200503070 D1/200503069 D1
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE WALKER
SIR JOHN ALLIOTT
R E G I N A
-v-
VICTOR MATTEO BOREMAN
MALCOLM BYRNE
MICHAEL BYRNE
Computer Aided Transcript of the Stenograph Notes of
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MR P O'CONNOR AND MR P WILCOCK appeared on behalf of the APPELLANT
MR P CLARKE QC, MR E BROWN AND MR A ALIBHAI appeared on behalf of the CROWN
J U D G M E N T
LORD JUSTICE HOOPER: In April of 1997, the appellants were convicted of the murder of John Reid, following a trial before HHJ Capstick QC at the Central Criminal Court. In March 1998, the Court of Appeal Criminal Division quashed the convictions and ordered a retrial. On 29th September 1998, at the Central Criminal Court before HHJ Machin QC, following a 16-day retrial, the appellants were convicted of murder. Further counts of wounding with intent and unlawful wounding were ordered to remain on file. They now appeal following a reference to this court by the Criminal Cases Review Commission ("CCRC"). We are indebted to the Commission for the care and attention which they have paid to this case.
In paragraph 3, 4 and in the first part of paragraph 5 of the CCRC report, the CCRC states:
"3. Mr Jonathan Reid (aged 51) lived in a first floor flat above the one occupied by Victor Boreman and his lodger Michael Byrne at 45 Piedmont Road, Plumstead. His wife Mrs Mable Reid often stayed overnight elsewhere with friends. During the evening of 4th April 1996, a fight occurred between Mr Boreman and Mr Reid, which resulted in injury to both parties. Michael Byrne returned to the flat later that the evening, and Mr Boreman went to fetch Malcolm Byrne. The three men went upstairs to Mr Reid's flat and attacked Mr Reid, inflicting further injuries by kicking him and hitting him with pieces of wood.
4. At approximately 5am the fire service were summoned to a fire at the address. In the lounge of the upstairs flat which was damaged by fire they found the body of Mr Reid, lying on his front next to the sofa. He had sustained severe burns all over his body, exposing the muscles of his legs.
5. It was argued by the prosecution that the applicants had intended to kill or seriously injure Mr Reid by inflicting the injuries, and that the injuries he received were an operating and substantial cause of death."
In the last two sentences of paragraph 5, the CCRC wrote:
"It was also the prosecution case that the applicants had started the fire deliberately. Evidence for this was some screwed up balls of newspaper found on the kitchen table in the downstairs flat."
Mr Clarke QC rightly accepted before us that the jury could not properly have been sure, on the evidence which was before them, that the fire was set deliberately by one or more of the appellants. There was no scientific evidence to support a deliberate setting of a fire. There is now no dispute that all three of the appellants had been party to the infliction of grievous bodily harm on the deceased with intent to cause that harm. It is accepted that, at the least, the deceased was hit or struck with a weapon, causing serious fractures of his ribs.
The defence case may be summarised shortly in the following way. We take this from paragraph 38 of the report:
"The defence argued that the injuries sustained before the fire were not life-threatening and that the fire, which was said by the defence to be the sole cause of death, was accidental."
Support for the defence proposition that the injuries to the deceased were not life-threatening and occurred before the fire came from two pathologists called by the defence, Dr Djurovic and Dr Hill.
Following their conviction before HHJ Machin, the appellants filed a second appeal, which was heard on 1st December of 1999. They all adopted the same grounds of appeal. These are summarised in the following way in paragraph 61 of the CCRC report:
"1 a) The judge had erred by rejecting a defence submission that the judge should give a direction along the lines of R v Brown [1984] 79 Cr.App.R 115 (a ' Brown direction', namely a direction that the jury needed to be unanimous as to the explanation of events).
b) The failure to give a Brown direction was a material irregularity, because without it the jury may have reached different views as to the cause of death. Some of them may have considered that the fire was the sole cause of death and that the fire had been started deliberately; while others may have considered that the fire was accidental but that the injuries were the operating and substantial cause of death.
"2) The judge had wrongly exercised his discretion under s.78 of PACE to admit evidence of the presence of the balls of newspaper. Despite the judge's direction to the jury to ignore the evidence, its prejudicial effect exceeded its probative value."
