaviour made it more likely that he produced the knife which led to the deceased’s death. The judge directed the jury that in deciding whether it was the deceased or the appellant who produced the knife the jury could take account both of the appellant’s previous convictions and the altercation with Samantha Daley.[35]On appeal, the appellant argued that the jury should have been directed that before they could act on Samantha Daley’s evidence they must be sure that the threats were made. The court concluded that the judge had been required to address in his summing up the issues(1) for what purpose the evidence could be used by the jury once admitted and(2) whether there was a danger that the jury might use the evidence for a purpose which was inappropriate and, for that reason, instruct the jury as to its limitations. The judge had been in error in failing to address with the jury whether any of the bad character evidence was capable of establishing a relevant propensity and, if so, to provide them with appropriate bad character warnings. If not, the jury should have been warned against using the evidence for that purpose. As to the 2003 incident the jury should have received a direction that they could not act upon Miss Daley’s evidence for any purpose unless they were sure the appellant had uttered the threats she had claimed in her statement.[36]However, the court concluded that the conviction was safe. The judge had emphasised to the jury that historical matters were purely background; they should concentrate upon the evidence in proof of the offence charged.[37]Mr Maguire argues that in the present case also the jury received no assistance upon the conditions on which they were entitled to use the bad character evidence. They were told only that the background matters shouldbe resolved in order to reach a conclusion as to what happened on 25 June.[38]Secondly, Mr Maguire drew our attention to the conventional requirements of a bad character direction, first identified by the then Vice President, Rose LJ, in the Guidance case of Hanson [2005] 2 Cr. App R 21. The court was addressing the directions appropriate when convictions were admitted in evidence under sections 101(1)(d) and 103(1)(a) of the 2003 Act to establish propensity, but the same guidance applies to cases in which evidence adduced by the prosecution may lead the jury properly to the conclusion that the previous bad character has been proved by disputed evidence and, thus, to a conclusion of propensity. As paragraph 18 the Vice President said:
“18. Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful, the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed: that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions; that, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case...”
[39]Mr Maguire highlights the omissions from the learned judge’s directions in the present case which, as he submits, undermine the safety of the jury’s verdicts: i) It was not explained to the jury that they could not act upon the bad character evidence adduced unless they were sure that the appellant’s alleged conduct was proved; ii) The jury received no explanation whether and to what extent the bad character evidence may make it more or less likely that the appellant ignited the fire at no. 3; iii) The jury was not told that they must not assume that the appellant did light the fire at no. 3 merely because they were sure he had acted as alleged in the past; iv) The jury was not warned that a propensity to light fires, if proved, was only one relevant factor and they should not convict wholly or mainly upon it.[40]Mr Gumpert, for the respondent, does not concede that there were significant omissions from the summing up. The prosecution case was joint enterprise. It was clear that the evidence was relied on by both defendants as background which tended to establish the motive for an attack on no. 3; the defendant who was proved to have the motive may have been more likely to be the one who lit the fire, but that was still background evidence only. The judge gave all counsel the opportunity to make written submissions as to the contents of her directions to the jury. Mr Hynes QC did not suggest to the learned judge that a ‘propensity’ direction on the bad character evidence was required and neither he nor Mr Femi-Ola joined Mr Birnbaum QC in his request to the judge to give a further direction. Mr Gumpert correctly reminds us that there is no blueprint for bad character directions: see R v Edwards & Ors [2006] 1 Cr. App R 3. What are the requirements for a fair trial will depend upon the evidence and the issues which arise in the particular case. Mr Gumpert submits that in the present case it was sufficient for the judge to invite the jury to resolve the matters which had been raised between the defendants as to motive in the course of their deliberations upon the issue which of the defendants lit the fire.