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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ashton & Ors, R. v [2002] EWCA Crim 2782 (06 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/2782.html Cite as: [2002] EWCA Crim 2782

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 December 2002

Lord Justice Mantell:

1. On 8^th April 1998, following a four week trial at Newcastle Crown Court before Clarke J (as he then was) and a jury, Paul Ashton, Paul Steven Lyons and Robert Webber were each convicted of conspiracy to murder Terrence William Mitchell and sentenced to 18, 14, and 18 years imprisonment respectively. Ashton and Webber were also convicted of possessing a firearm with intent to endanger life for which each of them received a concurrent sentence of 11 years imprisonment. Ashton and Webber were acquitted on a further count alleging conspiracy to intimidate witnesses.
2. Ashton was already serving an 8 year sentence for conspiracy to supply amphetamines to which his 18 year sentence was ordered to run consecutively, and on 22^nd December 1998 he received a further consecutive sentence of 5 years following his conviction for offences of violent disorder and perverting the course of justice. The upshot is that he is now serving a total sentence of 31 years.
3. Lyons has also had his sentence increased as a result of a sentence of 4 years for prison mutiny being ordered to run consecutively to that imposed by Clarke J.
4. All three now appeal with leave of the single judge against the convictions recorded on 8^th April 1998 and with the leave of this court against the totality of their sentences.

Background.

5. All the events with which the court has been concerned took place in or around Gateshead and stemmed from a feud between two gangs of criminals. Prominent members of one of the gangs were Ashton and Webber as were Terence Mitchell, Stewart Watson, Alan Graham, Steven Carey and Rodney Anderson of the other.
6. Lyons' role is less clear but it came to be alleged that he was prepared to do the bidding of Ashton and Webber on one occasion at least.
7. It seems that at one time Ashton and Mitchell had been on reasonably good terms. Then there had been a falling out which had led to a scuffle outside Mitchell's home as a result of which Mitchell was taken to hospital. From that time onwards it appears that the relationship further deteriorated to a point at the beginning of 1995 when, as the prosecution was to allege, Ashton, Webber and others agreed that Mitchell should be killed and thereafter set about achieving their purpose by a variety of means.

The trial.

8. At trial the principal prosecution witness was Mitchell. He began by describing the incident in 1992 when he said Ashton had come to his house in an ugly mood because he, Mitchell, had refused to carry out reprisals against someone who had taken up with Ashton's ex-girlfriend. He claimed that Ashton had hit him over the head with a brick or stone as a result of which he had suffered a serious head injury. Ashton did not deny that there had been some incident but claimed that any injury was much less serious than described by Mitchell and had come about as a result of Mitchell slipping and hitting his head on a wall.
9. Then Mitchell went onto describe an incident on 11^th July 1995 when a man had attacked him with a bayonet outside his home as he was getting into his car. There is no doubt that Mitchell suffered several potentially life-threatening injuries. He claimed, however, to have fought off his attacker and followed him to where he saw him make off in Webber's Mercedes motorcar which had been parked up with Webber sitting in the driving seat and Ashton leaning on the roof. He later identified Lyons as his attacker. He rejected the suggestion put to him on behalf of Lyons that he was either mistaken or lying and the further suggestions put on behalf of Ashton and Webber that he had simply made up the account of the attacker getting into Webber's motorcar. Mitchell had been driven to hospital by his wife who gave evidence of calling on Ashton on the way back and abusing him for his part in the attack and saying that he had not had the guts to do it himself.
10. As we shall have cause to mention later, Webber did not give evidence but Ashton denied any involvement whilst accepting that Mrs Mitchell had called at his house and abused him. Lyons, likewise, denied that he had been the attacker and claimed to have been elsewhere at the time.
11. Further evidence as to this incident came from Elizabeth Stephenson at that time a friend of Webber's. She spoke of an occasion when Lyons had come to Webber's house and she had overheard a conversation in which something was said about Lyons having attacked Terry Mitchell with a knife. Mrs Stephenson was heavily cross examined on behalf of Webber and accepted that she and Webber had now fallen out but rejected the suggestion that she was giving evidence against him out of malice. It will be necessary to return to the role of Mrs Stephenson at a later stage in this judgment.
12. There was unchallenged evidence that Lyons using the name Lewis had booked into a public house called The Anchor on 11^th July 1995 and had stayed for some four days before moving to the Seacroft Guest House. Whilst he was at The Anchor the proprietor had seen a long bayonet type knife in his bedroom. It happened that the police were interested in Lyons and had cause to search his room at The Anchor. Nothing was found. However, a similar search of his room at the Seacroft Guest House resulted in a bayonet being found in a black bin liner; and on 23^rd July 1995 a police officer found a bayonet and scabbard down the side of a chair in which Lyons had been sitting at the home of a Mr and Mrs O'Neill. Lyons was arrested and taken to a police station but released without charge the following day. He signed a disclaimer relating to the bayonet. The bayonet, produced at trial, was identified by Mitchell as being the one used in the attack against him. It did not correspond with the description of the bayonet given by the proprietor of The Anchor public house.
13. According to Mitchell there was an occasion when he was filling up his wife's car with petrol when a white Ford Sierra with Webber driving and Ashton in the passenger seat drove straight at him hitting his wife's car and causing him to fall to the ground. He got up and ran into the garage shop. On looking back he saw Ashton pulling a big kitchen knife out of his coat. It was put to him in cross-examination that the contact between the cars had been slight and that he had given the impression that he, himself, was about to draw a knife. Christine Robertson who worked in the garage shop gave an account of the incident which suggested that any contact between the two cars had been minimal but which confirmed Mitchell's account in that he appeared to be chased by two men and was asking for the police to be called. Another lady working in the garage office saw a man who was shaking and trembling and another man at the door of the shop who told her that the first man had a knife. When a police officer arrived at the garage he found Mitchell visibly shaken but no knife. That was on 15^th August 1995. The next day a white Ford Sierra parked outside Ashton's house was searched and a knife found in the front driver's door pocket. Elizabeth Stephenson gave evidence that Webber had told her of having pulled into the garage to refuel and how Ashton had pulled out a knife and chased Mitchell into the shop. The intention had been to frighten him.
14. As mentioned, Webber did not give evidence; but Ashton told the jury that they had simply pulled up behind Mitchell's car and that when Mitchell saw them he pulled a knife out from his trousers and went into the shop. Ashton had followed and told the lady working in the shop that Mitchell had a knife and that they should call the police. He denied that he was carrying a knife and said that the knife that had been found in the Sierra the following day had been put there for protection after seeing a car being driven up and down outside his house.
15. To maintain some kind of chronological order we mention at this stage an incident which is said to have occurred at Redheugh Bridge in Newcastle on 11^th January 1996. It was the defence case of Ashton and Webber at trial that on that day that they had been fired upon by four men in a Landrover when Webber was driving his Mercedes with Ashton in the front seat. A bullet had passed through the windscreen and after hitting the steering wheel and Ashton's bullet-proof vest the bullet had ended up in the back seat. In giving evidence Elizabeth Stephenson referred to the incident and what she had been told about it by Webber. It was admitted by the Crown that the Mercedes had a bullet hole in the front windscreen which had ricocheted off the steering wheel and a bullet was produced during the hearing which was said to have been recovered from the back seat of the Mercedes and which had evidently been fired from a pistol recovered on 12^th January 1996 from the house of Watson. The materiality of this will be apparent when we come to consider Ashton's and Webber's grounds of appeal.
16. The next day, that is 12^th January 1996, there was a serious shooting incident outside Watson's home. According to Mitchell he was a passenger in a transit van driven by Watson as were Carey, Graham and Anderson. The van pulled up outside Watson's home at First Street. As he was getting out he saw a Jaguar motorcar approaching with Webber at the wheel and Ashton in the rear seat. Ashton pointed a gun at the transit van and fired a number of shots. Someone, he knew not whom, fired back from the van. The occupants of the van went into Watson's house and a little later Mitchell drove the van away returning about one and a half hours later. By this time the street had been cordoned off. When Mitchell went into the house he was handed a bag which he knew contained guns and tried to escape over the back fence but was arrested before he could do so. Watson gave a similar account. He, too, claimed to recognise Webber as the driver and Ashton as the gunman. He had heard about six or seven shots in all before the Jaguar sped off and it was clear to him that it was Ashton doing the shooting from an open passenger window. He knew nothing about the guns which were eventually found in the bathroom of his house and he denied any involvement in the incident which had taken place the previous day.
17. The incident was witnessed by Susan Smith who confirmed that shots had been fired from the rear window of a Jaguar and that there were six or seven shots in all. She could not say from which vehicle the shots were coming except that there was a well built man with blonde/gingery hair lying on the back seat of the Jaguar with his hand out of the rear window on the driver's side. Another witness, Patricia Brown, gave evidence of shots being returned by someone standing on the footplate on the passenger side of the transit van.
18. Police officers found a number of spent cartridge cases in the area.
19. Ashton denied that he had been the gunman in the back of the Jaguar. He said that his wife was unwell that day and he had stayed at home waiting for the doctor to arrive. He had spoken to a police officer between 11:19 and 11:32 a.m. In that he had been supported by a Dr Inman who agreed that he may have attended Ashton's wife between 1:00 p.m. and 2:00 p.m. that day. In cross-examination Ashton accepted that Webber had told him that he had used the gun but only in retaliation. In this context we have neglected to mention that Elizabeth Stephenson had told the jury that Webber had mentioned the incident and had said that he had been driving and that Ashton had been in the back passenger seat. She also said that she and Webber were going away for awhile, which they did on 13^th January, and that during their absence from the area Webber and Ashton were constantly on the phone to each other. Webber told her that he and Ashton were going to wash their hands in paraffin to remove any traces of gunpowder. Although challenged for obvious reasons, that evidence was not contradicted.

