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England and Wales Court of Appeal (Criminal Division) Decisions
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Cite as:  EWCA Crim 2910
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Wednesday, 27 October 2004
B e f o r e :
MR JUSTICE GIBBS
MR JUSTICE STANLEY BURNTON
|R E G I N A|
Computer Aided Transcript of the Stenograph Notes of
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MR M BOWYER appeared on behalf of the APPELLANT
MR C AYLETT appeared on behalf of the CROWN
Crown Copyright ©
Ground 2: severance.
1. Where one accused gives evidence against another triggering section 1(3)(iii) of the Criminal Evidence Act 1898, subject only to the question of relevance, there is no judicial discretion to prevent cross-examination that may reveal a propensity to commit crimes of a particular nature albeit that that evidence would have been inadmissible at the suit of the Crown.
2. The Indian restaurant incident was relevant irrespective of whether it was similar fact evidence because it assisted the jury as to who between the co-accused it was more likely was armed with not one but two knives. That evidence, if admissible, went not just to credit but to propensity.
3. In these circumstances any co-accused must be free to call evidence in support of his case, even though it was of a highly prejudicial nature to a co-accused.
4. Article 6 of the European Convention on Human Rights ("the Convention") conferred a right to a fair trial. That applied to all defendants. Mr Grant's right to a fair trial would be preserved as he would have an opportunity both to answer questions in cross-examination, subject to the privilege against self-incrimination, and to challenge the witnesses who would be called in due course. Further, he had the opportunity to call evidence of his own, including, if he wished, that of his co-accused in the Indian restaurant affair in respect of that incident.
1. The Indian restaurant incident was not sufficiently similar to the stabbing of Mr Shah to amount to similar fact evidence and therefore ought not to be admitted. The Crown had not sought to adduce it as part of its case.
2. The evidence was only potentially relevant to an issue in the case. The pathological evidence was not conclusive that two knives had been used and there was no scientific evidence to link either of the recovered knives to the deceased or to Mr Grant.
3. The only defendant to state in interview that he had seen Mr Grant with two knives was Mr Aslam Mr Khan and that was equivocal. The court should be very wary before admitting evidence on the basis of what a co-accused's case might be.
4. Mr Grant would have to be warned of the privilege against self-incrimination. The Indian restaurant incident awaited trial following the conclusion of the current trial. If Mr Grant exercised his right to decline to answer questions, that would (a) be highly prejudicial and (b) be likely to provoke an adverse inference from the jury. Further, as the Indian restaurant incident case was yet to come to trial, Mr Grant could not compel his co-accused in those proceedings to give evidence on his behalf and would inevitably be fettered in cross-examination of any witness for fear of revealing his case in advance of any future trial.
5. Notwithstanding that the provisions of section 1(3)(iii) of the 1898 Act had been triggered, the court had a residual discretion at common law and/or under section 78 of the Police and Criminal Evidence Act 1984 and/or by virtue of Article 6 of the Convention to exclude evidence that was prejudicial to the case of any defendant.
6. If those contentions were wrong, the remedy was severance.
1. The cross-examination of Mr Grant as to the Indian restaurant incident was permissible, as it was relevant to an issue in the case.
2. Further, it amounted to similar fact evidence in the sense that its probative value was sufficiently great to make it just to admit it, notwithstanding that it was prejudicial to Mr Grant in that it tended to show that he is guilty of another crime. The judge based his ruling on the express basis that, as he put it, it fell "fairly and squarely within the test formulated by Lord Mackay in P"  2 AC 447 at 460 to 461. In the course of his ruling, the judge did not put his decision on any wider basis. The key similarity was the evidence that in both incidents Mr Grant had armed himself with two knives.
3. There was no judicial discretion to exclude relevant evidence as between co-accused -- see R v Myers  AC 124.
"MR BIRNBAUM QC [for Mr Rafiq]: The fact of the matter is another colloquialism if you will forgive me, has stuck us all in a joint trial. They have all been in custody. We therefore have to see it through unless there is some overwhelming reason why we should not.
JUDGE BOAL: You say there is not that overwhelming reason?
MR BIRNBAUM: There is not.
MR TANSEY: My Lord, of course my learned friend would say that because the overwhelming reason why I would seek it is in contradiction to the overall reason why he wants it to continue. My Lord, the key issue is if the object is to enable the evidence, for Mr Grant to be further cross-examined, evidence to be called, my Lord, I can see the attractiveness of that proposition. May I make it clear: I will submit now and I will submit at the conclusion of the evidence called by the co-defendants, I would then submit for severance and --
JUDGE BOAL: I am against you now, Mr Tansey, and of course I do not prejudge the issue upon your later submissions.
