Martin, R. v

This appeal raises an important issue relating to the trial of persons who are unfit to plead. It also calls into question the determination of a jury based upon the untested evidence of a witness whose evidence was read to the jury pursuant to s.23 of the Criminal Justice Act 1988.

In November 2001, the appellant was due to be tried together with Tyrone Lindo, Ali Moses, Osbert Ponde, and Errol Tobiere upon an indictment arising out of an incident on 13 August 2000 when a 12-year-old Somali boy Abdirazak Hamza, was chased and stabbed to death during a music festival which took place at Elthorne Park, Holloway, London. Count 1 charged the appellant, Lindo Moses and Osbert Ponde with the murder of Hamza (i.e. Tobiere was not included) and count 2 charged all the co-defendants with violent disorder, contrary to s.2(1) of the Public Order Act 1986.

On 20 November 2001, in the Central Criminal Court before His Honour Judge Paget QC, the appellant was found to be unfit to be tried under s.4A of the Criminal Procedure (Insanity) Act 1964, (“the 1964 Act”). The effect of the extensive psychiatric evidence in that regard was that, while the appellant was adamant he had not committed murder, he had the intellectual capacity of a young child, was so suggestible and lacking in understanding that he could not follow the court processes, and that he would have been unable to give intelligent or coherent evidence.

On 8 January 2002, the indictment was amended to insert a new count 2 which alleged against all the co-defendants conspiracy to cause grievous bodily harm to Hamza contrary to s.1(1) of the Criminal Law Act 1977 and the former count 2 was renumbered as count 3. On 10 January 2002, Lindo and Tobiere pleaded guilty on re-arraignment to count 3 (violent disorder), Lindo being sentenced to a 12-month Detention and Training Order and Tobiere to 2 years’ detention in a Young Offender Institution. Moses and Ponde pleaded guilty on the same date to count 2 (conspiracy to cause grievous bodily harm) and were each sentenced to 3 years 4 months’ detention in a Young Offender Institution.

On 12 March 2002, at the Central Criminal Court before His Honour Judge Paget QC and a jury, the appellant was found to have done the act charged against him in count 1 (murder) under section 4A of the 1964 Act. He was made the subject of a Hospital Order under section 5 of that Act.

The facts stated shortly were that on Sunday 13 August 2000 Hamza went to the musical festival mentioned above. He lived on the Elthorne Estate nearby. In the late afternoon he was surrounded by a group of black youths and chased from the park. He ran across Hazelville Road, along Partington Close and into Mulkern Road, heading towards his home in St John’s Way. At some point in this journey he sustained 6 stab wounds to the chest, 2 of which pierced his heart. He collapsed in Mulkern Road, fatally injured. It appeared that the motive for the attack was a previous incident in which Hamza’s brother had stabbed Lindo. By their pleas Lindo, Moses, Ponde and Tobiere admitted that they were in the group which chased the deceased. So far as the appellant was concerned, the Crown relied upon evidence that he was also present in the group, that he was seen afterwards with a knife which he wiped clean, and that he made comments amounting to an admission that he had taken part in the stabbing. The evidence to that effect was contained in the statement of a 17-year-old witness, Tamba Bona, which was read to the jury and which, as the judge directed them, was the entire basis of the prosecution case against the appellant.

The following were the principal witnesses for the prosecution. Lois Harvey gave evidence that at about 5.15pm when she was driving her car north in Hazelville Road a group of black boys aged apparently between 13 and 16 crossed the road in front of her coming from the direction of the park. They ran into a passageway and leaned against the wall as if trying to get their breath back. She had not seen anyone running ahead of this group.

Faisal Khan, who lived in a house backing onto the alleyway between Hazelville Road and Parkington Place heard the sound of people rushing and shouting. He went outside onto his balcony on the second floor and saw a group of 6 boys and one girl running into the alley from the direction of the park. When he went out he saw a young boy running down the stairs at the Parkington Close end of the alley near to a wall where the deceased’s blood was later found. He was followed by a youth who was described by Mr Khan as aged 17 or 18, tall, skinny, with very short hair and little dreadlocks. He was wearing a baseball jacket with a diamond motif and the letter T on the back. (It was agreed that this was not a description of the appellant who was short, stocky and differently dressed.) Shortly afterwards Faisal Khan saw the tall youth returning back up the stairs and being asked by the group “Did you get him?”, to which the youth replied “Yes”. He was holding a knife with a 6 inch blade and a red handle which he wiped on his jeans, folding it and putting it in his pocket.

Hiba Zeno, a cousin of the deceased aged 8 or 9, gave her evidence by means of a video-recorded interview. She said that she had left the park with the deceased who was then surrounded by 6 or 7 boys. The deceased said “What is happening?” and one of the boys who had a bicycle with him said “What do you mean, what’s happening?” This boy was aged about 14, shorter than the deceased and had light brown skin. He was wearing baggy trousers and a white sleeveless top. The deceased then ran into the alleyway and the other boys chased him. There was one boy who appeared to be the ‘boss’ because the others followed him when he ran. He was black, skinny and about 5cm taller than the deceased. He wore a blue jacket and baggy grey trousers which bore a newspaper print pattern. He wore a dark blue cap and a gold necklace with a cross on it. Hiba ran home to St John’s Way to tell her mother what was happening. She looked out of the window and saw the ‘boss’ with his hand in his inside jacket pocket.

Sandra Derby who lived on Partington Place heard boys arguing and then a groaning sound. From her window she saw 5 or 6 boys apparently aged between 15 and 19 walking back towards the park, one of whom had a crippled leg. She saw a boy get up from the ground near to a barrier and road cone where the deceased’s blood was later found in the gutter. He ran up Mulkern Road, with two of the other boys chasing him. However others in the group said “Low it, low it”, meaning leave it. The two boys then ran back. Both had white or cream jackets, and one had his hand under his jacket as if hiding something. They walked towards the park looking behind them. Mrs Derby then became aware of the deceased lying in Mulkern Road and went to help him.