The arrest and interviews.

20. Ashton and Webber were arrested on 19^th January 1996 in connection with the First Street shooting incident. Ashton volunteered that he had witnesses to where he was on 12^th January and further that he had an alibi having been at home with his wife who was not well and that between midday and 1:00 p.m. he had gone out to get the prescription. It was put to the arresting police officer that Ashton had said that he had been at home between 12:00 and 1 p.m. not that he had gone out for the prescription. The prescription was not collected until after 2:00 p.m. The police officer did not agree with the suggestion.
21. In interviews conducted on 20^th January Ashton first of all declined to answer questions about the First Street shooting save to say that he had not been involved. However, it is right we should remind ourselves that he had earlier mentioned his alibi. Webber denied any involvement in the incidents. Otherwise he exercised his right to remain silent. Although he did not give evidence and could gain no assistance from Ashton's account, it appears that the case put on his behalf was that he had arranged to meet Watson to discuss the Redheugh Bridge matter and having arrived in the Jaguar was shot at by persons in the transit van. He had then driven off firing into the air. None of that, so it seems, was mentioned during interview.
22. At an identification parades held on 21^st January 1996 Susan Smith picked out Webber as being the man in the backseat and at a further parade on 12^th October 1996 Watson identified Ashton; and Mitchell, perhaps unsurprisingly, identified both Webber and Ashton.

Scientific evidence.

23. Five cartridges recovered from near Watson's home following the First Street shooting were found to have been fired from a gun which was later recovered from the river Tyne. Three further cartridges were found to have been fired from a .32 automatic pistol recovered from Watson's home.
24. Although it was no part of the Prosecution's case, it emerged during trial and has been referred to in the appeal that following the shooting incident on 12^th January, Mitchell, Watson, Anderson, Graham and Carey were arrested. They were charged with conspiracy to murder and possessing firearms with intent to endanger life. On 18^th October 1996 Mitchell, Watson and Anderson pleaded guilty to the second and lesser charge. The charge of conspiracy to murder had been dropped prior to committal. On 30^th October Graham and Carey were convicted of the firearms offence and in their cases, also, the Prosecution did not proceed with the more serious charge. On 1^st November 1996 Mitchell, Watson and Anderson were sentenced to 7 years imprisonment later reduced on appeal to 4 years in Mitchell and Watson's cases and 5 years in the case of Anderson. Graham and Carey each received sentences of 9 years.

The Defence.

25. We have from time to time referred to Ashton's evidence as it appeared relevant to the case against him and we have mentioned that Webber did not give evidence. However, we are conscious of having neglected Lyons. He did give evidence. He told the jury that he used to train with Ashton and Webber and that they had been present at his wedding in November 1995. He had been to both their houses but had never met Elizabeth Stephenson and neither had he ever taken part in a conversation in which it was suggested that Mitchell had been stabbed. Indeed he knew nothing of the attack upon Mitchell and said that he had gone to Redcar on the morning of 11^th July 1995 in order to avoid being committed for contempt of court. He claimed to arrived at the Anchor public house at about 9:15 – 9:20 a.m.. He admitted having the knife which the proprietor had described. He said it had a long white polished handle with a curve at the end of the blade and he used it to fillet fish. He knew nothing about the bayonet seen at the Seacroft Guest House or, for that matter, about the bayonet which had been found down the side of the chair in the O'Neill's house. It was not the knife which he had taken with him to the Anchor.

