Robinson, R v [2017] EWCA Crim 923

Case No 2014/04966/B1[2017] EWCA Crim 923
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NOTTINGHAM CROWN COURT
The Hon. Mr Justice Crane
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/07/2017
Before
LORD JUSTICE HAMBLENMRS JUSTICE CHEEMA-GRUBB OBEHIS HONOUR JUDGE WAIT(Sitting as a Judge of the CACD)
Between
ReginaAppellantGary Lucien RobinsonRespondent
Paul Taylor for AppellantDuncan Atkinson QC for CrownHearing Hearing date : 22 June 2017
JudgmentLord Justice Hamblen :Introduction
[1]On 14 February 2007, in the Crown Court at Nottingham before Mr Justice Crane the applicant was convicted of murder (by a majority of 10 to 2).[2]On the same date he was sentenced to imprisonment for life and the period of 12 years less 228 days spent on remand was specified as the minimum term under s269 (2) of the Criminal Justice Act 2003.[3]The single judge has referred his applications for an extension of time (of 7 years and 6 months) and for leave to appeal against conviction(limited to the grounds concerning CCTV) to the full court.

The outline facts

[4]The applicant was employed as a barman at the Cuba Libre nightclub in Nottingham. He was of previous good character.[5]On 2 July 2006 Leon Tyrell, the deceased, who was 23 years old, attended the club at some time after 1am. He is described as having been 6 feet 2 inches tall and weighing approximately 13 stones.[6]The club was particularly crowded that night and other staff members described an atmosphere of tension from some of the customers. It was the night of a football match between England and Portugal.[7]It became necessary for the applicant to restock the bar with bottled beer and he therefore made his way through the crowds to the basement and back. A confrontation took place when some customers had blocked the applicant's passage and grabbed at the bottles. There was a scuffle. He then retreated behind the bar. He picked hold of a knife used for the cutting of fruit and having left the bar area had a physical altercation with the deceased. The deceased collapsed.[8]Police and ambulance assistance arrived at the club.[9]On arrest the applicant stated “I was attacked by some lads as I was carrying some bottles. I was just defending myself”. The applicant was interviewed in the presence of a solicitor and declined to answer questions.[10]A colleague reported that he had hidden a knife that the applicant had been holding after he had been asked to do so by the applicant. Another employee had recovered a knife on the dancefloor and had hidden that also. In all the police recovered 3 knives from searching the scene.[11]The deceased was pronounced dead on arrival at the hospital. His cause of death was a stab wound to the neck which severed the deceased’s jugular vein and thyroid artery. He had other wounds to his face neck and arms.[12]The learned Judge, whilst saying that the CCT did not capture the final altercation, further observed (S/U 18G) that it did not capture the final altercation beyond the vaguest indication of activity in the relevant area at the relevant time.[13]The defences of self-defence and provocation were left to the jury. The jury retired with 3 discs of CCTV footage. The first divided into 9 chapters and accompanied a timeline document. The second disc showed what could be seen from 3 cameras at the same time and the third showed “chapter 6” and had a moving figure circled.[14]The prosecution case was that following a relatively minor incident, the applicant had unnecessarily armed himself with a knife before needlessly leaving the safety of the bar area and going in to the crowd as an aggressor. Their case was that he had attacked the deceased with the intention of at least causing serious harm and that he had not acted in self- defence but rather in anger.[15]The prosecution relied upon an inference that the applicant had not mentioned in interview that he had emerged from the bar on the second occasion to escape from the attack and secondly that he had failed to mention that his attackers were using a broken bottle.[16]The defence case was that the applicant had been frightened by the initial incident and that he had armed himself with the intention of leaving the property. He had neither intended to use the knife nor cause serious injury. His actions thereafter had been in self-defence. He had not gone beyond what was reasonable.[17]The essential issue for the jury was to decide what the applicant had intended on doing with the knife when he emerged from behind the bar on the second occasion. They had to be sure that the applicant intended to kill or cause serious harm to any person and that at the time he was not acting in self-defence or under provocation.

