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England and Wales Court of Appeal (Criminal Division) Decisions
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Cite as:  EWCA Crim 1096
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Neutral Citation Number:  EWCA Crim 1096
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 9th May 2001
LORD JUSTICE KEENE
MR JUSTICE MACKAY
SIR BRIAN SMEDLEY
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Ruffell (appeared on behalf of the Appellant)
Mr Zeitlin (appeared on behalf of the Crown)
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As Approved by the Court
Crown Copyright ©
LORD JUSTICE KEENE:
1. On 31 March 2000 at Isleworth Crown Court before Mr Recorder Fisher Q.C., the appellant and his co-accused, Mr Mohammed Ali Mir were convicted of one offence of robbery. On 2 May 2000 they were each sentenced to 12 months detention in a Young Offender Institution. The appellant now appeals against conviction and sentence by leave of the single judge who also granted him bail. We announced at the end of the oral argument that the appeal against conviction was dismissed but that the appeal against sentence was allowed. We now give our reasons for our decisions.
2. Leave to appeal against conviction was granted on only one ground, namely that the appellant did not have a fair trial, because his solicitors did not properly prepare his case prior to trial. However, he also renews his application for leave to appeal on one other ground, namely that his trial was prejudiced as he was cross-examined by his co-defendant to his detriment and without warning. On 12 June 2000 another constitution of this Court allowed the appeal against sentence by the co-defendant Mr Mir and substituted a Detention and Training Order for 6 months.
3. There was no issue that a robbery took place on 19 August 1999. At about 12.40pm on that day a 17 year old student, Mr Nandra, was robbed of his mobile phone by a group of young men as he walked along a street close to Ealing town centre. It was the prosecution case that the appellant and his co-defendant Mr Mir were jointly responsible for the robbery with three others. The police were called and a few minutes after the robbery Mr Nandra identified the appellant and his co-defendant in a street identification as participants in the robbery. Mr Nandra's mobile phone was found in the appellant's possession. It was the defence case that these were mistaken identifications. The appellant admitted his presence at the scene but denied participating in the robbery. It was his account that he had been given the mobile phone by one of the men who had carried out the attack. It was his co-defendant's case that he himself was seventy five feet away when the robbery occurred and did not see it happen. Thus the issue for the jury was whether each defendant was a participant in the robbery.
4. The appellant was a person of good character with no previous convictions. The complainant in his evidence described passing a group of four young men in a passageway in Ealing called Barnes Pikle. He described two of the men in terms which fitted the age, ethnic appearance and height of the appellant and his co-defendant. He said that after he had walked past the group he heard shouts about the mobile phone which he was holding. He did not look back and turned left into a road called Mattock Lane. He then heard footsteps approaching from behind and felt a hand on his shoulder. He turned to see man 1, alleged to be the appellant, who said "All right, mate" and shook him by the hand. This man kept his other hand on the complainant's shoulder and so prevented him from walking away. The rest of the group then surrounded him and a fifth man appeared. The complainant said that he was held by all these men. Man 3, alleged to be Ali Mir, grabbed his left arm and demanded the phone, threatening to shoot him. Man 1 forced the phone out of his hand and the group then left, with man 1 and man 3 heading of towards the Ealing Broadway shopping centre. Mr Nandra asked a passer by to call the police. When the police arrived a few minutes later, Mr Nandra drove around with them to try to find his attackers.
5. The appellant and Ali Mir were stopped by the police and according to the complainant's evidence he immediately recognised them as man 1 and man 3 respectively. However, the descriptions previously given to the two police officers at the scene, as recorded in their notebooks, did not match the actual heights of the appellant and his co-defendant. According to the police evidence, Mr Nandra described man 1 as being 5' 4" in height, whereas the appellant was said to be 5'7" in height; and man 3 was described to the police as 5' 6" tall, whereas Ali Mir was 6' in height. The complainant did not accept when cross-examined that he had given the heights as recorded by the police, although he had signed the notebook. When he was cross-examined by counsel for the appellant, the complainant did not accept that man 1 had merely tapped him lightly on the shoulder, shaken his hand briefly and then dropped it. He maintained that man 1 had held on to his shoulder and his hand and that he had struggled. He denied that man 1 had then detached himself from the group and had been outside the circle.
