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Cite as: [2004] EWCA Crim 2910

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Neutral Citation Number: [2004] EWCA Crim 2910
No: 2003/1979C3


Royal Courts of Justice
London, WC2
Wednesday, 27 October 2004

B e f o r e :





Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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MR M BOWYER appeared on behalf of the APPELLANT
MR C AYLETT appeared on behalf of the CROWN



Crown Copyright ©

  1. LORD JUSTICE CLARKE: This is the judgment of the court.
  2. On 14th February 2003, after a trial in the Central Criminal Court before His Honour Judge Boal QC and a jury, the appellant Mr Grant was convicted of murder and sentenced to life imprisonment on 14th March. He was also convicted of conspiracy to cause grievous bodily harm, as were Hilton and Young. They were acquitted of murder. Mr Grant was sentenced to 10 years' imprisonment concurrent for the conspiracy to cause grievous bodily harm. Young and Hilton were sentenced to eight years and six years' imprisonment respectively for the conspiracy to cause grievous bodily harm.
  3. The trial lasted some considerable time, beginning in early October 2002 and ending on 14th February 2003. At the trial Mr Grant was represented under representation orders by solicitors and counsel. His counsel were Mr Tansey QC and Mr Hall.
  4. There were other co-defendants. Mr Rafiq and Mr Khan were acquitted of both conspiracy to cause grievous bodily harm and murder. Samantha Easton was convicted of the conspiracy and was sentenced to two years' imprisonment. Kelly Gale was acquitted of the conspiracy.
  5. Mr Grant now appeals against his conviction by the leave of the single judge, Simon J, who gave leave on one ground only, namely ground 2 in the original grounds. The single judge referred ground 4 to the full court. Mr Grant is now represented by Mr Bowyer, who has produced a helpful skeleton argument and has addressed the court orally today on behalf of the appellant. Mr Young and Mr Hilton appealed against their sentences by leave of the single judge but, as we understand it, their appeals were dismissed in July 2004.
  6. The facts are shortly as follows. Mr Young, Mr Hilton, Mr Rafiq and Mr Khan were doormen at Yates Wine Lodge in Hounslow. Mr Grant was a regular customer and was on friendly terms with the door staff. On Friday 8th March 2002 two Kosovans, Mr Ismaili and a friend, were ejected from the premises by a number of doormen including Mr Young and Mr Hilton for using foul language. At some stage Mr Ismaili sustained an injury and later received treatment for two cuts to his head.
  7. On the following evening, Saturday 9th March, Mr Ismaili and two others returned to the pub armed with bars or bats looking to take revenge on the door staff. A good deal of damage was caused which made Mr Young and Mr Hilton very angry. As a result they sought the address of Mr Ismaili, apparently in order to teach him a lesson.
  8. It was the Crown's case that at about 9 o'clock on the same evening, 9th March, having obtained what they wrongly believed to be Mr Ismaili's address, the four doormen and Mr Grant went to that address in order to beat up Mr Ismaili and thereby to cause him grievous bodily harm in retaliation for what he had done earlier. It was that agreement which formed the basis of the conspiracy count upon which Mr Grant, Mr Hilton and Mr Young were convicted. It was said that on arrival at the wrong house they kicked in the door and found the unsuspecting occupant, a 45-year-old chartered accountant called Mr Naresh Shah, and subjected him to a frenzied and fatal attack in which he sustained at least 11 separate knife wounds. The two knives used in the attack were thrown down a drain in nearby Bell Road as they made their way back to Yates. The Crown said that Mr Grant had earlier obtained the knives from the home of a friend of his mother's. As we have already indicated, the four doormen were all acquitted of murder but Mr Young and Hilton were convicted on the conspiracy count. Mr Grant was convicted on both counts.
  9. It was the defence case on behalf of Mr Grant that Mr Mr Young had phoned him on the Saturday evening and told him of the attack on Mr Hilton and asked him to go to Yates to act as backup in case there was further trouble. He later went with the four doormen to what proved to be Mr Shah's address, as he thought that Mr Hilton was going to call a truce or have a one-to-one with the Kosovans who had attacked them. He had not expected any violence. Once at the house one of the doormen had knocked down the door and Mr Rafiq had then attacked the occupant with a knife. He had tried to grab the knife and stop the attack but was unsuccessful and badly cut his own hand. He had then run out of the house. He did not attack Mr Shah, did not have a knife and did not discard any knife down a drain. His co-defendants, he said, had all lied in evidence against him in order to blame him for what they had done.
  10. It is not, we think, necessary to summarise the defences of Mr Young and Mr Hilton for present purposes, nor is it necessary to recite the evidence in any detail in order to resolve the limited issues in this appeal.
  11. There were initially five grounds of appeal. As already indicated, the single judge granted permission on only one ground and adjourned one other for consideration by the full court. Mr Grant does not seek to renew the other grounds so we say nothing about them.
  12. Ground 2, upon which the appellant was granted leave, raises the issue of severance and ground 4, the ground which was adjourned, complains about the terms of a Watson direction. We shall consider them in turn.
  13. Ground 2: severance.