[41]We accept that as the trial progressed each side regarded the bad character evidence as going to the strength of the motive which Najib and Singh had respectively for the attack on 3 Moore Lane. Even Mr Birnbaum, in his invitation to the judge during her summing up, did not rely on an alleged propensity to commit arson. His submissions were limited to the strength of Najib’s motive and the credibility of his accusations against Singh. The prosecution had not set out to prove any particular motive and its case did not depend upon proving that either man had lit the fire. On the other hand, each of the male defendants used the background evidence as a means of establishing that his co-accused was the principal offender, in order to advance his own defence that he was not complicit in a joint enterprise to commit arson. The judge directed the jury that if one or other or both defendants may have been telling the truth about his involvement he, or they, must be acquitted. There were three aspects of the ‘background’ evidence which, it seems to us, the jury had to confront: i) Which of the defendants, if either, was telling the truth about the confrontation with Hussain Faizan and Abdanoor in the street? Were both defendants beaten or only Najib? ii) A decision as to the nature of that confrontation must have depended in part on the question whether Hussain Faizan suspected Najib or Singh, or both of them, of setting fire to the brother’s car and, possibly, whether Abdanoor harboured ill will towards Najib for making the photograph of his sister. iii) To the question of the immediate motive for seeking revenge for the attack in the street on 24 June, therefore, the issue as which of the defendants was responsible for the attacks on Harun Hussain’s car was of secondary importance. What mattered was whether Hussain Faizan’s suspicions and attack were directed at one or both of the defendants.[42]However, we do not accept Mr Gumpert’s relegation of the bad character evidence to ‘mere background’. We consider that the absence of directions upon the propensity aspect of the evidence was capable of significance to the jury’s consideration of the case, particularly the case of Najib. The risk was that the jury would lump together the evidence of previous behaviour and the events of 25 June without separating out the bad character evidence for discrete consideration. We have, therefore, considered whether that risk may have been realised in the verdicts returned in the appellant’s case.[43]This was not a case in which the prosecution sought, with other circumstantial or identification evidence, to establish the identity of the offender. Neither was this a case in which the prosecution was relying, as in Lafayette, upon previous behaviour to establish a probability that the defendant acted as alleged on the present occasion. If in such a case the prosecution is permitted to adduce bad character evidence under the section 101(1)(d) gateway to establish a relevant propensity, the jury may not rely on it unless(i) the bad character evidence is proved or admitted and(ii) they are sure that the bad character evidence proves the propensity on which the prosecution relies. If the jury is so sure, they must decide the extent to which that conclusion assists them to resolve whether the defendant (as opposed to some other unknown person) committed the offence charged, or the defendant acted as alleged on the present occasion. Here, it was the implicit concession of each defendant that it was one or other of them who lit the fire. That did not mean that propensity was not an issue between these defendants, but it seems to us that the judge deliberately chose not to direct the jury that they might consider whether propensity assisted them to resolve the ultimate issue between them. She chose instead to treat the issue as one of credibility of the accounts given respectively by the defendants. In that context the judge warned the jury that lies by Najib about motive (implicitly, therefore, proof that Najib had the motive) would not prove who lit the fire.[44]The judge did direct the jury that they should give separate consideration to and resolve the ‘background’ issues between the defendants. That direction avoided the risk to which we have referred at paragraph 42 above.[45]We next need to consider whether there was a risk that the jury understood that resolution of the issue as to who damaged Harun Hussain’s car also resolved the issue as to who lit the fire at no. 3. As we have said at paragraph 43 above, by necessary implication the judge’s approach was to direct the jury that a decision as to motive (and, therefore, who had damaged Harun Hussain’s car) did not resolve the question who had lit the fire at no. 3. While, therefore, the judge did not explicitly direct the jury that they should not use the evidence of previous fire setting as evidence of propensity, we are satisfied that the effect of the judge’s directions to the jury on 27 January was to warn them against jumping to the conclusion that if Najib had set fire to the car he had also set fire to the house.[46]Mr Birnbaum QC was not asking the judge to give a full propensity direction. His was a more subtle submission, namely that if the jury concluded that Najib was lying about his authorship of the messages to Harun Hussain, he was also lying when he blamed Singh for setting fire to the BMW, which made it more likely that he was now falsely blaming Singh for the arson at 3 Moore Lane. He too was couching his submission in terms of the credibility of the defences being put forward and not in terms of propensity to commit the offence of arson. This, we agree, was a powerful submission on behalf of Singh, but the judge did not adopt Mr Birnbaum’s precise formulation in her summing up. That may be a criticism which could have been made on behalf of Singh had he been convicted, but not, we think, on behalf of Najib. It seems to us that the judge left the issue to the jury in a manner more favourable to Najib than that to which he was strictly entitled. In the circumstances we can understand why counsel for Mr Najib did not consider that any further direction would assist him.