Augustin Lebie, aged 17 went to the festival with Tamba Bona who was a friend of his. At the park he met Lindo, Moses, Ponde and the appellant. Either the appellant or Ponde was wearing trousers with pound or dollar signs printed on them. One boy, probably Ponde, had a bicycle. There was a scuffle and some people ran from the park to the Elthorne Estate, Lebie following with another companion Curtis. About 8 to 10 boys ran past Lebie. He saw the deceased in front with 3 boys running behind him. Lebie followed. He saw the deceased struggling to run and holding his front. He staggered and fell on the pavement. The three boys following got within about 2 metres of him and then ran back. Lebie did not know those 3 boys and said they were not Lindo, Ponde, Moses or the appellant. However Lebie followed them and heard one asking who had done it. He did not hear the response. Back in the park, Lebie overheard a conversation between Ponde and the appellant in which they used the word ‘hot’, but he did not know whether this was a reference to the incident. There was an announcement over the public address system that a person had been stabbed and Moses, Ponde and the appellant appeared fearful; however so did others who were there. Lebie was wearing a cap with earflaps and walked with a limp, which features had been noted by Mrs Derby and another witness Susan Leah who had seen a boy of that description approach another boy and say “Leave him” before running away.

The evidence of Tamba Bona was read. He said he was in the park when he saw Lindo, Moses, Ponde and the appellant run off. Other people also disappeared at the same time. He said that he had remained in the park and had ‘a bit of trouble’ with some boys from Tottenham. Later he saw Ponde and the appellant returning, the appellant holding a silver-coloured knife with blood on it. He said “We’ve got him” several times. He seemed excited and was smiling. Ponde seemed normal. Bona assumed that the appellant had stabbed someone, but there was no conversation about it other than the appellant saying “We have to run. We have to divert”. He said the appellant then went to his flat nearby accompanied by Bona, Lindo, Moses and Ponde. The appellant wiped the blade of his knife on some tissue. Bona assumed they had gone to the flat to avoid the police; however this was not discussed. After 10 minutes Bona returned to the park with Lindo. An announcement was made that a boy had been stabbed and everyone was asked to leave. Bona saw a knife being kicked about on the floor but said he did not know who had dropped it. He was wearing a black leather motorcycle jacket with an eagle design on the back, the appellant also wearing a motorcycle jacket, the colour of which Bona could not describe.

In a second statement, Bona clarified that it was about half an hour after they had first run off that Ponde and the appellant returned to the park. It was Ponde (not the appellant) who said “We’ve got to divert,” which meant they had to run away. Ponde was wide-eyed and blinking, but neither he nor the appellant was out of breath. Both said “We’re hot” which meant they were in trouble. At the flat he had heard the appellant say “We got the boy” in an excited fashion. Bona was in the toilet when this was said and the appellant was in the living room. There was music playing. The appellant said to Lindo “ We got the boy who stabbed you. We got him. We got him clean.”.

Jade Ereira was aged 16. She said that at about 7.30pm on 13 August she had seen 3 boys standing under a tree in a road off Hazelville Road. There was a police helicopter overhead and one of the boys said “Oh shit”. He was about 5ft 5inches tall and was wearing a jeans suit with a newspaper print design. Another boy was pushing an object with a black handle into his waistband. He was quite small and was wearing jeans, a shirt and hat.

Detective Sergeant Mason interviewed Bona as a suspect on 18 October 2001. Bona refused to answer questions. He was told that he could become a witness for the prosecution but still declined to comment. At that time he was on bail for robbery, although that charge was subsequently dismissed. On 25 October, Bona made his first witness statement at a time when he had asked whether, and was aware that, a reward of £5,000 had been offered for information in respect of the murder. However he was not promised money. He said that his reason for coming forward was that the others had mentioned that he was present. He said “They started it, they started grassing me first”. Bona was placed within the Witness Protection Scheme.

Dr Cox, who conducted the post mortem examination on the deceased, found that he had swelling to the knee and ankle consistent with a sprain sustained during the chase. There were no defensive wounds to his hands or arms and he had been stabbed six times in the chest, two of the wounds penetrating his heart. The wounds appeared to have been inflicted either with the same knife, or more than one knife of the same type, namely a single-edged knife with no serrations. The first traces of the deceased’s blood at one end of Partington Close were 100 metres from the point where he collapsed for the first time. She thought it extremely unlikely, though not impossible that he could have covered that distance, having already suffered the wounds to his heart. However he could have run the distance from the point of his first collapse to that where he finally collapsed and died having suffered those injuries.

Formal admissions were made to the effect that the appellant flew from the United Kingdom to his own country of Montserrat on 24 August 2000, his ticket having been purchased three days after the murder. He was subsequently extradited.

By way of defence evidence, the appellant’s solicitor Mark Ashford referred to a plan of the appellant’s flat and certain photographs which he had taken. It appeared that the toilet and living room doors each had spring mechanisms which made them close automatically, the living room door also having foam draught-proofing. Mr Ashford said that in the toilet he was aware of intrusive noise from water pipes and was unable to hear conversation from the living room television set, even when the volume was turned up to a loud level.

Two rulings of the judge give rise to two of the grounds of appeal before this court. The first concerns the act or acts in respect of which the jury should have been asked to make a finding under s.4A of the 1964 Act. The second concerned the ruling of the judge that the evidence of Tamba Bona should be permitted to be read to the jury for the purposes of a decision under that section.