  14. Mr Shah was killed on 9th March 2002. Some months previously, on 30th November 2001, an incident had occurred at an Indian restaurant. It has throughout been called the "Indian restaurant incident". Evidence of what had occurred during the Indian restaurant incident formed part of the unused material made available to the defendants in this case. The evidence included the evidence of a waiter called Mr Miah which was shortly to this effect. Mr Grant and another man had entered the restaurant shortly after it opened for the evening. Mr Grant asked to buy a bottle of Jack Daniels whisky. When it was pointed out to him that this was not possible he became racially abusive and started to throw things around inside the restaurant. Mr Miah retreated behind to bar. His evidence was that Mr Grant picked up two cutlery knives, one in each hand, and attempted to slash and stab at him over the bar counter. This had the result of causing a cut to his shirt. Other staff came to his aid and the two men were forcibly ejected. Once outside, a sign was thrown at the window causing it to shatter. The following night both men returned to the restaurant and made threats to the staff about going to the police.
  15. The Crown did not seek to adduce evidence of the Indian restaurant incident as part of its case. However, the jury came to learn of it in this way. The appellant Mr Grant was first on the indictment. He gave evidence on his own behalf. In interview he had said that once he was inside the house where the murder occurred he saw a man brandishing a knife. He tried to grab the knife and in doing so cut his hand. He then fled and did not witness the assault on Mr Shah. In the interview he did not identify the man he said was brandishing the knife. However, in the course of his evidence in chief he identified that man as Mr Rafiq, one of the co-accused. He said he had not named him in interview for fear of Mr Rafiq and his family. He also said in evidence that he had been threatened by Mr Young and Mr Hilton to keep quiet. They had said to him that they had "got away with it".
  16. It is accepted on behalf of Mr Grant that by virtue of that evidence he had "given evidence against" three of his co-accused for the purpose of section 1(3)(iii) of the Criminal Evidence Act 1898 (as amended) and that he had, as it is said, lost his shield against cross-examination by those co-accused as to his character. Thereafter he was cross-examined on behalf of both Mr Hilton and Mr Young. It was put to him that he had attacked Mr Shah with a knife in each hand. Some time later, at the conclusion of the cross-examination on behalf of Mr Hilton, an application was made to the judge which in the event was made principally by counsel on behalf of Mr Rafiq and supported by counsel for Mr Hilton and Mr Young for leave to cross-examine Mr Grant about the Indian restaurant incident and in due course to give evidence about what had occurred.
  17. In anticipation of those applications the judge had earlier invited and received skeleton arguments. We have not seen all those skeleton arguments but the arguments have been helpfully summarised by Mr Bowyer in this way. The submissions on behalf of the co-accused, that is to say Mr Rafiq, Mr Hilton and Mr Young, may be summarised in this way:
  18. 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.

  19. In contrast, the submissions made on behalf of Mr Grant were shortly these:
  20. 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.

  21. Before the judge the Crown took a neutral stance. It accepted that the evidence would not have been admissible as part of the prosecution case because, on its case and on the information then available to the Crown, there was no evidential basis on which it could have alleged that Mr Grant was the sole stabber and that he was armed with two knives. The Crown drew to the court's attention the distinction to be drawn between cross-examination as to credit, if evidence was admissible for the prosecution, and to cross-examination as to credit and propensity at the hands of the accused.
  22. The judge ruled as follows:
  23. 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" [1991] 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 [1998] AC 124.