The appeals against conviction.

26. All three appellants seek to rely upon fresh evidence said to impugn Elizabeth Stephenson's credit in a way which may have persuaded the jury not to act upon her evidence. On this, the main argument was presented by Mr Shorrock QC for Webber, to be adopted by Mr Gray QC for Ashton and Mr Lane QC for Lyons. We find it convenient to deal with this ground of appeal common to all three appellants before turning to the separate grounds advanced in individual cases.
27. Quite clearly the evidence of Elizabeth Stephenson played an important part in the prosecution's case. Directly and indirectly it implicated all three appellants. It was necessary for the defence not only to challenge her evidence but so far as possible discredit her as a witness. Such cross-examination would inevitably put 'character' in issue. Accordingly the decision was taken that counsel for Webber would mount the attack and Webber would avoid the otherwise inevitable consequences by exercising his right not to give evidence.
28. It is apparent that Elizabeth Stephenson was subjected to rigorous cross-examination on behalf of Webber. Her criminal convictions were put to her as were general allegations that she was a liar, a manipulator and a woman with her own agenda. It was suggested that as part of the witness protection programme she had received benefits worth many thousands of pounds. In particular it was suggested to her that she had stolen a Ford Escort RS 2000 belonging to Webber and was in the process of appropriating a Landrover Discovery also belonging to Webber. She was also accused of pawning Webber's jewellery. She was accused of having given evidence against Webber to make sure that he was not free to prevent her further depredations. All such suggestions were refuted. In a passage which we have seen and which must have made a powerful impact on the jury she explained that far from benefiting from the witness protection scheme she now found herself cut off from family, friends, home and previous lifestyle. Whatever the measures taken to protect her may have cost, the result had been that her present way of life was inferior to that which she had previously enjoyed. She denied stealing the Ford Escort RS 2000 stating that it had been taken away by two of Webber's friends. As to the Landrover Discovery she claimed to have been responsible for the hire purchase payments. She excused her admitted lies about pawning the jewellery by saying that she did not wish Webber to learn of it.
29. Fresh evidence is now available to the effect that Elizabeth Stephenson had in fact sold the Ford Escort RS 2000 for £7,000 and had, therefore, to all intents and purposes been guilty of theft. Also it now appears that she had not been making hire purchase payments in respect of the Landrover Discovery as claimed at trial and that the vehicle has by now been repossessed. Thirdly her reasons for lying about pawning the jewellery can be shown to be false. And there is some further material in relation to another Ford Escort motor car strongly suggestive of dishonest behaviour on her part.
30. The Crown does not contest the new evidence and invites the Court to proceed either on the basis that Elizabeth Stephenson has acted dishonestly in the manner alleged or upon the assumption that she has done so. We have received the evidence and taken it into account.
31. The judge gave a firm direction about the evidence of Elizabeth Stephenson. He reminded them of the areas in which she was vulnerable and went so far as to reproduce the judge's sentencing remarks following her plea of guilty to an offence of handling a stolen Landrover. He went on to say this:

"But because of her convictions and because of what Mrs Stephenson said about them, you should treat her evidence with caution, and scrutinise it with the utmost care, as I am sure you will. But the question is whether her evidence is true on the crucial points in the case, the crucial issues before you."

32. It seems to us that although the new material, such as it is, would certainly have been deployed in cross-examination had it been available at the time and the effect may well have been to provide further evidence that Elizabeth Stephenson was capable of dishonest conduct and of lying on her oath, nevertheless the fresh evidence would have added little to the ammunition already available to the defence at trial and would have been unlikely to affect the jury's view of what she had to say on the crucial issues identified by the Judge. It was suggested that a possible motive for lying was a desire to take advantage of Webber's absence in order to steal his property but that seems a feeble explanation when set against the risks and inconvenience involved in giving the evidence she did.
33. Accordingly we are not persuaded that the fresh evidence makes any impression upon the safety of the convictions. We now turn to the independent grounds of appeal.

Ashton.

34. For Ashton it was argued that the trial judge had insufficiently underlined the dangers of acting upon the evidence of Terrence Mitchell who was on the Crown's own case someone who had good reason to wish Ashton harm. We reject that criticism. The judge gave a clear warning as to the danger of relying upon Terrence Mitchell (see pp. 10B to 13A of the summing up for 3^rd April) and in any event the hostility between Mitchell and Ashton was scarcely in need of emphasis.
35. Otherwise Mr Gray has taken us through a number of matters which were, no doubt, brought to the attention of the jury which he claims undermine Mitchell's credibility and also to matters which he submits are suggestive of a deal having been struck between Mitchell and the police by which Mitchell was eventually to escape with a four year prison sentence.
36. These were all matters which were capable of being investigated at trial and for the main part were fully explored. They are essentially jury points. The jury heard the cross-examination and were given appropriate directions by the Judge. We find nothing in this ground of appeal.
37. There was an abundance of evidence against Paul Ashton in support of both counts of which he was convicted. In our view, there is no reason to question the safety of either one of those convictions.

Webber.

38. In addition to the fresh evidence relating to Elizabeth Stephenson, Webber relies upon three further grounds which are (1) that the judge gave a wrong, confusing and inadequate direction with regard to s.34 of the Criminal Justice and Public Order Act 1994, (2) that counsel appearing for Webber at trial failed to cross-examine witnesses in a competent manner and/or introduce material available at the time of trial with the result that Webber did not receive a fair trial thus rendering his convictions unsafe and (3) that there had been a failure on the part of the prosecuting authority to disclose material which would have provided additional ammunition in the cross-examination of Elizabeth Stephenson.
39. We shall consider those grounds in turn beginning with the complaint that the directions on s.34 were wrong, confusing and inadequate.
40. So far as is material, s.34 (1) provides:

"Where, in any proceedings against a person for an offence, evidence is given that the accused –

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings…being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, … (2)(d) the …jury in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. "

41. As already noted Ashton gave evidence and Webber did not. Ashton himself attracted a s.34 direction as he relied at trial on facts not mentioned when interviewed. No complaint is made on Ashton's behalf about the s.34 direction in his case. Webber, not having given evidence, was the subject of a s.35 direction and this has not been the subject of criticism.
42. In summing up the learned judge, when dealing with Ashton's case, gave the jury a direction as to the approach they should adopt with regard to s34. He indicated that the direction was to apply equally in the case of Webber. What he said was:

"In this connection the Crown also invite you to draw some inferences from Ashton's alleged failure to answer was (sic) questions when he was interviewed, just as they do, in fact, in the case of Webber.