[47]On 28 January 2011 the judge returned to the evidence of motive (see paragraph 27 above). Having summarised the accusations made by each of the male defendants against the other she concluded with the advice that the jury “must resolve” these matters “in order” to determine what happened in Moore Lane on 25 June 2010. At first reading this direction caused the Court some anxiety that the jury might have interpreted the judge as meaning that if they resolved the question of motive that decision also resolved the issue as to which of the defendants had lit the fire at no. 3. We are satisfied that, read in context, this is not what the judge intended to convey and is not how the jury would have understood her. She meant no more than that the jury should resolve the cross-accusations between the defendants in the course of their consideration of the issue who lit the fire. The jury would have understood that they remained bound by her direction that even if they concluded Najib was lying about motive, their decision did not resolve the issue who lit the fire at no. 3.[48]It seems to us that if the judge was required to provide the jury with a propensity direction in the terms for which Mr Maguire contends, she would have been required to give an equal and opposite direction to the same effect in Mr Singh’s case. In the circumstances of the present case, in which there were only two candidates for setting the fire, each blaming the other, such directions can, we think, have served only to confuse the jury. It was significant to the task of summing up that it was not the prosecution case that one or other lit the fire. Any direction given by the judge as to propensity would have had to engage with the fact that a defendant blaming his co-accused was not obliged to prove his case so that the jury was sure. If the jury considered that Singh may have been telling the truth he was entitled to be acquitted; likewise Najib. For the judge to have engaged in directions as to Najib’s propensity to light fires when it was not incumbent upon Singh to prove such a propensity in order to succeed in his own defence would, in our view, have been to invite confusion in the minds of the jury about the application of the criminal burden and standard of proof as between the prosecution and the defendants separately. It was sufficient, we have concluded, for the judge to tailor her directions to the evidence the jury had heard and to the issue of credibility of the defence cases respectively.[49]We are satisfied that, notwithstanding the absence of a propensity direction, the verdicts of the jury were safe. The risk which such a direction is calculated to avoid was effectively removed by the judge’s chosen direction that, even if the jury decided that the appellant was lying about motive (because he had damaged Harun Hussain’s car, had sent the messages to his Facebook page and had been the target of Hussain Faizan’s attack), they could not assume that he was the fire setter at no. 3. Having considered the full terms of the judge’s lengthy summing up of the evidence we are satisfied that there is no danger that jury may have convicted the appellant solely or mainly upon their decision as to motive. That evidence included the CCTV and ANPR recordings, the garage attendant, the eye witness at no. 1, the expert evidence, Najib’s interview and the evidence respectively of the male defendants.[50]The evidence against this appellant was particularly strong. The combination of the evidence of motive and the other evidence in the case was convincing. Tomaz Fal saw one person returning to the car immediately after the explosion. That man he saw entering the rear of the car. He saw no-one enter the driver’s seat. The evidence of the garage attendant was that the second male figure was in the rear seat of the car. The girl was sitting in the front passenger seat. Neither defendant suggested that Miss Ahmed left the car in Moore Lane. Najib claimed that Singh put on the jacket to go to the garage kiosk. There was no evidence from Macdonalds or the garage that the driver of the car was wearing a jacket. On the contrary, the garage attendant said that he was wearing a woolly jumper. The jacket was made of a smooth, glossy material with white piping at the cuffs and waistband. As to the evidence of Najib and Singh respectively, Najib’s account contained several improbabilities. He claimed not to have noticed the strong smell of petrol in the car, just “a hint”. Singh suffered no burn injuries. Najib suffered flash burns to his face and heat/fire damage to the jacket attributed to him. While the hypothesis advanced to the experts on Najib’s behalf could not be scientifically eliminated, the probability that the man close enough to suffer flash burns to his face was wearing the jacket which was also damaged by fire was almost overwhelming. The flash phenomenon generated by the ignition of petrol vapour is well known. If Singh was the defendant who had lit that vapour it was almost inexplicable that he did not suffer any injury while Najib did suffer significant burns to his face. Najib’s proposition that he happened, while about to urinate at the boundary between nos. 3 and 5, to have been close enough to suffer flash burns from an explosion at the front door of no. 3 while the fire-setter himself was uninjured, seems to us, as it must have seemed to the jury, to have been extremely far-fetched.[51]For these reasons the appeal against conviction is dismissed.