  24. In the light of that ruling an application to sever the trial was made on behalf of Mr Grant. It was made on the basis that this was an exceptional case of the kind contemplated in R v O'Boyle (1991) 92 Cr.App.R 202, in that if the Indian restaurant incident was admitted in evidence, Mr Grant would inevitably be convicted and there would be no significant prejudice either to the co-accused or to the Crown if Mr Grant were tried separately.
  25. The Crown opposed the application for severance on the basis that it was settled law that in the absence of exceptional circumstances accused who were jointly charged should be tried together. There were no exceptional circumstances present. Mr Grant could give evidence and could cross-examine any witness called on behalf of the co-accused.
  26. Counsel for the co-accused all submitted that there ought not to be severance during Grant's cross-examination. At the very least the cross-examination, they said, should be concluded and the appellant asked questions relating to the earlier incident. Thereafter witnesses would be called in support whom the appellant Mr Grant could cross-examine. They accordingly opposed the application.
  27. There followed these exchanges before the judge in the absence of the jury:
  28. "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.

  29. Mr Grant's evidence then continued and he was cross-examined by counsel on behalf of Mr Rafiq about the Indian restaurant incident. Before that cross-examination, the judge informed Mr Grant of his right not to incriminate himself. In the course of his remarks the judge said this to Mr Grant:
  30. "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?
    ANSWER: Yes."

    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.

  31. In the event, Mr Grant declined to answer any questions relating to the Indian restaurant incident on the basis that the answers might tend to incriminate him. Those exchanges occurred on 12th December 2002.
  32. On 8th and 9th January 2003, as part of his case, Mr Rafiq called three witnesses to give evidence about events of 30th November 2001 at the Indian restaurant. He called Mr Miah to give evidence and he gave the evidence which we summarised earlier. Two other witnesses were also called on behalf of Mr Rafiq which bore upon the Indian restaurant incident but which it is not necessary to set out here. It is evident from the transcripts of the evidence of those witnesses that their evidence was tested in cross-examination by Mr Tansey, identifying where possible any inconsistencies but without asserting any positive case on behalf of the appellant.
  33. We will return in a moment to the way in which the judge summed the case up to the jury, but we turn first to the submissions which Mr Bowyer makes as to the events before the summing-up. Mr Bowyer submits that the judge erred in failing to sever Mr Grant's case from those of his co-accused, either at the time of the applications which we have described or at the end of Mr Grant's evidence, or at the conclusion of the Indian restaurant evidence. His principal submission appears to be that the right moment at which to have severed Mr Grant's case from the others was either at the end of Mr Grant's evidence or at the end of the Indian restaurant evidence which we have described.
  34. Mr Bowyer correctly concedes, first, that defendants jointly charged ought in the normal course of events to be tried together and, secondly, that an application for severance is a matter for the discretion of the trial judge and that it is only in exceptional circumstances that this court will interfere with the exercise of that discretion -- see for example R v Grondowski and Malinowski [1946] 1 KB 369; R v Robert Lake (1977) 64 Cr.App.R 172; R v Cairns, Zaidi and Chaudhary [2003] 1 Cr.App.R 662; see also R v Randall [2003] UKHL 69 per Lord Steyn at paragraph 16.
  35. In the course of his written submissions Mr Bowyer submitted that the difficulty which Mr Grant faces in this appeal is that the judge did not give reasons for stating that he was against the submissions of Mr Tansey, so that Mr Grant does not know what factors influenced the exercise of the judge's discretion. In so far as that narrow point is made, we are unable to accept it. In our view it is quite clear why the judge rejected severance during Mr Grant's cross-examination and before the Indian restaurant evidence was called. Mr Grant had already given a great deal of evidence in the trial. Much of that evidence impacted directly on the cases of the co-accused. It would not have been just to sever the trials and stop Mr Grant's evidence before it was finished and he had been asked all relevant and proper questions on behalf of the co-accused. It was no doubt for that reason that Mr Tansey said that he could see the attractiveness of the proposition that Mr Grant should be further cross-examined and the Indian restaurant evidence called.
  36. We now turn to the question whether the court should have severed the indictment at some stage. We do so on the assumption that the fact that Mr Tansey did not return to the question of severance later is not fatal to an appeal on this ground. In his skeleton argument, and indeed in his oral submissions, Mr Bowyer does not challenge the judge's rulings as to the cross-examination of Mr Grant or indeed as to the admissibility of the Indian restaurant evidence which was called. He recognises that similar fact evidence is admissible and he further recognises that in a cut throat defence case a trial judge has no discretion to exclude evidence, including that of propensity to commit crimes of a certain kind at the hands of one accused against a co-accused, so long as the evidence is relevant to an issue in the case. That last point was expressly confirmed by the House of Lords in the case of Randall to which we have just referred -- see also R v Myers [1998] 2 AC 248.
  37. In these circumstances, Mr Bowyer does not, as we understand it, challenge the judge's decisions relating to either the cross-examination or admissibility, but makes these submissions on severance.
  38. 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 [2004] 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.