A person is always entitled to refuse to answer questions, but the general principle to adopt is as follows. Where you are sure of three things, first, that a Defendant as part of his defence has relied upon a particular fact or matter, second, that he did not mention that fact or matter when he was questioned under caution, and third, that in the circumstances when he was questioned he could reasonably have been expected to mention it, then the law is that you may draw such inferences as appear proper from his failure to mention it at the time. But – and this is very important – failure to mention any such fact or matter cannot, of course, on its own prove guilt, as Mr Berry pointed out, but depending on the circumstances you may hold it against the particular Defendant when deciding whether he is guilty; that is, take it into account as some additional support for the Prosecution case. You are not bound to do so, it is for you to decide whether it is fair to do so or not.

In deciding whether to do so, whether it is fair to do so in a particular case, you should, of course, consider all the relevant circumstances. If you are sure that the real reason for the Defendant's failure to mention the particular fact or matter was that, as he well knew, he had no innocent explanation, then you may hold it against him but not otherwise. Only if you are sure."

43. Having given that general direction the judge dealt with three specific incidents of violent behaviour as they affected the case against Webber. The first such related to the bayonet attack on 11^th July 1995. It appears at p.41E to G of volume 6.

"The Prosecution also rely upon Webber's failure to answer questions on some topics. They said that Webber is relying, as part of his defence, on the fact he was not in the vicinity on 11^th July 1995. Webber admits that he did not answer questions about that when being interviewed on 20^th January, or at any rate that is quite clear from page 53. It is perhaps not necessary to look at it.

Well then, please approach that in just the same way as I invited you to approach the same thing in Ashton's case. But you may think that in Webber's case that is a factor which really adds nothing to the case against him."

44. This direction is criticised in two respects. Firstly, it is said that there was no fact relied on at trial which could reasonably have been expected to be mentioned in interview and which was not, in fact, mentioned in interview. Secondly, it is said that the judge ought, therefore, to have given a direction that s.34 had no effect in this instance.
45. Dealing with the first point, it is necessary to consider the phrase "any fact relied on in his defence" in s.34(1)(a). Webber had not given evidence, but his counsel had cross-examined Mitchell suggesting that Mitchell's evidence about Webber and Ashton being in the vicinity on 11^th July 1995 was pure invention. Mitchell had refuted the suggestion. When interviewed Webber had made no reply to questions on this topic, but had asserted that (a) he was not part of conspiracy to murder, (b) he was not responsible for the attack on 11^th July 1995, (c) anyone who said he was present had told "a load of lies". However, it became apparent to us that this material had not gone before the jury. The interviews had been summarised with the agreement of the defence in such a way that assertions (a), (b) and (c) did not form part of the agreed summaries and thus did not form part of the evidence before the jury.
46. Had that material been before the jury it seems to us that what was in fact said in interview was essentially what was put to Mitchell so that no possibility of an adverse inference under s.34 could arise. However, that was not the position at the time the case was summed up.
47. It was further argued that a suggestion put in cross-examination to a prosecution witness but not adopted could not, in any event, amount to a fact relied on in Webber's defence. Reference was made to R v. Bowers 163 JP 33 where at pp. 43G to 44C the Vice President said this:

"So far as Mr Gale's submission in relation to s.34 are concerned, it is, our judgment, plain from the words of the section that an inference may be drawn, adverse to the defendant, even though he did not give evidence. If it were otherwise, as Sir Brian Hutton, CJ pointed out in McLernon subs.(2)(c) of s.34 in the English statute, which permits the court to draw inferences in determining whether there is a case to answer, would have no effect. Furthermore, it would be absurd if an accused were able to preclude the drawing of inferences under s.34 by not giving evidence. Such an absurdity would be, as it seems to us, contrary to the purpose of ss.34, 35 and 36 which, as was pointed out in R. v. Roble [1997] Crim.LR 449, (Court of Appeal Criminal Division transcript January 21, 1997 at p.17) is to permit adverse inferences to be drawn where there has been late fabrication and to encourage speedy disclosure of a genuine defence or facts which may go towards establishing a genuine defence. As Lord Bingham of Cornhill, CJ pointed out in R.. v. Argent [1997] 2 Cr App R 27, at p.32F, if s. 34 is to be relied on, the jury must resolve two questions of fact. First, that the defence relied on a particular fact, and secondly, that the defendant failed to mention it when questioned. A fact relied on may, in our judgment, be established by the accused himself on evidence, by a witness called on his behalf, or by a prosecution witness, in evidence in-chief, or in cross-examination. In the present case, there was, it is common ground, no such fact. Accordingly, no direction under s.34, was called for."

In our view what was said there was not intended to be an exhaustive list of situations in which a fact not previously relied on could come into play in a trial. Like Professor Birch in her perceptive commentary, following the report in 1998 Crim. LR. 817, we can envisage other circumstances as where for example a co-accused gives evidence and his evidence is adopted in counsel's closing speech or where, as here, suggestions are put to witnesses albeit that they are not accepted. So we are not persuaded that Mr Shorrock's submission is correct.

48. Returning to the summing up, we conclude that, given the way the trial was conducted, the judge is not to be criticised in deciding to give a s.34 direction. We know, however, that on a fair appraisal of the interviews in their original form such a direction would not have been appropriate. Does that impact upon the safety of Webber's conviction? We think not. The jury were told that "it was a factor which adds nothing to the case against him". That seems to us to be tantamount to an invitation not to draw any adverse inference.
49. The second episode was that at the filling station in August 1995. At p.77A to 77C of the summing up on 6^th April the judge directed the jury as follows:

"Now I have already given you a direction relating to Webber's failure to give evidence, and I will not repeat it now. I am sure you will have it well in mind. He too refused to answer questions relating to the Haydon Street filling station incident. We do not know why. Subject to that, please approach that failure in the same way as in the case of Ashton.

Please remember in relation to all these that the Prosecution must have made you sure that the Defendant has a case to meet before any inference adverse to a Defendant can be drawn from any failure to mention a fact, or indeed a failure to give evidence."

Mr Shorrock complains that this is a defective direction in that the judge failed to identify the facts relied upon by the appellant at trial such as to bring him within s. 34. It is clear from the Judicial Studies Board's specimen directions as approved by this court that the judge should specify the facts to which the direction applies. Mr Hedworth QC for the Crown concedes that the judge did not specifically identify the facts relied on the direction given. However, he points out that Webber, having declined to answer questions at interview, relied at trial on a version of events advanced by Ashton in evidence in relation to this incident. In particular it involved an acceptance of Webber's presence at the filling station and an allegation that Mitchell was carrying a knife. Immediately preceding the direction quoted above, the judge had pointed out to the jury that Webber's counsel had adopted Ashton's evidence on this topic. Although it may well have been preferable to link the facts relied on to the direction itself, we consider that in the context of this summing up which proceeded on a episodic basis the jury was sufficiently informed about the specific matters which were to be contrasted with Webber's silence in interview. As indicated earlier, reliance on a co-accused's evidence is sufficient to bring an accused within s.34.