As to the first ruling, it was submitted on behalf of the appellant that, in respect of count 1, the Crown should be limited to proving the appellant was the person who actually inflicted one or more of the stab wounds on the deceased, in other words that he was a principal in the first degree. Reliance was placed upon the observations of Lord Hutton in R v Antoine [2000] 2 Cr App R 94 at p112 to the effect that, on a determination under subsection 2 of s.4(A) difficult questions could arise as to the meaning of the word ‘act’ in a situation where the defendant had been charged with participation in murder as a secondary party only, the actual killing having been carried out by another person. The Crown, to the contrary, submitted that there was no reason why a jury should not be able to be satisfied that a defendant had done the act or acts involved as a secondary party, it being a question of analysis from case to case what amounted to the act or acts required to be proved, either by direct evidence or by inference. The judge accepted that submission. He referred to evidence of Bona that, after the stabbing of the defendant, the appellant was seen to wipe the blade of a knife in his possession and comment “We’ve got him” several times and that, at the flat, he heard the appellant say “We got the boy who stabbed you” addressed to Tyrone Lindo who had been stabbed not by the victim but by the victim’s brother. The judge accepted the Crown’s submission that any reasonable jury would be able to infer either that the appellant inflicted one or more of the stab wounds personally, or at least that he was a party to the attack with a knife. He saw no disadvantage to the appellant if the case was allowed to proceed upon that two-fold basis, provided that the position was reviewed at the end of the Crown’s case.

So far as the admissibility of the statements of Tamba Bona was concerned, the Crown applied that they should be admitted and read to the jury on the basis that the witness was in fear. He had been in the Witness Protection Scheme since making his statements in October 2000. There was evidence however that he had been threatened in an anonymous telephone call or calls, and that he had been assaulted by having his face burned with a cigarette by a friend of a co-defendant as a warning not to give evidence, albeit Bona denied that fact before the judge on a voir dire. There was also evidence that his sister had been approached by youths who threatened that there would be adverse consequences if he gave evidence.

On 1 March 2002, Bona had failed to attend court and a warrant was issued. He was arrested and brought to court, where he refused to go into the witness box or to answer when spoken to. He was remanded in custody and assigned counsel. On 4 March 2002 he claimed that he was unfit to give evidence and was or had been taking drugs. However, he was seen by a doctor who found that he was fit and not under the influence of drugs. He refused to read through his statements. On 5 March 2002 he agreed to give evidence. In a voire dire in the absence of the jury, he stated that he was not in fear and denied that the cigarette incident had occurred. He claimed he knew nothing, or could remember nothing of the murder. On 6 March, DS Crawford gave evidence that a crime report had been made of the incident in which he was burned with a cigarette and that he had received treatment in hospital but that he had refused to pursue any complaint in respect of it.

The judge held that, from his demeanour and from all the circumstances outlined, he had no doubt that the reason for Bona’s attitude was that he was afraid to give evidence and, against that factual background, the judge had to decide whether to allow the statements to be read.

The judge made reference to the decision of Kenneth Jones J in R v O’Loughlin and McLoughlin [1988] 2 All E R 431 in which, in not dissimilar circumstances, the judge refused to allow statements to be read, exercising his discretion under s.78 of the Police and Criminal Evidence Act 1984 (PACE). The judge made the observation that his own decision had to be made under a subsequent statute and in a new environment. He found that the provisions of s.23(3) of the 1988 Act were satisfied and that s.26 of the Act raised a presumption that a statement should not be read unless the judge was satisfied that it ought to be admitted in the interests of justice including, in particular, whether its admission or exclusion would result in unfairness to the accused. Taking into account all the circumstances, and in particular those specified in paragraphs (1), (2) and (3) of s.26, the judge said this:

“As to the contents of the statements, they could of course not be more relevant or important. As to the risk, having regard to whether it is likely to be possible to controvert this statement in the absence of the witness, that its admission would result in unfairness to the accused, I recognise that there are difficulties; and as to any other circumstances, I recognise that this is an unusual situation in that this particular defendant is somebody under a disability.

However, applying the principles, it seems to me that I should admit these statements in evidence and that the defendant can nevertheless have a fair trial.

There is material available to Mr Davies, whether by cross-examination or argument, by which he can controvert or undermine the statement, even though the defendant is himself under a disability and cannot himself give evidence. The fact that the defendant is under a disability is, in the end, it seems to me, a neutral point. It is undoubtedly a handicap and it means in practice that Mr Davies can have few (if any) instructions; as I have just said, he cannot call the defendant to give evidence. (At least, I suppose, in theory he could but in reality it is almost certain he cannot for all practical purposes). But that would still be so even if Tamba Bona did give evidence. The fact that he has not and that his statements are to be read does not affect Mr Davies’ ability to discredit his statements by pointing out any inconsistencies or contradictions that they may contain; by adducing evidence of the character or convictions of Tamba Bona, and by demonstrating that he may have been motivated by a desire to avert suspicion from himself by blaming others – and this defendant in particular – or by the possibility of a reward. I acknowledge of course that there must be some disadvantage in not being able to cross-examine Tamba Bona. But in the interests of justice, and balancing the matters as I am bound to do, it seems to me that he can nevertheless have a fair trial.”

The judge expressed himself troubled by the issue whether various decisions of the European Court of Human Rights on the application of Article 6(3) of the Convention effectively meant that no defendant can ever have a fair trial in circumstances where the main or only evidence against him comes from a witness who does not give oral evidence and in respect of whom there is no opportunity for the defendant to cross-examine the witness as to his evidence. In this connection he referred to a number of Convention cases and to the effect of them as summarised in the commentary by Professor Andrew Ashworth upon the decision in Luca v Italy, 27 February 2001 (Application no.33354/96): see [2001] Crim LR at 748. The judge rejected the argument that the conclusions drawn by Professor Ashworth admitted of no exceptions (c.f. Doorson v Netherlands (1996) 22 E.H.R.R. 330).

The judge continued:

“I cannot believe that the position admits of no exceptions. If it does then Sections 23 and 26 of the Criminal Justice Act 1988 can never apply in a case such as the present and, if that is the law, it means that, whenever there is a case which depends upon a single witness, frightening or otherwise preventing that witness from giving evidence would inevitably lead to the acquittal of the defendant. That is in conflict with three decisions of the Court of Appeal on the application of Sections 23 and 26 to which I have been referred and they are, to give them in order Philip Dragic (1996) 2 Cr App R 232, Abas Kassimali Gokal (1997) 2 Cr App R 266 and finally and most recently Christopher Antonio Thomas & Others decided in 1998, and as yet I think unreported except in the Crim L R, but of which I was supplied with a transcript.