  39. As we have indicated, Mr Bowyer correctly concedes that it would be wholly exceptional for a trial judge to exercise his discretion to order separate trials in a case of this kind. It is almost always in the public interest to have one trial with all the alleged conspirators or parties to a joint enterprise before the court. In our view that is so both before and after the Human Rights Act 1998 came into force. It is of course always subject to the overriding considerations that each defendant must have a fair trial, as that expression is understood in the jurisprudence.
  40. As we have indicated, the judge held that the proposed cross-examination was permissible and that the Indian restaurant evidence was admissible. That is not now in dispute. Provided that Mr Grant had an opportunity to give such evidence as he wanted and to cross-examine the evidence called on behalf of the co-accused, we cannot see that there is any unfairness to him as long as the judge summed up the matter fairly to the jury. He had the opportunity to give such evidence as he wanted. It was a matter for him whether he answered questions about the Indian restaurant incident. He was entitled, but not bound, to rely upon the privilege against self-incrimination if he took the view that his answers might tend to incriminate him. As in the case of a defendant who exercises his right to silence, that fact cannot be held against him. But in principle, in the ordinary case, it leaves the evidence which is given as admissible evidence against him or any other defendant, depending of course upon the nature of the evidence.
  41. In this case Mr Bowyer complains in his skeleton argument that the judge did not but should have directed the jury not to hold the fact that Mr Grant refused to answer questions in reliance upon the privilege against self-incrimination against him. It is true that the judge did not give the jury an express direction to that effect, but in our judgment he gave as favourable a direction from Mr Grant's point of view as he could possibly have done. The judge could have directed the jury that the Indian restaurant evidence was evidence against Mr Grant on the basis that it was similar fact evidence. It was evidence in the case which Mr Bowyer does not submit was inadmissible against Mr Grant, even though the Crown could not originally have relied upon it because it was unaware of the evidence that Mr Grant had wielded two knives.
  42. Equally, if the evidence had been admitted on the basis that it was evidence of propensity, it is plain from the decision of the House of Lords in Randall that it would have been evidence against Mr Grant -- see paragraph 35 of the speech of Lord Steyn where he said this:
  43. "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.

  44. The judge told the jury to disregard the Indian restaurant evidence in the case altogether, so far as the case of Mr Grant was concerned. The judge first reminded the jury that he had told Mr Grant that he was entitled to refuse to answer any question, the answer to which, in his view, might tend to incriminate him and that he had exercised that right. The judge added:
  45. "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."
  46. Pausing there, it might appear that the judge was saying that the Indian restaurant evidence was relevant and important in the cases of both Mr Rafiq and Mr Grant. However, there follows what in our opinion is an important part of the summing-up in Mr Grant's case. The judge said:
  47. "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.

  48. When the judge later came to sum up the Indian restaurant evidence itself, he again told the jury in clear terms not to put it into the scales against Mr Grant. Also, in considering Mr Rafiq's case, but not that of Mr Grant, he said:
  49. "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."
  50. Mr Bowyer says that the judge's approach made the jury's task impossible because it was not possible to keep each of these parts of the evidence in watertight compartments. He further submits that the part of the summing-up just quoted could not be faulted so far as it goes, but that it does not distinguish between the privilege against self-incrimination and the circumstances in which adverse inferences can be drawn from a failure to mention something when questioned which is later relied upon in court.
  51. We have carefully considered those submissions but are unable to accept them. We do not underestimate the problems for juries and indeed judges in complex criminal cases of this kind where there are a number of defendants running cut-throat defences. However, we see no reason why the jury should not be able to apply specific directions of this kind with regard to particular defendants. As the judge pointed out in one of the passages we have just quoted, juries must on occasion put evidence into watertight compartments. As he said to the jury:
  52. "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.