50. There was a second and supplementary submission that without clear direction the jury may have thought that they could draw inferences from Webber's failure in interview number 2, in particular, to say anything about disputed evidence from Elizabeth Stephenson who claimed Webber had told her about his involvement in the filling station incident. In our judgement, it will have been apparent to the jury from the interview summaries provided that Webber had not been interviewed by the police about this aspect of Elizabeth Stephenson's evidence (or indeed any other aspect of her evidence). Further as the summing up was proceeding on an incident by incident basis with a s.34 direction being given as necessary, the jury will have appreciated that whereas in interview Webber had said nothing about the filling station incident, he was now at trial putting forward that he was present at the time. We do not consider that there was in the circumstances any danger of the jury misapprehending the position.
51. The final episode referred to by the judge was the shooting incident of 12^th January 1996. In interview Webber had denied being present. At trial it was put to prosecution witnesses that he had been present albeit that he had only fired shots in the air having first been shot at by others. At trial it was accepted on his behalf that it was appropriate to give a s.34 direction. This the judge did in terms about which we do not understand there to be any complaint.
52. For those reasons we do not consider this ground of appeal to be well founded.
53. Thirdly, Webber complains that he was inadequately represented at trial. On his behalf it is asserted that leading counsel, then engaged, failed to cross-examine prosecution witnesses in a competent manner and/or to adduce material evidence which was available at the time of trial. In consequence, so it is said, Webber did not receive a fair trial and his convictions should be considered unsafe.
54. By way of background it is submitted that since a decision had been made that Webber would not be giving evidence, leading counsel for Webber was able to cross-examine free from the usual inhibitions. Given that was the position, it is submitted that leading counsel made poor use of the available material. In particular it is said that not enough was done to explore the Redheugh Bridge incident and the reasons for the police failure to charge either Mitchell or Watson. There are many other similar examples put forward by Mr Shorrock in his detailed skeleton argument. It is suggested that counsel should not have shrunk from alleging a conspiracy between police officers and Mitchell and Watson by which Watson and Mitchell would be favourably treated in return for making statements implicating Ashton and Webber.
55. We accept, of course, that on occasions the incompetence of counsel may well lead the court to question the safety a conviction: see R v. Clinton [1997] Cr. App. R 320 CA. However, up to a point the trial process itself is designed to compensate for the failings of counsel and, generally speaking the incompetence would need to be of a high order before it is likely to affect the safety of a conviction: see R v. Donnelly [1998] Crim. LR 131. More than that, what at a distance may appear to have been a misjudgement or oversight or even flagrant incompetence very often turns out to be a reasonable decision when investigated more closely. This appeal provides an excellent illustration. There was material available to the defence which suggested that Mitchell had told prison officers that the man who had stabbed him was not Lyons but James Mathew Hannah. On the face of things, it seemed that the point had been overlooked by leading counsel for Webber. It was never put to Mitchell or to anyone else and no attempt was made to call the prison officer or officers involved. This was, if we may say so, Mr Shorrock's flagship point. It turned out, however, that on 11^th July 1995, the day of the attack, James Hannah had been in prison. We have no doubt that that fact was known to counsel for Webber and explains why nothing was made of the point. A similar example is provided by the complaint that leading counsel did not cross-examine police officers as to the reason for not charging Mitchell and Watson with the shooting at Redheugh Bridge. It transpires that Ashton and Webber had been asked repeatedly to make statements and had declined so to do. No doubt that, too, was known to trial counsel and provides a good and sufficient reason for not pursuing the point in cross-examination.
56. Nevertheless, we have considered with care the criticisms which have been levelled at trial counsel. Whilst we acknowledge that in some respects other counsel might have adopted a different approach, we can find nothing in the material presented to us which would allow the conclusion that counsel conducted Webber's defence in anything other than a perfectly proper and competent fashion. Certainly we have not discovered anything which even remotely suggests that the safety of the verdicts has been compromised by any failing or error on the part of counsel.
57. Webber's final ground of appeal is, in essence, a re-formulation of the argument based on the fresh evidence touching the credibility of Elizabeth Stephenson. It is said (i) that there was a failure on the part of the Prosecution to reveal the details of the negotiations over plans for Elizabeth Stephenson's re-location and (ii) that there was a failure to disclose the date on which pawn tickets had been handed to the police. As to the first, it is said that details of the negotiations would have shown Elizabeth Stephenson to be a grasping woman only prepared to trade her evidence for material benefits and would, therefore, have reflected upon her credibility. As to the second, it would have shown that her excuse for the lie to Webber that she had not pawned his jewellery was also untrue.
58. There cannot be any suggestion that the information was withheld in bad faith. It seems to us that those responsible for disclosure would have been unlikely to recognise the potential significance of the material, if any. But assuming, in favour of the appellant, that it was relevant to an issue in the case we are satisfied, for the reasons given earlier, that the failure to disclose did not render the trial unfair or the convictions unsafe.

Lyons.