The evidence at trial

[18]The prosecution case involved evidence from a large number of witnesses.[19]Damien Gage, a barman at the club, gave evidence that the club was overcrowded, the atmosphere was tense and there was aggression from some of the customers towards the bar staff. At one stage the applicant had collected a crate of beer and was returning to the bar when possibly 3 people started to grab at the bottles.[20]The applicant placed the box on the bar and faced the people. He agreed in re-examination that the applicant could have bent down and returned through the hatch at the bar. The witness took the crate and there was a fight between the applicant and 4 or 5 customers. He did not hear glass smash but the music was loud.[21]The applicant came under the hatch and took a knife that was used to chop fruit. There was some shouting and abuse. The applicant then exited the area. A fight broke out and the applicant was punching a mixed race man with both hands. He did not see the knife. The man slipped to the floor. The applicant returned into the bar area and appeared to have injuries. People attended the man on the floor and others threw bottles at the bar. The witness jumped over the bar and fled upstairs. He had called for the bouncers but he could not remember when that had been. When he returned he saw cuts to the applicant's head.[22]In cross-examination he agreed that it had seemed too dangerous to go out and help the applicant in the first incident.[23]Nicholas Hudson, a barman, gave evidence that the club was full and that there had been a lot of rough looking men with gold teeth flashing cash and drinking bottles of champagne. He thought that there was trouble brewing.[24]He was serving a customer when he saw the applicant return to the bar carrying bottles of beer. He then saw the applicant fighting with three men; one at a time. He saw one fall to the floor. Then the applicant returned to behind the bar and he saw that he was carrying a knife. People started to throw bottles at the bar staff and he fled with Gage upstairs.[25]Navid Soltani, another barman, gave evidence that the applicant was outside with boxes of beer when someone threw a bottle which just missed the witness’s head. The applicant looked angry and he was moaning or swearing. He saw the applicant going over the bar when he went back out. The applicant pushed a male and they threw punches at each other. The man seemed to slip and the applicant returned behind the bar by going under the hatch. Bottles were thrown. The witness crouched down and then followed Gage.[26]Nadder Azizi, a glass collector whose statement was read, described a lot of gangsters being in the club that night. At approximately 2am the applicant had left the bar to collect bottles of Brandy and ice. He saw men “bothering” the applicant. Five minutes later he saw the applicant with blood on his head. There was pushing and shoving and the witness was pushed to the floor and ran out.[27]He returned inside and the applicant who was holding what appeared to be a clean knife, asked him to go over. He took the knife and placed it in one of the bottle bins with broken glass on top, but later decided to reveal it to the police and it was recovered.[28]Benjamin Simms, a friend of the deceased, stated that there had been a lot of drunken people in the city centre that night and other clubs had closed because of fighting. He went to the Cuba Libre with friends after midnight; it was packed.[29]The deceased came into the club and stood near the arcade machine with Wayne Philpott.[30]He saw the applicant walking to the bar carrying boxes where he seemed to slip or jolt. He saw the applicant behind the bar. He heard glass smash and was pushed from behind. He looked and saw the applicant attacking the deceased by the arcade machine. He saw the applicant strike the deceased approximately 5 times; the deceased defended himself but did not hit back. It was quick. The deceased fell to the floor covered in blood and was picked up by Philpott and taken outside.[31]He saw that the applicant was holding a knife and appeared to be uninjured. Then people started throwing bottles at the bar. He left by a different exit and attended the deceased.[32]Wayne Philpott, another friend of the deceased, gave evidence that he had been drinking during the day and described his state as “merry”. He had attended the Cuba Libre. It was very busy. He saw the deceased inside and the deceased asked to use his mobile telephone. The deceased was on the phone when the witness saw the applicant pass. People were grabbing at boxes of drinks that the applicant was carrying. The applicant had turned but did not say anything and he got the boxes to the bar. The applicant confronted the deceased and there was some pushing between them. The witness was also pushed towards the bar as others pushed towards the applicant. Someone threw a glass and the applicant ducked whereupon the glass smashed against the wall. The applicant went under the hatch into the bar area and in cross examination the witness agreed that the deceased was shouting abuse at the applicant with a male who had been grabbing at the drinks. People were throwing bottles and shouting at the applicant who was behind the bar with a female.[33]He then saw the applicant pick something up and he seemed to engage in a fist fight with the deceased in which the deceased fell to the floor with blood on his clothing. The deceased was then ushered out of the club and fighting broke out inside the club.[34]Anthony Berry, a customer, attended the club. He knew the deceased and some of the witnesses but would not describe him as a friend. After he had been in the club for approximately 5 minutes he saw possibly 10 males arguing with the applicant who was carrying a crate of beer.[35]He looked away and after 30 seconds or so he saw the applicant armed with a knife behind the bar and people were shouting that the deceased had been stabbed. Then fighting broke out and people started to throw bottles.