In my judgment it must in the end be a question of fact and degree, and every case must depend on its own facts. It is acknowledged that Sections 23 and 26 of the Criminal Justice Act of 1988 do not necessarily conflict with Article 6(3) and on the facts of this case, in my judgment, it is in the interests of justice to allow the statements of Tamba Bona to be read.

I do nevertheless feel that the defendant can have a fair trial even though there are difficulties which I hope I have identified.”

The evidence of Tamba Bona was duly admitted and the jury found that the appellant had done the act charged against him in count 1 following a summing up by the judge in respect of which no substantial criticism is made on the assumption that the judge’s rulings are upheld.

Following the finding of the jury, the judge imposed upon the appellant a Hospital Order with a restriction without limit of time.

The general grounds of appeal read as follows:

“Ground 1 The learned judge erred in his rulings relating to two crucial issues relating to the trial of the ‘act’ under section 4(A):

i.

What is ‘the act’ or what are ‘the acts’ in respect of which the jury should have been asked to make a finding?

ii.

In respect of the question posed to the jury relating to the ‘act’ relating to murder (count 1) was the judge correct to,

a.

allow the evidence of Tamba Bona to be read; and

b.

to permit a finding of the jury to be based on it in respect of count 1 when it was the only or decisive evidence in relation to the ‘act(s)’ constituting murder.

If the ruling of the judge on either question was wrong, the finding of the jury is rendered unsafe.

Ground 2. There is fresh evidence available which was not available at the trial which casts doubt on the credibility of the witness Bona.

The applicant seeks the admission of the evidence when the court considers Ground 1, ii.

Alternatively if the court were to consider that the finding is safe;

Ground 3. The imposition of a Hospital Order with a restriction without limit of time under Section 5 of the Criminal Procedure (Insanity) Act 1964 and 1991 and schedule 1 is incompatible with Articles 6 and 8 of the schedule to the Human Rights Act 1998.”

The Criminal Procedure (Insanity) Act 1964 provides in section 4A that, where there has been under section 4 a determination by a jury that the accused is under a disability, in that he is unfit to plead:

“(2)

The trial shall not proceed or further proceed but it shall be determined by a jury –

(a)

on the evidence (if any) already given at the trial; and

(b)

on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,

whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

(3)

If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.

(4)

If as respects the count or any of those counts the jury are not so satisfied, they should return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.”

In R v Antoine [2000] 2 Cr App R 94 the House of Lords was principally concerned with the question whether a person accused of murder and being dealt with under s.4A(2) was entitled to rely on a defence of diminished responsibility so as to avoid the consequences of a finding that he did the act of murder charged. In the speech of Lord Hutton, with which the rest of their lordships agreed, the House held that the defendant was not so entitled because, once the jury determined that he had done the act in question, the trial determined and the question of a defence of diminished responsibility (which went to mens rea) did not arise. It was further stated that a finding that an accused did the act charged was not a conviction in any event. However, Lord Hutton made clear that by use of the word ‘act’ rather than ‘offence’ in s.4A(2) it was clear that, in making its determination, the jury need only be satisfied that the defendant committed the actus reus of the offence, not the mens rea, subject to the right of the defence to raise by way of ‘objective’ evidence, the defences of mistake, accident, self-defence or involuntariness.

In the course of his speech, Lord Hutton made clear that the decision in Attorney-General’s Reference (No.3 of 1998) [1999] 2 Crim App R was to be preferred to the earlier decision in R v Egan [1998] 1 Crim App R 121. In Egan, it had been stated that the proof of the act meant neither more nor less than proof of the necessary ingredients of the offence. In Attorney-General’s Reference (No.3 of 1998) the court answered the question posed for its decision in respect of an inquiry under the Trial of Lunatics Act 1883 (which raised similar considerations to s.4A(2)) as follows:

“ … when determining whether ‘the defendant did the act or made the omission charged’ for the purposes of the Trial of Lunatics Act 1883, and assuming insanity,

(a)

the Crown is required to prove the ingredients which constitute the actus reus of the crime. Although different language is used to describe this concept, for present purposes, we respectfully adopt the suggestion in Smith and Hogan Criminal Law, 8^th ed (1996) p.29 that it must be showed that the defendant:

‘has caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law …’

(b)

the Crown is not required to prove the mens rea of the crime alleged and, apart from insanity, the defendant’s state of mind ceases to be relevant.”

Lord Hutton dealt with the rationale behind s.4A as follows:

“The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea.”

Lord Hutton then pointed out the difficulty in certain instances of making plain a clear dividing line in all cases between the actus reus of an offence and the ‘mental element’ of a particular crime. As he remarked,

“A number of learned authors have commented that it is difficult in some cases to distinguish precisely between the actus reus and the mens rea and that the actus reus can include a mental element. In Smith and Hogan Criminal Law 9^th ed, p.28 Professor Sir John Smith states:

It is not always possible to separate actus reus from mens rea. Sometimes a word which describes the actus reus, or part of it, implies a mental element.”