  53. We see no reason why the jury should not have been able to disregard the Indian restaurant evidence when considering Mr Grant's case, but not when considering Rafiq's case, especially when they were expressly told that the Crown was not relying upon the evidence in Mr Grant's case. We do not think that any further directions were required by way of warning the jury not to hold Mr Grant's relying on the privilege against him. It might in many cases be necessary but it was not necessary here where the judge was directing the jury to disregard all the Indian restaurant evidence when considering Mr Grant's case. Moreover, we do not think that there was any need for the judge to distinguish between the privilege against self-incrimination and the circumstances in which adverse inferences can be drawn from a failure to mention something when questioned which is later relied on in evidence. This was not the case on this aspect of the evidence, although it was, as Mr Bowyer rightly observes, in other parts of the summing-up with regard to other parts of the evidence.
  54. We have reached the conclusion that the judge was wholly justified in allowing the trial to proceed against all the defendants while the evidence was being given. We have already indicated our view that it is not surprising that Mr Tansey said what he did. Moreover, it is not in our view surprising that he did not renew his application for severance at the end of the Indian restaurant evidence. It would have been a remarkable step to sever the trial of Mr Grant at that stage. In our view there was no warrant for doing so.
  55. Mr Bowyer submits that there would be no prejudice to the Crown or to any other of the co-accused if there were severance at that stage. In our view there would be likely to have been serious problems from the point of view of the other accused if there had been a severance of the trial at that stage. It seems not unlikely that other defendants, including perhaps Mr Rafiq, would have asked for the jury to be discharged and a new trial. There would have been very serious difficulties as to how to treat evidence which had already been given. For example Mr Grant had said in evidence that Mr Mr Rafiq had a knife, and there was a good deal of other evidence which was probative of the case against Mr Mr Rafiq which would not have been given if there had been an earlier severance. Problems would have arisen as to how the matter should then be dealt with.
  56. The key point taken, however, by Mr Bowyer is that there was irremediable prejudice to the appellant Mr Grant in continuing with the trial against him. We are entirely unpersuaded by that submission, persuasively though it has been advanced. We were referred to the classic decision of this court in O'Boyle (to which we have already referred). That was indeed a striking case. The striking feature of the case was, however, that Mr O'Boyle had made a confession in America which would not have been admissible against him in an English court at the suit of the Crown. It became admissible because of permissible cross-examination by a co-defendant. It was a case in which the Lord Chief Justice, giving the judgment of the court, said was a "wholly exceptional if not unique case". The court plainly took the view that if the confession remained before the jury, the jury would be quite unable to put it out of its mind and we quite understand that. However, this appears to us to be an entirely different case. The Indian restaurant evidence was not inadmissible against Mr Grant. It was admissible against Mr Grant. Moreover, he had every opportunity to deal with it. He could explain it, he could accept it, he could deny it. He could give his explanation of what happened at the Indian restaurant if he chose. It was entirely a matter for him. It was rightly pointed out on behalf of the Crown that in this trial Mr Grant was facing a charge of murder and conspiracy to cause grievous bodily harm, whereas in the proposed Indian restaurant trial he was charged with the much lesser offences of affray and racially aggravated criminal damage, serious though those were. We see no injustice to Mr Grant in allowing the matter to go before the jury in the way in which it did. We are not surprised that Mr Tansey did not apply subsequently for severance. He may have thought that such an application would have been doomed to failure.
  57. Stepping back from the whole matter and asking whether there has been a trial fair to all the protagonists, we are firmly of the view that the trial was fair to all the protagonists. We only add that, although we have not reviewed the evidence here, because it is not necessary to do so in order to resolve these issues, there was ample evidence against Mr Grant which justified the jury's verdicts of both murder and indeed conspiracy, quite apart from the Indian restaurant evidence. Subject to the Watson direction point, to which we now turn, there is in our view no basis for concluding that Mr Grant's conviction is other than safe.
  58. The Watson direction.

