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Cite as: [2006] EWCA Crim 161

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Neutral Citation Number: [2006] EWCA Crim 161
Case No: 200403103 C2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Mr Justice Gage
T2004 7064 T2003 7628 T2003 7659

Royal Courts of Justice
Strand, London, WC2A 2LL
22/02/2006

B e f o r e :

THE PRESIDENT OF THE QUEENS BENCH DIVISION
MRS JUSTICE DOBBS
SIR DOUGLAS BROWN

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Between:
R

- v -

Azam & ors

____________________

Richard Latham QC for the appellants
Stuart Rafferty for the Crown
Hearing dates: 31st January 2006

____________________

HTML VERSION OF JUDGMENT
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Crown Copyright ©

    President of the Queen's Bench Division:
     

  1. At about 10.55 pm on 29th October 2003 Ishrat Khan (Khan), then aged 20, was the victim of a murderous attack in Greenwood Road, Sneinton, Nottingham. The attack was carried out by a group of men armed with hammers and a gun. Khan received blows from the hammers and worse, he was shot twice. He was admitted to the Queen's Medical Centre at Nottingham where, thanks to the skill and energy of those who were working that night, his life was saved. His survival was little short of a miracle.
  2. On 19th May 2004 at Nottingham Crown Court, before Gage J (as he then was) and a jury, these appellants were convicted of attempting to murder Khan. Aseet Hussain (Hussain) was born in June 1981. He was sentenced to 20 years' imprisonment. Emaan Altaf (Altaf) was born in October 1976. He was sentenced to 19 years' imprisonment. Usman Azam (Azam) was born in June 1987, and was sentenced to 11 years' detention under s 91 of the Powers of Criminal Courts (Sentencing) Act 2000. They appeal against conviction with leave of the full court. Renewed applications for leave to appeal against sentence in respect of the appellants were referred to the court dealing with the appeals against conviction.
  3. Khan was not meant to survive the attack, but he did, and he recognised the three appellants as his attackers. Hussain and Altaf were very well known to him, and indeed he was well known to them. He and Azam knew each other much less well. All three appellants denied any involvement in the attack. Save possibly in the case of Azam, there was and could be no question of a mistaken identification. The essential defence was that Khan was deliberately lying.
  4. The Crown was represented by experienced junior counsel. Each appellant was represented at trial by leading counsel, supported by junior counsel. As there was no conflict of interest, or possibility of forensic embarrassment, when giving leave to appeal the full court ordered that the appellants should be represented by a single leading counsel, and Mr Richard Latham QC has appeared on behalf of them all. We are grateful to him for his assistance.
  5. In the circumstances of this case, a detailed narrative of the essential facts is unnecessary. Khan said that he and Hussain had known each other since they were children. He called Hussain by his nickname, "Cookie". He had known Altaf, by nickname "Marnie", for about 15 years. There was some animosity between him and Hussain, but he was on friendly terms with Altaf. He had not known Azam, who he knew only as "Gangoo" for long, and did not associate with him, but, shortly before the shooting, he had twice been with him in a car.
  6. As the judge was to observe in his sentencing remarks, Khan himself was a violent man, with a serious criminal record, prone to behave in a drunken violent way. These considerations enabled the defence strenuously to challenge his credibility, and to suggest that although no particular individual with a motive to attack him could be identified by them, Khan's behaviour would undoubtedly have meant that there were many people with a motive to carry out a murderous attack on him.
  7. Coming to the period immediately before Khan was shot, he gave evidence that he had seen Azam in a parked car, and "persuaded him" to give him a lift by issuing threats and "slapping" or touching him. On 26th October he and a friend went to a drinking party in a room at the Holiday Inn in Nottingham. Hussain was there. There was some argument, and antagonism between them. At first he said that Azam was present at the same time, and later agreed that he was not.
  8. On 29th October Khan met Hussain and Azam. They took him in a J registered blue Vauxhall estate car to see Altaf. When they arrived, Hussain became very aggressive and tried to attack him with a crowbar, which Altaf prevented. He was then driven home, Altaf having warned him to leave Hussain and Azam alone. Thereafter, he joined up with and drank very heavily with two friends or relatives.
  9. Shortly before 11.00 pm Khan was driven by his drinking partners to Greenwood Road. He was sitting in the car with them, under the influence of alcohol, when he became aware that a blue Vauxhall estate car had pulled up in the street immediately in front of the parked car which he then occupied. Four men jumped out of it. They were wearing balaclavas, but he immediately recognised two of them as Hussain and Altaf, and also recognised Azam, from their body shape. He, together with his friends, got out of the car because they believed there would be a fight, but Hussain pulled a gun out and pointed it at him. Altaf hit him over the head with a hammer. Hussain fired two shots which injured him. One penetrated his arm, and the other went through and out of his chest into the tarmac. Hussain continued to shoot at him as he fell back. After about four shots were fired the gun jammed. Hussain cocked it and ejected a bullet, and tried to shoot again, pointing the gun at Khan's face, but it did not fire. Hussain and Altaf then lifted the balaclavas from their faces, according to the Crown, to let Khan know just before he died who his killers were. Azam hit him over the head with a hammer, saying something like, "This is for messing with me". Khan recognised Azam's voice, but Azam did not remove his balaclava. As he lay on the ground, the four men ran off to their car which drove away. Khan himself was taken to the Queen's Medical Centre with life-threatening injuries.