In this context, Lord Hutton dealt with the mental element which may call for consideration in cases where an issue arises as to mistake, accident or self-defence, and made clear that the prosecution may be faced with the need to negate the possibility of such a defence where it arises by reason of the evidence of witnesses, as opposed to the evidence of the defendant or the mere suggestions of counsel on his behalf. On this matter, Lord Hutton stated at p.111:

“If, on a determination under section 4A(2), the jury are only concerned to decide whether the defendant did the ‘act’ and are not required to consider whether the defendant had the requisite mens rea for the offence, should the jury nevertheless decide that the defendant did not do the ‘act’ if the defendant would have had an arguable defence of accident or mistake or self-defence which he could have raised if he had not been under a disability and the trial had proceeded in the normal way. The difficulty inherent in this issue is that such defences almost invariably involve some consideration of the mental state of the defendant. Thus in Palmer v R [1971] AC 814, 832, when considering self-defence, Lord Morris of Borth-y-Gest referred to the defendant doing ‘what he honestly and instinctively thought was necessary’ to defend himself. But on the determination under section 4A(2) the defendant’s state of mind is not to be considered. How then is this difficulty to be resolved? I would hold that it should resolved in this way. If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the ‘act’ unless it is satisfied that beyond reasonable doubt on all the evidence that the prosecution has negatived that defence. For example, if the defendant had struck another person with his fist and the blow had caused death, it would be open to the jury under section 4A(4) to acquit the defendant charged with manslaughter if a witness gave evidence that the victim had attacked the defendant with a knife before the defendant struck him. Again, if a woman was charged with theft of a handbag and a witness gave evidence that on sitting down at a table in a restaurant, the defendant had placed her own handbag on the floor and, on getting up to leave, picked up the handbag placed beside her at the next table , it would be open to the jury to acquit.

But what the defence cannot do, in the absence of a witness whose evidence raises the defence, is to suggest to the jury that the defendant may have acted under a mistake, or by accident, or in self-defence, and to submit that the jury should acquit unless the prosecution satisfies them that there is no reasonable possibility that that suggestion is correct. I consider that the same approach is to be taken if defence counsel wishes to advance the defence that the defendant, in law, did not do the ‘act’ because his action was involuntary, as when a man kicks out and strikes another in the course of an uncontrollable fit brought about by a medical condition. In such a case there would have to be evidence that the defendant suffered from the condition.”

Finally, and of most immediate relevance to this case, Lord Hutton touched upon the solution, upon the evidence before the court, where the accused is not a principal in the first degree, but, if liable, is liable on the basis that he is no more than a secondary party. In this respect, Lord Hutton observed:

“As I have observed at the commencement of this judgment, it was the co-accused of the appellant who killed the victim by stabbing him, and it appears that the appellant was charged as a principal in the second degree. No issue was raised before the Crown Court judge or before the Court of Appeal or your Lordships in relation to the fact that the appellant was the secondary party, no doubt because it was clear that by his own actions in preventing the victim from leaving and striking him the appellant had played a part in the killing. However, on a determination under section 4A(2) where the defendant had been charged with participation in a murder as a secondary party and another person had carried out the actual killing, difficult questions could arise as to the meaning of the word ‘act’ in such a situation and as to the matters which the jury would have to consider, and I express no opinion on such questions in this judgment.”

It is just such a question which arose before the judge in this case. The solution he adopted was that already referred to at the end of paragraph 20 above. He directed the jury as follows:

“If you are sure that what Tamba Bona told the police in those two statements is true, the prosecution say you can be sure that Kay Jason Martin stabbed Abdirizak Hamza; or at the very least that he took part in a knife attack on Abdirizak Hamza with the others. There may have been more than one person with a knife. The pathologist cannot say for certain. All she can say [is that] those six wounds – and we shall come to her evidence – could have been inflicted with one knife but could have been more than one …

You can only find that he did the act of murder if he was himself the stabber (or one of them) or took part in what he knew at the time it was happening was a knife attack

If you are not sure of Tamba Bona’s evidence, if you are not sure of the truthfulness and accuracy of that account, that is really the end of that murder and you would find Kay Jason Martin not guilty.” (emphasis added)

As already indicated, it had been the submission for the defence that the judge should restrict his direction to one which informed the jury that the act or acts of which they must be satisfied were that the appellant had actually stabbed the victim and that any direction which introduced knowledge into the equation involved an inappropriate examination of his state of mind. In those circumstances, Mr Davies QC submits to this court on behalf of the appellant that the judge was wrong to add to such a direction words which indicated it would be sufficient for a determination that the defendant had done the act with which he was charged, if he took part in an attack which he knew at the time it was happening was a knife attack. It is the submission of Mr Davies QC that the act or actus reus in question must be ‘unequivocally a criminal act’, as he puts it, i.e. not an act that is merely converted into a criminal act if there is some accompanying degree of mens rea (in this case knowledge at the time the attack was happening that it was a knife attack). Thus to the extent that the judge’s direction was appropriate to include not only participation by personal use of the knife, but simple participation with the knowledge that at least one other attacker was furnished with an illegal weapon (see R v Uddin [1999] 1 Crim App R 319), it was an error.

Mr Evans QC for the Crown, on the other hand, submits that the judge was correct in the directions which he gave. He points out that, in Antoine, the House of Lords acknowledged that there is no settled or clear-cut definition of actus reus in this context, each case turning on its particular facts and circumstances. By way of illustration, he refers to the decision of the Divisional Court in R v Central Criminal Court ex parte Young [2002] EWHC (Admin). That case concerned a prosecution for dishonest concealment of material facts contrary to s.47(1) of the Financial Services Act 1986. The defendant was charged inter alia with dishonest concealment of certain investment intentions on his part. The defence argued that it was not possible for the jury to investigate the intentions of the defendant because such investigation was no more than an enquiry into his state of mind. The court (per Rose LJ) approved the ruling of the judge that:

“The relevant principles which emerge from Lord Hutton’s speech [in Antoine [2001] 1 AC 340] are the following:

One, so far as possible, the court’s enquiry at a section 4 hearing should focus upon the defendant’s actions as opposed to his state of mind.

Two, this distinction is dictated by the language of section 4A and the social purpose which it serves.

Three, this distinction cannot be rigidly adhered to in every case because of the diverse nature of criminal offences and criminal activity.”