The CCRC analyses the conclusion of the Court of Appeal in the following helpful way:
"69. Otton LJ concluded that the judge had left open to the jury two alternative explanations (or 'routes') as to how murder might have been committed - namely injuries or fire - and that therefore he ought to have given a Brown direction. He continued:
'The judge did not direct the jury that before they could convict any defendant they must all agree on which basis he was guilty. In the light of the authorities as we have set them out, we think he probably should have done...'
The reason for this was that the two possible means by which death was effected were different acts at different times, and therefore the jury needed to be unanimous as to which act led them to their verdict.
70. However, Otton LJ then declared that the lack of such a direction could not have resulted in any division of the jury. The Court's reasoning for this conclusion was as follows. There were four possible alternative conclusions that the jury might have reached (p.11; what follows is an abbreviated version):
a) all three defendants inflicted the injuries (which caused death);
b) all three defendants started the fire (which caused death);
c) all three defendants inflicted the injuries and started the fire (both of which were causes of death);
d) all three defendants inflicted the injuries (which were a cause of death) and only two of them started the fire.
71. As there was no evidence that Malcolm Byrne was involved in starting the fire, Otton LJ continued, the jury could not have convicted on the basis of conclusion b) or c) above. (He referred to the evidence about Malcolm Byrne's explanation for petrol on his jeans, but stated that this was not evidence of his involvement in starting the fire.) It followed that only conclusion a) or conclusion d) were open to the jury:
'Thus we are satisfied that every juror must have been sure that all three were at least involved in causing the injuries and that they were an operating cause of death... the convictions of all three are not unsafe on account of the lack of a Brown direction.'"
Thus the Court of Appeal concluded that the jury did not convict on the basis that the appellants had started the fire deliberately but on the basis of the infliction of injuries which the jury must have found caused the death.
The CCRC continues:
"72. Otton LJ proceeded to the second ground of appeal, dealing with the judge's decision to admit evidence of the balls of newspaper. The Court's view was that the existence of any possible fire ignition material was a relevant issue, and that the judge's direction had removed any prejudice it might cause. The Court therefore rejected this ground of appeal.
73. Finally, Otton LJ assessed the evidence as a whole (p.13). There was compelling evidence, he said, of injuries amounting to grievous bodily harm. He stated that the quantity of blood in the locations described by Dr Heath could not have been attributed to the fire, and that even if the jury preferred the evidence of Dr Djurovic and Dr Hill as to the absence of blood 'the other injuries spoke for themselves'. He then recited the list of injuries. Among them, he stated:
'There were eight fractured ribs which (according to Dr Heath) were life-threatening injuries. His right lung had collapsed. There were four minimum areas of impact, the fractured ribs probably being a result of kicks, and there was a strong indication that he was unconscious.'
He referred to the evidence that two of the defendants had taken pieces of wood upstairs for a revenge attack on Mr Reid. In conclusion:
'Suffice it to say we are satisfied that by their verdict, the jury were satisfied that ... these injuries were a substantial and operating cause of death, even though the immediate and precipitating cause of death was the inhalation."
The appellant Mr Boreman made an application on 20th February 2003 to the CCRC. That was accompanied by an application from the appellant Malcolm Byrne. Michael Byrne's application was received a little later. In paragraphs 89 of the report, the CCRC writes that it had identified the central issue of this review as being "the quality of the evidence given as to the cause of death of Mr Reid". The CCRC notes that, in giving judgment on the second appeal, Otton LJ alluded to the importance of this issue:
"One of the main issues for the jury to determine was the cause of death and it is this aspect which is the main focus of this appeal."
As the CCRC notes, the judgment of the Court of Appeal focused on the direction given to the jury. As the CCRC states:
"By contrast the present review has concentrated upon the reliability of the evidence given by Dr Heath, and upon new evidence which raises the issue of his competence."
In paragraph 90, the CCRC states that Dr Heath has been criticised by a number of his peers and is facing a disciplinary tribunal of his professional body. As a result, the Commission obtained a new report on his work in this case and sought the opinion of Professor Cordner of Monash University in Australia. The CCRC took the view that Professor Cordner was well qualified and able to produce an objective report upon the work of Dr Heath in this case. In paragraph 91, the CCRC wrote:
"The conflict of opinion between Dr Heath and the defence pathologist Dr Djurovic and Dr Hill was before the jury. Put simply, if Dr Heath was correct then Mr Reid would have died from the injuries inflicted, and the fire only accelerated his death. But Dr Djurovic and Dr Hill maintained that the injuries were less serious and were survivable, and that it was the fire that killed Mr Reid."