  10. A live bullet was found at the scene. Together with other items, which were subjected to forensic examination, and taking into account the damage to Khan's clothing, in particular his jacket, and the injuries found on his body, there could be no doubt that he was indeed attacked in the way in which he described, at the place where he said it took place. Two witnesses with a fairly distant view of the incident gave slightly differing descriptions on it. A taxi driver saw a man lying in the road, covered in blood, with four men standing over him. He described one as wearing a balaclava, and from the brief sight he had of them, he thought that two of them were white. He saw two cars parked nearby, which he could not identify. His passenger described two men standing by the man who was prone, one of them was of Asian origin, and the other was wearing a balaclava. She made the 999 call to the police.
  11. The two relatives who were with Khan in the car immediately before he was attacked made witness statements. Neither was available to give evidence at trial, and no application was made for their witness statements to be read to the jury.
  12. There was a good deal of important evidence which, in the end, produced a series of admissions by each appellant. Hussain owned, or had very recently owned a blue Vauxhall estate car, registered number, J419 YCJ. At 8.30 pm on 28th October Azam was driving it, when it was stop-checked. He gave a false name, and a false date of birth. He was driving it again at about 8.53 pm on 29th October, when he bought petrol at a service station in London Road Nottingham. At the time he was carrying two or three passengers.
  13. At about 10.14 pm on the same evening, bricks were used to break three of the windows at 93 Sneinton Dale, Sneinton, Khan's home address. The damage was caused by two men who were wearing dark coloured, hooded tops, and one of them was heard to shout, "Khan, we are coming for you". They had come in the same blue Vauxhall, and after throwing the bricks, they returned to the car driven by Azam, who had the engine running throughout the incident. At about 9.30 pm the same car was stopped in Forest Row, Radford, Nottingham. Azam was carrying three passengers. When asked to provide details, he gave the same false address and date of birth as he had previously, identifying his own brother, who had nothing to do with the vehicle. He provided a positive sample of his breath, and was arrested and taken to Bridewell Police Station, where he was processed in the false name he had given. In due course, after providing two negative samples of breath, he was released at 10.14. In the meantime, the keys to the blue Vauxhall had been retained by the officers who arrested him. They returned the keys to Azam when he was released.
  14. At about 1.15 on 30th October, the blue Vauxhall estate was found in a lay-by on Holme Road, West Bridgeford, Nottingham. The interior had been set alight. Its theft, or loss, was never reported to the police.
  15. On 3rd November, documentation relating to the car was recovered from a wall unit by police officers conducting a search of Hussain's home. The evidence relating to this car, its movements on 29th October, the correspondence between the car and the car which brought Khan's attackers to the scene, and the attempt at its destruction shortly after the attack on him were significant features of the Crown's case, and were said strongly to support the accuracy of Khan's identification of three of those directly responsible for the attack on him.
  16. Hussain was arrested on 3rd November 2003. During the following afternoon tape recorded interviews were conducted. He denied any involvement in the attack, and identified witnesses who would support an alibi. He told what the Crown suggested was a significant lie in interview, denying that his nickname was "Cookie". By doing so, he was seeking to distance himself from the attack. In due course, Hussain gave evidence. His defence was alibi. He was in a car at the Queen's Medical Centre at the relevant time, waiting in the car, while one of his friends accompanied another into the hospital. They were called as supporting witnesses. He knew Altaf well, but only knew Azam by sight. He had owned the blue Vauxhall estate for about 2 weeks, but after being stopped by the police for driving without insurance, he sold it on 3rd October. He never saw it again. He knew Khan, and although he agreed they had been at the Holiday Inn drinking party on the Sunday before the shooting, there were no problems between them.
  17. On 19th November 2003 Altaf was arrested. A tape recorded interview was conducted. He declined to answer questions, but his solicitor read out a prepared statement in which he denied involvement and volunteered the name of an alibi witness, his sister. Altaf's evidence confirmed that he, like Hussain, knew Khan very well. Khan, he said, was aggressive and unpleasant towards him, particularly after he, Khan, had been drinking. He spent the evening of the attack on Khan at his sister's home, falling asleep on the sofa. His sister supported his account.
  18. Azam was arrested on 29th January 2004. When interviewed, he declined to answer the questions. Azam did not give evidence.
  19. After counsels' addresses, the judge summed up the case to the jury. No criticism is made of the summing up, which accurately directed the jury about the relevant legal principles, and fairly summarised the evidence to them. In particular, although no criticism was made of the summing up, we should note the emphatic warnings given to the jury about the caution with which they should approach Khan's evidence. We shall not set them out as part of the narrative. They were, however, quite unequivocal and fully comprehensive. The jury can have been in no doubt about its responsibilities, and how they should be approached.
  20. There are two grounds of appeal common to all three appellants, neither of which questions the way in which the issues were left to the jury by the judge. The first relates to his decision that the trial should continue, notwithstanding what Mr Latham described as the "uncontrollable" behaviour of Khan in the witness box, when cross-examined. The second arises from what is said to be further evidence about Khan, and his problems, which it is said confirm, if confirmation were needed, how deeply unsatisfactory it would be for anyone to have relied on his evidence at trial. There is a third, distinct point, relating to Azam. The judge rejected a submission that there was no case for him to answer, and it is submitted that his decision was erroneous.
  21. The evidence of Khan