MR TANSEY: My Lord, there is nothing else I can add then."
It thus appears that Mr Tansey, as it were, reserved the right to renew his application for severance at the conclusion of the Indian restaurant evidence. However, in the event, as we understand it, he did not do so. It follows that the judge was at no stage required to rule upon an application for severance after the exchange which we have quoted.
"Because these questions relate to an offence with which you have been charged but have not yet been tried for, you need not answer these questions if you believe that answers might incriminate you.
Having said that, I want you to be quite clear about one other thing. This may be the only opportunity you do have to answer any questions about this alleged incident.
Do you understand that the choice is yours as to whether you answer these questions or whether you wish to avail yourself of the caution? It is just like the caution at the beginning of a police interview. You do not have to answer the questions if you believe the answers might incriminate you. Do you fully understand the situation?
It is right to observe, as Mr Bowyer has pointed out, that Mr Grant had not been able to take legal advice before answering that question.
1. Since the passing of the Human Rights Act 1998 every defendant in a criminal trial has the right to a fair trial under Article 6 of the Convention. In particular, by virtue of Article 6(2):"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
2. In multi-handed cases, particularly those involving cut-throat defences, there may well be competing interests in achieving a fair trial for all parties. Whilst the starting point should always be that those charged jointly should be jointly tried, there may be occasions where the competing interests of fairness as between co-accused can only be achieved by separate trials.
3. O'Boyle was decided before the Human Rights Act 1998. It is frequently said to be decided upon its own unique facts. However, it is an example of a case where a fair trial could only be achieved by separate trials. Mr Grant's case is also an exceptional one. Despite the judge's directions to the jury, in what was on any view a very difficult case to sum up, the effect of the Indian restaurant evidence was overwhelmingly prejudicial. Mr Bowyer highlights an observation made during submissions on this point by the judge that he had never come across a case of a man armed with two knives in his 35 years' experience at the Bar and on the Bench.
4. Severance would have caused no prejudice to Mr Rafiq or any other defendant seeking to rely upon the Indian restaurant evidence. The evidence would have been admissible even if Mr Grant had been severed pre-trial. As the evidence was not admissible as part of the Crown case and it did not seek to rely upon it as part of its case against Mr Grant, there could have been no prejudice to the Crown in a separate trial of Mr Grant, except for the advantages that cut-throat defences frequently bring to the prosecution case. In seeking to balance the right of a defendant to a fair trial under Article 6 against the principle of trying multi-charged defendants together, the courts should always give precedence to the right of a fair trial. Mr Bowyer relies upon this passage in Archbold  at paragraph 15-387:"The power to order separate trials may have to be used more frequently in order to give effect to the competing rights of co-defendants to a fair trial under Article 6 of the ECHR."
5. Accordingly the judge erred in failing to sever Mr Grant's case from that of his co-defendants, either at the time the application was made to cross-examine him regarding the earlier incident, or subsequently upon admission of the evidence in support. Mr Grant was inevitably likely to exercise his right against self-incrimination and to limit his cross-examination of the relevant witnesses to preserve his position at any subsequent trial. Moreover, his co-accused was not a compellable witness. The judge did not direct the jury that they must draw no adverse inference from Mr Grant's exercise of his right against self-incrimination. Mr Bowyer refers to Funke v France 16 EHRR 297 where it was held that the right to a fair trial includes "the right of anyone charged with a criminal offence... to remain silent and not to contribute to incriminating himself." He adds that the prejudicial effect of the Indian restaurant evidence was overwhelmingly prejudicial, even though its probative force in the case of Mr Mr Rafiq was equally compelling. Mr Grant was never in a position properly to address this evidence in a joint trial. His only effective remedy was severance.
Discussion on severance.
"For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries."
If the evidence had been left to the jury as being admissible against Mr Grant and part of the evidence in his case, the judge would have had to direct the jury that the jury should not hold the fact that Mr Grant had relied upon the privilege against self-incrimination against him. In fact, the position here was that the judge dealt with the matter in a way much more favourably to Mr Grant.
"I must remind you, just as I probably will have to remind you in other contexts, that the evidence comes from the witness box and not from counsel. It is the answer that constitutes the evidence; not the question and, thus, there is no evidential value to the questions Mr Birnbaum asked and you should not misinterpret that passage of the evidence as providing any evidence at all against Mr Grant."
