Richards & Anor, R v [2014] EWCA Crim 1196

Case No 201301147 C5 & 201301300 C5[2014] EWCA Crim 1196
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
Venue Cardiff Crown Court
Law Courts, Cathays Park
Venue Cardiff, South GlamorganDate 17/06/2014
CF10 3PG
Before
LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE WYN WILLIAMSMR JUSTICE PHILLIPS
Between
REGINARespondentJASON RICHARDS & BEN DEVERE HOPEAppellants
John Charles Rees QC appeared for appellant Richards on the first and second hearings.Mr Simon Spence QC appeared for Richards on the third hearingKevin Seal appeared for appellant HopePatrick Harrington QC appeared for CrownHearing dates at Cardiff: 12 February, 23 March and 6 June 2014
JudgmentLord Thomas of Cwmgiedd, CJ:Introduction
[1]On the Sunday 11 April 2010, at about 13:40, two men wearing balaclavas and wielding knives forced their way into a family home at 110 Ninian Road, Cardiff. They brutally attacked and killed Aamir, the 17 year old son of the family whose home had been invaded. As Aamir’s parents made valiant and desperate attempts to protect their son they were also viciously attacked and stabbed. It subsequently emerged that the two men were contract killers who, by grotesque mistake, had gone to the wrong house. The evidence was that they had been engaged by a local drug dealer to whom we shall refer as XD, to kill a person who lived in a house in an adjoining street.[2]In the days that followed the appellant Richards and the appellant Hope were arrested and charged in relation to the attack. Each denied their own involvement but asserted that the other had participated in the killing, accompanied by an unidentified and unknown third person, a defence that each maintained at their trial in the Crown Court at Swansea when each gave evidence. Richards contended that the third person was a man from Sheffield who had been staying at Richards’ house since late in the evening of 9 April 2010, but whose name he did not know.[3]On 1 February 2013 Richards and Hope, after a trial that had commenced at the end of September 2012, were both convicted at the Crown Court at Swansea before Royce J and a jury of murdering Aamir and of attempting to murder each of Aamir’s parents, Sheikh Ahmad and Parveen Ahmad. On the 8 February 2013 Royce J sentenced both Richards and Hope to life imprisonment for murder, with a specified minimum term of 40 years, and imposed concurrent sentences of 15 years imprisonment for each of the counts of attempted murder.[4]Richards and Hope both applied for leave to appeal against their convictions. Hope abandoned his application before it was determined. That was because he admitted that he had participated in the murder, asserting he had been with Richards. Some months later he asserted that Richards had had nothing to do with the murder; Hope’s accomplice had been another person. Richards renewed his application for permission to appeal against conviction, relying primarily on the change in Hope’s position after the refusal of leave by Goldring LJ.[5]Both Richards and Hope appeal against their sentences, in respect of which Goldring LJ granted them leave. THE APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION (1). The case advanced on behalf of Richards[6]It was accepted on behalf of Richards in the skeleton argument filed on his behalf and again in argument before this Court that the prosecution case against his client was strong on its face. However, it was contended that the conviction was unsafe on two bases: i) Hope’s confession and change of evidence was an exceptional circumstance. The court should hear Hope’s evidence as fresh evidence under s.23 of the Criminal Appeal Act 1968 as it might justify this court in quashing Richards’ conviction on the ground that the conviction was or might be unsafe. ii) There were 14 points (to which we shall refer as Mr Rees QC’s 14 points) which, though all put before the jury, should be considered afresh on the appeal not only in the light of the fresh evidence from Hope, but in pursuance of an appellate court’s duty to review the evidence.[7]It was contended that both bases of the appeal supported Richards’ evidence that it was the unidentified man from Sheffield, not Richards, who was Hope’s partner in the attack. He did not go on either the ‘recce’ or on the murderous journey to Ninian Road, but remained at 49 North Road throughout, preparing £10 deals of heroin.[8]At the first hearing of the application on 12 February 2014 Mr John Charles Rees QC (who had been Richards’ counsel at trial) advanced his 14 points and applied to adjourn the hearing of this appeal in order to permit the solicitors representing Richards to take a proper proof of evidence from Hope and to call Hope to give evidence at the resumed hearing of this appeal. We granted representation orders to permit those steps to be taken and agreed to hear his evidence de bene esse with a view to deciding whether to admit the evidence under s.23 of the Criminal Appeal Act 1968. A similar course was taken in R v Ditch (1969) 53 Cr App R 627, in which the Court of Appeal decided to hear the confession evidence of a convicted co-defendant de bene esse in order to determine whether it was credible evidence which it was proper to admit, whilst warning that:
“… this Court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be too easy for criminals to seek to share out responsibility so as to get one of them off.”
This was a wholly exceptional course and one to which we acceded because of the exceptional circumstances of this murder. 9. On the resumption of the appeal on 26 March 2014, Mr Rees QC informed the court that matters had arisen which meant that he could no longer represent Richards. We had no alternative but to adjourn the hearing so that new counsel could be instructed. New counsel was instructed, but he became indisposed and could not appear on the date fixed for the hearing of the evidence of Hope. On that occasion, Mr Simon Spence QC represented Richards. He called Hope to give evidence. Hope was cross examined by Mr Harrington QC and re-examined by Mr Spence QC. Submissions were then made incorporating Mr Rees QC’s 14 points. Mr Spence QC presented the appeal with exemplary skill. (2). A summary of the evidence[10]The police had undertaken a detailed investigation making extensive use of cell site evidence and CCTV footage from fixed point cameras, cameras on buses and cameras in stores. This was presented by the Crown at the trial and to us in a very clear way using technology that was able to link the various strands of evidence together. It is convenient to summarise under seven headings the salient points of the evidence given by Hope at trial and before us, the principal matters relied on by the Crown, Mr Richards' case, and Mr Rees QC’s 14 points (a). The events prior to the day of the murder.[11]It was never in dispute that by 2010 Hope and Richards knew each other well, were addicted to heroin and other drugs and dealt in drugs.[12]Hope’s evidence at trial had been that he did not know XD and had never met or heard of him.[13]It was the evidence of Hope to us that: i) Someone he was not prepared to name put him up to the enterprise. He either had met or spoken to XD on the phone and was told of the plan to “put the frighteners” on a person who was going to give evidence against XD who had been charged with aggravated burglary. He was told that he would be involved with an accomplice. ii) Richards was not aware of the plan. He last spoke to him a few days before the murder.[14]The Crown’s case was that XD, the drug dealer, had recruited Richards and Hope. The significant part of the evidence relied on was: i) There was undisputed evidence that it was the drug dealer XD who hired two men to kill Mohammed Tanhi in respect of an unpaid debt. ii) On 4 April 2010 Richards collected a stolen Volvo motor car from XD and kept it in a secluded area to the rear of his home at 49 North Road, Cardiff. It was common ground that this vehicle was used to take the two men on the journey to carry out the murder, as the blood of Aamir was found in the foot wells on each side of the car. iii) In the days leading up to 11 April 2010 there was telephone communication between Richards and XD. The two men also met on 10 April 2010, the day before the attack.[15]Richards’ evidence was that that he had been asked by XD to look after a Volvo car. He was then asked by XD to put up a man from Sheffield and to find a man who would drive him round Cardiff. He suggested Hope. The man from Sheffield arrived at his house at 49 North Road on 9 April 2010, two days before the murder. He never learnt his name or anything else about him. Two of Mr Rees QC’s 14 points were made in support of this part of Richards’ account. i) There was evidence that after Richards had picked up the Volvo on 4 April 2010, XD had asked Halmat Rahman if he would carry out the attack or find somebody who would. It was said that that evidence supported Richards’ case that he was only looking after the Volvo. The prosecution submitted that this was not inconsistent with Richards agreeing to be one of the attackers, whether before or after 4 April 2010. The fact that he drove the Volvo on a number of occasions between 4 April and 11 April 2010 demonstrated that he was not merely looking after it. ii) CCTV evidence showed that an unidentified person went to the front door of 49 North Road and then to the rear of the premises shortly before Richards returned home at about 23:00 on 9April 2010, two days before the murder. Richards contended this was consistent with his case that an unidentified man from Sheffield came to his home at that time. The prosecution pointed out that the suggestion that such an individual remained on the property without Richards learning anything about him until he left 49 North Road in the Volvo with Hope on 11 April 2010 was incredible.