  22. We have been provided with a full transcript of Khan's evidence. It runs to over 100 pages of transcript. The first 20 pages cover his evidence-in-chief. He was cross-examined by Mr Latham. This cross-examination covers 30 pages. He was then cross-examined by Mr Kearle QC. This cross-examination covers a further 23 pages. He was then cross-examined by Mr O'Connor QC. This cross-examination covers just over 30 pages. There was no re-examination.
  23. At the hearing of the appeal Mr Latham was particularly concerned that a study of the transcript might not sufficiently convey the force and venom of the evidence given by Khan in the later stages. There were spontaneous and uncontrolled outbursts which, according to Mr Latham, may have given a spurious authority to what he was saying. Mr Latham was anxious to emphasise that no-one, not even a very experienced, patient, judge, could control Khan's outbursts, some of which were directly addressed to the jury. We have borne Mr Latham's concerns in mind.
  24. In chief Khan's evidence created no problems, except perhaps for the speed of his speech and an occasional diversion of his answer from the question. Lunch was taken half way through this evidence. Shortly after the resumption Khan described the incident in detail. As he described how he had been hit with a hammer, there was an interruption from the public gallery. The interrupter said that there were people in the gallery who were laughing, and indicated who they were. The judge immediately put a stop to the interruption, and warned against any further noise or disturbance. Khan concluded his evidence-in-chief.
  25. Khan's cross-examination by Mr Latham began by highlighting a number of aspects of his behaviour and character to his discredit. They included his drink problem, his previous violent behaviour, generally, and then as directed towards his mother and his sister, his troubles with the criminal law relating to drugs, his custodial sentences, and indeed an allegation that his relatives had arranged for one of his friends to be shot. We have no criticism of Mr Latham's cross-examination, but perhaps two of his answers indicate Khan's state of mind even at this stage of his evidence.
  26. When he was challenged with the fact that he had no proper job he said, "I didn't have a proper job, no, that doesn't mean people can shoot me you know." And when it was suggested that he had been "regularly nasty to his own immediate family at home", he answered, "Does that mean I should be shot?" The judge suggested to Khan that he should not argue, but simply answer the questions. Another intervention approximately half-way through his cross-examination produced the observation from Khan, "I'm sorry, you know, it's just too much." When he was asked about his witness statement, and an inconsistency between his evidence to the jury, and the witness statement he said:
  27. "We was being unpleasant to each other. If I'm going to be unpleasant to you, for example, you're going to be unpleasant to me, you're not going to be nice to me, it's common sense. Those people over there, they shot me and if justice is going to be done, they have to be found guilty."
  28. The judge intervened to warn him that he should not make statements, but "Just answer the questions". It was not until about two-thirds of the way through the cross-examination, that Mr Latham expressly accepted that Khan had been shot. "There is obviously absolutely no dispute about that". The cross-examination then continued in a quite unremarkable way until the judge intervened to tell counsel that he should not comment when asking a question. When, towards the end of the cross-examination, it was suggested to Khan that although there was no dispute that he had been shot by someone, his client, Hussain, was not one of those involved, the witness disagreed totally and utterly, and then said that there were two witnesses "who would have told you everything". Khan was referring to the two friends or relatives who had been present in his car at the scene immediately before the attack on him, both of whom had made statements to the police. As we have explained, the Crown was not in a position to call either of them to give evidence at trial, because neither was available.
  29. Khan asked for a short break. It was granted. The judge addressed individuals who were sitting in the public gallery, making it clear that discussions and talking while the court was sitting were impermissible. Mr O'Connor raised Khan's evidence about the two witnesses who were supposed to come to court, and asked the judge to give Khan a specific warning not to volunteer statements about witnesses, which in due course the judge did.
  30. Mr Kearle started his cross-examination by asking questions about specific incidents of difficulty between Khan and his client, Altaf. Khan's response to many of these suggestions was that they were "all lies". Nevertheless, this part of the cross-examination passed unremarkably, until the judge must have observed something about Khan's demeanour which led him to ask if he was "alright?" The witness responded that he was not feeling well and that this was "too much". The court then adjourned for the afternoon.
  31. On the following day Mr Kearle resumed his cross-examination. Again, nothing noteworthy occurred, beyond an occasion when Khan answered that the defendants' case was "built around alcohol" and eventually, at just about two thirds of the way through Khan's evidence, Mr Kearle came to the night of the incident. In accordance with his instructions he properly challenged the identification of his client, and the allegation that he had pulled up a balaclava. He then returned to the issue of how much Khan had drunk that evening. Khan responded that he did not know why the alcohol was being blamed.