[36]Tracy Berry, a customer, described the applicant as having always been quiet and pleasant. She saw him nearly drop the bottles he was carrying and that people were touching. The applicant gestured but not aggressively. She thought there was trouble brewing and left. Fighting broke out by the time she was on the stairs and she summoned the door staff.[37]Paul Gibson, the door supervisor whose statement was read, stated that there had been trouble outside of the club earlier in the evening. He saw the deceased being helped out of the club. He went up to the bar and saw people throwing bottles and so he cleared the bar. The applicant was bleeding heavily from cuts to the face. Outside people were fighting among themselves and with the police and were aggressive towards the ambulance staff.[38]Danny Naghizadeh, the licensee whose statement was read, said that he went down to the bar and saw bottles were being thrown. He helped clear the bar. After the club had been cleared he found a blade on the floor in the area between the entrance and the bar. He picked it up and dropped it in a black plastic bin. He later heard that a man had been stabbed. He was frightened that his fingerprints would be on it and so he recovered it, washed it and hid it in a drain in a cellar where it was found by the police.[39]Police and ambulance staff gave evidence about their attendance shortly after 2.30am and their treatment of the deceased. They also described a gang of black males who were aggressive. The deceased showed no signs of life in the ambulance. He was booked into the emergency department at 3.03am and pronounced dead at 3.20am.[40]The applicant was arrested. He stated “I was attacked by some lads as I was carrying some bottles. I was just defending myself”. Prior to the last interview of the applicant the officer accepted that the solicitor took the view that the disclosure was inadequate and advised the applicant not to answer questions in interview. He was charged on 4July.[41]Dr. Alalousi, a pathologist, gave evidence that the deceased had 201 milligrams of alcohol in his body as well as cocaine, MDMA, and traces of cannabinoids.[42]The cuts and slashes to the deceased could have been caused by any sharp instrument. Injuries labelled 1 to 4 were to the face and head of the deceased. Number 3 was a slash to the side of the face which had been administered front to back.[43]There was one stab wound to the right side of the neck, labelled 5 which had caused the death of the deceased. This had cut through the internal jugular vein, and also the right thyroid branch of the subclavian artery. It had entered the top of the chest cavity and ended on the right side of the upper part of the spine and damaged the lung on its way through.[44]The degree of force required was mild. The point of the blade had sufficient impetus to roughen but not to cut the bone. There was no mark of the hilt of a knife on the skin.[45]There were injuries to the deceased’s hands and arms. They were listed as injury numbers 6 to 16. Where there were parallel scratches or wounds they could have been from multiple or single blows. Some of the injuries to the hands could have been caused by attempts at stabbing.[46]Dr. Sirrals, whose statement was read, examined the applicant on 2 July. His injuries noted were a 1.5cm laceration to the forehead; a 1cm laceration to the left side of the head; a 1cm laceration over the bridge of the nose; a 2cm laceration under the left eye; and a small laceration on the elbow.[47]In his defence the applicantgave evidence that the club had been very crowded and that the clientele had been rough. He had been in a good mood. There came the final time that he was restocking the bar. He was carrying three boxes. There were a lot of people and some were reaching for the boxes. One of them had been extremely tall. He shifted away from them, but they got more aggressive. He waved their arms away which caused the males to change their attention to him. He put the boxes on the bar as quickly as he could and turned to face them. There were quite a few there, very close, being aggressive, shouting and swearing.[48]He threatened to have security remove them and they started punching at him and throwing bottles, He fought them off with his back to the bar.[49]Once he got behind the bar more bottles were thrown. He panicked, thinking that nothing would stop them, grabbed a knife and headed for the nearest exit. He thought that he had to get out of there. He was panicking and frightened and thought that he would get seriously injured behind the bar.[50]He did not get to the door because they jumped on him as soon as he came out. There seemed to be a lot of them. He was punched; there was a broken green bottle, by his left eye which he believed caused some of the injuries to his face. He fought back, punching with both hands. He could not get to the door. One of the men fell and the rest of them jumped back. He did not know how he caused the deceased’s injuries.[51]He stumbled back behind the bar and people continued to throw bottles. He threw some back. The knife he had taken had broken but he did not know how.[52]His decision to go out from the bar was just a reaction; he had no time to think. Looking back he could have made a better decision and he found it hard to live with the fact that he caused a man’s death.[53]In cross-examination he confirmed that he had never faced a situation like that before. He agreed that as a member of the bar staff he had to deal with customers who might be difficult.[54]He had the knife and was fighting back. He had not thought to stab or slash anyone. He did not aim at any particular person.[55]He was asked about the CCTV where somebody had put a circle around a male which was said to be the applicant going back into the bar at the time he must have picked up the knife. He said, "I can't say whether it is me, but probably it is me. I agree it couldn't really be anybody else”.[56]He agreed that he had no need to have turned and argued when he had first got back with the boxes. He asserted that possibly two or three bottles had been thrown when he was still outside the first time. The incident terrified him and he just reacted. He felt trapped behind the bar.[57]He had never been in a police station before and relied on his solicitor’s advice to make no comment.