(b) The morning of the day of the murder

[16]The evidence of Hope at trial was that Richards had gone to his flat at Janner House that morning; he injected Richards and took drugs himself. They then left together to walk to Richards’ home at 49 North Road as Richards wanted him to help with his TV. He accepted that Richards was on the telephone during the walk, but he did not hear what was said or whom he was phoning. Hope agreed they arrived together at North Road as shown on the CCTV at 12:30. Once there he tried to get Richards’ TV to work, but failed and then took drugs. He fell into a stupor until Richards woke him up. He bled after injecting and changed into fresh clothes.[17]The evidence of Hope to us was: i) On the day of the murder XD introduced him to the accomplice at a place he could not recall. He did not think he met XD, but received a number from XD and he arranged to meet with the accomplice. He was not told his name and never asked for it. He did not know where he came from. He called him “mate”. ii) He discussed with the accomplice how they were going to carry out the plan – how they would drive there taking the direct route. iii) The accomplice had a Volvo which the accomplice was driving. He did not know whose car it was, but knew it was stolen. The accomplice picked him up in the Roath area of Cardiff at a point that he could not recall. He had brought two knives and gave one to the accomplice. iv) His memory as to the day was very vague as he was taking drugs. It was possible he had been to Richards’ home at 49 North Road that day, but if he had, it would have been to do with drugs. He could not recall whether there had been a reconnaissance drive (the recce drive) or whether they had gone straight to the house in Ninian Road where the victim lived. v) His memory as to what had happened in the house was vague, but he recalled stabbing the victim 2 or 3 times and stabbing another person once. They then got back into the car and threw the knives onto the back seat where there was a “Drunk Punk” top. The accomplice dropped him off in Roath. He never saw him again. The next thing he recalled was disposing of what he was wearing. vi) He next saw Richards a day or so after the murder.[18]The Crown’s case was: i) At 10:59 on the morning of 11 April 2010 Richards sent a text to XD: “Phone me asap”. He then drew £10 from his account at an ATM. At 11:21 XD phoned Richards. They spoke for 1 minute and 17 seconds. ii) CCTV evidence showed Richards collecting Hope from his flat at Janner House at 11:31 and the two of them walking together back to 49 North Road. Hope had a distinctive jacket with stripes on the arm. Shortly after leaving Hope’s flat Richards was again in telephone contact with XD. On the way CCTV shows them stopping at a convenience store where Richards bought tape and enquired about gloves. iii) CCTV showed two persons who it is clear were Richards and Hope arriving at 49 North Road at 12:30. CCTV showed two persons leaving that address at 12:41 and the stolen Volvo driving off on what was referred to as a ‘recce’ of the area at Ninian Road at which the attack was to take place. From CCTV cameras its route could be traced. A person wearing the distinctive jacket worn by Hope could be seen in the passenger seat. iv) The Volvo returned to the rear of 49 North Road around 13:10. The two occupants went back inside. Shortly afterwards Richards telephoned XD; the call lasted 5 seconds. Less than a minute later XD called Richards; the call lasted 1 minute and 29 seconds. v) About 20 minutes later at 13:29 CCTV showed the Volvo re-emerge from the rear of 49 North Road and make its way to an area near 110 Ninian Road. The route could be traced with the aid of CCTV. It was seen very near the scene of the murder by a car salesman who recognised it from the number plate as a car he had sold. The murderous attack occurred at about 13:40. vi) At 13:45 the Volvo was seen on CCTV returning to Blackweir Terrace, immediately across from 49 North Road. Two persons were captured on CCTV running across the road and entering 49 North Road. A short time later at 14:01, one person emerged from 49 North Road and drove the Volvo to the rear of that property. vii) Within a short time of the two persons returning to 49 North Road, there were four attempts between 13:47 and 13:50 by Richards to contact XD; all went to the answer phone. At 13:52 Richards sent a text to XD: “phone me”. At 13:53 XD phoned Richards; the call lasted 14 seconds. There were then further attempts by Richards to phone XD; a text was sent by Richards: “Don’t play with my head”. At 14:23 Hope’s phone called XD, but it went to answerphone.