[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ahmed, R, v [2018] EWCA Crim 739 (17 April 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/739.html Cite as: [2018] EWCA Crim 739, [2018] WLR(D) 244

[New search] [Printable RTF version] [View ICLR summary: [2018] WLR(D) 244] [Help]

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
MR JUSTICE GREEN
SHEFFIELD CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th April 2018

Lady Justice Rafferty:

1. This application for leave to appeal against conviction and if necessary against sentence was referred by the single judge.
2. On 25 November 2015 in the Crown Court sitting at Sheffield the Applicant was convicted of the murder of Jordan Thomas and of the attempted murder of Neshaun Ferguson. He was sentenced to life imprisonment with a minimum term of 36 years on count one and to 10 years imprisonment concurrent on count two.
3. Mr Joel Bennathan QC who did not appear below represents the Applicant and Mr Bryan Cox QC who did represents the Crown.
4. Grounds of appeal are 1: Admission of intelligence; 2: multiple hearsay; 3: cross examination of the Applicant; 4 Summing up; 5 Fresh evidence.

The facts.

5. Jama Ahmed was tried with Asif Yousaf, eventually acquitted of both counts. In a shooting at 22.14 on 21 December 2014 in Sheffield Jordan Thomas, part of a group of males from the Pittsmore/Burngreave area of Sheffield, rivals of a Somali group, was murdered. The Crown's case was that the Applicant was a part of the latter and the murder a revenge attack because Thomas was a competitor said to be associated with the Broomhall area, the stamping ground of Muhammad Ali ("Yellowman") Jamal Ali, Ahmed Warsame ("Blackie"), and Jama Dahir, Mubarak Ali (brother of Yellowman) and Jama Ahmed. Mubarak Ali had been killed by Jordan Thomas's cousin in 2011. The Crown's case was that the motive for the index shooting was that killing and, in the Applicant's case, since his younger brother had been assaulted by Jordan Thomas a few months before the murder.
6. On 19 December 2014 Aiden Thomas-Boswell, Jordan Thomas's stepbrother, with Neshaun Ferguson had organized an evening at the Forward nightclub in Sheffield. Somali men including the Applicant were refused entry. There was some turbulence between two factions and Somalis were chased to Broomhall, and, according to some accounts, shots aimed at them. The Crown accepted the applicant's case that though at Forward he was not involved in the turbulence and simply remained in the area.
7. A mobile telephone was used to taunt the Somalis in calls about the murder of Mubarak Ali. Jerome Rutty and Alexander Martin were involved in the taunting. Rutty pretended to be Jordan Thomas when he made calls.
8. Telephone number 2767 was attributed by the Crown to the Applicant. Rutty, Martin, and Thomas Boswell gave hearsay evidence that the caller using it identified himself as Jama or Drama and made threats to the person he thought was Jordan Thomas.
9. Hearsay and multiple hearsay accounts were that on 20^th December, the night before the murder, the Applicant approached Daniel Golding ("Danny G") as the latter sat in a car on De La Salle Drive and, having produced a handgun, asked where was Jordan Thomas. Golding's denial of the incident was before the jury as an agreed fact. The only first-hand account was from Crown witness Khalim Akhtar. Jordan Thomas's family summoned police to their home where Akhtar made a witness statement to that effect. Two days later Akhtar and his family complained to police that the Thomas family had bribed and bullied him into making it. At trial Akhtar did not adopt it and was treated as hostile.
10. On 21 December 2014 mobile 1764 became active. Its SIM was put in the 2767 handset, used to enquire about the Mitsubishi Shogun used in the murder. 1764 called a taxi to pick up near Paddy Power at about eight that evening. CCTV showed Somalis including the Applicant going in and out from Paddy Power at about 7 pm. The Applicant accepted he was in and around Paddy Power and had been asked by Yellowman to ring the cab office. Yellowman was a prominent local drug dealer. The Applicant's case was that he thought the taxi was being sent to collect drugs. He accepted that he too dealt in class A drugs.
11. Yousaf took the cab and bought the Shogun for cash and drove it away. He told the jury the Applicant organized its purchase and sent him to buy and deliver the vehicle. Yousaf said he collected it without knowledge that it could be used in a murder.
12. At about nine pm, said Akhtar and Mohammed Shoaib Fayed, the Shogun drove to Jordan Thomas's stepfather's home. Blackie (Warsame) was said, something in his pocket and looking for Jordan Thomas, to get out and go to a car in which sat Akhtar and Fayed.
13. Ferguson drove Jordan Thomas from Birmingham to Sheffield then to various places (probably linked to his drug dealing) before heading to Thomas's home.
14. The Shogun and Jordan Thomas's car passed each other. By 22.10 both were on Derek Dooley Way, the scene of the shooting. As they waited at traffic lights a male described as skinny Somali-looking and black quit the Shogun, walked to the passenger side of Thomas's car and fired three shots. Ferguson thought the shooter looked like Jamal Ali brother of the dead Mubarak. Ferguson survived one shot. Thomas died of two. The case against the Applicant was not that he was the gunman or even necessarily in the Shogun. At 22.20 three dark figures wearing black leaving the Shogun in woodland made off at speed. DNA analysis linked Yousaf to the vehicle.
15. Mobile 1764 used to buy the Shogun was active only between 1840 and 2020 that day. The same handset but holding other SIMs the Crown said was in the woodland area shortly after the Shogun was abandoned. Immediately before 2767 became active mobile 5250 was used in the same handset. A serving prisoner sought to add 5250 to his authorized numbers against the name Jama Ahmed. The Applicant called evidence showing that prisoners on occasions gave an incorrect name.
16. The Crown conceded the Applicant's case that mobiles 5250, 2767 and 1764 were communal drug phones used by Somali dealers.
17. The Applicant told the jury he was not involved in the murder or attempted murder. He was present at Forward and at Paddy Power, but not on De La Salle Drive looking for Thomas the night before. He rang the cab company at the behest of Yellowman but denied knowing its purpose. He gave the mobile back to Yellowman and did not have it again that day.
18. He denied telling Yousaf to buy the Shogun or taking delivery of it. He said he was at the time of the murder with Mohammed Ismail watching DVDs at an address he gave to police. He denied personal animosity to Thomas, they had played football on the same team, and that the two apparently got on was supported by the evidence of a football coach whom the Applicant called.