The applications

[58]The applicant applies for:(1) an extension of time of around 7 years and 6 months;(2) permission to adduce fresh evidence and(3) leave to appeal against conviction.[59]In relation to the lengthy extension of time soughtthe applicant has provided a statement and documentation seeking to explain the delay as having been caused by difficulties that he has encountered in obtaining the trial documents from solicitors and from the prison who both returned it to the solicitors and misplaced it for between 18 and 24 months; difficulties in obtaining access to facilities to view CCTV footage in prison; delay in obtaining legal assistance; delay in obtaining legal information and the fact that he initially applied to the Criminal Cases Review Commission rather than the Court of Appeal.[60]This application is opposed by the Crown who have referred the court to the case of Roberts & Others [2016] EWCA Crim 71 in which Lord Thomas CJ said at [37]:
"In deciding whether to grant an extension, the court will consider all the material circumstances, including the explanation for the delay and the cogency of the reasons in seeking an extension when determining whether it is in the interests of justice to grant an extension: see, for example,Hamilton v R [2012] UKPC 21, [2013] 1 Cr App R 13, at paragraph 17 and R v Thorsby [2015] 1 Cr App R (S) 63 at paragraphs 12-18. There is no limit on the court's discretion."
[61]In Roberts the court reiterated at [39]that the course it took in that case did not indicate any change to its practice and referred to the case of Thorsby [2015] Cr App R (S) 63 in relation what the interests of justice requires. In that case Pitchford LJ said at [13]:
“In this court’s experience the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so. There are, however, several components that contribute to the interests of justice. The court will have in mind the public interest in the proceedings of the Court generally, in particular in the finality of Crown Court judgments, the interests of other litigants, the efficient use of resources and good administration. However, the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual.”
[62]The Crown submits that no good or sufficient grounds have been presented for the considerable delay by the applicant in making the present application. The difficulties that the applicant appears to have encountered in relation to his paperwork appear to derive, in whole or in part, from his decision to act for himself. That decision appears to be the result, in turn, of the fact that, as the applicant put it, "several solicitors have been disinterested in looking at my case". The applicant now contends that his grounds are so strong as to require the necessary extension of time. The Crown contests this, and submits that the other reasons advanced for an exceptional extension of time are insufficient.[63]In relation to the application to adduce fresh evidence the applicant has adduced an expert report from Mr John Kennedy, a scientist who specialises in the analysis of video imagery. It is submitted that it is in the interests of justice to admit the evidence: it is capable of belief and admissible, it affords a ground for allowing the appeal and there is a reasonable explanation for it not being called at trial.[64]As to whether there is a reasonable explanation for the failure to adduce the evidence, it is pointed out that the defence trial lawyers did not obtain an expert analysis of the DVD for the trial. The trial solicitor Mr. Bullock told the Legal Complaints Service that the solicitors had informed the Crown Court on 19 December 2006 (two months before trial) that they intended to seek enhancement of the recording made by the bar area camera by experts. However, Mr. Bullock stated that he was later advised that it could not be enhanced. Although it is not now possible to discover the details of the instructions or query put to the expert, or precisely what the expert’s response was, the term “enhanced” may well have been used as a generic one. Mr. Kennedy states that at the time of the trial very few trained and experienced CCTV Experts were available and specialist forensic imaging tools were still evolving.[65]This application is opposed by the Crown. In considering that application it is stressed that the Court is required to have regard to the requirements set out in s.23 of the Criminal Appeals Act 1968, and submitted that in this case it cannot be shown that the evidence may afford a ground for allowing the appeal or that there is a reasonable explanation for the failure to adduce the evidence.[66]As Lord Bingham CJ explained in ex.p.Pearson at p.178A:
“The Court of Appeal is never subject to a mandatory duty to receive the evidence, but is bound in considering whether to receive the evidence or not to have regard in particular to the specific matters listed in subsection (2). The Court of Appeal is not precluded from receiving fresh evidence if the conditions in subsection (2)(a), (b), (c) and (d) or any of them are not satisfied, but the Court would for obvious reasons be unlikely to receive evidence which did not appear to it to be capable of belief, or which did not appear to it to afford any ground for allowing the appeal, or which would not have been admissible in the trial court. The Court of Appeal would ordinarily be less ready, and in some cases much less ready, to receive evidence which the appellant had failed without reasonable explanation to adduce at the trial, since receipt of such evidence on appeal tends to subvert our system of jury trial by depriving the decision-making tribunal of the opportunity to review and assess the strength of that fresh evidence in the context of the case as a whole, and retrials, although sometimes necessary, are never desirable. On any application to the Court of Appeal to receive fresh evidence under section 23 in an appeal against conviction, the question which the Court of Appeal must always ask itself is this: having regard in particular to the matters listed in subsection (2), does the Court of Appeal think it necessary or expedient in the interests of justice to receive the new evidence? In exercising its statutory discretion to receive or not to receive fresh evidence, the Court of Appeal will be mindful that its discretion is to be exercised in accordance with the statutory provision and so as to achieve, in the infinitely varying circumstances of different cases, the objective for which the discretion has been conferred. The exercise of this discretion cannot be circumscribed in a manner which fails to give effect to the statute or undermines the statutory objective, which is to promote the interests of justice; the Court will bear in mind that the power in section 23 exists to safeguard defendants against the risk and consequences of wrongful conviction.”