[19]Richards’ evidence was that on the day of the murder he collected Hope from his flat and took him to his house. Hope left with the man from Sheffield in the Volvo at about 12:30 and came back. They left again at 13:29 and came back at 13:46. During this time he had remained in his house making up heroin deals. Hope had blood on him, but would not tell him what had happened. He lent Hope a new set of clothes. He did not see the man from Sheffield again. Seven of Mr Rees QC’s points were deployed to support this account: i) During the ‘recce’ the Volvo was captured on a CCTV camera attached to a bus as the two vehicles passed each other just before 13:00. Although the prosecution’s case was that Richards was the driver, nobody was called to identify him as the person shown on the CCTV as being in the driver’s seat. Richards contended that the driver’s appearance fitted his description of the man from Sheffield. The prosecution, on the other hand, pointed to the very poor quality of the image and the fact that no proper identification was possible. ii) Richards asserted that the clothing worn by the man captured on the CCTV on the passing bus did not appear to be similar to that worn by him before and after the attack, or the “Drunk Punk” top, or any other clothing that could be attributed to him. Again, the prosecution referred to the poor quality of the image and that, in any event, it did not assert that Richards had worn any particular garment during the ‘recce’. iii) Descriptions given by eye witnesses who were in the immediate vicinity of the attack at the relevant time did not coincide with Richards and, in particular, the footwear he claims to have been wearing. The prosecution’s response was that each description was based on a fleeting glance at best. iv) The man who attacked Sheik Ahmed, alleged by the prosecution to be Richards, wielded a knife in his left hand whereas it was common ground that Richards is right-handed. The prosecution pointed out that there may be many reasons why the assailant might have held the knife in his left hand during the attack; it does not mean he was left-handed. v) Mr and Mrs Ahmed described the person alleged by the prosecution to have been Richards as being noticeably shorter than Hope. Richards pointed out he and Hope were about the same height and, if anything, Richards was a little taller. The prosecution pointed out that these descriptions were given following a frantic and frenzied attack and that height was not easy to gauge. vi) The parking of the vehicle in Blackweir Terrace on the return from the second journey demonstrated that Richards did not drive the vehicle, as he would have parked behind 49 North Road. The prosecution pointed out that the Volvo only stopped in Blackweir Terrace for a few minutes and, further, that Hope was admittedly in the car when it was parked and he knew where it was customarily hidden. Parking in Blackweir Terrace was explicable as avoiding the need to cross a public road. vii) Two texts were received on Richards’ mobile phone at the time of the attack, it being common ground that his mobile phone remained at 49 North Road where the texts were received. Richards contended this supported his case that he remained at that property during the course of the attack. The prosecution pointed out that the receipt of such texts evidences nothing. More telling was the fact that there was no reply to the texts. (c). The actions of Hope and Richards on the afternoon of the murder[20]Hope’s evidence at trial was that he went with Richards to the City centre. He recalled some phone calls being made, but he did not know whom Richards was calling. He accepted that he had called XD at about 15:15, but did not recall what the call was about. He said that the white envelope which he was seen carrying at 15:31 contained £1,500 in cash – it was drugs money that he had had on him all day. He accepted spending £800 in buying new trainers and a new computer. He had given a false name when buying the computer as he did not want junk mail.[21]Hope’s evidence to us in his evidence in chief was that he accepted that there was CCTV footage that showed him in the company of Richards on the afternoon of 11 April but that did not jog his memory. When the CCTV was put to him in cross examination he said little.