  32. By the end of this second cross-examination nothing remarkable had occurred. From time to time the judge had asked the witness to focus on the questions, but, apart from Mr Latham focussing on the reference by Khan to his supporting witnesses, nothing that occurred during this part of the trial gives rise to any complaint or concern.
  33. Mr O'Connor began his cross-examination by referring to Khan's long criminal record. In truth, much of this part of the cross-examination was repetitious, revisiting ground that had already been covered. In fairness to Mr O'Connor we note that the judge did not seek to intervene. Mr O'Connor asked whether Khan had appeared "before the criminal courts convicted of criminal offences on thirteen different occasions?", and the witness replied "Yes, but I never shot nobody", an answer he repeated. Mr O'Connor then identified the thirteen offences of which Khan had been convicted, as well as the fact that he had been sent to prison on six occasions, and had been convicted of "nine different offences of violence against the person". He was then asked about his dealings in drugs. He was then asked about an attack on his sister and was asked whether he had any insight into his own condition. He said that his sisters had fitted him up, adding that he was "sitting here on my own today giving evidence against three people who shot me". He added that he had been threatened and bribed. The judge intervened to tell him to answer the questions and not make voluntary statements outside the ambit of the questions.
  34. Mr O'Connor immediately suggested that his problems were so bad that he actually imagined things, which the witness denied. The cross-examination returned to his previous convictions, and eventually the witness commented that it (meaning what was happening in court) was "a mockery". As the cross-examination continued, Khan asked the judge if he could say something, please, and the judge told him that he must just answer the question. That led to Khan commenting, "Magna Carta, no man shall be denied justice", and then adding, "If they come back out on the street, then you are going to have the biggest war on your hands". This was plainly directed at the jury, because he continued that he was sick of it.
  35. "It is a mockery of the judicial system. All you people are characters, clowns, and I've had enough. You can let them out on the street and I promise you I'll bring them a war that you'll always remember, everybody in this court will."
    The judge tried to intervene, but the witness went on,
    "I'm sitting here telling the truth, I'm sitting here telling the truth, whatever I've done, whatever I've not done I have done it and I have admitted it, but those people sitting there in their suits, they don't wear suits, they wear tracksuits when they're on the street, they wear trainers, they sell drugs, class A drugs."
    The judge ordered him to sit down again and calm down. When he had calmed down he asked the witness to listen to the questions and answer them.
  36. Mr O'Connor resumed the cross-examination, putting to the witness that in October 2003 his life was out of control. The witness responded "my life can be out of control wherever it is, but nobody can shoot me." Mr O'Connor pursued the lack of control in Khan's life, and this led to the following exchange.
  37. "A: No. Even when, I didn't even want this court case to go ahead.
    Mr Justice Gage: Please listen.
    The witness: They're gangsters over there, they're gangsters, they'll get what what goes around comes around, if you people don't do them justice somebody else will and that's a promise.
    Counsel: You can arrange it, can you not, Mr Khan?
    A: I can't. They've got a thousand enemies out there on the streets who want these people, they've been blowing people's cars up and all sorts.
    Mr Justice Gage: Mr Khan
    The witness: Shooting through people's windows, everything.
    Mr Justice Gage: Mr Khan, will you please calm down and listen to the questions and answer them. I suggest we move on.
    The witness: It's the jury who should be scared of those people. I don't go and attack people like you, those people and me, we don't get on because they're shit, we're all scum, I don't claim to be a good guy, but we get on, you know, because we're scum, but those people attack people like you, not me.
    Mr Justice Gage: Mr Khan, just calm down and listen to the questions and I suggest we move on, Mr O'Connor."
  38. Mr O'Connor resumed cross-examination by suggesting that Khan was out of control in his conduct towards his family.
  39. Mr Latham intervened to suggest a short break. The judge agreed. He told the witness to go out and calm himself and the witness replied that he would try to. There was then what was intended to be a short break, which went on for about an hour. Mr Latham's recollection is that it was at this stage that counsel for the defendants discussed the way in which the case had developed during Khan's evidence, and then saw their clients, and advised them, and took instructions from them.
  40. This was done. The appellants wanted the trial to continue. They had been in custody since their original arrests in November 2003, and their clear instructions, notwithstanding any advice they may have received from counsel, was that the trial should continue.
  41. When counsel returned to court, Mr Rafferty, for the Crown, said that he understood that no application was being made on behalf of any of the defendants to discharge the jury. He did however recognise that as counsel for the Crown he had obligations to the court. He expressed "enormous" concern, because he felt that the question had to be asked whether the defendants could or could not "now receive a fair trial".
  42. Gage J made clear his extreme reluctance to discharge the jury on the basis of an application by the prosecution which none of the defence counsel was prepared to make. Mr Rafferty asked the judge to consider whether there was any direction he could give which would enable the jury to expel everything they had heard from their minds. His particular concern was the assertion by Khan that if the jury did not convict the defendants, they should be afraid. The judge expressed the hope and belief that jurors were fairly "robust in their attitude to that sort of allegation".