[67]Whilst the Crown accepts that the absence of a reasonable explanation for the failure to adduce the evidence is not determinative of a fresh evidence application, it submits that it is a factor which has to be considered in the exercise of the statutory discretion and it is unlikely that the interests of justice test will be satisfied unless “a reasonable and persuasive explanation” for the omission is offered. As stated by Lord Judge CJ in Erskine [2009] EWCA Crim 1425; [2009] 2 Cr. App. R. 29 at [39]:
“…it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the “interests of justice” test will be satisfied.”
[68]In relation to the application for leave to appeal two grounds are relied upon, namely:(1) The fresh evidence renders the conviction unsafe.(2) The judge misdirected the jury in relation to self-defence.[69]The Crown disputes that either ground is arguable.[70]We decided to hear the evidence of Mr Kennedy without prejudice to the need for permission to adduce fresh evidence and for an extension of time. That evidence consisted of oral evidence from Mr. Kennedy including a presentation of the optimised DVD evidence. Mr Kennedy was then cross examined by the Crown.

Ground 1

[71]Having heard Mr Kennedy’s evidence we propose to consider first the impact of that evidence on the safety of the conviction, a consideration that goes to all three applications made in relation to Ground 1.[72]Mr Kennedyproduced six clips of the CCTV recording covering approximately two minutes. This includes matters immediately before, during and after the injuries were inflicted on the deceased. In light of Mr. Kennedy’s analysis, report and oral evidence the following detailed observations are made which it is submitted support parts of the defence case. (1). The boxes incident and the initial confrontation[73]The applicant stated that on his return to the first floor with the boxes a group of men acted aggressively towards him. An altercation followed in which the men attacked and terrified him before he went back to the bar area. According to Mr. Kennedy’s analysis of the CCTV footage, the applicant places the boxes he is carrying onto the bar counter by the hatch. At this time, there appears to be a movement of persons from the left towards the bar area. It is submitted that this supports the applicant’s account that he was attacked by the group at this stage. (2). The atmosphere before the confrontation[74]It is pointed out that a woman, believed to be Tracy Berry, appears from the first floor bar area, leans over the railings and appears to call up the doormen who come up the stairs. This is before the applicant left the bar area with the knife. It is submitted that this shows that before that time the atmosphere was such that the door staff were called to intervene and supports the applicant’s account that he was facing a violent crowd and took a knife to protect himself as he sought to escape. (3). The applicant left the bar area: second confrontation and altercation.[75]The applicant stated that having grabbed the knife from behind the bar he headed for the nearest exit but was attacked as soon as he came out. Bottles were thrown. He then acted in self-defence. According to Mr Kennedy’s analysis of the CCTV footage there are indications of bottles being thrown. He points out that the applicant came out from behind the bar at around 02:33:33. Thereafter, on two occasions “light-toned object/area -possibly liquid” are observed moving towards right at 02:32:37 and left at 02:32:48. Mr. Kennedy’s opinion is “that these sightings are consistent with liquid spilling from a bottle whilst in flight – i.e. whilst a bottle is being thrown.” (4). The context of M2 leaning over the bar[76]M2 is is a person Mr Kennedy considered to be consistent with the description of the deceased. As he said in his report:
“From the available description of Mr Tyrell, I believe that the person identified throughout this report as Male 2 is consistent with the available description of Mr Tyrell; there are no obvious exclusionary differences between the person identified as Male 2 and the available description of Mr Tyrell. This view may be supported to some extent by the on-screen arrow used by the Prosecution as part of the presentation of the CCTV evidence during Trial.”