[22]The Crown’s case was: i) At 14:29 Hope and Richards left Richards’ home at 49 North Road and walked to the City centre. Numerous attempts were made to contact XD. At 14:45 they went into a Spar shop. Richards put his wallet on the counter – it appeared to be empty. ii) They arrived at an address on the other side of the City centre in Lower Cathedral Road where XD’s girlfriend lived. At 14:54 CCTV showed Richards banging on the door whilst Hope walked away. Whilst Richards was banging on the door, XD’s girlfriend made numerous attempts to contact XD by phone. iii) Richards and Hope then walked back to the City centre. At 15:05 and 15:07 XD telephoned Richards. Hope and Richards were then seen turning around and walking back to Cathedral Road. There were further phone calls between Richards and Hope and XD between 15:13 and 15:27 iv) The CCTV coverage in the area of Cathedral Road was less extensive. At 15:15 Richards and Hope were captured on CCTV walking up Cathedral Road a little way apart. At 15:31 they are seen walking back down Cathedral Road. At 15:32, CCTV showed Hope taking a white envelope out of one pocket and putting it into another. The Crown contended it contained about £1,000 in notes, as Hope later spent £800 in cash on new trainers at the Footlocker store at Queen Street and a new computer from a shop in the Newport Road later in the afternoon. It was the Crown’s case that this had been paid by XD. v) At 15:42, Hope and Richards went into a convenience store; Richards topped up his mobile phone; the CCTV showed his wallet full of money whereas when it was captured at the Spar shop about an hour earlier it had appeared empty. They then split up. Hope went and made the purchases to which we have referred. Richards then went to Janner House at 17:32. He was not shown entering, but there were phone calls between Hope and Richards at that time and throughout the evening. vi) Just after midnight XD called Richards and then met him in Adamstown near to where Richards’ girlfriend lived.[23]Richards’ evidence was that, as Hope would not tell him what had happened, he went to look for XD to find out what had happened. He explained his reasons for going to the house in Lower Cathedral Road and for going to Cathedral Road. He sold some of the deals of heroin he had made up in Cathedral Road and received £350. After he had been separated from Hope, he joined up with Hope and Hope had pulled out an envelope with a lot of money in it, but had refused to say where it had come from. He accepted that he had met XD just after midnight; XD had told him what had happened and threatened him if he told anyone what he knew.[24]One of Mr Rees QC’s 14 points was relied on as supporting that account. CCTV evidence appeared to show that Hope was separated from Richards when Hope received an envelope containing £1,000. Richards contended that this supported his contention that he did not receive payment because he was not involved. The prosecution, on the other hand, pointed to the fact that Richards could well have been paid separately and certainly did have sums of at least £1,000 in his possession in the days after the murder (as we set out at paragraph 27 below). (d). The period between 12 April and the arrest of Richards on 14 April and Hope on 16 April 2010[25]Hope’s evidence at the trial was that on the following day, 12 April 2010, Richards came to see him and told him he might have killed somebody.[26]Hope’s evidence to us was that he learnt of Richards’ arrest on 14 April. When he was arrested on 16 April, he saw this as an opportunity to blame him for the murder. He therefore lied “through his teeth”, making up a story to implicate him.[27]The Crown’s case was: i) On 12 April 2010 Richards went to Hope’s flat at 08:21 and then went together to the drug addiction centre in Cardiff. ii) Later that morning Richards and Hope went to the Footlocker store. Richards bought a new pair of trainers. On 14 April he put £400 into his bank account and had over £300 cash on him when he was arrested later that day. iii) CCTV footage on 12 April 2010 showed Richards carrying a plastic bag along the Taff Trail. When he was next seen on the CCTV he was without that bag. iv) Richards was with Hope when Richards took the Volvo to Garesfield Street near the home of Richards’ girlfriend where they left it at about 22:00. It was found there. Hope also visited Richards on the afternoon of 13 April 2010.