A short time later the judge added that the reason counsel for Mr Rafiq continued to ask the questions was that the witness had to be given an opportunity of refuting suggestions to be made later if he wished. The judge then referred to the Indian restaurant evidence and said this (61A):
"Mr Birnbaum contends for the proposition that that other evidence supports his own client's case and undermines that presented on behalf of Mr Grant. In short, he says this -- and I am not attempting to repeat the submission verbatim -- he said, 'Here is evidence of an occasion upon which Grant acted in a way that is, in many regards, so strikingly similar to the way in which Mr Rafiq says he, Grant, acted in Hibernia Road that you, the jury, should conclude that it is much more likely that Mr Rafiq is telling the truth and that Grant behaved in the way that we, the defence of Mr Rafiq, suggests he behaved on 9th March. Much more likely that he did than he did not'.
That is the way Mr Birnbaum puts it.
Thus, Mr Birnbaum prays that evidence in aid in support of the case that he is advancing on behalf of his client and, as I have said, I will remind you of that evidence in due course.
Now that evidence is evidence in the case and you are entitled to have it in mind as you consider the case of either of those two defendants or, indeed, any other defendant in this case."
"Having said that, I am going to commend to you an approach which you may regard as fair and capable of doing justice to both of those two men and, indeed, all of the protagonists.
You know that you must consider the case of each defendant quite separately. That means that, on occasion, you must put evidence into the watertight compartments. You know you must do that when you are looking at the interviews.
The Indian restaurant evidence was called, as I said a moment ago, by counsel representing Mr Mr Rafiq as part of his case. It is now adopted by counsel for other defendants. It was not called by the Crown as part of their case and they ask virtually no questions upon it. It is evidence called by one defendant, as it were, against another defendant. So would this not be -- this must be my direction to you -- would this not be the safest and fairest way to approach this tranche of evidence?
You say this to yourselves, 'When we are considering the case of Jason Grant in a watertight compartment and deciding whether the Crown has proved the case against him, we will disregard and put on one side the Indian restaurant evidence. We will certainly not weigh that in the scales against him.'
The Crown rely on other evidence. They say that there is plenty of it. They do not rely on the Indian restaurant evidence. Looking at Grant, watertight compartment, forget Indian restaurant.
But when we turn to the case of Rafiq and if we think it relevant to the defence of not only Mr Mr Rafiq but any other defendant in this case, when we are considering that defendant or those defendants, we will bring it -- the Indian restaurant evidence -- we will bring it into the equation if we think it supports the defence of any defendant other than Mr Grant and we will then put it in the scales in his favour of that defendant.
Now, members of the jury, I commend that approach as the safest and fairest way for you to adopt. Indeed, I go further. That is the way in which you must approach this problem."
The judge thus told the jury that the Crown was not relying on the Indian restaurant evidence against Mr Grant and that they should not do so either.
"Now, of course, neither Mr Grant nor Danny Keene has given you his version of these events. That, you may think, is because each of them is entitled, as must be the case, to, as it were, keep his powder dry until they face their trial on that issue.
If you think it helps Mr Mr Rafiq -- if you think it may help Mr Rafiq, put it into the scales."
"You know you must do that when you are looking at the interviews."
That is indeed a classic example of part of the evidence which is evidence in the case of one defendant but not another. We see no real difference here.
The Watson direction.
"Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but also collectively. That is the strength of the jury system. Each of you takes into the jury-box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily [ten of] you cannot reach agreement, you must say so."
The direction proposed by the judge was in material part in those terms with the addition of these words at the end:
"Equally, if at least ten of you do reach agreement it is your duty to say so."
"As a direct result of that note, I sent you home a little early that afternoon telling you that I would give you a further direction first thing on Tuesday morning.
On Tuesday morning, I gave you what is known as 'the majority direction' telling you that, from that moment on, you were entitled to return verdicts upon which, at least, ten of you were agreed.
I added that you should still attempt to return unanimous verdicts but only if that were possible.
I have told you so many times that you are not under pressure and I simply repeat that you are not.
Some seven hours or more after your retirement had further elapsed, you sent me another note.
Again, counsel have not seen that note that you sent me just before lunch today.
But I think, in all the circumstances, it is now right for me to give you this further direction... "
The judge then gave the Watson direction with the addition at the end which we have already mentioned. The jury retired again at 14.34 on 12th February. They were sent home at what had become the usual time of about 17.30. The jury resumed their deliberations just before 10 o'clock on 13th February and returned to court with their verdicts at 15.56 that afternoon. All their verdicts of guilty were unanimous.