  43. The judge expressed his gratitude to Mr Rafferty for his dispassionate approach to the issue, adding that as he understood it, he was voicing his concerns on behalf of the defence, and although this was not stated expressly, because he appreciated that counsel for the defence were in a difficult forensic position, having given advice to their clients, which they rejected.
  44. That inference is supported by subsequent events. Each counsel made clear that he had professional concerns of his own and each explained his client's point of view. Thus, Mr O'Connor said that his client (Azam) was concerned "about delay to any retrial. He is concerned, inevitably, that, if this jury are discharged, this witness has in general terms been rehearsed and may well be able to perform better next time", thus avoiding "proper cross-examination". Gage J responded that, alternatively, he may "behave in the volatile way he did in the witness box and you are back in the same position."
  45. Mr Latham confirmed that his position was the same as Mr O'Connor, and expressed his indebtedness to counsel for the Crown for raising the issue because he was "in a position to be objective not bound by instruction". Mr Latham insisted that the absence of an application on behalf of the defendants themselves would not be "determinative" of the issue. Mr Kearle, in effect, adopted Mr Latham's position, for the same reasons.
  46. In reply Mr Rafferty said that the decision was "entirely" for the discretion of the judge. The judge retired to consider what should happen.
  47. The judge's ruling is clear. He explained the circumstances, and identified the legitimate concerns which had been raised with him. He appreciated that there were what he described as a "range" of relevant considerations which included, of course, the potential for prejudice from what he described as "wild, reckless and intemperate allegations and assertions about the defendants, their characters and their involvement in criminal activity." He also noted that if the jury were discharged the ordeal for the defendants would inevitably be prolonged, but that they themselves, after receiving advice, had "nevertheless asked that the trial continue". He identified the highest consideration of all, which was that a fair trial should take place. He noted that if the jury were discharged, the consequence to any retrial would be, as counsel reminded him, that Khan would have been "rehearsed in his evidence and have had experience of cross-examination which may cause him to give a better or different account of himself in the witness box". The judge expressed himself confident that if he were to give an appropriate warning to the jury, they would be able to put the irrelevant matter to one side. Accordingly the trial should continue.
  48. The jury returned to court. The judge immediately gave a clear and unequivocal direction about how they should approach Khan's behaviour in the witness box. He told the jury completely to "ignore all these wild allegations and assertions they should not have been made, they are quite irrelevant to the matters you have to decide." We need not quote further from his direction, save that having given this direction, he added that when they were assessing the credibility of the witness the jury were entitled "to take into account the fact that he was prepared to make all sorts of what you may think were wild and reckless allegations against these three men." In short, assuming as we do that the jury followed this direction (which was repeated in the summing up) Khan's behaviour in the witness box would be likely to diminish rather than increase the jury's confidence in his credibility.
  49. Khan returned to court and, in the absence of the jury, the judge emphasised the need for him to remain calm, and that he should not make any "further outbursts". The jury returned, and Mr O'Connor's cross-examination continued. He directed this part of his cross-examination to the identification of Azam, it being alleged that Khan had woven into the description of the "vicious, murderous attack" on him a completely fabricated motive for it. Mr O'Connor then returned to some of Khan's previous reprehensible actions, and once more explored the theme that Khan was out of control, and his life was out of control. When Mr O'Connor observed that the witness was very unsteady on his feet due to drink at the time of the incident, the witness replied that he was "slightly unsteady, whatever," adding, "the point of the matter is who shot me who shot me and hit me with hammers." And he commented that Mr O'Connor was just trying to insult him. Khan was then cross-examined about inconsistencies between his evidence and his earlier witness statement. The cross-examination ended with Mr O'Connor putting a number of considerations to suggest that the identification of Azam might be wrong. Khan was then asked about the morning break in his evidence, and it was suggested to him that he had threatened a witness if he gave evidence for "that lot", meaning the defendants. Khan denied that he was prepared to intimidate witnesses. The cross-examination had come to an unremarkable end.
  50. Mr Rafferty did not re-examine.
  51. Dealing with the end of the cross-examination first, the Crown did not subsequently take issue with the assertion made on behalf of the defendants that Khan had indeed made some comment to Mushtak Hussain, then a potential defence witness. It is said that this put the witness in fear of his safety, but in the end he was called to give alibi evidence on behalf of Hussain. In short, such threats as Khan may have made to discourage the witness from giving evidence for the defence were ineffective.
  52. The decision that the trial should continue