The Divisional Court ruled that the intentions particularised in the indictment were properly to be regarded as a fact or facts. Rose LJ stated at paragraph 35:

“ … it seems to me that it is appropriate for the jury charged with the inquiry under section 4A of the 1964 Act to consider the intentions of the defendant not, of course, in relation to dishonesty, and not in relation to the purpose of making the representations, but his intention as one of the facts represented, according to the particulars of the offence, to those said to be the victims of his activity.”

Whilst Mr Evans recognises that the decision in ex parte Young was concerned with very different circumstances from those which surround the liability of a secondary party in respect of a fatal attack, he points out that it does at least make clear that, in an appropriate case, the jury may be required on the basis of the evidence from sources independent of the defendant to consider the state of mind of the defendant where such consideration is necessary to establish whether the actus reus of the offence can be made out. He also points out that, whereas in Antoine Lord Hope observed that, in ‘secondary party’ cases, difficult questions may arise as to the meaning of the word ‘act’ and the matters which the jury may have to consider, he did not suggest that the s.4A procedure would be inapplicable in cases where the person charged had not personally inflicted the fatal wound but was alleged to be liable simply as a secondary party. Nor in our view is that the position.

In such cases, it is the task of the judge to give careful consideration to the principles involved, to apply them to the circumstances of the particular case, and to give a direction framed to define and encompass the minimum facts of which the jury must be satisfied to establish the ‘act’ required to be proved against the defendant. If, by reason of the definition of the crime concerned, or the level of the participation required to establish liability, it is necessary for the jury to be satisfied that the defendant had a particular level of knowledge as to the activities of the principal offender and/or the surrounding circumstances, then the judge should so direct. In such a case, as with issues of mistake, accident or self-defence, the determination will fall to be made as a matter of inference from the independent evidence of witnesses and not from the evidence of the defendant or the suggestions of counsel. It is only by such means that the rationale and intention underlying s.4A, as set out by Lord Hutton (see paragraph 32 above), can be fully effected.

On that basis we turn to consider the direction given by the judge.

No complaint is made of the judge’s direction that the appellant had done the act of murder if he was himself the stabber (or one of them). Criticism has concentrated upon the further direction that the jury might likewise find the act of murder proved if the appellant participated in what he knew at the time it was happening was a knife attack. In that respect, as we understand it, it is not argued that, in the context of the evidence before the jury, the judge used an inappropriate shorthand for the ingredients of liability, on the assumption that the jury accepted the evidence of Tamba Bona. Nor is it argued that he misstated the proper basis for secondary liability had the hearing been an ordinary trial of a defendant able to give evidence on his own behalf as to his state of mind. It is simply objected that the determination of the issue so stated, necessarily involved a conclusion as to the state of mind of the appellant (i.e. what he knew at the time) and that it was therefore inappropriate or in some way invalid.

We reject that submission. The problem presented in relation to the liability of participants in the case of a group attack involving the use of weapons, and, in particular, use of a knife to inflict fatal violence upon the victim, have been the subject of detailed consideration in R v Powell; R v English [1999] 1 AC 1 and R v Uddin [1999] 1 Crim App R 319. In the former case, the House of Lords made clear that a secondary party is guilty of murder if he participates in a joint venture realising that in the course thereof the principal offender will use force with the requisite mens rea (intent to kill or do grievous bodily harm) and the principal in fact does so. By lending himself to the enterprise, the secondary party gives assistance and encouragement to an enterprise which he realises may involve murder. In the latter decision, the Court of Appeal gave guidance on the effect of Powell. It made clear that, where several persons attack a victim in circumstances which show that they intend to inflict grievous bodily harm and, as a result, the victim is killed, they are jointly liable for murder. However, if the injury inflicted is caused solely by one participant and is of a type entirely different from that contemplated by others in the group e.g. by use of a deadly weapon such as a knife, then those others will not be liable for murder unless they foresaw the use of a fatal weapon. In that last respect, however, if the secondary participants are themselves carrying weapons of a deadly character, the mere fact that a different kind of weapon was used by the principal will not be sufficient to avoid liability on the basis of joint enterprise.

Thus, whereas the actus reus of the principal offender is doing the very act which causes the death, that of a secondary party is the act of participation in the joint venture/common purpose and, under s.4A(2), that is the matter upon which the jury must concentrate in order to determine whether or not the secondary party is to be regarded as having done the act of murder alleged against him. To that end, the jury must decide as a matter of fact (a) whether there was a common purpose, (b) what it was, (c) whether the act of the actual perpetrator went beyond the common purpose by being radically different from any act which the defendant realised might be done in the course of the attack. Put thus, for the jury to determine whether or not the defendant has done the act of murder for the purposes of s.4A(2) involves in part an investigation of his state of knowledge. Equally, however, the three elements which require to be decided are, in the absence of evidence from the defendant, susceptible of determination upon an objective basis by inference from the facts presented in evidence and it is upon that basis that they must be dealt with under the section. Here, the judge summed up to the jury, on the basis of Tamba Bona’s evidence which made clear that (a) the appellant was part of the group which chased the victim, (b) he was himself carrying a knife, (c) he was himself seen returning from the chase, and heard to say, “We got the boy who stabbed you”. There was thus clear evidence that he had taken part in a joint enterprise which he knew at the time was a knife attack. The evidence, if true, showed that, whether or not he used it, he was carrying a knife when he joined the chase, was aware of the stabbing, and afterwards was claiming credit for being part of the group which had ‘got’ the boy who was the victim of the stabbing.

We find no error on the part of the judge in instructing the jury that, for the purposes of deciding whether the defendant did the act of murder with which he was charged, they must be satisfied either that he was himself the stabber, or one of them, or that he was a person who took part in what he knew at the time was a knife attack. If the jury, upon the basis of the evidence before them, were satisfied that either was the case, then, for the purposes of s.4A(2), the ‘act’ of murder was properly established.

Section 23 of the Criminal Justice Act 1988 provides that a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if, as provided by sub-section (3), (a) the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and (b) that the person who made it does not give oral evidence through fear or because he is kept out of the way.