Ground one admission of intelligence material

19. Shortly before trial it became clear that the issue between Yousaf and the Applicant would be a "cutthroat". A few days into the trial the Crown served a Disclosure Note reading:

In 2008 police identified a group of individuals as part of an organized crime group this included Muhammad Ali Jamal Ali Abdi Razak Warsame Ahmed Warsame and Jama Ahmed.In 2009 an undercover operation was set up to investigate the groups criminal activities. This resulted in convictions of 83 individuals primarily for drug offences. There is intelligence that the group used violence and had access to firearms. In the course of the enquiry Jama Ahmed was identified as a suspect. In 2013 the group was reclassified as an urban street gang. There is intelligence that Jama Ahmed was involved in supply of class A drugs from 2011 onwards.

20. A further Disclosure Note served on 20^th October 2015 read:

Save for the matters specified below, there is no intelligence to link Jama Ahmed to any specific crime. He is mentioned as an associate of those engaged in criminal activity, in particular the supply of drugs. When the undercover operation was commenced, Jama Ahmed was identified as a suspect because of information of his association with others associated with the Somali group. The inclusion of Jama Ahmed as one of those named as a gang member was based on intelligence concerning his association with others engaged in criminal activity, and not because he is linked to any specific crime. In 2011, Jama Ahmed was charged with the supply of class A drugs, the prosecution was founded upon two sample purchases by an undercover police officer. These proceedings were discontinued due to the poor quality of a recording of the transaction. In addition, he was charged with a public order offence arising from the events surrounding the killing of Mubarak Ali in 2011.There is no intelligence that Asif Yousaf was involved with this group, save that there is evidence that he is associated with the group as a purchaser of drugs.

21. It was not in issue that such intelligence would help Yousaf and harm the Applicant. Both leading defence counsel agreed the intelligence was inadmissible absent underlying material which founded it and a bad character application would be necessary before counsel for Yousaf could adduce it.
22. Counsel for Yousaf sought disclosure of the underlying material. The judge having heard ex parte from police officers ruled the intelligence material admissible. He did not order service of the underlying material or oblige the Crown to name the supplying individuals.
23. The intelligence material was before the jury in Agreed facts, thus:

The Prosecution has disclosed the following intelligence:

(i) In 2008 the Police identified a group of individuals who formed part of an Organised Crime Group. This group included: Mohammed Ali (Yellowman), Mubarak Ali, Jamal Ali, Abdi Razaq Warsame, Ahmed Warsame (Blackie) and Jama Ahmed.

(ii) In 2009 an undercover operation was set up to investigate the Organised Crime Group's criminal activities. This resulted in the convictions of 83 individuals, primarily for drug offences. There is intelligence that the group used violence and had access to firearms. In the course of the enquiry Jama Ahmed was identified as a suspect.