(e) The forensic evidence relating to Richards

[28]The police found one of Richards’ fingerprints in the Volvo; this could be explained by his admission that he had collected, driven and disposed of the car. More significant was what was found on a “Drunk Punk” top belonging to Richards which the police found in a Footlocker bag in undergrowth along the Taff Trail. The top was found to have blood flakes and blood drops which matched the DNA of Aamir. Richards’ case was that it must have either been worn by the man from Sheffield or had been on the back seat of the Volvo and the blood had been deposited on it from either a knife or a finger. Hope had told him that he had gone to 49 North Road on the night of 14 April to recover his own clothes. He told the jury that Hope must have put the “Drunk Punk” top into the bag and left it along the Taff Trail to implicate him.[29]As we set out at paragraph 37 Hope said in a statement made after the trial that the “Drunk Punk” top was on the back seat of the Volvo and must have got the blood onto it when the knives were thrown onto the back seat. He repeated that in his evidence to us.[30]The police also found Reef shoes discarded in a feeder at the rear of 49 North Road. A part of the sole of one of these could have made a small mark in the blood found on the step outside the front door of 110 Ninian Road. Mr Rees QC described this as wholly unreliable as the crime scene had not properly been secured and the evidence not properly analysed.[31]Two of Mr Rees QC’s 14 points were relied on as casting doubt on this part of the Crown’s case: i) DNA from an unidentified person was found on the collar and cuffs of the “Drunk Punk” top. Richards contended that that was consistent with having been worn by a third person, namely, the man from Sheffield. The prosecution pointed out that the fact that another person’s DNA was on the top did not mean that Richards did not wear it and, further, that the Footlocker bag in which the top was found had Richards’ fingerprint on it. ii) There was no forensic evidence linking the clothing Richards was wearing before and after the attack to any of the victims, notwithstanding that Richards was alleged to have been in a close quarters struggle with Sheik Ahmed during the course of which Sheik Ahmed pushed his head against his attacker’s chest. The prosecution’s response was that whilst the transfer of DNA or fibres might well implicate a person in an event, the absence of such material is not exculpatory. Sometimes DNA or fibres are not found.

(f) The actions of XD and his brother

[32]The final two of Mr Rees QC’s 14 points related to showing there was support for the evidence of Richards about a man from Sheffield. i) Richards had referred to the involvement of the unidentified man from Sheffield before the police disclosed to the defence that in August 2010 they were given information that XD had said that he “knew people from Sheffield”. Richards contended that this gave credence to his defence. The prosecution pointed out that a major drug dealer such as XD would know people in many different cities. ii) A few hours after the attack XD’s brother drove from Cardiff to a service station on the M5 just outside Birmingham and then retraced his steps to Cardiff. Richards contended this was consistent with XD’s brother having assisted the unidentified man from Sheffield in his escape from Cardiff. He also relied upon the fact that the brother had been in telephone contact with others involved in the attack or its funding and had also been in contact with a serious violent criminal based in Birmingham earlier on 11 April 2010. Richards contended this suggested contact with someone capable of arranging a contract killer. The prosecution pointed out that the service station in question did not permit crossing to the other side of the motorway, demonstrating that it was unlikely to have been a place to meet someone coming from Birmingham. The prosecution did not attempt to provide an alternative explanation to the speculation in which Richards had engaged.