In paragraph 92, the CCRC wrote:
"The significance of the conflict between the pathologists was made plain by Judge Machin when summing up. He introduced their evidence to the jury at vol.1,29F:
'Can we now turn together to the evidence of the three very distinguished pathologists who gave evidence before you?'
When summarising Dr Heath's evidence he reminded the jury that Dr Heath had stated he examined 1,000 bodies a year. Then at vol.1,44C, during his summary of Dr Hill's evidence, the judge put this question to the jury:
'Have the Crown made you sure, putting all the evidence of the three pathologists, that Dr Heath is right.'"
In paragraph 93, the CCRC rightly points out that this was the crucial question that faced the jury. In the view of the CCRC, as set out in paragraph 94, if the jury had known about the serious challenges to Dr Heath's competence and reliability in a number of other cases and, moreover, if the jury had received the opinion of an independent senior pathologist such as Professor Cordner, then there is a real possibility that they might not have arrived at their guilty verdicts. The CCRC then cites R v Pendleton [2002] 1.Cr.App.R 34.
The appellants and the respondent have agreed that the "fresh evidence" of Professor Cordner and Dr Clark is capable of belief. Dr Clark is a pathologist who has been instructed by the respondent. It has not been necessary for us to examine Professor Cordner's report in any detail because of the conclusions of Dr Clark which are accepted by the respondent. Dr Clark states in his letter of 27th February that he sees "little disagreement in what both of us are saying", referring to Professor Cordner's report.
Mr Clarke accepts that the concession he made before us that a jury could not properly have been sure that a fire was set deliberately by the appellants, was not made at trial and does not therefore feature in the summing up. Indeed, if the concession had been made, as it is now made, then it is difficult to see why the jury could have received any assistance from the finding of the screwed up balls of newspaper. We have seen how Otton LJ reached the conclusion that the jury must have decided that the fire was not started deliberately. Had the concession been made at the trial, as it seems to us that it should have been, or if the judge had so ruled, then the issues for the jury would have been simpler to express, although not necessarily simpler to resolve. Mr Clarke seemed to be saying, in the course of argument, that it was not necessary for the judge to resolve whether a jury could safely conclude that the fire was set deliberately by one or more of the appellants. We disagree. If the jury were to receive the assistance which they needed, then a direction should have been given to the effect that the jury had to resolve the case on the factual basis that the fire had not been set deliberately by any one of the appellants. Mr Clarke accepted before us that the jury should have been so directed. He also accepts, on the basis of the fresh evidence, that the only injuries relevant to the issue of causation were the broken ribs. Only those could have amounted to a substantial cause of death.
We turn in this connection to Dr Clark's report, starting with the last two paragraphs of his report dated 13th February 2006. Dr Clark referred to some injuries to the face. He then goes on to say:
"None of these injuries were life-threatening, either individually or collectively and he [the deceased] therefore would not have been expected to die from them. The rib fractures, however, could have affected his breathing such that the effects of a given level of smoke inhalation were all the more severe. They may also have limited his capacity to escape from the fire, as equally could have alcohol intoxication.
"Without the fire he would not have died from his injuries. Without the injuries he could still have died from the effects of the fire, although it is probable that the latter (or at least the injury to the chest) did cause him to die more quickly than if he had no injuries. The fact that he was significantly intoxicated by alcohol may have had a further bearing on how quickly he died."
There was evidence before the jury that the reading of the level of alcohol in the deceased's blood was 226 milligrams in 100 millimetres of blood. We turn to Dr Clark's supplementary report, dated 17th May 2006:
"Nevertheless, as a pathologist having dealt with numerous house fire deaths over 20 years or so, if I had been carrying out Mr Reid's post mortem examination, I would certainly have added chest injuries as a potential contributing factor in his death, as being a potential factor which was provable, and given the low level of carbon monoxide present. The contribution of the chest injury would have been twofold in that, because of the accompanying pain and discomfort: firstly, he is likely to have been less able to move about and escape from the room, and secondly, because he may not have been expanding his chest fully, he may have developed a reduced level of oxygen in his blood such that, on breathing in the carbon monoxide, it would have taken all the less time for the remaining oxygen in his blood to be reduced to a level that proved fatal. (Carbon monoxide kills by displacing oxygen from the blood, thereby making less of the latter available to the tissues).