59. In addition to the failed ground of appeal in relation to fresh evidence, there are three further grounds relied upon by Paul Lyons. They are (1) that Mitchell's purported identification of Lyons as his attacker on 11^th July 1995 was unsafe; (2) that Mitchell's purported identification of the bayonet recovered from the O'Neills house as the weapon which had been used in the attack was unsafe; and (3) that the police search of Lyons' room at the Seacroft Guest House on 14^th July was unlawful and consequently any evidence as to the finding of the bayonet in that room should have been excluded.
60. It has to be born in mind that what was being advanced at trial was primarily that Mitchell was a liar and had picked out Lyons as his attacker not because he had made a mistake but because that was the route by which he could get at Ashton and Webber of whom Lyons was a known associate. The possibility of mistaken identification was a second string to Lyons' bow. Having said that, Counsel for Lyons did have a certain amount of ammunition to use against Mitchell in cross-examination and by way of submission to the jury. There were differences between Mitchell's account and that of other eyewitnesses. Mitchell said that his attacker had been wearing a beige coloured coat. Mrs Swinburn said that he was wearing dark clothing. Mitchell said that his attacker was wearing a baseball cap but that his face was uncovered. Susan Clark said that the assailant had been wearing a mask. Mention by Mitchell that his attacker had a moustache and a tuft of hair at the front of his head was mentioned for the first time when giving evidence. The point was made that in a photograph taken on 14^th July 1995 Lyons did not have tuft of hair whereas by the date of trial he did and so it was suggested that Mitchell had adjusted his evidence accordingly. Then points could be and were taken with regard to the opportunity that Mitchell had for viewing his attacker given that he was fighting for his life. Other arguments of lesser importance are referred to in Mr Lane's skeleton argument.
61. We are reminded by Mr Hedworth for the Respondents that Mitchell claimed to have a full-face view of his assailant before, during and after the attack. During the attack he claimed that the two of them were face to face and only inches apart. He claimed to have had "a very good look" at the assailant's face. He agreed that he knew who his attacker was by the date of the identification parade but stated that the man he picked out was the man who had stabbed him.
62. The learned judge gave an impeccable direction as to how the jury should approach evidence of identification. (see pp.1&2 of transcript for 6^th April 1998). He reminded the jury of all the evidence and underlined all the points upon which Mr Lane has relied in this court. (see pp.42H – 47C transcript dated 6^th April).
63. There is no complaint about the case against Lyons being left to the jury. The matters raised before us are the very matters about which the jury had to make a decision. It is conceded that they were properly and fully directed. They first had to decide whether or not they believed Mitchell. If they believed Mitchell as they apparently did, they had to go on to decide whether or not he may have been mistaken in his identification. In considering that question they were required to take into account all the matters ventilated before this court and of which they were reminded by the judge. They came to the conclusion that they were sure that Mitchell was not only telling the truth but that he was not mistaken when he identified Lyons as his attacker. In this court that finding is unassailable.
64. On 12^th October 1996 Mitchell purported to identify the bayonet found down the side of the chair where Lyons had been sitting in the O'Neills house as the one which had been used in the attack upon him on 11^th July 1995.
65. Whereas there is a complaint about the judge's ruling that evidence of the search at the Seacroft Guest House and the finding of a bayonet in a bin liner was admissible, we do not understand that there was or is any objection to the admission of the evidence of the finding of what we may call the O'Neill bayonet. That is the bayonet, which Mitchell purported to identify. However, there was no scientific evidence to connect the bayonet with the attack upon Mitchell and from a description contained in the summing up it would seem that the bayonet was like many another remnant of the First and Second World Wars. In such circumstances it would seem that the most any witness could say would be that the bayonet resembled or was similar to the one used in the attack. This is what the judge said about the identification:

"Well, I have already warned you about the identification of people. You may think that it must be even more difficult to identify a bayonet. But it is, of course, only part of the evidence."

66. But the mere fact that Mitchell would not have been able to make a positive identification does not mean that evidence of Lyons' being in possession of a similar bayonet to that claimed to have been used in the attack was not something which the jury were entitled to consider. In our view, it was quite clearly capable of lending support to Mitchell's identification of Lyons. That ground of appeal is without substance.
67. In a sense and in light of the evidence to which we have recently referred, the finding of a bayonet at the Seacroft Guest House assumes little importance. Nevertheless, Mr Lane submits that it ought not to have been admitted. The search was unlawful as the judge found. In our view it was entirely a matter for the judge's discretion and we are quite unable to say that the discretion was wrongly exercised. Even if we had been of a different view it does not seem to us that the decision could have resulted in any unfairness to Lyons given the subsequent finding of a bayonet at the O'Neills and would certainly not lead to the conclusion that his conviction is unsafe.

Conclusion.

68. It follows that the appeals against conviction of all three appellants will stand dismissed.

Appeals against sentence.

69. It is convenient to begin with the appeal of Webber.

Webber.

70. This appellant's grounds are as follows:

(i) that the sentencing judge failed take sufficient account of the fact that Ashton and Webber had been provoked by the Redheugh Bridge incident and on other occasions by Mitchell and his associates as part of the acknowledged gang warfare;

(ii) that this appellant has a justified sense of grievance having regard to the sentences imposed upon Mitchell, Watson and others;

(iii) that a distinction ought to be made between this appellant and Ashton, and

(iv) that the long delay between conviction and sentence and the listing of this appeal should result in a reduction in sentence by way of redress.

71. We consider each of those grounds in turn.
72. As to the first, the fact that the agreement to murder Mitchell arose out of prolonged and vicious gang warfare in the Newcastle area is to be seen as something which aggravates rather than mitigates the offence.
73. We are unimpressed by the second ground of appeal. In the first place the original 7 year sentences imposed upon Mitchell and Watson followed pleas of guilty and are to be contrasted with an 11 year sentence for the same offence in Webber's case after a trial. Secondly, Mitchell and Watson had given evidence in the trial of this appellant and others and were entitled to credit for having done so. Then the court took the view that Watson and Mitchell were responding to an attack by this appellant and Ashton. That, also, justified a lesser sentence.
74. So far as the approach taken by this court is concerned, it is apparent from the judgment that further information was presented to the court which had not been available to the sentencing judge. This is what was said by Astill J giving the judgment of the court on 15^th June 1998:

"To summarise the position, it is possible to arrive at these facts. They were all sentenced on the basis that they armed themselves only in anticipation of an attack by Ashton and Webber. Anderson, Mitchell and Watson had pleaded guilty and were entitled to credit, and received it. All appellants made statements to the police against Ashton and Webber. The statements of Anderson , Mitchell and Watson, the Crown accept, led to the rearrest of Ashton and Webber, and their subsequent remand in custody enabled other witnesses to come forward. The statement of Graham had insufficient probative force and, in any event, his plea of not guilty meant that he could not be called. The statement of Carey was not of value to the Crown; that he attended an identification parade but failed to select anyone; and could not be called as a witness because, in any event, he had pleaded not guilty. However, Watson and Mitchell gave evidence against Ashton and Webber and they were convicted. On the other hand, Anderson did not. That Mitchell was the subject of a series of vicious attacks and was the intended victim in the shooting. Finally, that the lives of Anderson, Watson and Mitchell have been put at risk as a result of the assistance they gave.

Having regard to those facts, many of them discovered since the sentences were passed upon these appellants, we think it right to reflect the assistance that they gave by reducing the sentences that were passed upon them. So far as Watson, Mitchell and Anderson are concerned, we reduce their sentences solely on the basis of what has happened since they were sentenced. We have set that out and have no need to repeat it. We consider that appropriate reductions should give rise to the following sentences. For Anderson, a sentence of six years, and his seven year sentence will be quashed. For Mitchell, four years, and his sentence of seven years will be quashed. For Watson, four years, and his sentence of seven years will be quashed."