(g) The way in which Hope changed his position

[33]It is necessary finally to refer to the circumstances in which Hope changed his account. There were two stages.[34]As to the first change of position, on 4 February 2013, after he was convicted but before sentence, Hope spoke to his mother on a prison telephone, a call he told us he knew would be recorded as a matter of routine. During that call he confessed to having been one of the two attackers, although he denied being the man who stabbed Aamir to death. That role he attributed to Richards, stating that when Aamir answered the door “Jason just started going mad”. He made clear to his mother on the telephone that he had been advised that there were points on appeal. When he said he was prepared to go through with it, his mother pleaded with him not to do so and put the family of Aamir through the ordeal again. He told his mother that he did not stab anyone and when his mother said that they were both there together and were both equally guilty of murder he answered that he knew that. When he was asked by his mother about the circumstances of the killing, Hope told his mother that it was not meant to be a killing; they were meant just to hurt. They were meant to inflict just a couple of stab wounds. When his mother asked where would you stab someone without really doing them any serious damage, he replied in the stomach. He then tried to explain the death on the basis that if it had been the right person he would not have died. He said that he realised that it was a young boy immediately and that is why he stood back. When his mother asked why didn’t he run away he said:
“That’s exactly what I did. We went in, door opened, some young boy, the door, some 17 year old boy answered the door, gone in Jason [Richards] just started going mad. I realised we’re in the wrong place ‘cos it didn’t match the description we were given … How the hell can you get the wrong address, do you know what I mean, if he told …. ”
His mother then asked:
“Well I don’t know, because who arranged it in the end. Was it all through Jason [Richards] or …”
He answered:
“Yeah, I don’t know anything, I don’t know where …”
[35]His evidence to us was that in so far as he implicated Richards, it was again a false account. He had found it difficult to tell the truth.[36]As to the second change of position Hope told us that shortly before 17 October 2013 he contacted his solicitors as he wanted to tell the whole truth. He hoped this would be taken into account in regard to the minimum term he was to serve. No one had suggested he say this.[37]He saw his solicitor and signed a witness statement in which he stated, for the first time, that Richards was “genuinely innocent”, “did not leave his house until after the murder had been committed” and that he, Hope had committed the crime together with “a man who was staying at [Richards’] house”. However, Hope still did not accept that it was he who had stabbed Aamir, attributing that role to the unknown man rather than to Richards. He added:
“I do not know where the other man was from but he seemed to know Cardiff very well. He was the driver of the vehicle. The Drunk Punk top was on the back seat of the car where the knives were thrown following the stabbing. This is how the blood must have been transferred onto the Drunk Punk top.”
[38]He subsequently engaged in a more detailed interview with solicitors instructed on behalf of Richards on 22 February and 6 March 2014. He signed a statement on 6 March 2014.[39]The Crown showed us a CCTV sequence taken on 24 February 2014 which showed Richards and Hope conversing in prison on their way back from the workshops. He accepted that he occasionally spoke to Richards, but the conversations were short and in areas of the prison where there were others around. Richards had not suggested to him that he change his account. (3).

(a) Hope’s evidence to us

[40]We heard Hope’s evidence de bene esse. We decline to admit it under s.23 of the Criminal Appeal Act 1968. It was incapable of belief and therefore it is not in the interests of justice to admit it.[41]His evidence to us was, on analysis of the other evidence and taking into account the submissions made by Mr Rees QC and Mr Spence QC, wholly incredible. It was contradicted in most material respects by the CCTV, cell site and other objective evidence: i) It is clear that Hope’s claim that he was picked up in the Roath area of Cardiff and taken back there after the murder is entirely contrary to the CCTV evidence we have set out. ii) It was nonsensical to suggest that he would be driven to the murder by a man he did not know. iii) His evidence that he did not contact Richards on the day of the murder is shown to be untrue by the Crown’s evidence. iv) He was unable to give us any coherent account of his visit to Richards’ house on the day of the murder, the route taken by the Volvo on its journey that day or his presence in the Volvo. Nor could he account for what he did as shown by the CCTV after the murder or for the numerous calls to XD. When all of this was put to him with great fairness by Mr Harrington QC, he was wholly unable to deal with it or explain it. v) He had implicated Richards in his conversation with his mother on 4 February 2013. He had no convincing explanation as to why that was untrue.

(b) The safety of Richards' conviction

[42]As we have declined to admit the fresh evidence, we examine the safety of the conviction primarily by reference to the submissions made on behalf of Richards and in particular the points we have referred to as Mr Rees QC’s 14 points.[43]Those 14 points and all the other submissions made to us had been made to the jury. In what was a very long trial where Mr Rees QC had exhaustively tested the evidence before the jury and then made a closing speech of some 3 days, we must have regard to the observations of Lord Judge CJ in R v Pope [2013] 1 Cr App Report 14 at paragraph 14. “As a matter of principle, in the administration of justice when there is a trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If, therefore, there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the “lurking doubt” concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury. ”[44]Not only do we apply this approach, but we also have ourselves considered the whole of the evidence. It was rightly accepted on behalf of Richards that the prosecution case was strong. There were points that could be made, particularly in relation to the journeys undertaken in the Volvo from Richards’ home on the day of the murder. However, the evidence of the close association between Hope and Richards at all the material times, the intensity of the phone contact and attempted phone contact between Richards and XD, the receipt of money by Richards as well as Hope immediately after the murder and the forensic evidence in relation to the “Drunk Punk” top together with the other evidence relied on by the Crown leave us in no doubt that this was a safe conviction.[45]We therefore refuse this renewed application.