(iii) There is intelligence that Jama Ahmed was involved in the supply of class A drugs from 2011 onwards. Jama Ahmed was identified as an associate of the Somali Organised Crime Group. He was identified as an associate of those involved in supplying drugs. When the undercover operation commenced Jama Ahmed was identified as a suspect because of his association with the Somali Gang and not because he was linked to any specific crime.

(iv) In 2011 Jama Ahmed was charged with the supply of class A drugs. The prosecution was founded upon two sample purchases from an undercover police officer. These proceedings were discontinued due to the poor quality of the recording of the transaction.

(v) In addition, Jama Ahmed was charged with a public order offence arising from the events surrounding the killing of Mubarak Ali in 2011.

(v) Although intelligence suggests that Asif Yousaf bought controlled drugs from the members of this gang, it suggests that he was not part of the gang.

(vi) Ahmed Warsame (Blackie) has previous convictions for possessing a firearm with intent to cause fear of violence and false imprisonment. He was convicted of these offences in 2009. He received a prison sentence of 7 years.

24. Mr Bennathan posed linked questions: Was the admission of this evidence legally justifiable? If not, does it matter?
25. He argued that the material is anonymous hearsay and, absent agreement, no legal basis founds its admission under common law or statute: Mayers [2009] 1 Cr App Rep30 [113]. The shape of the judge's ruling suggests intelligence either express or which found support in the opinion of police officers and if that be right it was admissible subject to tests, none of which was applied.
26. The Applicant's submission is that the judge made a decision novel in English law. He elected to hear evidence in public interest immunity conditions and, based upon it, determined an issue in the trial. The Applicant argues that statutory procedure governs admission of anonymous or of hearsay evidence and that the procedure the judge adopted had the effect of rendering otiose the applicable parts of the two relevant statutes, the Coroners and Justice Act 2009 and Criminal Justice Act 2003 ("CJA").
27. Intelligence said to be exculpatory of the Applicant was not before the jury. Disclosure note 8 read:

South Yorkshire Police have recorded intelligence obtained during the course of the investigation that suggests; Mohammed Ali aka "Yellowman" was responsible for organising the murder of Jordan Thomas and will seek to blame Jama Ahmed and Asif Yousaf for his death….… recorded intelligence obtained during the course of the investigation that suggests; Jamal Ali was responsible for shooting Jordan Thomas and will seek to blame Jama Ahmed and Asif Yousaf for his death…….intelligence obtained during the course of the investigation that suggests; Ahmed Warsame aka "Blackie" is the person responsible for shooting Jordan Thomas, he will seek to blame Jama Ahmed and Asif Yousaf for his death.

28. Whether to seek to introduce it was a decision falling to the Applicant's junior counsel, who for a time was without a leader after the departure of one and before the arrival of a second. His logic for not seeking to introduce it was to avoid a stance inconsistent with that already adopted in arguing against introduction of the primary intelligence material. Mr Bennathan has been scrupulous to avoid criticism of a forensic judgment made in difficult circumstances.
29. Countering the argument of the Crown that the intelligence material adduced added little to existing evidence given the Applicant's case that he was a drug dealer and associated with Somali drug dealers, the Applicant submits that precisely that position was advanced at trial, opposed by Yousaf and rejected by the judge. To make good that argument he submits that outwith intelligence agreed by the Applicant was the duration of his association with Somali drug dealers, any involvement with firearms, and whether Yousaf were part of the Somali gang. He further suggests the test for whether the admitted intelligence made a difference is its use. It was deployed in cross-examination by Yousaf of the Applicant as to when the latter began to associate with the Somali drug dealers and as to his links to Blackie, a man convicted of possession of a firearm. The Crown put and the Applicant denied that he was identified as in 2009 part of the gang, had access to firearms and the gang used violence.
30. The Applicant's resting position is that the intelligence material was inadmissible and its admission highly prejudicial. In consequence the convictions are unsafe.

Discussion and conclusion on Ground one.