6. Two other police officers gave evidence about stopping the appellant and Mir shortly after the robbery. When the officers searched the appellant they found the complainant's mobile telephone, although without its SIM card. They also found his own mobile phone. The appellant told the officers that the phone, which proved to be the complainant's mobile phone, belonged to his cousin. After arrest and caution the appellant said that he had been stopped by two black men who said "If you don't walk in a shopping centre, if you don't agree with what is said, we'll shoot you in the forehead".
7. The appellant was in due course interviewed. The account he gave then differed from his evidence in court in that he maintained during his interview that his co-defendant Ali Mir was present throughout the robbery. In other respects his account was broadly similar to that given in evidence. He admitted in interview that he had made up the story given on arrest, saying that he had done that because he was scared. Ali Mir initially denied in interview that he was present when the robbery took place. He subsequently admitted that he was in the vicinity and saw the group, but said that he did not witness the robbery taking place.
8. The appellant's evidence at trial was that he had gone into college that day in order to collect his examination results. Afterwards he left with his co-defendant Ali Mir to catch a bus. He saw three men who were drinking. He did not know them. They discussed the exam results together and then the three men walked off. According to the appellant, he started walking and overtook them. Then he noticed Mr Nandra walk past holding a mobile telephone. The appellant said that he could hear the men talking about a phone. Mr Nandra kept looking behind him and appeared unsettled so he went up to Mr Nandra, tapped him on the shoulder and said "Are you all right?" He replied "Fine". The three men came and surrounded Mr Nandra and the appellant realised that all was not well and moved back. One of the men who was tall and bulky demanded Mr Nandra's telephone and the other two helped. Mr Nandra gave up the struggle and handed his phone to the bulky man. Afterwards the bulky man forced the appellant to take the phone by shoving it into his hand and saying "Go". The appellant said that he was frightened because he had witnessed the robbery. He realised that this was his chance to get away, so he took the mobile phone. He then telephoned his friend Mir. They met and were both arrested shortly afterwards. He said that he had lied in interview when he said that Ali Mir was there at the time of the robbery and he had done so through panic. He was shocked because he was in a police station for the first time and did not know what he was saying.
9. Ali Mir's evidence at trial was that he had met the appellant before the robbery but was not with him when it took place. He saw the group of men around the complainant and saw a tall man with a beard take something from Mr Nandra. The appellant did not play any role. Mr Mir said that five or ten minutes later he met the appellant. Then the police arrived.
10. A female friend of Ali Mir's was called on his behalf. Faiza Iqbal said that she was at the scene of the robbery at the relevant time and Ali Mir was some distance away. She saw the appellant touch Mr Nandra's shoulder and a brief conversation followed. When the trio came up and stood around Mr Nandra the appellant moved away. The bulky boy then turned and shoved something into the appellant's hand.
11. That then was the evidence at trial. It is said now on behalf of the appellant that there was a lack of proper preparation and advice by his then solicitors, Gratian and Company, which resulted in his defence not being properly presented at trial. As a consequence he did not have a fair trial and his conviction is unsafe.
12. In considering this argument we have taken account of fresh evidence put before us about the preparation of the appellant's case before trial and indeed about the trial itself. We heard evidence from the appellant himself, from Mr Sandara Kumar of the solicitors Gratian and Company, and from Mr Anim-Addo, the appellant's trial counsel. We have also had the benefit of seeing the file kept by Gratian and Company on the appellant's case. Privilege was waived by the appellant.
13. To put all these matters into context a brief chronology would be helpful. The robbery and the arrest of the appellant and Ali Mir took place on 19 August 1999. There was an initial hearing at the Magistrates Court on 21 September 1999. On 26 October 1999, the two defendants were committed by the Magistrates for trial at the Crown Court. At committal, both defendants were represented by one counsel, Mr Johnson Offoh. There was a plea and directions hearing in the Crown Court on 6 December 1999. Sometime in January 2000 it was decided that the two defendants should be separately represented, and Mr Anim-Addo came on the scene as counsel for the appellant. A conference was arranged between him and the appellant for 25 February 2000, but for reasons to which we shall come, this did not take place. The trial was listed as a "floater" at Isleworth Crown Court for the 28 March 2000, on the morning of which day Mr Anim-Addo had a conference at court with the appellant. The trial only began in reality on the following day, 29 March 2000. On 31 March, both defendants were convicted and they were sentenced on 2 May 2000.