Under the heading ‘Principles to be followed by a Court’, section 25(1) provides that if, having regard to all the circumstances, the Crown Court on a trial on indictment is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. Sub-section (2) provides that, without prejudice to the generality of sub-section (1), it shall be duty of the court to have regard (a) to the nature and source of the document containing the statement it is likely that the document is authentic (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence of the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.

Under the heading ‘Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations’, section 26 provides that where a statement which is admissible by virtue of section 23 appears to the court to have been prepared for the purposes of pending or contemplated criminal proceedings, the statement shall not be given in evidence without the leave of the court, and that the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice. In considering whether its admission would be in the interests of justice, it is the duty of the court to have regard to (i) the contents of the statement; (ii) and risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused [c.f. s.25(2)(d) above] and (iii) to any other circumstances which appear to the court to be relevant.

As observed in R v Grafton [1995] Crim LR 61, CA, the emphasis in section 25 begins in favour of admitting a statement, whereas that in section 26 is against admitting it. Where a statement falls within section 26 therefore, application of its provisions is likely to be determinative of the application to admit the statement without separate consideration of section 25.

It is clear that the onus was on the Crown in this case, as the party seeking to have the statement admitted, to satisfy the court that it ‘ought to be admitted in the interests of justice’; see R v Patel 97 Crim App R 294. Having said that, the decision was plainly one for the discretion of the judge having regard to all the relevant circumstances. In this respect, so far as consideration (i) was concerned, the contents of the statement were plainly vital to the prosecution. As already observed, the prosecution put its case and the judge summed up to the jury on the basis that the evidence contained in the statement of Tamba Bona constituted the entire evidence against the appellant. Without it, he was bound to be found not guilty. So far as consideration (ii) was concerned, it was vigorously argued that the admission of the evidence would result in unfairness to the defendant, the defence being deprived of any opportunity to cross-examine Tamba Bona before the jury with a view to discrediting his evidence and undermining his honesty and accuracy.

In this respect it was pointed out that (a) he did not come forward as a material witness at any time; (b) he was initially arrested as a suspect in respect of the murder on the basis that he was one of the chasing group himself; (c) when he was seen and his first statement taken, he asked about the reward money of £5000 which had been offered for information leading to the arrest of the victim’s murderer; (d) when asked why he was telling the police about the involvement of the appellant, he said “Because they grassed. They started it”; (e) when seen in order to take his first statement, he was on bail for an offence of robbery on 20 September, during which two jackets and a mobile telephone had been forcibly taken from some youths. When arrested one of the stolen jackets was found in his possession as well as 4 mobile phones. The case was not proceeded with because the young witnesses refused to attend an identification parade.

Apart from these matters, there were pointed out to the judge certain inconsistencies between the two statements of Tamba Bona. In the first statement there was no mention either of the incriminating conversation said to have been overheard by Bona when in the lavatory, nor was there mention of the words allegedly uttered by the appellant “We’re hot”. The defence would have wished to cross-examine upon those aspects. Also upon two further matters, namely the assertion by Bona that he had not been part of the chasing group because he had been “having trouble with some boys from Tottenham” and that, when he purported to see the appellant holding the knife with blood on it he said that “there was no-one else around”, although the place at which he had seen the appellant was a park in which a festival was in full swing. It was submitted that, in the absence of cross-examination, the matters complained of could be raised by no method other than comment or rhetorical query, and there was no benchmark or other reliable basis by which the jury could make up its mind whether the statement of Tamba Bona should be believed or not, constituting as it did the only evidence of the appellant’s participation and/or subsequent alleged admissions and coming as it did from an unreliable witness with a motive to misstate.

In support of those submissions, defence counsel referred to Article 6(3) of the Convention which provides that:

“3.

Everyone charged with a criminal offence has the following minimum rights:

…

(d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

Reliance was placed on the case law of the European Court of Human Rights concerned with anonymous and other witnesses whose testimony is read. Before the judge, the following authorities were relied on: Unterpertinger v Austria (1991) 13 EHRR 175; Windisch v Austria (1991) 13 EHRR 281; Kostovski v Netherlands 10/1988/154/208; Asch v Austria 30/1990/221/283; Saidi v France 1993 Series A No.261-C; Van Machelen v Netherlands 55/1996/674/861-864; Doorson v Netherlands (1996) 22 EHRR 330; A.M. v Italy App 37019/97 (1999); Luca v Italy App 33354/96. Upon this appeal, there has been added to that list PS v Germany 33900/96 and Visser v Netherlands 26668/95, 14 Feb 2002.

The position in the jurisprudence can best be summarised by a quotation from PS v Germany in which the court, referring in particular to the decisions in Doorson, Van Mechelen, Windisch and A.M. v Italy, summarised the matter as follows:

“19.

The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and that as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling on whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair …

20.

This being the basic issue, and also because the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 (see, amongst many other authorities, the Van Mechelen and Others judgment …) The Court will consider the applicant’s complaints from the angle of paragraphs 3(d) and 1 taken together.

21.

All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage …

22.

In appropriate cases, principles of fairness require that the interests of the defence are balanced against those of witnesses or victims called upon to testify, in particular, where life, liberty or security of person are at stake, or interests coming generally within the ambit of Article 8 of the Convention …

23.

However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities …

24.