31. No one argued against the proposition that a Somali gang planned the murder of Jordan Thomas. Not all planners and killers were in the dock, but membership of the gang was an important consideration. Yousaf was not a member. The Applicant was.
32. The disclosure we have set out was inevitable given the assistance it offered to Yousaf, who, equally inevitably, sought to adduce it. Yousaf suggested it was bad character evidence admissible under s101(1) (c) and (e) CJA as of substantial probative value. The judge was entitled to conclude that it was evidence of bad character and in this cutthroat trial had substantial probative value. In addition he reminded himself that in cross-examination of witnesses for the Crown the Applicant suggested that Yousaf and other members of the gang were responsible for the murder.
33. The jury was entitled to consider the relevance of the Applicant's membership of the gang, his connection to Jamal Ali, Muhammad Ali, and Ahmed Warsame; that the group had access to firearms; that Yousaf used drugs, in particular since Yousaf's defence was that as asked by the Applicant he collected the Shogun for payment in crack cocaine.
34. The judge's direction identified what the material did not demonstrate, viz any propensity in the Applicant to commit offences, and what it offered the jury, viz substantial probative value about matters in issue between the defendants. We should not forget that the disclosure note included a section exculpatory of the Applicant, in his desire to distance himself from the Somalis.
35. He attacked the character of many of the Crown's witnesses, both police officers and civilians. The evidence was that some witnesses for the Crown went in fear of him. Kalim Akhtar in evidence altered his account of events and omitted reference to the Applicant. The Crown's case was that this was a consequence of fear. The effect of this attack led, some would say inevitably, to the view that the judge after argument took.
36. Whether it amounted to anonymous hearsay is in one sense of little relevance. The evidence had all arisen as a consequence of the drugs operation to which the disclosure notes referred. Some topics in the note were matters of record, for example the Applicant's arrest for drugs offences and their subsequent discontinuance. The material within the disclosure notes was at the lowest supportive of and perhaps corroborative of evidence served in the usual way. The Crown sought to link the Applicant to the Somali gang by proving his presence at Forward, his presence with other gang members at Paddy Power, and by telephony. None of that was challenged by the Applicant. He did not deny association with the Somali gang. He accepted that police officers gave accurate identification evidence.
37. We are not persuaded that the disclosure note rehearsed information either inaccurate or misleading. Rather, the evidence supported the accuracy of the disclosure notes, or vice versa. The Applicant's case was that a Somali gang, members of which were not in the dock, was responsible for the murder. He did not disavow his membership of the gang. He accepted, indeed it was his case, that he was a drug dealer. He accepted that Yellowman led the Somali group. He agreed he would buy drugs from Yellowman and retail them. He referred by name to gang members. His case was that Yellowman organised the murder, carried out by Yousaf and other gang members.
38. He agreed with or aligned himself alongside the content of the intelligence material. It is difficult to identify by its admission any prejudice to him. Indeed in respect of certain aspects of the disclosure note, his case was the stronger.
39. The judge was scrupulous to explain to the jury the use to which it could, but importantly must not, put the disclosure information. He was entitled to admit it in reliance on the provisions of S101 (1) (e) CJA.
40. We refer briefly to Ali [2008] EWCA Crim 146. After a PII hearing the trial judge refused to allow the defence to adduce evidence contained in a report. The Court of Appeal concluded that the syntax of his ruling showed he had had other information, not available to the defence, and arguably adverse to its position on PII.
41. The Court said that a hearing on admissibility must be on the basis that material and arguments deployed are available to each party and concluded that the judge had impermissibly relied upon material he had been shown or arguments heard absent the defence which was thus precluded from meeting the Crown's position. The court went on to reject that ground as imperilling the safety of the conviction.
42. The position here is very different. The content of the disclosure notes was before the jury as agreed facts. We have set out the support for its contents derived from served evidence. Any prejudice to the Applicant has not been identified and we need not concern ourselves further with Ali.
43. The judge was confronted with a task which whilst simply expressed requires scrupulous analysis during a cutthroat trial. One defendant could not be denied the potential advantage which the intelligence note presented, the other was worse off for it. It is difficult to see, absent severance, which would have been difficult to justify, what other course was open to the court save admission with warnings to the jury. The jury was directed as to how to approach the intelligence material. Importantly, it was directed away from any impermissible approach to it.
44. We are not persuaded that Ground one is made out.

Ground 2 multiple hearsay.