The evidence before us:
14. The appellant described how, after their arrest and release on bail, he and Ali Mir went to Gratian and Company, where they saw a solicitor, described by him as Mr Nirm. Thereafter they were dealt with by Mr Kumar, to whom they gave their account of events. They went frequently to his office at various times before the trial and each of them prepared a statement referred to as a "defence statement" which set out what had happened. Ali Mir told him to say in his defence statement that he, Mir, was not present at the robbery and for this reason the appellant had done that.
15. According to the appellant, there was never any discussion with Mr Kumar about what had been said by the appellant when interviewed. At interview by the police, he had stated that Ali Mir was present when the robbery took place and that was contrary to what now appeared in his statement. The appellant's evidence before us was that he told Mr Kumar that Ali Mir was present, but Mr Kumar told him not to worry about it, it was all under control.
16. The discrepancy between the account which he had given at interview and that which was set out in his statement was only raised with him just before trial by his counsel, Mr Anim-Addo. According to the appellant his counsel did not advise him about this during this conference, which lasted for only ten to fifteen minutes.
17. When cross-examined the appellant denied wanting to keep his trial a secret from his parents but he admitted that he had told Mr Kumar not to send letters to his home. This was because he did not want his father worried about it. He did not want his parents reminded about the forthcoming trial. There had been a conference with counsel arranged for 25 February 2000 well in advance of the trial. According to the appellant, he and Ali Mir attended for the conference at the solicitor's office and waited for two or three hours, but counsel did not turn up and eventually Mr Kumar told them to go. The appellant said that he also told Mr Kumar about CCTV cameras which would have recorded the robbery, especially a camera at the junction of Bond Street and High Street.
18. Generally the appellant was an unimpressive witness. We found his account of why he did not want letters sent to his home address impossible to accept, bearing in mind that if his parents were aware of the forthcoming trial, they would have been anxious about it in any event. In the light of other evidence we reject his account of what happened about the conference arranged for 25 February 2000. We are in general only prepared to accept his evidence where there is other evidence, such as contemporaneous documents, to support it. We do not accept that he told Mr Kumar about any CCTV cameras.
19. Sandara Kumar is the practice manager for Gratian and Company. He has no legal qualifications, although he has had twenty years experience of working with solicitors. However, in giving evidence he displayed a distinct lack of knowledge of criminal procedure, including concepts such as secondary disclosure, plea before venue and service of advance information. Although he has done cases in the Magistrates court, he had never before been involved in a Crown Court trial. According to Mr Kumar, he is supervised in his work by Mr Nirmalandan, partner in Gratian and Company, who is the person referred to by the appellant as Mr Nirm. But Mr Kumar told us that he had had the conduct of this case for most of the time. He maintained that Mr Nirmalandan had had a conference with the appellant and Ali Mir, at which the prosecution witness statements had been gone through. However, he was unable to explain why no attendance note for such a conference is to be found in Gratian and Company's file. Indeed, there are no attendance notes on file for any time spent by Mr Nirmalandan with the appellant.
20. Mr Kumar's evidence was that the appellant did not want letters about the case sent to his home, because he did not want his parents informed. Mr Kumar denied being told that Ali Mir had persuaded the appellant to tell a different story from that given in interview. Nor did he tell the appellant to say the same thing as Ali Mir in his statement. He said that he told the appellant to tell the truth. He had told the appellant to type his own statement, but Mr Kumar accepted that he had never read the statement once typed. If he ever became aware of any conflict between that statement and what the appellant had said at interview by the police, it was late on in the process, after the end of February 2000. He never gave any advice to appellant about that conflict, nor was he present when Mr Nirmalandan gave any such advice, if he ever did.