  59. The single judge did not grant leave to appeal on this point but referred the application to the full court. The point arises in this way. The jury retired to consider their verdicts at 11.11 am on 30th January 2003, after what had been a long trial until then. During their deliberations the judge received a number of notes from them. He received one on the afternoon of Monday 10th February. It was a note of the kind the contents of which it is not appropriate to discuss with counsel. In the light of the note the judge decided to give them a majority direction on Tuesday 11th February. It was something he had in any event been considering doing. He gave them that direction on that day. No complaint is made about the majority direction, either as to its timing or to its terms.
  60. On the morning of Wednesday 12th February, the judge told counsel that he was beginning to consider whether it was now right or would be right quite soon to give them a Watson direction. He said that he had thought that he might wait until the next morning, but he was beginning to think that if he heard nothing by immediately after lunch that might be the time for such a direction. The judge had received at least one further note since he gave the majority direction. He received yet a further note from the jury just before 1 o'clock. Just after 2 o'clock the judge told counsel that he had received the note but did not divulge its contents because again it was the type of note the contents of which this court has said should not be disclosed.
  61. He gave counsel a draft of his proposed Watson direction which he then slightly amended and invited submissions from counsel. It was in very slightly different terms from the standard Watson direction. The standard direction reads:
  62. "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."
  63. The judge was aware that the Judicial Studies Board commentary states that this court has stressed the need for judges to confine themselves to the wording in the standard direction and not to add anything in it. Mr Bowyer stresses the same point -- see Watson 87 Cr.App.R (S) 1 at 8, per Lord Lane, CJ; Lucas [1991] Crim.L.R 844; Buono (1992) 95 Cr.App.R 336; Morgan [1997] Crim.L.R 593 and Holt (unreported). The judge however said that he was of the view that no direction could ever be such that it is not to be amended if circumstances permit. We agree. In our judgment the position is that judges should follow the direction and not in general add anything to it, but that that is not an absolute rule admitting of no exceptions whatsoever.
  64. This was in many ways a most unusual case. By the time the judge suggested a Watson direction the jury had been considering their verdict for over forty-nine-and-a-half hours. The judge asked counsel to consider his proposed direction and make submissions on it. Counsel for the Crown suggested that in the preamble which the judge proposed before the direction itself, it might be appropriate to add something which the judge had previously stressed to the jury, namely that there was no pressure of time. Mr Tansey told the judge that he agreed with that suggestion and that he had no objection to a Watson direction being given at that stage. He added that he always thought it was desirable to tell the jury that they were under no pressure as to time. Some other counsel agreed, but not everyone. A number of submissions were made on behalf of other defendants.
  65. In the event, the judge decided to give a modified Watson direction straightaway. Before doing so he recalled before the jury that he had received a note from them on the afternoon of Monday 10th February. He said:
  66. "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.

  67. Mr Bowyer submits that the convictions of Mr Grant are unsafe because of the addition of the words at the end of the Watson direction to which we referred earlier. Those words were: "but, equally, if at least 10 of you reach agreement, it is your duty to say so by way of verdicts." Mr Bowyer submits that the inference to be drawn from the addition of those words is that the judge must have inferred from the jury note or notes that some members of the jury felt that undue pressure was being brought to bear on them by other members of the jury. He asks rhetorically "If that is not so why amend the standard direction?" We are unable to accept that submission. In our judgment, Mr Tansey was correct not to take this point when the proposed direction was suggested by the judge. The judge had made it clear to the jury in the past that they were not under any pressure. He did so again at counsel's suggestion just before he gave the Watson direction. The words added at the end of the direction did not in our opinion arguably place pressure on the jury; they simply stated what in our view was the obvious.
  68. In any event the jury considered their verdict for well over a further day before returning their verdicts. Moreover, all the verdicts of guilty were unanimous verdicts, including those in the case of the appellant Mr Grant. Even if the judge fell into error in adding the words complained of, which in our opinion he did not, there is no arguable basis for saying that the convictions were unsafe as a result. It follows that this application is refused.
  69. For the reasons given earlier, although we are indebted to counsel for their submissions, this appeal is dismissed.

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