45. Kalim Akthar in a witness statement told police that the night before the murder a man in a balaclava holding a handgun was in De La Salle Drive near Jordan Thomas's home. Akhtar estimated the man's height and thought it might be Liban Ahmed whom he knew. Later, Akthar said, seated with others in a car Danny G told Akthar that the masked man had put a gun to his, Danny G's, face, said "Oh, it's not you" and left. Danny G said his car drove off and he later saw the Applicant, whom he knew, in the same clothing as worn by the gunman. Later that night, Akhtar said, Danny G explained that the Applicant had apologised for putting the gun to Danny G's face. This evidence were the jury to accept it was potent since it suggested the Applicant was party to the intent to commit murder the following night.
46. Leading counsel had agreed that even if in dispute first hand hearsay would be admitted. The Applicant's contention is that even on its face Akthar's statement should have persuaded the jury to be cautious: it was made five months after the event; Akthar knew the parties; his account was to police when they were called to the home of a member of Jordan Thomas's family; his initial view of the gunman prompted him to think it could have been Liban Ahmed; his belief that the Applicant was the gunman was confirmed in reliance on the hearsay account of Danny G; Danny G told police he knew nothing of this incident; Mohammed Shoaib Fayed whom the judge described as generally credible provided more support for the need for caution.
47. Akhtar told the jury that the incident he had described did not take place, and as we have set out he was eventually treated as hostile.
48. Jerome Rutty described being in De La Salle Drive and hearing Liban Ahmed take a telephone call and then explain its content as that Yellowman the Applicant and Blackie were in a car with a gun looking for Jordan Thomas. Rutty said he had been told by a few people that that group was driving round looking for Jordan Thomas. The Applicant suggests this was anonymous hearsay and consequently there was no power to admit it unless it was agreed: Mayers.
49. Ferguson, the victim in count two, in an account of the incident described Jordan Thomas telling him that Thomas had learned that a gun had been put to Danny G's head. Danny G had not named the gunman. Cross-examined he claimed that Danny G had named the gunman and that he Ferguson, off the record, passed this on to police. Counsel for the Applicant in cross-examination of Ferguson adduced the officer's note recording Ferguson claiming to have been told that Danny G after a gun was held to his head later had an apology from the Applicant for having mistaken Danny G for Jordan Thomas.
50. The Applicant argues that this account required either a ruling that it was inadmissible hearsay or a recognition of its inadmissibility. Instead the judge simply listed Ferguson as one witness whose hearsay account supported Kalim Akthar's account.
51. Aidan Thomas Boswell stepbrother of Jordan Thomas said of the incident that he was aware and was told - although he never explicitly set out by whom - that the Applicant and others were asking for Jordan Thomas, that the Applicant in De La Salle Drive pointed a gun at a person in a car then said "It's not you." Thomas Boswell described what the Applicant was wearing. He said that later the person at whose head the gun had been pointed received an apology from the Applicant. Thomas Boswell was later to say he could not remember whether Liban Ahmed told Jordan Thomas and Jordan Thomas told Thomas Boswell or the other way round.
52. The Crown successfully applied to introduce this hearsay after leading counsel for the Applicant in cross-examination of Thomas Boswell relied on the latter not having named the Applicant until many months after his first account. The judge admitted it as going exclusively to Thomas Boswell's state of mind and potentially explaining why he was in fear of naming the Applicant.
53. The Applicant criticises this ruling since the Crown already had ammunition to argue that fear triggered Thomas Boswell's belated naming of him. The suggestion that the Applicant had been seeking out Thomas Boswell was not before the jury as evidence of its truth. He concedes that the legal mechanism for its admission avoided what he describes as the ban on anonymous hearsay, but argues that the jury having heard other hearsay accounts would inevitably use it as support for them. This, it is said, is one situation in which the presumption that a jury will follow direction does not accord with reality.
54. The judge is criticised for failing to direct the jury that Thomas Boswell's account did not go to the truth of the allegation, rather, telling them that Thomas Boswell, as did Ferguson and Danny G, gave evidence that the Applicant was on De La Salle Drive with a gun on 20 December. He cautioned the jury that the evidence was predominantly hearsay and that appropriate care must be taken when assessing it, as he had already directed. There is no complaint as to that earlier direction.
55. Mr Bennathan submits that it would have been better had leading counsel for the Applicant sought to correct this part of the summing up, but does so understanding of her difficulties. She had taken over from counsel first instructed and was finding her way through a complicated case with a good deal to consider. The same exculpation, he suggests, is not available to the Crown.
56. His resting position is that the jury heard evidence that the Applicant with a gun sought out Jordan Thomas the night before the latter was shot dead. This was so central as to illumine the Applicant in an unwelcome spotlight. Without it he would have remained one of a number playing a part in events leading up to the murder. Once sure of the incident of 20 December, the jury would have been much more likely to convict. Whereas, so the submission goes, the only admissible evidence of that event should have been the account of Kalim Akhtar, the jury inevitably had the impression of four witnesses upon whom it could rely.
57. Discussion and conclusion.