THE APPEALS AGAINST SENTENCE

[46]Both appeal against sentence with the leave of the single judge.[47]Richards, who was born on 1 June 1974, is now 40 years of age: Hope was born on 5 July 1973 and is also 40. Each has had an extensive record of criminality.[48]Richards i) Began his offending in 1987 when he was 13 years old with an offence of theft. There are then numerous convictions for taking cars, burglary and theft which culminated in November 1988 with a four months sentence in a young offender institution. ii) Further offences followed thereafter on an annual basis with driving offences and offences of dishonesty, including burglary of a dwelling house. iii) In 1996 he received his first significant custodial sentence when he was sentenced to 27 months for an offence of causing grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861. On that occasion Richards punched a man with sufficient force to cause him to fall and fracture his skull; he then went after another man with his fists. The attack was a vicious one which the parties in the case agreed was too prejudicial for the jury to see. iv) In October 1997 he was sentenced to four years imprisonment for robbery and a further offence under s.20 in which Richards had punched a man so hard that he fractured his jaw. v) On his release from prison it is clear from the record of his convictions that he continued to offend, committing various offences of theft and offences under the Drugs Act. In December 2004 he was convicted of intimidating a witness with intent to pervert the course of justice.[49]Hope’s criminal record i) dates back to 19 October 1990 with an earlier similar offence of taking a car and of theft. In 1992 he received his first significant custodial sentence for burglary and theft. He thereafter had many convictions on an annual basis for similar offences involving theft of cars. ii) On 24 October 1997 he was also sentenced for robbery and kidnapping to a total of six years’ imprisonment at the Crown Court at Cardiff. He had repeatedly punched a Pakistani man in face for no good reason, kidnapping and robbing him. Thereafter his convictions were largely for theft and burglary.[50]Both at the time of sentence were unemployed and engaged in drug dealing.[51]The judge in his sentencing remarks first referred to the fact that neither had shown any remorse. He concluded that there were six aggravating factors: i) It was the murder of a child. ii) It was committed before the eyes of his parents. iii) There was a significant degree of premeditation and planning. iv) There was a joint attempt to murder Aamir’s mother. v) There was a joint attempt to murder Aamir’s father. vi) Both Richards and Hope had convictions involving serious violence.

The judge correctly identified that there were no mitigating factors.

[53]The victim impact statements: i) Make clear the warmth, love and respect shown by Aamir to his parents; how he brought joy to them and how their life is empty. ii) The judge took them rightly into account.[54]He concluded, as was accepted by all at court, that the starting point was a minimum term of 30 years. The judge concluded, taking into account the lack of mitigating factors and the presence of aggravating factors, that the minimum term should be one of 40 years.[55]Fresh personal statements were before us. Clearly four years on they point eloquently to the effect on the whole family - Mr and Mrs Ahmad and Aamir‘s sisters. Mr Ahmad’s suffering continues with nightmares about the attack. He has a fear of being on his own; he no longer regards home as a sanctuary. The family can no longer live in Cardiff. Mrs Ahmad has given up her job and is suffering in exactly the same way as Mr Ahmad. Aamir’s three sisters have been suffering from stress related illnesses.[56]It was common ground on the appeal that the starting point is 30 years. There are no mitigating factors. A singular feature of Hope’s evidence to us was a complete lack of remorse.[57]The judge correctly identified the aggravating factors. He had to address the overall criminality – the contract killing, the planning and premeditation, the invasion of a home, the brutality of the attack, the attempts to kill both parents.[58]In our judgment the length of the minimum term rightly reflected the entire criminality of the appellants’ conduct. This was an appalling series of crimes for which the minimum term of 40 years was just punishment, reflecting not only the premeditated and brutal nature of the murder and attempted murders but also a deterrent element in respect of contract killings which have no place in any civilised society.[59]The appeals are dismissed.