[77]According to Mr Kennedy’s analysis of the CCTV footage:(a) At 02:32:33: the applicant (still behind the bar) goes out of view whilst heading towards the left hand side.(b) At 02:32:34: M2 moves into view heading towards the bar hatch, moving from the left hand side.(c) At 2:32:37: an object is seen that Mr. Kennedy states is consistent with a bottle being thrown. In addition what appears to be fighting is taking place on the left side of the screen.(d) At 02:32:38: M2 is at the bar near the hatch, facing the bar and appears to lean forward over the bar. Mr. Kennedy stated that this means that the applicant has had to pass M2 as he made his way towards the exit.(e) At 02:32:40: M2 moves away from the bar, towards the left hand side. At the same time an object is seen that Mr. Kennedy states is consistent with a bottle being thrown. (5). Violence continuing after the applicant moves away[78]In Mr Kennedy’s analysis of the CCTV footage he highlights elements that showed the crowd’s aggression to the police and ambulance personnel after the incident. In particular:(a) At 02:32:58: a fight appears to continue in the red annotated area, despite the applicant Robinson having moved to the right hand side.(b) At 02:33:11: a woman with a dark toned shoulder strap appears to have fallen down to the left hand side.[79]It is submitted that the fact that significant violence appears to continue after the applicant has moved away provides further evidence of the high level of aggression that the applicant had faced.[80]In the light of Mr Kennedy’s interpretation of the CCTV footage the following principal submissions are made:(1) Mr. Kennedy’s analysis contradicts the evidence of Damian Gage when he stated that he could not recall bottles being thrown before the lights went on, after the attack.(2) It also contradicts the evidence of Wayne Philpott that it was the applicant who leant over the bar. Moreover, it provides a basis upon which the jury could have concluded that M2 was, or may have been, the deceased who may have armed himself with something taken from the bar, and then moved towards the area of an existing fight.(3) Following on from this, the applicant’s actions would then need to be considered in the context that rather than setting out from the bar with a knife intent on seeking revenge against the deceased he may have actually passed by him on his way to the exit: a scenario far more consistent with attempting to escape attack and thus self defence than a revenge attack.(4) The new analysis also demonstrates that whilst M2 was leaning over the bar and possibly arming himself, the applicant had moved to the left where fighting was taking place, and bottles were being thrown from the right and the left before the deceased was stabbed. The point at which the bottles are thrown are crucial. It was within this context that the applicant was forced to react in order to defend himself.(5) This would have presented a wholly different picture to the jury, and one that supported the defence case that the deceased may have armed himself before attacking the applicant who was in different area under attack from others.(6) In the context of self defence this new evidence may well have made a crucial difference to the jury’s decision to convict the applicant of murder in that it was a significant factor for the jury to take into account when considering whether the prosecution had made them sure that the applicant had not acted in self defence.(7) Alternatively, even if the jury rejected the assertion that M2 was or may have been Mr. Tyrell, the new evidence would still support the defence of self defence in that it shows that M2 was not the applicant, that the applicant had moved out of that area and was moving towards the door, and that M2 (whoever he was) could have been arming himself with a weapon, and moved towards the area of an existing fight, whilst bottles were being thrown.[81]In all the circumstances, it is submitted that this fresh evidence ought to be admitted and that in light of that evidence the murder conviction can no longer be considered to be safe. The prosecution case at trial relied upon a number of witnesses who claimed that the applicant had been the aggressor and the deceased the victim. The judge described the CCTV evidence as neutral. However, Mr. Kennedy’s report now provides fresh evidence that supports the defence case of self defence and undermines the prosecution case. Consequently, the fresh evidence of Mr Kennedy may well have affected the jury’s decision to convict – see Pendleton [2002] 1 W.L.R. 72 at [19]. It cannot be reasonably concluded that the jury would have inevitably convicted if they had heard the fresh evidence at trial – this is particularly so where the defence run was self defence which, once raised on the evidence, placed the burden on the prosecution to disprove it so that the jury was sure that the applicant was not acting in self defence.[82]Before considering these detailed submissions it is right to observe, as Mr Kennedy accepted, that the CCTV footage is of poor quality. It is also important to point out, as he also accepted, that none of his analysis relates to the confrontation itself. The evidence as to what happened during the confrontation between the applicant and the deceased was and remains that of the eye witnesses and the applicant. Further, most of the observations he makes are points that could have been and were made on the existing evidence.[83]In relation to the detailed observations made by Mr Kennedy, points (1), (2) and (3) all relate to the aggressive atmosphere faced by the applicant before and at the time he left the bar area armed with a knife. There was, however, existing evidence to support this. Thus, for example, Mr Gage said that the atmosphere was tense and there was aggression from customers towards the bar staff. Mr Hudson said that there had been a lot of rough looking men and he thought that trouble was brewing. There was also evidence of the altercation between the applicant and others in relation to the bottles he was carrying. Mr Gage and Mr Philpott described people as grabbing at the bottles. Mr Azizi described men bothering the applicant when he collected the bottles. Mr Gage said that he felt it was too dangerous to go out and help the applicant at this stage. There was evidence of bottles being thrown before the confrontation such as that of Mr Soltani described a bottle being thrown when the applicant was outside with the boxes of beer. As for Tracy Berry, it was her evidence that she thought that trouble was brewing after the incident involving the bottles the applicant was carrying and so she left.