21. Mr Kumar had never seen the schedule of unused material in the case before it was put to him during this appeal. He never pursued any evidence that might have been obtained from the CCTV cameras. The appellant had not mentioned such cameras to him. The conference between the appellant and counsel on 25 February 2000 did not take place because the appellant did not turn up. Counsel was there and waited but eventually left.
22. For the most part Mr Kumar came across to us as an honest witness, and we accept his version of events in a number of respects. We believe him when he says that he did not tell the appellant to say the same thing as Ali Mir was saying in his statement and we accept that he told the appellant to tell the truth in the statement which he asked the appellant to type out. We also accept his account of what happened about the abortive conference arranged for 25 February 2000 and that the appellant did not mention CCTV cameras to him.
23. However, what cannot be accepted is that Mr Nirmalandan played any significant part in the preparation of this case for trial. There is a dearth of documentary material indicating that he did so. Nothing on this firm's file indicates that he did. It seems that Mr Kumar was the person from the firm principally involved in such preparations and any supervision exercised over him by Mr Nirmalandan seems to have been theoretical rather than practical. That is highly regrettable, because it is clear that Mr Kumar was out of his depth in dealing with a criminal case of this gravity. Moreover, his failure even to read the appellant's statement once prepared made the situation worse, because it meant that Mr Kumar was unaware of the serious conflict between that statement and what the appellant had told the police in interview. Mr Kumar never drew this conflict to the appellant's attention, never asked him for an explanation and never pointed out to him the dangers of giving evidence in court which differed in a material respect from what he had told the police. There is no evidence that Mr Nirmalandan ever did any of those things either, and we find that he did not. It is also clear that no steps were taken to discover whether the CCTV cameras had any useful evidence to provide, even though their existence should have been clear from the material served on the solicitors by the Crown.
24. Mr Patrick Anim-Addo of counsel gave evidence that he was first instructed in the case in January 2000. He received the papers not from Gratian and Company but from Mr Offoh. He had the prosecution witness statements and the interviews of both defendants, as well as in due course the appellant's own statement, the so-called "defence statement". Mr Anim-Addo read the papers and told the solicitors that he needed a conference with the appellant. One was arranged for 25 February 2000 at 5.30pm at the offices of Gratian and Company. However, according to Mr Anim-Addo, although he arrived in good time, the client was not there and he was told that he was not coming because of something to do with the college. He therefore left soon afterwards.
25. The trial was listed as a "floater" at the Crown Court for 28 March 2000, marked not before 12.00pm. The appellant, said Mr Anim-Addo, was due to meet him there at 9.30am but was about an hour late. Nonetheless, they had a conference for over an hour. During that time, according to Mr Anim-Addo, he went through with the appellant the witness statement of the complainant, taking instructions from him. He also went through the appellant's interview with the police, of which he had the transcript, and he warned the appellant that prosecution counsel would ask questions about the difference between what he had said in interview about Ali Mir being with him and what he was saying in evidence. The appellant replied that he was prepared for that and he did not seem surprised. He was asked by Mr Anim-Addo why he had told the police what he had, to which he replied that he had panicked. According to Mr Anim-Addo's evidence, the appellant told him in conference that Mir had not been there at the robbery. He did not say that he had changed his story because of what Mir wanted nor that he had told Mr Kumar this.
26. If the appellant had said that he had been told by Mr Kumar to say the same thing as Mir, then Mr Anim-Addo said he would have told him that he could not be represented by the same solicitors as Ali Mir. Counsel would also have sought an adjournment of the trial. But if in conference Mr Anim-Addo had been told by the appellant that what he had said when interviewed by the police was true, then that would (said Mr Anim-Addo) have made his task as counsel at trial much easier. It would have removed the conflict between what the appellant had said in interview and what he was saying in court.
27. At the end of the conference Mr Anim-Addo and the appellant saw Ali Mir and his counsel, Mr Offoh, who said to the appellant that he was going to put to him in court that what he had said to the police was a lie. The appellant, Mr Anim-Addo told us, was happy with that.