75. So it appears that there was ample justification for the distinction made between this appellant on the one hand and Mitchell and Watson on the other, and there can be no sensible criticism levelled at a sentence of 11 years for the disgraceful episode which took place outside Watson's house and which involved the firing of live ammunition in the presence of members of the public.
76. Again, looking at the sentence in isolation we are of much the same view with regard to the sentence of 18 years. Here was an agreement to murder Mitchell evidenced by three and possibly four attempts to bring the plan to fruition. In our view, a sentence of 18 years imprisonment was neither wrong in principle nor manifestly excessive.
77. So far as the third ground of appeal is concerned, we consider that the trial judge was in a far better position to assess the degree of involvement and culpability of the individual defendants and it was his view that there was no basis for distinguishing this appellant and Ashton. We are not prepared to take a different stance.
78. We turn to this appellant's fourth ground of appeal which was not among those originally submitted but which we have been prepared to entertain nevertheless. On 2^nd of July 2001 this court presided over by the Lord Chief Justice handed down judgment in Attorney General's Reference No.2 of 2001. The question before the court had been whether or not a Circuit Judge had been right to stay a prosecution on the ground that there had been a breach of Article 6(1) of the European Convention for the Protection of Fundamental Rights and Freedoms which provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…"

The Court considered that if there had been a breach of the guarantee of a hearing "within a reasonable time" the appropriate response was not to order a stay but to look to some alternative mode of redress. In the course of giving the judgment of the Court the Lord Chief Justice observed:

"If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant's rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes. It has always been the practice for the courts in this jurisdiction to take into account delays of the sort to which we have referred when sentencing a defendant it does so, recognising that it is inevitably a disadvantage to a defendant to have a charge hanging over his or her head longer than is reasonably required."

79. A similar point arose in the case of Mills v. Her Majesty's Advocate and the Advocate General for Scotland in which the opinion of the Privy Council was given on 22^nd July 2002. In that case there had been inordinate delay between the bringing and hearing of an appeal. The delay was of about twelve months during which time the appellant had been on bail. After full consideration of the authorities it was unanimous judgment of their Lordships that the guarantee of a hearing within a reasonable time was a free standing right the breach of which would in appropriate circumstances lead to an entitlement to redress or compensation, and further that it applied to the interval between conviction and the appeal hearing regardless of the merits or the appeal of the eventual outcome. In the case under consideration the High Court of Justiciary had recognised the breach of Article 6(1) with the consequential problems and possible hardships which the breach may well have produced. The original sentence was reduced by nine months. Lord Hope of Craighead, with whose opinion all of their Lordships agreed, concluded at para. 56:

"I would hold therefore that the decision of the High Court of Justiciary to reduce the appellant's sentence by nine months in order to compensate him for the effects of the delay was an appropriate and sufficient remedy. It meets with the requirements indicated by the jurisprudence of the European Court."

The appeal was dismissed.

80. Mr Shorrock points to the fact that almost four and a half years have elapsed since the date of this appellant's sentence and very little less than that span of time since leave to appeal was granted by the single judge. Indeed, we notice that the original Criminal Appeal Office summary is dated 12^th November 1998. Mr Shorrock has also taken us to correspondence passing between this appellant's solicitors and the Criminal Appeal Office stretching from 27^th October 1998 to 26^th January 2001. During that time it appears that this appellant changed his solicitors twice but that the real problem came about through delay in granting legal aid for the services of a solicitor. Without more information it would be quite wrong to allocate blame, but on any view this appellant cannot be held responsible for what we consider to be the inordinate delay between the grant of permission to appeal and the eventual hearing date.
81. As it turns out we have found the appeal against conviction to be without merit and the original sentence to be neither wrong in principle nor manifestly excessive. However, it does seem to us that there has been a breach of this appellant's right to hearing within a reasonable time for which he is entitled to some redress. What form should it take? After much hesitation and taking guidance from the opinions of their Lordships in the case of Mills we have concluded that this appellant would be sufficiently compensated for the breach of his right under Article 6(1) if we were to reduce his sentence by twelve months.
82. Accordingly a sentence of 17 years will be substituted for that of 18 in respect of the offence of conspiracy to murder and to that extent this appellant's appeal against sentence is allowed.
83. Before parting from Webber's appeal against sentence we should like to make it plain that we regard this case as being quite exceptional and that it should not be thought that any delay in listing which may be due circumstances or conditions outside the control of the court or the prosecution will necessarily lead to a similar result.

Ashton.