[84]In relation to detailed observation point (5), the fact that the violence continued in the bar after the applicant had moved away was already clear, as was recognised for example by PC Jarvis and by eyewitnesses whose evidence was addressed in the summing up.[85]The one potentially new observation relates to M2 (if that be the deceased) leaning over the bar at a time when the applicant had apparently moved past him. It is suggested that this may be the deceased arming himself. This is not only pure speculation but it is speculation which is contrary to the evidence at trial and of the applicant himself. There is no evidence from any eyewitness that the deceased was armed, nor was any such suggestion put to any of them. Further, no such suggestion was made by the applicant in his own evidence. Nor was any further weapon found that could have been attributed to the deceased.[86]As to the suggestion that the applicant may have passed the deceased who then moved towards him, even if that be correct it does not touch on the eye witness evidence that during the confrontation between the applicant and the deceased it was the applicant who was the aggressor, as borne out by the deceased’s apparent defensive injuries. None of Mr Kennedy’s observations relate to this crucial time.[87]The admittedly poor quality CCTV footage only formed a part of the evidence against the applicant, and had to be judged in combination with the evidence of eyewitnesses in assessing whether the applicant was acting aggressively rather than defensively and, crucially, whether his actions even if defensive were excessive. We agree with the Crown that Mr Kennedy's work represents a further source of interpretation of material to which, in any event, the jury had complete access, including in their retirement. They were entitled to reach their own conclusions as to what that footage showed, in the context of the other evidence such as the different eyewitness accounts and the legal directions they had received. The interpretation advanced by Mr Kennedy does not call the other building blocks for the jury's determination into question.[88]This was a case in which a number of eyewitnesses were relied upon by the prosecution. The jury heard as full a picture as could be provided of the suddenly erupting violence. Unless the fresh work of Mr Kennedy could be shown to provide some striking new information it is hard to see how it could have affected the outcome of the trial. The applicant took a knife with him, left the protection of being behind the bar, and ventured out into the mass of people in the club, people he believed were intent on violence. None of Mr Kennedy’s detailed observations could have assisted him with those aspects of the prosecution’s case or with what happened during the confrontation itself.[89]We are accordingly not satisfied that this further evidence arguably affects the safety of the conviction. That is fatal to the application to adduce it as fresh evidence and for leave to appeal on ground 1.[90]We are also not satisfied that there is a reasonable explanation for the failure to adduce this evidence at the trial. The CCTV footage itself was material that could have been and in fact was deployed at trial. No objection was raised as to the presentation of the CCTV footage, or as to the applicant's access to that footage, by those acting for the applicant at trial. To the extent that Mr Kennedy reaches his conclusions now by repeated viewing of the material, that is both something that could have been done at the time by an expert or otherwise by those acting for the applicant, and was something done by the jury. Given the poor quality of the footage, it is understandable why only limited reliance was placed on it by any party at trial.[91]The applicant was represented. The footage is exactly the same as that available to, viewed and used by all parties before and at trial. The analysis done by Mr Kennedy would only in limited ways have given a better view of the events peripheral to the actual assault; the increased contrast, the enlargement of the most significant part of the picture and the slowing down of the replay. However, the solicitors representing the appellant were aware of the existence of the CCTV and its potential to assist the appellant. They sought to ‘enhance’ the footage but were told that that was not possible. What that means or was understood to mean is not explained. In any event, the evidence is that the processes now used by Mr Kennedy would have been available at the time, albeit not so readily or cheaply.[92]In all the circumstances, we are not satisfied that there is "a reasonable and persuasive explanation" as to why any fresh interpretation or analysis of the footage was not deployed at trial.[93]In relation to ground 1 we accordingly refuse the application to adduce fresh evidence and the application for leave to appeal. In the light of these conclusions we also refuse the request for an extension of time.

Ground 2

[94]The judge gave what is accepted to be an appropriate general direction to the jury in relation to self-defence.[95]The judge however went on to direct the jury in relation to the word “panic” used by the defendant in evidence and the different ways it can be used. He then gave two examples. The first was that when someone was panicking “when they knew perfectly well what they were doing but they’re just very agitated, not their usual calm state.” The second was that:
“On the other hand you can describe someone as being in a panic when they hardly know what they’re doing they’re so agitated and so maybe there are degrees of panic.”