Where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at the trial the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 …”

In Luca v Italy where, in very different circumstances, the defendant was unable to demand the presence of an important witness at trial or to cross-examine him, the court observed at paragraph 40 of the judgment:

“As the court has stated on a number of occasions … it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6.1 and 3(d). The corollary of that, however, is that where the conviction is both solely or to a decisive degree based on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6.” (emphasis added)

The judge rejected the submission for the defence that the last sentence of that paragraph could admit of no exceptions. Certainly, if it did, then sections 23 and 26 of the 1988 Act could never apply in a case such as the present where the essential or only witness is kept away by fear. That would seem to us an intolerable result as a general proposition and could only lead to an encouragement of criminals to indulge in the very kind of intimidation which the sections are designed to defeat. Certainly, decisions of this court before the passage of the Human Rights Act 1998, as well as common sense, suggest that no invariable rule to that effect should be either propounded or followed. Where a witness gives evidence on a voire dire that he is unwilling to give evidence as a result of a threat which has been made to him, and the judge draws the inference that the threat was made, if not at the instigation of the defendant, at least with his approval, this should normally be conclusive as to how the discretion under section 26 should be exercised: see R v Harvey [1998] 10 Archbold News 2, CA. So too, as made clear in a case concerning a witness too ill to attend who gave clear identification evidence in his witness statement, this court observed:

“The fact there is no ability to cross-examine, that the witness who is absent is the only evidence against the accused and that his evidence is identification evidence is not sufficient to render the admission of written evidence from that witness contrary to the interests of justice or unfair to the defendant per se. What matters in our judgment, is the content of the statement and the circumstances of the particular case bearing in mind the considerations which section 26 require the judge to have in mind.” : per Lord Taylor CJ in R v Dragic [1996] 2 Crim App R 232 at 237

In R v Gokal [1997] 2 Crim App R 266 this court, considering in advance of the Human Rights Act the assistance from the European cases then available, and with express reference to the Unterpertiner case and the Kostovski case, concluded that, when considering the question of the likelihood or otherwise that the defendant could controvert the statement of one absent witness, the court should not limit itself to the question of whether the accused himself could give effective evidence so as to do so; it should also consider the reality of his opportunity to cross-examine or call other witnesses as to the relevant events, or to put the statement maker’s credibility in issue by other means. That being so, we would not subscribe to any formulation of the approach to be adopted which states without qualification that a conviction based solely or mainly on the impugned statement of an absent witness necessarily violates the right to a fair trial under Article 6.

Nonetheless, having considered the matter anxiously in this case, we find ourselves unable to support the judge’s exercise of his discretion to admit the statement of Tamba Bona. It is not in dispute that the entire case for the prosecution rested upon Tamba Bona’s statement. Thus, while it was plainly in the interests of justice so far as the prosecution was concerned that the statements should be before the jury, it was also in the interests of justice from the point of view of the defendant that he should not be unduly disadvantaged by admission of the statements in circumstances where they could not be made the subject of cross-examination. This was particularly so, as it seems to us, because Tamba Bona was potentially a completely flawed witness. He had initially been approached by the police on the basis that he was suspected of being a member of the group which had chased and killed Hamza and had, in those circumstances, refused to answer any questions. On that view, his evidence would need to be approached with the same caution as that of an accomplice. His apparent change of heart had come at a time when he was himself on bail in respect of a charge of robbery and appears to have been directly motivated by the offer of a reward for information in respect of the murder. He had considerably ‘improved’ his evidence between the time of giving his first and second statements. There was thus every reason to question his motive and his veracity in pinning the murder on the defendant, a person with the mind of a child who, if involved, was likely to have been no more than a ‘hanger-on’ in a group such as that involved in this offence. Further, this was a case where, being unfit to plead, the defendant could have no realistic opportunity of going into the witness box and defending himself, nor to give coherent instructions to his advisers. Yet he was to be deprived of the only opportunity directly to challenge the evidence of Bona by cross-examination on his behalf. This was not a case where it would reasonably be suggested, nor did the judge suggest, that the defendant had the opportunity to call witnesses to establish his innocence. The judge also acquitted him of any involvement in threats to Bona. Thus the jury would be presented with two statements of Tamba Bona, credible on their face, but susceptible of challenge only by counsel’s comments upon the circumstances surrounding the giving of the statements and such suspicions as he might invite the jury to entertain in a case where the defendant was the sole member of the group charged with murder of the victim.

It is notable that the judge expressly recognised the risk of unfairness to the defendant by reason of the admission of the statements and the difficulties which he would have to face in the conduct of his defence. Yet, as it seems to us, he failed to attach proper weight to the fact of the defendant’s disability. He observed that he considered it a ‘neutral factor’ for reasons which it is hard to understand. He said that, in particular, it meant that the appellant’s counsel would have few (if any) instructions and could not call the appellant to give evidence; yet he seemed to think that such difficulties were in some way ‘balanced’ because that would be so even if Tamba Bona had been available to give evidence. We do not follow that line of reasoning. The real point, as it seems to us, was that with a client in the position of the appellant, his counsel’s only opportunity positively to demonstrate lack of credibility on the part of Bona or his deficiencies as a witness, was by cross-examination and, in particular, by testing his reaction to the various points which could be put against him on the lines indicated at paragraphs 51 to 53 above. We simply do not see how, in the circumstances of this case, the jury could be sure of the truth of Tamba Bona’s evidence, which the judge correctly directed them was necessary before they could come to a conclusion that he committed the act of murder. As Bona’s was the only evidence against the appellant, it equally seems to us that the judge was in a position at the outset, on the basis of the defence submissions, to assess the suspect nature of that evidence and the potential disadvantage to the defendant. We consider that the judge was wrong to admit the evidence of Tamba Bona and, in the light of its admission, we consider that there was a breach of Article 6 in this case which plainly destroys the safety of the jury’s determination.

The additional evidence sought to be adduced before us as casting doubt on the credibility of Tamba Bona is not objected to on the part of the Crown. It consists of evidence that, after the jury had retired, when the judge was dealing with Bona in respect of his contempt of court for failing to appear under a witness summons to give evidence at the trial, he lied, or professed not to remember, that in May 2001 he had been convicted of an offence of carrying a bladed article. Had it been necessary to our decision under Ground 1 to take that matter into account, we would have done so. However, we find Ground 1 to be established without resort to such evidence.

In the light of our decision upon Ground 1, the necessity to consider Ground 3 does not arise.

The appeal is allowed under Ground 1 above and the determination of the jury is therefore quashed. We invite the submissions of counsel as the effect of our decision and the terms of any further order or directions sought.