General comments
To reiterate previous comments, if I had been giving the cause of death in Mr Reid I would have worded it as below:
1a Inhalation of smoke and fire gases
2 Chest injury.
The first part includes the contribution of both the carbon monoxide and the cyanide; the second part refers to the fractured ribs.
As stated in the original report, I consider that the main factor in his man's death was the effects of the fire but that, because of the injuries he had suffered (principally the fractured ribs), he died earlier than he would have done had he not had these injuries. This would have been because of his reduced ability to escape and because of the compromising effects on his breathing. It may be that the fairly high level of alcohol in his blood also contributed to him not escaping."
Mr Clarke accepts, as indeed he had to, that, in the light of the fresh evidence, the evidence given by Dr Heath at trial was "fundamentally flawed". However, Mr Clarke submits that the jury must have reached their verdict by the route suggested by Dr Clark as a possible or probable cause of death. The effect of what Mr Clarke was saying was that the jury would have disregarded much of Dr Heath's evidence and that the jury would have realised that they had to concentrate on the chest injuries, notwithstanding a failure to direct the jury of their possible relevance. With all respect to Mr Clarke, that is a bold proposition. We turn to the evidence of Dr Heath as reflected in the summing up.
We shall examine a number of relevant passages in which the judge was summarising for the jury the evidence of Dr Heath. As we refer to each passage, we shall incorporate Mr Clarke's concessions about what Dr Heath was saying, those concessions being based on the fresh evidence. The judge said this, when starting with the evidence of Dr Heath:
"Let us look first at Dr Heath. He carried out the first post mortem. He examines a thousand bodies a year. He said 'The cause of death were, (1), multiple injuries, (2), inhalation of fire fumes has contributed to the death...'"
The effect of the evidence of Dr Clark is, as Mr Clarke concedes, quite different. According to his supplementary report, dated 17th May, to which we have already referred, he would have worded the cause of death as:
" 1a Inhalation and smoke and fire gases.
2 Chest injury."
We have also already seen in that passage that chest injury was seen as a potential factor. Thus in this passage (on the basis of the fresh evidence) Dr Heath put it the wrong way round and does not stress the importance of the fire in the cause of the death.
The judge then continued with a recital of the injuries found by Dr Heath to the lip. He refers to three horizontal incised wounds, almost parallel, which had penetrated the deep soft tissue. He said that they would have bled extensively. He then gave the cause for those injuries, namely a sharp object such as a knife or a glass. There is no challenge, as we understand it, to those findings. However, what the jury were not being told was that those injuries were irrelevant as to the cause of death, as the fresh evidence now shows so clearly.
The judge then summarised another passage in Dr Heath's evidence in the following way:
"The back of the scalp, there was bruised tissue. I could not exclude a laceration or a heat laceration and there was no evidence of fracture of the skull. I opened the skull. The brain was swollen. It indicates a head injury with jarring of the brain and bleeding of vessels over the surface of the brain."
There is considerable doubt now about the accuracy of that finding. However, even if it was accurate, it is accepted that that could not have in any way caused the death. In the next passage there is reference to extensive bruising at the back of the tongue. Again, there is considerable doubt as to whether there was any such bruising but nonetheless, even if there was, the jury were not being told that it did not help them on the issue of the cause of death. The judge continued:
"Members of the jury, we get to matters that the experts do not agree. 'A large quantity of blood in the air passages down into the bronchi where the air passage divide. It prevents air getting in the lungs. If you are unconscious and you cannot clear by coughing, then they are -- the air passages are blocked by blood. As blood gets further into the lungs, you have irritation and you can get pneumonia. A large quantity of blood, fluid and food in the stomach.' Mr Reid had swallowed and inhaled blood. Clearly, blood in the nose and mouth which had gone down into the stomach and air passages."