[96]The judge ended this section by stating “My suggestion would be to go back to the basic test in the light of what I’ve said to you in the last few minutes in order to decide whether the prosecution has disproved self-defence….”[97]It is submitted that the judge’s directions in relation to the word “panic” were unnecessary and confusing and amounted to a misdirection. In giving examples of two extremes the jury may well have understood that self defence only arose if the defendant experienced the degree of panic to which they “hardly know what they are doing”.[98]It is further submitted that this significantly detracted from the legal test set out earlier in the summing up, namely that a person being attacked is entitled to use reasonable force to defend himself. The danger of the judge’s directions on the word “panic” diluted this and suggested that an additional factor to be proved was that the defendant panicked to such a degree that he hardly knew what he was doing, whereas the right to act in self defence arises even where the defendant does not panic at all.[99]Further, it is said that the detrimental effect of this misdirection was exacerbated by the fact that the judge repeated it in response to a jury note requesting further clarification of the law of self defence.[100]The jury was directed as to self-defence both in writing and orally and was directed twice, namely during the summing up itself and in answer to a note asking for a repeat of those full directions as to self-defence whilst they were in retirement. It is rightly accepted by the applicant that the core direction provided the jury with a correct structure for their assessment of the issue, in that they were directed as follows:(1) "Many people would say that the law in relation to self-defence is common sense. It seeks to allow people to defend themselves, but not to go over the top";(2) "A person who is attacked or is about to be attacked in entitled to use force to defend himself if it's necessary to do so; and if a person does use force to defend himself the nature and degree of the force used must be no more than is reasonable";(3) "Note of course that even if a person is attacked it may in some circumstances not be necessary to use force at all and you must distinguish between self-defence and retaliation". The Judge sought to assist the jury as to this by way of examples away from the facts of the case;(4) "The nature and degree of the force used must be no more than is reasonable in the circumstances and ultimately you as the jury must judge what was reasonable in the circumstances if the need to defend himself did arise here, but you should bear in mind that a person who has to use force to defend himself may well have little time to think...";(5) The judge also sought to address this direction to the issues and facts in the case, for example he said "in judging self-defence here you need to concentrate on the second time that he went out of the bar taking a knife with him.."[101]The judge went onto to address the word ‘panic’ because the evidence of the applicant had been: "Then I was inside the bar and more bottles were thrown at me. I panicked. I grabbed a knife and headed for the door... I panicked because it seemed nothing was going to stop them. I just thought I had to get out of there. I was panicking and frightened".[102]We agree with the Crown that the applicant's repeated reference to panic in addressing the central factual issue in the case justified the judge to seek to assist the jury as to how that evidence inter-related to his self defence direction. Judges are encouraged to tailor their directions to the case. The applicant’s reference to having “panicked” when describing his reasons for getting a knife before he left the bar was a description which the jury was likely to remember when considering the applicant’s state of mind in relation to the issue of self defence. It was helpful for the judge to refer to this word and explain that it was capable of different meanings so they should not jump to conclusions when deciding whether he may have been acting in self defence depending on their view of whether he was in a panic or not[103]In doing so he rightly identified that the word could have different meanings, with differing consequences for self defence, ranging from panicking “when they knew perfectly well what they were doing but they’re just very agitated, not their usual calm state” at one extreme to “...you can describe someone as being in a panic when they hardly know what they’re doing they’re so agitated and so maybe there are degrees of panic” at the other. These were examples of the meaning of the word. They were not suggested to be the only possible meanings, as is in any event obvious.[104]In referring to these possible meanings, the judge was doing no more than tailoring his legal directions to the evidence in the case. Further he then referred the jury back to those core directions by stating “My suggestion would be to go back to the basic test in the light of what I’ve said to you in the last few minutes in order to decide whether the prosecution has disproved self-defence….”[105]We agree with the Crown that when viewed as a whole, and as part of the summing up as a whole, the direction to the jury was correct in law, and addressed the law in a way that was appropriate to the facts of the case. It is be observed that after a note from the jury in retirement, the opportunity arose for experienced counsel acting for the applicant to raise concerns about the self defence direction, but counsel did not do so, and no objection was raised to the repeated recitation of the direction. This supports the Crown assertion that the understanding of all those involved in the trial at the time was that this was not a direction that was likely to confuse.[106]In all the circumstances, we are satisfied that this new ground raised by non-trial counsel does not undermine the safety of the applicant's conviction as alleged or at all. It is in any event difficult to see how there could be any sufficient explanation for the delay in raising this issue.[107]We accordingly refuse leave to appeal on ground 2. In the light of that conclusion we also refuse the requested extension of time.

Conclusion

[108]For the reasons outlined above all the applications made must be dismissed.