  53. The starting point for the submission arising out of Khan's behaviour in the witness box is that as an integral part of his duty to ensure that a jury trial is fair, the judge retains, and where necessary should exercise, his discretionary power to discharge the jury. We agree. We further emphasise that it is open to the judge to exercise this power whichever side invites him to do so, and also when neither side does, and even when both sides submit that he should not. Thus in the final analysis, although the judge should attend to all the considerations drawn to his attention, he must make his own judgment whether the interests of justice in the particular case over which he is presiding requires the discharge of the jury.
  54. Mr Latham accepted that this Court would not "lightly disturb" the exercise of the trial judge's discretion. Nevertheless, he submitted that the decision that the present trial should continue was wrong, and that this Court should interfere with it. Khan's behaviour meant that the jury heard allegations that the appellants were involved in or connected with or could procure serious criminal misconduct, and moreover, the jury itself was openly threatened with the desperate consequences which would follow in the local community if the defendants were acquitted. He suggested that Khan's behaviour undermined the impartiality of the jury, or the perception of jury impartiality which is a requisite of a fair trial. For this purpose, he drew attention to Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700; R v Gough [1993] AC 646; R v Panays (Charalambos) [1999] CLR 84; R v Doherty [1999] 1 CAR 274; and Sir Alexander Morrison v AWG Group Ltd [2006] EWCA Civ 6 citing Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 480. In essence, Mr Latham's submission was that the prejudicial impact of Khan's behaviour could not be disregarded by reference to a broad brush judicial discretion. His analysis of events at the trial demonstrated that the judge should have ignored the wishes of the defendants and discharged the jury.
  55. We immediately acknowledge that the judge's decision on these issues is not simply a case management decision. Adapting the observations in Locobail to jury trial, if the judge were to conclude that there were "real grounds for doubting the ability" of the jury to bring "an objective judgment to bear" on the issues, the jury should be discharged. The decision requires a balanced judgment of the things said to create the risk of bias in the jury, while simultaneously taking account of the directions available to be given by the trial judge to address and extinguish the risk. In short, in the context of trial by jury, the question whether the jury may be biased, or apparently biased, cannot be decided exclusively by reference to the material which is said to constitute the risk of bias, examined in isolation from the normal processes of the trial. Much the same considerations apply where a jury is said, before trial, to have been exposed to material which may be said to have created prejudice against a particular defendant. The ultimate question is fact- or case-specific in the context of the trial process as a whole.
  56. It is plain that Khan was an exceptionally difficult witness, aggressive and assertive, disobedient to the judge's instructions, and at times uncontrollable. Our impression is that he believed that as the victim of a murderous attack, it was farcical to suggest that his identification of his attackers was dishonest or even mistaken. Any such suggestions were calculated to produce a complete miscarriage of justice. He did not hesitate to let this view show, and he responded to criticism by retaliating in a way which was quite unmitigated by any respect for the judicial process. Therefore Khan's behaviour could not be ignored.
  57. Discharging the jury provided one remedy, but it was not the only one. The immediate consequence if the jury had been discharged would have been a retrial in which Khan would have given evidence before a different jury. As Khan was the victim of a murderous attack in the streets of Nottingham, prohibiting him from giving evidence at a second trial would have produced an unjust result. At a second trial there could be no knowing whether Khan would behave any differently, or any better. Without that guarantee, unless he was to be prohibited from giving evidence altogether, there would be no great point in a second trial superseding the first. If in the interim, he had been given the very firm advice suggested by Mr Latham about the need to behave properly, and the consequences of not doing so, it would at the second trial have been suggested that the new jury would have been observing a different individual, behaving better, and less revealingly about the true nature of his personality and attitude. That would have been forensically disadvantageous to the defendants. In any event, given the material to Khan's discredit available to defence counsel in cross-examination, it is likely that whatever advice Khan may have been given before the start of the second trial, an explosion of one kind or another would have followed. So, either the second jury would itself be discharged for the same reasons which led to the discharge of the first jury, or the second trial would have produced the "unfairness" to the defendants that the main witness against them would have been able to get away with giving a false impression about himself. The ultimate sanction, of course, would have been yet another "new" trial, a process likely to result in an abuse of process argument, or no trial at all, in which case justice itself would have stumbled.
  58. The alternative to discharge, after careful consideration whether any unacceptable possible consequences of Khan's behaviour could be sufficiently mitigated, was to allow the trial to continue. Although Mr Latham emphasised the disadvantages of what Khan had actually said about the defendants, and by way of threat to the jury, his undisciplined behaviour was not without some forensic advantages. If he allowed the case to continue, even before the end of his evidence, the judge was bound to criticise Khan, (and indeed he did) and in the course of summing up, he was equally bound to highlight Khan's misbehaviour as a factor to cause the jury, unusually, to approach the evidence of the victim of this crime, with particular caution. Again, he did. If Khan was prone to making wild allegations, as the judge told them he was, the jury would have to approach his allegations that it was the defendants who attacked him with heightened concern.
  59. Thus, in making their assessment about Khan's credibility, and whether it was undermined, the jury were entitled to take into account the way he behaved in the witness box, and the perfectly justified forensic criticism which could be made of the unattractive features of his demeanour and behaviour. In the end, accepting the fullest criticism that can be made of Khan, the question for the jury, was not whether he was properly described as a "good" or "bad" witness in the conventional sense, but whether he was an essentially truthful witness, who was giving his evidence very badly, or whether the ill-disciplined way in which he gave his evidence created doubts about the veracity of his allegations against the defendants.
  60. Gage J closely considered all the relevant questions, focussing on the imperative that a fair trial should take place and by considering whether, and if so how, he could ensure that the jury would focus on the admissible evidence in a dispassionate, objective way. He satisfied himself that he could do so. In short, he did not, and it was not suggested that he did, take a casual, broad-brush approach. Rather he made a judgment specific to the particular requirements of this trial, and the issues which arose in it. Subsequently he gave unequivocal directions to the jury. It is not suggested that they lacked necessary force.
  61. In the end, we have to remind ourselves that we are being invited to interfere with the exercise of a discretion by the trial judge about the proper conduct of the trial, a judgment which is frequently described as a decision in the exercise of his discretion. It is now suggested that Gage J should have made the decision which was precisely opposite to the one he was invited to make at trial by the defendants. Faced with their express wish that the case should continue, notwithstanding the concerns expressed by the prosecution, it is in truth abundantly clear that the judge was entitled to deal with the Khan problem by allowing the case to continue, and giving appropriate directions to the jury.
  62. We must emphasise, quite unequivocally, that this Court should not and will not interfere with decisions made by the trial judge about the proper conduct of the case unless satisfied that they are wrong, and that in consequence the conviction is unsafe. And before reaching that conclusion, we should remind ourselves that we are being asked to review a decision on an examination of the papers, months after the trial, reached by the judge, fully alert to all the more subtle aspects of the case which a paper examination may not easily reveal. We reject the submission that Gage J's decision was wrong. He was entitled to allow the case to continue, and his directions were sufficiently clear to ensure that the jury would put aside irrelevant considerations in reaching their verdicts.
  63. The "fresh evidence"