The judge was, in later passages, on more than one occasion to refer to the deceased as having drowned in his blood, an expression which he appears to have taken from Dr Heath. This was an issue, as the judge indicated, about which the defence experts did not agree with Dr Heath. In the light of the fresh evidence, we know that no other expert agrees with the finding that there was a large quantity of blood in the air passages.
Dr Heath's evidence in brief, as summarised by the judge, appears to be suggesting that the deceased was unconscious at the time that the fire started as a result of the attack upon him by the appellants. Mr Clarke rightly accepts that no jury, on this evidence, could have been sure that the deceased was unconscious. Both the evidence given by the defence pathologists and the fresh evidence fundamentally undermine the conclusion of drowning and of unconscious. Indeed, Mr Clarke told us that, during the course of the trial, he himself was bemused by the reference to drowning. He tells us that, by the end of the trial, the evidence of Dr Heath in this respect had been undermined.
The judge continues:
"Now we get to another dispute. 'I could find no carbon products in air passages. Carbon products you see by eye. Later examination of lungs. In the small bronchi, carbon products, a slide shows it. It means fire products inhaled into the lungs."
The judge returns to this issue a little later, when dealing with Dr Heath's cross-examination:
"Mr Bevan then asked him this question: 'How did fire products get deep into the air passages?' Answer: 'You can draw air through a liquid, but eventually it becomes more and more blocked and you cannot get any more air through the liquid.' 'What were the sources of blood?' 'First, the nose. Secondly, cuts to the lower lip, but I cannot say it penetrated to the mouth.'"
Again, Mr Clarke told us that he was surprised or bemused by this evidence about air being drawn through a liquid. In the event, the fresh evidence completely undermines what Dr Heath was saying (as indeed did the defence evidence at trial).
The judge continued a little later, summarising the evidence of Dr Heath:
"The right chest cavity; there was blood in the cavity and lung. Dr Heath said: 'It had collapsed. The degree of collapse was obviously considerable. The blood in the cavity had been caused by the collapse of the rib. It had tracked into the chest cavity after penetrating of the membrane. I could not identify a tear to the lung by the rib.'"
Again, the fresh evidence, as indeed the evidence given at trial, does not support this at all. The lung had not collapsed and, as we have said, it is not accepted that there was blood in the cavity and the lung.
The judge then summarised the evidence of Dr Heath about the ribs. He said this:
"'The chest; the left ribs or left side, fracture, 5, 6 and 7 ribs or numbers 5, 6 and 7 and the front of the chest. Exterior bruising above and below the fractures.'
'Right side. Ribs; third rib was fractured and had penetrated into the chest cavity. Extensive bruising above and below and into the muscles. 4, 5, 6 and 7 fractured with bruising of adjacent muscles. Therefore, he would have in all five ribs fractured on the right-hand side and three ribs fractured on the left-hand side. There was a high blood alcohol level.' He said: 'you will get considerable pain with a cracked rib.'"
It is accepted that a cracked rib or ribs will give considerable pain. He went on to say, however, that the injuries to the ribs were "life-threatening". He based that on his analysis that the deceased was suffering from what is known as a "flail chest". The deceased did not suffer a flail chest, as the fresh evidence shows. A flail chest does cause, or can well cause, difficulty in breathing. The fresh evidence makes it clear that the injuries which Dr Heath identified to the ribs were not life-threatening, contrary to what he said. The Crown now accept that we should approach this case on the basis that the evidence of Dr Clark and of Professor Cordner is capable of belief.
The judge then returned to the bruising on the face. Again, we point out that the judge did not tell the jury that these injuries were irrelevant to the issue of causation. The judge then comes back to the issue of the alleged subarachnoid haemorrhage, about which we have already made comments. The judge continues:
"'Clearly', says Dr Heath, 'the deceased was alive when the fire started. The strong indication is he was unconscious.'"
The prosecution accept that the fresh evidence does not support the proposition that the deceased was unconscious at the time the fire was started. Summarising Dr Heath's evidence, the judge continued:
"'The injuries would have inhibited his ability to escape from the fire, even if he had been conscious. He might, if conscious, have been able to move a fair distance. I am not sure what speed. The quantity of the blood in the air passages would have been getting towards a terminal stage.'"
The fresh evidence does not undermine the suggestion that the injuries could have inhibited the ability to escape. However, the fresh evidence certainly undermines the proposition that the quantity of blood in the air passages would have been getting towards a terminal stage. That is just wrong, having regard to the fresh evidence.