28. At 2.45pm that day the trial was adjourned to the next day without any jury having been sworn. According to Mr Anim-Addo, there was no shortage of time on 28 March to discuss the case with the appellant. The appellant's counsel was unaware of any reference to any CCTV cameras in the area of the robbery. The appellant, he said, never told him in conference of any such cameras and he had not himself seen the schedule of unused material. He had relied on the fact that Mr Offoh had already been dealing with the case before he had been brought in.
29. We found Mr Anim-Addo to be a credible witness and generally we accept his evidence. His stance, that counsel did sometimes have to make up for the deficiencies of their instructing solicitors in such legal aid cases, was clearly sincerely held and we accept that he would have been only too pleased to have been told by the appellant that what he had told the police in interview remained true. Moreover, there evidently was no lack of time on 28 March to discuss the case with the appellant. We find that the conference with the appellant on that date did last about an hour. We accept that during it Mr Anim-Addo did warn the appellant that to depart from the version he had given the police in interview would lead to a challenge to his credibility.
30. Finally, we heard from Detective Constable Collins, who dealt with the subject of the CCTV cameras in the area of the robbery. In particular, his evidence was that the tapes of the video recordings were kept for about a month, but that the camera at the junction of the High Street and Bond Street was unable to view the location of the robbery because of the trees in between. He personally had on the day of the robbery viewed the footage recorded by both that camera and by one at the northern end of Barnes Pikle at the relevant time. The film was not real time film but time lapse, so that a series of still photographs at intervals of between two and four seconds were taken. DC Collins found nothing of any assistance to the case one way or the other on the recorded material. There was no film of any group of people in Barnes Pikle or entering it nor of any robbery taking place.
31. On the basis of this evidence it was contended by Mr Ruffell on behalf of the appellant that there were serious defects in the preparation for trial by the appellant's solicitors with the result that the appellant did not receive a fair trial. It is argued that the appellant's defence was not put at trial as forcibly as could reasonably have been expected. In particular, the appellant was never advised by his solicitors in advance of trial that the change in his evidence from that account which he had given in interview to the police would open him up to cross-examination that would severely damage his credibility. In addition the failure by the solicitors to request the CCTV tapes was of significance, because those tapes might have revealed the suspects and the victim and would have assisted on such issues as identification and participation. Mr Ruffell submits that the deficiencies in the preparation of the case were not cured by the conference at court with Mr Anim-Addo. It is also contended that the appellant was prejudiced by the fact that he was cross-examined by counsel for Ali Mir to his detriment, with counsel for the co-defendant making repeated references to the appellant having lied in his interview by the police. This last contention relates to the ground of appeal in respect of which there is a renewed application for leave before this court.
32. On behalf of the Crown Mr Zeitlin emphasises that there was a very strong case against the appellant in any event. The defendant's account of how he had behaved and how he had obtained the mobile phone belonging to the complainant was contrived and difficult to believe and on his own admission he had lied to the police when first stopped and had given a false account subsequently when he had been interviewed by the police. He had been identified very shortly after the robbery by the victim.
33. As to the fairness of the trial, it is submitted that, while the solicitors did behave in a less that competent fashion in preparing for the trial their deficiencies were cured by the advice and actions of counsel at the lengthy conference before the trial actually began. The appellant was well aware of the potential consequences which he would be running by departing from the version of events which he had given to the police in interview. The CCTV cameras were always unlikely to have revealed anything of any materiality, because of the trees in the way of the camera which was nearest to the scene of the robbery. Moreover, the evidence of DC Collins confirms that nothing of value was to be seen on those tapes. It needs to be borne in mind that the issue at trial was a very narrow one, because the appellant admitted putting his hand on the shoulder of the complainant, but denied doing so in order to restrain the complainant while the others came and surrounded him. Again, it was always unlikely that a video recording, particularly of the kind used here, would have helped to resolve that issue, even had the scene been recorded. Overall it is submitted on behalf of the prosecution that the trial was a fair one and that the conviction is safe. So far as the additional ground on which the application for leave is renewed, it is argued that there had clearly been a warning beforehand by counsel for the co-defendant that he was proposing to cross-examine on the conflict between the interview version and the version given in evidence by the appellant. Moreover, if Mr Offoh had not cross-examined on that topic, counsel for the prosecution would have done so in any event.