  64. Immediately before the hearing of the application for permission to appeal a further ground of appeal based on what was described as "fresh evidence" was put forward on behalf of Altaf. As the material was said to relate to Khan's credibility, it became a ground open to all three appellants. It emerged that in August 2004, that is, after these convictions, Khan spent a period of some four or five days as an in-patient at a neuropsychiatry and general hospital in Pakistan. The medical report obtained on him suggested that he was suffering from schizophrenia, with disturbed aggressive hallucinations and delusions of persecution. He required treatment with medication was required.
  65. At our request of this Court, the Criminal Cases Review Commission was directed "to investigate and produce to the court a report on the issue arising out of the new medical report placed before the court on 20th May 2005".
  66. The Commission has carried out its customary valuable and meticulous investigation. The results are attached to a letter dated 28th October 2005. We can briefly summarise the results of the investigation. The Commission concluded that they should examine not only the making and authenticity of the medical report to which reference was made, but also, and more generally, the broad allegation that Khan may have been suffering at relevant times from "a mental condition which may have affected his reliability as a witness of truth". With that in mind, quite apart from enquiries in Pakistan, the Commission pursued two further lines of enquiry, extending to a search for additional information about Khan's psychiatric condition at the time both of the offence and the trial, and an investigation into the possibility that there were deficiencies in the process of disclosure about Khan's psychiatric history. In addition, to this investigation, it came to the Commission's attention that both the police and the Crown Prosecution Service were undertaking investigations into Khan's psychiatric condition, and that Khan agreed to undergo a psychiatric assessment. On 7th October 2005, the CPS provided the Commission with a psychiatric report on him prepared by Dr Resnick, a consultant forensic psychiatrist from the Nottingham Community Forensic Directorate, which we have seen.
  67. The conclusion reached by the Commission is that there is nothing to suggest any inappropriate lack of disclosure either by the police or the Crown Prosecution Service. It was known to the police and CPS that Khan was referred to as an alcoholic, and certainly subject to serious problems with drinking, and that his lifestyle was "chaotic". There is a long history of severe alcohol abuse, with consequent withdrawal symptoms and occasional blackouts. As the record of cross-examination shows, all these matters were fully investigated at trial. The recent psychiatric report describes him as "an educated man of normal intelligence who has suffered from a life-long anxiety disorder, which presented as panic attacks and generalised anxiety". However there is no evidence to suggest that his alcohol abuse has induced mental illness or alcoholic hallucinosis or delusions. There were no current mental illness symptoms, nor any evidence of mental illness, and no evidence of schizophrenia in his history. More particularly, nothing in the evidence suggested mental illness or disturbance at the time of the offence, or any cognitive impairment in respect of intellect and memory either at the time of the offence or the trial. The jury was not being asked to consider whether there was any realistic possibility that Khan might have been deluded or hallucinating about the fact of a murderous attack on him. The real issue was whether he was truthfully identifying his assailants.
  68. On close examination, in truth, the so-called fresh evidence is entirely makeweight, and for the purposes of this particular case, without significance.
  69. The identification of Azam