It is important to remember the context of this case. All parties sought to lead hearsay. Leaving aside first-hand hearsay, which by agreement was admitted, some disputed but adduced hearsay evidence helped the Applicant. On the other hand some, adverse to him, fell to be assessed against the backdrop of his attacks on the character of witnesses for the Crown.

58. Thomas Boswell's account of Jordan Thomas giving him information about 20 December was admissible under section 116 CJA as important explanatory information about the background. It went to rebut the Applicant's claim that he and the deceased rubbed along. True, one inference open to the jury was that 20 December events provided a motive for the next day's murder but on the other hand the Crown's case was that the motive for murder was triggered by the earlier killing of Mubarak Ali, gang feud, and the rivalry of drug dealers.
59. The hearsay evidence that the Applicant had been driving round alongside Muhammad Ali (Yellowman) and Ahmed Warsame (Blackie) was adduced by counsel for Yousaf. On any view it was multiple hearsay but the jury was properly directed about its limitations immediately before counsel cross-examined Thomas Boswell. The evidence was relevant to the cutthroat defence. Other evidence suggested that the Applicant had been driving round looking for Jordan Thomas. Kalim Akthar's account of seeing him with a gun on De La Salle Drive was direct evidence not hearsay. Telephony established repeated threats by the Applicant to Jordan Thomas on 20 December.
60. We are not persuaded that Ground two is made out.
61. Ground 3 cross-examination of the Applicant.

The Applicant admitted drug dealing and lies to the police about his use of a drug dealing telephone. He led his two convictions for affray and some driving matters. He did not answer questions in interview. He told the jury that this was on advice from his legal team. Leading counsel examining him in chief established:

Q: Other than the two affrays and I think some driving matters had you ever been in custody for a murder? "

A No

Q Anything of any seriousness?

A They only two other charges and convictions I got are them affrays.

Q Why did you take your solicitor's advice?

A I just thought I just took their advice they told me to say no comment so I took it.

62. The Applicant had been arrested for offences including conspiracy to murder. After a brief period in a police station no further action was taken. The Crown without application cross-examined him about that arrest and then about other offences of which he had been accused but not convicted. Inter alia it was suggested to him that his arrest for conspiracy to murder had been in 2009 in relation to a shooting in 2008. His 2011 arrest, of which the jury knew as a consequence of the intelligence material, was put to him as resulting in no prosecution for technical reasons. He countered that he had an alibi.
63. Once he left the witness box leading counsel sought the discharge of the jury. The Crown conceded that it should have sought leave to cross-examine as it did. The judge declined to discharge the jury, and later directed it that the questions did not suggest the Applicant had committed any offence of which he was not convicted.
64. That direction, whilst accepted as unimpeachable, is said to be inadequate to cure the difficulties arising from the questions. The direction was some two weeks after the dialogue, the jury's view of the Applicant and of his evidence were sure to have been formed whilst he was in the witness box, and many questions were apparently for no other purpose than to suggest he had in fact committed offences of which he did not stand convicted. The Applicant submits that it is impossible to predict the terms of the judge's ruling had leave been sought. The question asking whether he had been in custody for a murder read with the balance of his answers might have persuaded the court that he had not understood the line of questioning. Alternatively introduction of arrest for conspiracy to murder most judges would have seen as so prejudicial that the original monosyllabic answer could not justify it.
65. Finally the submission is that even if questions were justified the number posed and propositions put went beyond any conceivable remedy for an attempt to mislead.
66. The Applicant concedes that the court often has to deal with inadvertent mention of an accused's antecedents or charges brought which do not lead to convictions, and adopts the "least said soonest mended" approach. Mr Bennathan argues that that was not the position here. The questions were prolonged repetitive and crafted. This court cannot be confident that they fell short of persuading the jury to see the Applicant as a guilty and violent man who numerous times before got away with crime.
67. The Crown's explanation is that the questions went to rebut the misleading impression given by the Applicant that he had never been in custody for murder. Not only did leading counsel for the Crown ask about the offences we have highlighted but also in respect of some whether the Applicant had in interview refused to answer questions. Leading counsel accepts that he should have spoken to counsel for the Applicant before beginning the line of questioning. That said he describes cross examination as going to a limited purpose, permissible and appropriate. He undertook to address the jury on the basis that the evidence was not that the Applicant had committed those offences, and did. He also concedes that an application should have been made to adduce what was plainly bad character evidence.

Discussion and conclusion.