The judge then referred to the cross-examination and Mr Clarke puts some reliance on what Dr Heath says at this point. He submitted to us that Dr Heath, during cross-examination, changed his evidence and brought it more in line with that of the defence pathologists. We add at this point that Mr O'Connor argues (or would have argued if we had needed to hear from him) that in this passage the judge was not accurately summarising the evidence in any event. We do not need to deal with that. The judge said:
"Mr Bevan said: 'What killed him?' He [Dr Heath] said: 'The multiple injuries and carbon monoxide cyanide.' Mr Bevan reminded Dr Heath of his evidence on an earlier trial: 'So what actually killed him was the fumes from the fire that stopped the dying process and brought that to an end because the fumes killed him?' 'Well, I would have to accept that scenario, yes.' 'When I put to you the primary cause of death was the inhalation of fumes, it is accurate, is it not?' 'Well --' 'If you say, albeit you say he was very nearly dead at the time, but what actually killed him, brought death about, was the inhalation of the fumes.' To which Dr Heath said: 'If you put it like that, yes.'
"He says: 'What killed him was the multiple injuries and carbon monoxide and cyanide. The man was in the process of dying because he was drowning in his own blood and would have survived less than a hour. Death may have come about quicker because of the inhalation of fumes. I accept', said Dr Heath, 'That Dr Hill and Dr Djurovic disagree with me. My cause of death is based on the fact. No evidence of fire products in the air passages, none in the stomach.'"
Just a little later, the judge repeated those words: "Reid drowned in his own blood".
Whilst accepting that Dr Heath was himself willing to go some way towards the proposition that Mr Bevan was putting to him, nonetheless, here again, we have references to the deceased being very nearly dead and drowning in his own blood. There is now no support in the fresh evidence for those propositions.
If follows from our analysis of Dr Heath's evidence, as summarised by the judge, that much of it is discredited. The respondent, as we have seen, does not seek to rely on it. We accept that the evidence of Dr Clark, if relied upon by a jury, could have properly led to verdicts of guilty. Mr Clarke submits that the jury would necessarily have brought in verdicts of guilty even if they had been told that the evidence of Dr Heath was fundamentally flawed and they should place no reliance on it. We do not accept that proposition and the jury were not told that. If we take only the evidence of Dr Heath that the deceased was unconscious, that could have had a vital effect on the way that the jury reached their verdicts. If all of the injuries had made him unconscious, and particularly those to the head, then it would not be difficult for a jury to find that they were a substantial cause of death in that they would have prevented the deceased from reacting normally to the presence of fire in his flat (assuming that he was not too drunk to react in the normal way). Once the prosecution accept, on the basis of the fresh evidence, that there is no support for the proposition that the deceased was unconscious when the fire started, the jury's verdict is necessarily undermined.
But, in any event, we do not accept the proposition that, if the jury had been told that the evidence of Dr Heath was fundamentally flawed, they would necessarily have reached the same verdict. As Lord Bingham made clear in Pendleton , the task of resolving issues of fact is a task for the jury and not for this court. In paragraph 17, Lord Bingham says this:
"My Lords, Mr Mansfield is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly-prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by the judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the impossibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury."
In accordance with the test set out in paragraph 19 of Pendleton , the question we have to ask ourselves, given the way that Mr Clarke puts his case, is: "if the jury had known that the evidence of Dr Heath was fundamentally flawed, might that have reasonably have affected their verdict?" In our view, there is only one possible answer to that question and the answer is yes: it might reasonably have affected the jury's verdict if they had known what we know today as a result of the fresh evidence. In those circumstances, this appeal against the convictions for murder must succeed.
The respondent made it clear in their skeleton argument that they did not seek a retrial. In the light of the perfectly proper concession made by Mr O'Connor on behalf of the appellants, we substitute for the verdicts of guilty of murder verdicts of guilty of causing grievous bodily harm, with intent to cause grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. It then falls for this court to sentence the appellants in respect of that offence. We suggested to Mr O'Connor that a proper sentence would have been in the region of eight years' imprisonment. Mr O'Connor did not dispute that proposition. We therefore pass sentences of eight years' imprisonment for those offences on each appellant.