  70. Khan identified Azam from his body shape, and his voice. He never saw or claimed to have seen Azam's face. At the time he was under the influence of drink, and indeed when the words which he attributed to Azam were spoken, he had already been attacked. He admitted a mistaken identification of the fourth attacker, and retracted an identification of Azam on a different occasion.
  71. Making every allowance for these considerations, there was ample evidence to support the identification. He and Azam were not strangers. If he was telling the truth about Hussain and Altaf, when he identified Azam, he was identifying someone with whom they undoubtedly associated. All three had been together during the earlier part of the evening before the attack. Moreover, during the same evening, Azam had been the driver of the car which went to Khan's house and attacked it. The description of that car corresponded with the car which drove Khan's attackers to the scene where he was shot. The car which Azam was undoubtedly driving at 10.14 was set alight by not later than 1.15 the following morning. Its loss was not reported. Quite apart from the absence of any answers to questions at interview after arrest, and the absence of any evidence from Azam at trial, there was ample evidence to support the identification of Azam. The judge was right to reject the submission that there was no case to answer. He left the issue to the jury, in the context of clear, meticulous directions about identification issues generally, and in the context of this particular case.
  72. Representation

  73. As we indicated at the very beginning of the judgment, Mr Richard Latham QC appeared on behalf of the three appellants. At trial each was separately represented by two counsel, QC and junior counsel. No possible conflict of interest or forensic embarrassment arose between the three appellants, although it could be said that Azam's interests were marginally different to the other two. His defence allowed, at least in theory at any rate, for the possibility of mistake, although Khan's cross-examination on behalf of Azam was largely concerned with his honesty, rather than his accuracy.
  74. Acknowledging immediately that we are looking back at the trial with hindsight, we cannot avoid reflecting, that even if the use of leading counsel for each defendant was justified, we doubt whether the same can be said about the use of three junior counsel. It is at least doubtful whether any junior counsel was needed, and if any were needed, a junior counsel taking a note would probably have sufficed for all the defendants. If the solicitors acting for the defendants had arranged for a proper note to be taken by their representatives, then a note-taking junior counsel may well have been unnecessary. We are concerned about the expenditure of public funds on Legal Aid. This cost represents a huge burden, with significant implications for the entire Court Service budget. Where the expenditure is necessary, that is what it is. But unless it is, the expense should not be incurred.
  75. These appeals against conviction are dismissed.


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