34. We have already indicated that we find that the appellant's solicitors did fall below the level of reasonably competent solicitors in the way in which they prepared this case for trial on behalf of the appellant. That however is not enough to determine this appeal against conviction. The mere fact that an appellant's solicitors may have failed to carry out their duties to the appellant in a proper manner does not itself mean that a conviction is automatically unsafe. Nor is a conviction to be quashed as a means of expressing the court's disapproval of the solicitor's failures. The test is whether, in all the circumstances, the conviction is safe. Nonetheless, if such failures have prevented an appellant from having a fair trial, within the meaning of Article 6 of the European Convention on Human Rights, that will normally mean that the conviction is unsafe and should be quashed: Togher  CLR 124.
35. Therefore the first question is whether the appellant received a fair trial or whether such a trial was prevented by the failings in preparation on the part of his solicitors. Such an issue is to be determined by considering the proceeding as a whole, as the jurisprudence of the European Court of Human Rights makes clear, and it follows that one cannot confine one's attention merely to the solicitor's preparations in isolation. As this court said in Nangle [unreported but dated 1 November 2000] if the conduct of an accused's legal advisors has been such that the objective of a fair trial is not met, then this court may be compelled to intervene.
36. There are two areas where the solicitors' lack of preparation of the case could potentially have prejudiced a fair trial of the appellant. The first is that of the conflict between the appellant's version in interview by the police and the version which he gave in evidence at trial and the second concerns the failure to seek any CCTV evidence. We shall take those two matters in that order.
37. The conflict between the two versions of events given by the appellant, in particular in respect of the presence or absence of Ali Mir at the scene of the robbery, cannot have helped the appellant's credibility in the eyes of the jury and his credibility was clearly fundamental to his case. His explanation of his possession of the stolen phone was inherently difficult to believe, but the more that his credibility was damaged by other factors the less likely was the jury to accept his explanation. This conflict between his evidence at the trial and what he had said at interview was foreshadowed in the statement which he had drawn up in February 2000, and which Mr Kumar did not read.
38. It is important to note that it is agreed that this statement drawn up by the appellant, in which he said that Ali Mir was not present at the scene, was not sent to the Court or served on the Crown. Though described sometimes as a "defence statement", it was not such a statement as is required under section 5 of the Criminal Procedure and Investigations Act 1996. It was simply a proof of evidence intended to be used by counsel at the trial. Consequently it had not been disclosed to the prosecution and did not tie the appellant in any way to the version of events contained in it. He could have reverted at trial to the account given by him in interview to the police.
39. Undoubtedly his solicitors acted in an incompetent fashion by not exploring with him in advance the conflict between the two versions and warning him of the problems which that created. But we are satisfied that his counsel did warn him in conference before the trial got under way of the consequences of putting forward the version contained in his statement. The appellant must have been well aware of the risks he was running and in particular how he was opening himself up to cross-examination by the prosecution on the discrepancy between his two versions of events. He could at that stage still have told what he now maintains was the truth, namely that Ali Mir was present at the time of the robbery. This is particularly so in the situation where the conference with counsel took place the day before the trial in effect got under way, rather than on the day of the trial itself. Moreover, it was in our judgment a thorough conference, not one which had to be rushed, and we accept the evidence given by Mr Anim-Addo on the matters covered during the course of this conference. In these circumstances, while the failure on the part of his solicitors to bring the potential risks to his attention in advance is to be deplored, we conclude that in the event no prejudice was caused to the appellant by this failure. Looking at the matter as a whole, it is clear that the appellant received proper legal advice from his counsel in advance of the trial in sufficient time and with sufficient force to make him well aware of the risks which he was running in departing from the version of events which he had provided in his interview to the police.
40. The solicitors undoubtedly failed to investigate whether any worthwhile evidence was available by means of the CCTV cameras located in the area where the robbery took place. However, we accept the prosecution's submission that the issue at trial was always unlikely to have been resolved by the sort of film which was potentially available from such cameras. The issue was a narrow one in terms of the physical acts performed by the appellant and given the nature of the photographs taken by these cameras, there was always only a limited prospect of anything material being discovered. The appellant himself admitted putting his hand on the complainant's shoulder; the real question was why he did that and whether the complainant found it difficult as a result to get away.