68. The appropriate way to behave was not in play. Not only did leading counsel for the Applicant endure the discourtesy of not being alerted but the material in question was evidence of bad character and, statutorily, required an application. For what it is worth, in his closing address leading counsel for the Crown did underline that there was no evidence that the Applicant had in 2009 committed conspiracy to murder. However far more importantly the jury was directed appropriately and clearly. The judge set out that one reason the jury knew about those matters was that the Crown suggested the Applicant was experienced in the ways of police investigation and knew that "no comment" responses would give him a better chance later to tailor his evidence to fit the case for the Crown. The judge emphasised that the evidence was not before the jury because it would help it decide whether the defendant were guilty of murder or attempted murder. It did not show a propensity or tendency to commit those types of crimes and the Crown had clarified that references to arrest for conspiracy to murder were not evidence of a tendency to commit such crimes. He told the jury there was no evidence that the Applicant committed that or any of the other offences for which he was arrested but not convicted save for the two affrays to which he had pleaded guilty.
69. Unfortunate and perhaps unattractive as the route to its admission was, the evidence was plainly admissible and the subject of an unimpugnable direction in clear terms.
70. We are not persuaded that Ground three is made out.

Ground four the summing up.

71. The summing up is criticised on three fronts: for an insufficiently robust warning of the dangers of hearsay, for an absence of directions on specific hearsay problems as to 20 December; and for an over-robust direction on the inference available from the Applicant's silence in interview.
72. The hearsay directions are criticised as inadequate in general terms and in failing to clarify how the jury should approach the hearsay accounts before it, on occasion even inaccurately stating the position and to the Applicant's disadvantage.
73. The Applicant argues that the hearsay in play included the alleged threats to Jordan Thomas set out by Rutty; the suggestion that shots had been fired at Somalis at Forward in the days before the murder; and, particularly, Kalim Akhtar's account in his statement, supported by the hearsay accounts of Ferguson and Thomas Boswell. Whilst accepting that the judge directed the jury as to hearsay having earlier warned it on the topic before the statement of Rutty was read, the Applicant complains that the direction failed to point out the potential risk of reliance on a statement by an individual not before the jury in person, whose evidence should attract particular care.
74. Singled out for criticism is Rutty's account of a call from "Jama" whereas Alex Martin who gave evidence and knew the caller as "Drama" stored the caller's number under M.
75. As to events on 20 December, the criticisms are that the judge did not remind the jury that Akhtar's first account was hearsay; his direction that the jury should seek other consistent evidence would have led it to view as supportive the accounts of Rutty; the judge did not rehearse pejorative comments on Akhtar as a bit of a fool and a liar; the direction would have led the jury to seek support in the account of Thomas Boswell which was not admitted for that purpose, and in the account of Ferguson not admitted at all. He did not explain that Akhtar's written account was that Danny G told police he knew nothing of the incident on 20 December, but listed Danny G as having seen the Applicant with a gun. He described Akhtar's account as corroborated by the evidence of others such as Ferguson Rutty and Thomas Boswell.

Inferences from silence.

76. The judge's direction is criticised for a failure to tailor the facts not mentioned in interview to the eventual state of the evidence. Not mentioned in interview were the Applicant's status as a drug dealer, his presence in Paddy Power and at Forward and his witnessing of a disturbance outside it. All these were agreed by the conclusion of the evidence. The submission is consequently that they should not have featured as support for an adverse inference.
77. In his direction the judge considered the Applicant's answers in evidence, where he accepted lying to police about his use of mobile 5250, and accepted his presence outside Forward where there was a disturbance. The judge described those agreements with the Crown as emerging in the first place under cross examination by leading counsel for the Crown, and in the second when pressed by leading counsel for the Crown. An accurate account would have been that he explained each during his evidence in chief.
78. Mr Bennathan is obliged to accept that those interpretations would not without more amount to a ground of appeal so his suggestion is that they form part of an unhelpful whole by suggesting that even in evidence the Applicant still sought to avoid the truth.
79. The direction about reliance on legal advice is said to contain a major flaw. The judge said:

"If you consider that he had or may have had an answer to give but genuinely and reasonably relied upon legal advice to remain silent you might [our emphasis] decide not to draw any adverse conclusion from his refusal to answer questions"

80. The consequent submission is that once a jury decides on a genuine and reasonable reliance on legal advice it is precluded from drawing an adverse inference.
81. Mr Bennathan adds that at the end of the directions the judge listed the four-point argument advanced by the Crown in favour of an adverse inference and twice revisited those arguments.

