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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Momodou, R v [2005] EWCA Crim 177 (02 February 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/177.html Cite as: [2005] 2 All ER 571, [2005] EWCA Crim 177, [2005] 1 WLR 3442, [2005] 2 Cr App Rep 6, (2005) 169 JP 186, [2005] WLR 3442, [2005] Crim LR 588, [2005] 2 Cr App R 6 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT HARROW
HHJ SANDERS AND A JURY
Strand, London, WC2A 2LL |
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B e f o r e :
DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE DOBBS
and
SIR MICHAEL WRIGHT
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Momodou |
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R |
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Limani |
____________________
J. Robertson and S.A. Ivill for Limani
N. Rumfitt QC and S. Johnson for the Crown
Hearing dates: 7th and 8th December 2004
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Crown Copyright ©
Lord Justice Judge:
Abuse of Process
Absent Defence Witnesses
Informal identification by photograph
Witnesses called by the prosecution at trial
"You were on duty on 12th September 2001 in your normal role. You have been called as a witness for the prosecution in the trial of some detainees charged with various offences arising from the events on 12th September 2001.
The background
Butlins detention centre for asylum seekers opened in January 2001. The centre is designed to hold up to 200 asylum seekers at a time, including women and children. There is a 15 ft high fence topped by a barbed wire around the centre, CCTV cameras, regular patrols by security officers, and detainees unable to move around by the site except under guard. The centre is run by Group 4. Detainees have alleged that the security staff are rude, racist and intimidating, and that they have been threatened with transfer to a prison if they complained. They have also complained of poor conditions and treatment.
On 12th September 2001, a disturbance started apparently triggered by a programme on TV about the events in the USA on 11th September. A fire started and the fire brigade was called. In the confusion some detainees escaped but were later apprehended in a local Macdonald's. Several detainees are accused of violent disorder and escaping."
"There is no place for witness training in our country, we do not do it. It is unlawful."
"Prior to the criminal trial group therapy where the specific recounting of abuse takes place is best avoided. The particular danger of this kind of group therapy is that the witness may adopt the experiences of others taking part in the therapy. Structured group therapy approaches which help in a neutral way to improve the child's self-esteem are less likely to cause difficulties. As a general principle, group therapy should not be offered to the child witness prior to the trial."
Abuse of Process
Witness Care
ICAS
McGurk
Witness training (coaching)
Bond Solon
The Jury
"To your Honour,
Following a private and personal issue between myself and a few other jurors, would it be possible to have a private word at your leisure.
Many thanks."
Given the apparent absence of any sign of difficulty throughout a period in excess of three months, this note was wholly unexpected.
"7th August 2003
Dear Your Honour
Further to my note to you on Wednesday 6th August 2003, I write to clarify further the contents of that note.
Two jurors [both identified by name] are being discriminatory and prejudiced against the defendants and are not judging the case based upon the evidence presented. What they are actually saying is these defendants "come to this country to take our tax money, buy their foods and clothes and take our jobs and should be deported back to their own country."
I am seriously concerned that they are influencing the other jurors to make decisions which are not based upon the facts of the case.
Please advise.
Yours sincerely".
It is clear from the papers that the two jurors identified in this letter were themselves members of ethnic minority communities.
"Your Honour
The jury regard these allegations seriously and the remaining ten jurors all agree that nothing was said during our deliberations that represent prejudiced or biased views against the defendants or any party involved in t his case. We take our oaths seriously and know that we can try this case fairly and impartially.
However the person who has made the allegation wishes to resign from the case if possible."
"Your Honour,
Further to my letter of 7th August I am writing again to inform you that I have been threatened by the two jurors named in that letter.
The woman threatened me with legal action and the man said "Now that I know where you live, I saw your address on the letter, I will come to your house and deal with you."
I am frightened for my life and that of my family and feel I was forced to withdraw from the jury through stress from these threats.
Please advise.
Yours sincerely
…."
The judge did not immediately show the letter to counsel. The remaining members of the jury continued their deliberations. After sending what is sometimes described as a "numbers" note to the judge, they returned to court and delivered their verdict in respect of Limani. He was guilty of violent disorder.
"When a member of the jury sends to the trial judge in the course of a trial a letter criticising the conduct of other members of the jury in terms that suggest, or might arguably suggest bias on their part, and it is accepted that the letter has been written in good faith, is the judge obliged as a matter of law (whether by the application of the opinions of their Lordships in R v Mirza [2004] 2 WLR 201, or otherwise) to question the members of the jury about the criticisms before deciding that the delivery of unlawful and unbiased verdicts by the jury can be achieved by the giving of a further direction rather than by discharging the jury?"
Plainly, anything we say in this judgment will be subject to reconsideration in the light of the decision of the House of Lords in Smith and Mercieca.
Incompetent Representation
(a) Failure of trial solicitors to identify potential defence witnesses among detainees.
(b) Late Submission of Skeleton Argument
(c) Putting the appellant's case at trial forward on a basis other than his instructions
(d) Failure to seek an adjournment to renew the abuse of process application, or otherwise deal with late disclosure of several important and material documents
(e) Failure to cross-examine Wakefield about Bond Solon witness training
(f) Failure to advance properly an argument to exclude a photograph of the appellant
(g) Failure to engage in legal submissions in a careful focussed manner
(h) Calling an unhelpful witness for the appellant, rather than a witness who would have assisted him
(i) Ill-conceived grounds of appeal
(j) Miscellaneous
Rippingale
Sentence