41. In any event on the basis of the evidence of DC Collins, which we accept, neither of the cameras which potentially might have assisted had any relevant material on them. The one which was most likely to have recorded events at the location of the robbery had its view of that location obscured by trees. While one does not expect a defendant's lawyers simply to rely on the police interpretation of video film, in the present case there is no reason to believe that such film would have revealed anything which would have assisted the appellant's case in any way. This therefore is a theoretical point only. The appellant's solicitors were remiss in not seeking the tapes, but all the evidence indicates that the video tapes would have been of no help to the appellant's case.
42. Looking at the matter in the round, we conclude that the shortcomings on the part of the appellant's solicitors, reprehensible though they were, did not prejudice the appellant in the way in which his defence was advanced at his trial, nor did they deprive him of a fair trial. There was a very strong case against him in any event. The mobile phone belonging to the complainant was found on him very shortly after the robbery. He was identified by the complainant within minutes of the robbery. The complainant gave evidence at trial that the appellant took the phone from him, having previously restrained him from getting away from the group as a whole. The explanation proffered by the appellant of why he had the complainant's mobile phone on him when stopped by the police was extremely weak and inherently unlikely to be believed by the jury. In addition the appellant had told a number of lies to the police at the time of his arrest which inevitably must have undermined his credibility. All that evidence is relevant in determining whether his trial was fair when looked at as a whole and in determining whether his conviction is safe.
43. The point raised in the renewed application for leave to appeal, namely that he was cross-examined to his detriment by counsel for his co-defendant without warning, is without merit. That cross-examination was understandably directed towards establishing that Ali Mir was not present at the time and scene of the robbery. The appellant had already said as much in his evidence at trial. It is true that counsel for the co-defendant referred to the appellant's statement to the contrary in his interview by the police as having been lies, but we can see no unfairness arising from this. Those statements, according to the appellant, were certainly untrue, though they may not have been deliberate lies on his part. Even so the appellant when cross-examined gave explanations as to why he had made those false assertions. In other words, he had the opportunity to explain what he had said and he took that opportunity, so that the jury had his explanations before them. Vigorous cross-examination on behalf of a co-defendant is far from unknown in criminal trials and is not inherently unfair. Moreover, in the present case the appellant had actually been warned in advance of the trial by counsel for Ali Mir that he was going to be cross examined along these lines. There is nothing in this point and the renewed application for leave to appeal on this ground is refused.
44. For these reasons we are satisfied that the conviction of this appellant is safe and the appeal against conviction is therefore dismissed.
Appeal against sentence:
45. The appellant also appeals against his sentence of 12 months detention in a Young Offender Institution. As indicated at the end of oral argument, we allow this appeal for the following reasons.
46. The appellant is now aged 19. Both he and his co-defendant were aged 17 at the date of the offence. The appellant was a person of previous good character and was a student at a college in Ealing.
47. This was undoubtedly a frightening attack by a group of young men in public on a vulnerable individual and it merited a custodial sentence. As there was no plea of guilty, no discount on sentence is due to him on such a basis.
48. The trial judge took the view that no distinction was to be made between the appellant and his co-accused, Ali Mir. That is an approach with which we agree. It is therefore relevant that the sentence of 12 months detention on Ali Mir was quashed by another constitution of this Court and a 6 months Detention and Training Order substituted therefore. That reduction in sentence was made because the court took the view that the robbery appears to have been out of character and that no injuries were inflicted and no weapons were used in the attack. Those factor appear to us to be relevant, and it would seem to be unjust in all the circumstances were this appellant to have to serve a longer sentence than his co-defendant when no material distinction can be drawn between them. In all the circumstances we concluded that the sentence of 12 months detention in a Young Offender Institution was too long and should be quashed and in its place we will substitute a sentence of 6 months detention in a Young Offender Institution, the appellant being 18 at the date of conviction. To that limited extent the appeal against sentence is allowed.
MR JUSTICE MACKAY:
49. I agree.
SIR BRIAN SMEDLEY:
50. I agree.