Discussion and conclusion

82. A summing up, and this is no exception, is profitably read as an entire document. Selected extracts on their face deficient may be remedied by reference to other parts of the whole.
83. The direction on hearsay was long and detailed. It is unfortunate that at one stage the judge used "might" – "… you might decide not to draw any adverse inference…" - when the clause should have read "you must not draw any adverse inference".
84. This error however sits within an accurate direction as to what the jury had to be satisfied about before reaching a conclusion adverse to the Applicant. The judge also explained the caution, the content of the interviews, the topics upon which the Applicant did not answer, the topics upon which he relied in his defence statement, and his explanation for his failure to answer questions. He set out unimpugnably the prohibition upon convicting in reliance wholly or mainly on an adverse inference.
85. We are not persuaded that the summing up on adverse inference was so deficient as to imperil the safety of the conviction.
86. As to hearsay, the jury was told to decide what weight it attached to hearsay evidence, that such evidence had identified limitations, that when deciding upon weight hearsay evidence should be viewed in the light of other evidence, tested as consistent or inconsistent with it.
87. The judge would have been wise to repeat within his direction the warning he had earlier given as to Rutty's account. That said, the jury could not have failed to understand how it should approach hearsay in the light of the entirety of the help the judge offered. We are satisfied that the tenor of the directions protects the safety of the conviction in that regard.
88. We are not persuaded that Ground four is made out.

Ground five fresh evidence.

89. The Applicant seeks leave to call Mohammed Ismail and Abdirashid Hassan. His counsel decided not to call Ismail having been told by the Crown that he was on bail for attempted murder. It is conceded that other reasons feature in the discussion in consultation with the Applicant, including anxiety that the Crown would successfully seek to ask Ismail about what triggered his arrest leaving aside that he was neither charged or convicted. Difficulties attaching to the decision are said to include lack of clarity about what was said to the Applicant's counsel about Ismail's arrest and whether the suggestion were that he remained on bail. The submission is that this court must achieve a degree of reality: by the time that decision was taken the Applicant's legal team would have been anxious in the light of rulings with which issue is now taken.
90. Given the way the Crown put its case, never suggesting the Applicant was the gunman or even present in the Shogun at the shooting, this aspect of Mr Bennathan's submissions required an interpretation of why the evidence of Ismail that he and the Applicant were together at the time of the murder would have been capable materially of advancing the latter's case. Putting the same thing another way, this was not a case in which an alibi defence would have answered the case for the Crown.
91. As to Hassan, the Crown's case was that Jordan Thomas had assaulted the Applicant's brother in the months before the shooting, triggering a vendetta between the Applicant and Thomas and undermining the former's case that the two rubbed along more than adequately.
92. We are told and of course accept that those representing the Applicant intended to call Hassan to tell the jury that he was the true victim of the assault by Jordan Thomas.
93. As a consequence, it is said, of a misunderstanding Hassan was not available. Doing his best for his lay client Mr Bennathan argues that once a witness's absence is not the fault of the Applicant allocating blame for non-attendance may not be a good use of the court's time.

Discussion and conclusion

This was not a case in which an alibi would materially have assisted the Applicant. The case he answered did not require an explanation of his whereabouts on the night of the murder, the deficiency it is said Ismail was capable of curing. Whether there were hostility or peaceful co-existence, Hassan, for what if anything he could offer the jury, was available to be called. Thus Ismail for one reason and Hassan for another each lead to this Ground failing entirely to persuade us.

Grateful as we are to Mr Bennathan QC this application is rejected.

Sentence.

94. The Applicant concedes that the judge correctly adopted a starting point of 30 years taking in to account the seriousness of the offence and the factors set out in para 5(1) schedule 21 CJA, particularly that it involved the use of a firearm. However, he is criticised for increasing the minimum term to 36 years.
95. The aggravating features were:  The Applicant was closely involved in the planning of the murder, was a leading member of the group, used a dupe to procure the car, it was a cold-blooded execution, and there was an attempted murder of another victim.
96. A number, if not all, is said to be reflected in the 30 year starting point and an increase of 20 % not justified.  Having regard to the Applicant's relative youth and lack of any relevant and serious antecedent history, the minimum term of 36 years was manifestly excessive.

Conclusion

97. The judge was correct to view the attempted murder as an aggravating feature.  He disregarded the applicant's previous convictions as aggravating.  He could not be satisfied that the Applicant was the shooter and sentenced on a fair factual basis.  He had regard to the youth of the Applicant.
98. In light of the aggravating features the minimum term of 36 years was not manifestly excessive. 
99. This application is rejected.