84. The total sentence of 18 years imprisonment passed upon this appellant was ordered to run consecutively to a sentence of 8 years imprisonment imposed on 24^th October 1997 for conspiracy to supply class B drugs.
85. Subsequently this appellant was convicted of violent disorder and perverting the course of justice for which he received a total sentence of 5 years imprisonment which was, in turn, ordered to run consecutively to the sentences then being served.
86. Then on 7^th May 1994 he was made the subject of a confiscation order under the Drug Trafficking Act with a default term of two years imprisonment which, if invoked, would be added to the other sentences of imprisonment.
87. As we mentioned at the outset the result is that this appellant is now serving 31 years imprisonment with the possibility that the total will be increased to 33 years if he is unwilling to comply with the terms of the confiscation order.
88. He now has leave to appeal against the individual sentences and their cumulative total.
89. He also has leave to appeal against the confiscation order. That appeal has been adjourned, not reserved to the present constitution, to await the outcome of a judgment which is shortly to be handed down by a constitution of this court presided over by the Lord Chief Justice which may offer guidance as to the conditions necessary for the making a confiscation order under the Act.
90. We look first to the sentence of 8 years for conspiracy to supply a class B drug, namely amphetamine. That followed the appellant's plea of guilty on re-arraignment part way into a trial of himself and others at Teeside Crown Court in October 1997.
91. It had been the prosecution case that a night-club in Stockton was being extensively used for the sale and distribution of ecstasy and amphetamine. The club was owned by two brothers called Robb and observations of undercover police officers showed that drug dealers were permitted to operate freely and had on many occasions sold drugs to the officers. It appeared to the officers that almost everyone attending the club was buying drugs. Among the dealers identified was a man called Smith, another called Lamb and yet another called Parker. A man called Leck was the manager for a period of 4-5 months in 1995. This appellant appeared to be a supervisor though never seen to supply drugs himself. He was, however, seen to be supervising the dealers mentioned and was responsible for paying wages to one of the dealers and had been seen by one witness to be carrying a large bag of what was thought to be amphetamine. £1,000 in cash was recovered from his home.
92. In passing sentence, His Honour Judge Fox QC acknowledged that this appellant had not been a prime mover but was nevertheless a main supplier of amphetamines to the club and an important controller of operations when the club was open. He was responsible for ensuring a consistent and continuous supply and making sure that purchasers were readily introduced to the suppliers. The judge allowed scant credit for the late plea.
93. Leck, who had also pleaded guilty on re-arraignment to permitting the premises to be used for supplying cocaine and amphetamines was sentenced to concurrent terms of 5 and 4 years imprisonment and ordered to forfeit £3,000 under s.27 of the Misuse of Drugs Act 1971.
94. Of the two Robb brothers one, Garry, failed to answer to his bail and is now the subject of a bench warrant. His brother, James Robb, pleaded guilty on re-arraignment to a variety of drug offences and was sentenced in total to 12 years imprisonment and ordered to forfeit £15,506.
95. Smith who pleaded guilty to both the supply of class A drugs and class B drugs received a total sentence of 7 years imprisonment.
96. On 11^th December 1998 this court, differently constituted. reduced Leck's sentence to one of thirty months as an act of mercy having regard to the very serious state of his wife's health but referred to the original sentences as "otherwise thoroughly deserved". On the same occasion Smith's renewed application for leave to appeal against his sentence was refused and the sentence of 7 years described as "entirely justified and unimpeachable".
97. Against that background Mr Gray argues that 2 years imprisonment would have been appropriate having regard to the several authorities placed before the court and upon which he relied. Those authorities are in the main concerned with cases of importation or of dealing where the quantities involved could be readily ascertained. This was a conspiracy charge. It related to dealing over a period of some sixteen weeks, that is from October 1995 to February 1996, and involved supply to very large numbers of people. The plea of guilty only came after the trial had started and evidence against this appellant had been received. Having regard to the appellant's supervisory role we do not think that it can be fairly submitted that his sentence should be any less than that suffered by Smith and Leck. However, it does seem to us that there was an insufficient distinction between Robb and the appellant and accordingly we propose to quash the sentence of 8 years and put a sentence of 6 years imprisonment in its place.
98. For reasons which will become apparent the substitution of a lesser sentence in this instance will, of itself, have no impact on the outcome of the appeal.
99. It is hardly necessary to rehearse the circumstances leading to the sentence of 18 years for conspiracy to murder and 11 years for possessing a firearm with intent to endanger life.
100. This appellant's grounds of appeal are firstly that it is not fair that Ashton should have received such sentences when Mitchell and Watson were each sentenced to 7 years imprisonment after pleading guilty to possessing a firearm with intent endanger life on 12^th July 1996 when the shooting incident had taken place outside Watson's home, and secondly, that the total achieved by the imposition of the 18 year sentence is manifestly excessive.
101. We have already considered the substance of the first ground of appeal in connection with Webber and would reject it for the same reasons.
102. Nevertheless, we shall wish to consider this appellant's sentence along with others in the context of 'totality'.
103. The total sentence of 5 years imprisonment was imposed by His Honour Judge Crawford QC on 22^nd December 1998 at Newcastle Crown Court.
104. On the evening of 3^rd August this appellant had been one of a number of men who had attacked two others who were in a motor car halted at a zebra crossing in Jarrow High Street. Both the passenger and the driver's side windows were smashed. The man sitting in the driver's seat was pulled through the broken window and kicked and punched as he lay on the ground. One of the attackers pointed a gun while another brandished a Stanley knife. A passer-by identified this appellant as one of the attackers. She described him "as very fat, 30-32 very ugly with short hair, not a skinhead which was gingery or fair." That was a very reasonable description of this appellant whom she was later to pick out at an identification parade. Much later this appellant wrote to his wife from prison asking her to persuade the victim to lie about his role in the attack. Given those facts and this appellant's previous convictions it could hardly be suggested that without the mitigation of pleas of guilty either sentence is manifestly excessive. In granting leave the single judge said:

"There is nothing wrong with either the sentence or the direction that they should run consecutively. I have only granted leave so that the Full Court may have regard to the totality of the sentence in the light of all outstanding matters."

105. So subject to the adjustment we have made to the sentence for the drugs offence we would regard all these sentences passed upon this appellant as being entirely proper in themselves. However we are concerned about the total which they produce. This appellant is in his early 40s. If these sentences stand he may not be released before he reaches the age of 60. He will have spent more than a third of his life in prison. For that reason and that reason alone we would have been prepared to interfere by ordering that the sentences of 18 and 11 years be served concurrently with the reduced sentence of 6 years for the drugs offence with the result that the total sentence of 29 years, as it would become following the reduction from 8 to 6 years for the drugs offence, comes down to a total sentence of 23 years.
106. What we may term the "Mills" point was not taken on behalf of this appellant. However, it would be wrong not to allow him the benefit of the argument presented on behalf of Webber. This appellant has suffered from the same period of delay as has Webber. He, himself, is not any way to blame. It follows that we should make a similar deduction in his case. The result will be that a sentence of 17 years will be substituted for that of 18 with the consequence that his total sentence becomes one of 22 years imprisonment. To that extent this appellant's appeal against sentence will be allowed.

Lyons.

107. This appellant received a sentence of 14 years for his role in the conspiracy to murder Mitchell. The jury must have accepted that he had been responsible for the ferocious attack with the bayonet in which he was attempting to murder Mitchell. He received a lesser sentence than Ashton and Webber because they had been involved in at least two other attacks, in one of which firearms had been used. Given the nature of this appellant's previous convictions it cannot sensibly be argued that a sentence of 14 years was manifestly excessive.
108. But this appellant has since received an additional sentence of 4 years for prison mutiny and we are told that he was already serving a sentence of 5½ years to which the sentence of 14 years was ordered to run consecutively. It is submitted, therefore, that the resulting 23½ years is too long having regard to the principle of "totality".
109. We have looked with care at the sentencing remarks of the learned judge who imposed the 4 years for prison mutiny. It would appear that this appellant played a smaller part in the disgraceful episode than others who received sentences of similar length. Having regard to that assessment as well as the principle to which have adverted it would seem fair to substitute a sentence of two years for that offence. Quite clearly the judge was right to order that the sentence should be served consecutively to that which this appellant was presently serving.
110. This appellant, also through no fault of his own, has suffered from inordinate delay in having his appeal come on for hearing. For that reason we consider that his sentence should further discounted by one year which will be achieved by substituting a sentence of 13 years for the 14 year term imposed for the conspiracy to murder.
111. The consequence is that this appellant's total term of imprisonment will be reduced by three years and to that extent the appeal against sentence is allowed.