Yemoh & Ors v R.

This appeal against conviction raises two issues, one relating to the presence on the jury of a police officer unbeknown to the parties until after the jury had begun their deliberations and the other to the “fundamentally different” test applicable to cases of murder and manslaughter. Leave to appeal was given by McKinnon J.

On 8 April 2008, after a trial lasting 38 days in the Central Criminal Court before HH Judge Moss QC the appellants BR and TD were each unanimously convicted of the murder on 14 March 2007 of 16 year old Kodjo Yenga (count 4). The appellants Kurtis Yemoh, JB and MW were each acquitted of his murder but were unanimously convicted of the lesser charge of his manslaughter. Yemoh, JM and MW were convicted of violent disorder, a count to which BR and TD had earlier pleaded guilty.

There was a co-defendant, CM, who was acquitted on the judge’s direction of murder and acquitted by the jury of violent disorder.

The indictment also contained charges relating to an earlier incident on 17 February 2007 not directly involving the deceased. Yemoh, JB and TD were convicted of violent disorder and Yemoh was convicted of inflicting grievous bodily harm. It is not necessary when considering the appeal against conviction to say anything more about this incident.

The appellants had the following ages and heights on 14 March 2007:

Yemoh 16, 5’8”

BR, 13, 5’9”

JB 14, 5’3”

MW 13, 5’10”

TD 15, 5’8”

They are represented as follows:

At the time of the killing MW and TD were of good character. TD introduced evidence relating to BR and knives. In the words of the judge:

PC Townsend told you of an occasion on 27th November 2006 when BR was found to be in possession of a four inch blade folding knife which he was carrying in his sock. On 10th November 2007, it is said by Emmanuel Faradoye, then a member of the Hammersmith and Fulham Youth Offending Team, that BR admitted to him that he sometimes carried a knife in his waistband for his own protection.

Only TD gave evidence. BR, MW and TD did not answer questions in their police interviews, but the jury were directed to draw no adverse inference from that. Yemoh and JB answered questions but told lies.

On behalf of all the appellants it is submitted that the trial was unfair because of the presence of the police officer on the jury. On behalf of all the appellants, except BR, it is submitted that the judge misdirected the jury by leaving manslaughter at all or in the terms which he did. Mr Spens QC was given leave to add this ground during the course of argument. Mr Spens has also submitted a ground based on fresh evidence, on which he seeks leave to appeal. The ground is not ready and we told Mr Spens that we would consider the ground should TD’s appeal against conviction otherwise be dismissed.

On the prosecution’s case the appellants were members of a gang and there was a history of antagonism between the deceased and one or more of the appellants.

On the afternoon of 14 March 2007 Kodjo Yenga was with his girlfriend Shar-de Cummings in Hammersmith, West London. TD said “I hear you want to fight me” and Kodjo Yenga agreed to a one-on-one fight with him. As they moved to a more appropriate venue, TD gave his rucksack to BR and Kodjo gave his rucksack to Shar-de.

A group of youths arrived and chased Kodjo. One of the group, JB, let a Staffordshire Bull Terrier off a lead and it also chased Kodjo. There was fighting between Kodjo and the group at a zebra crossing on Hammersmith Grove. Kodjo fell but got up and ran up Hammersmith Grove. At a point outside 174 Hammersmith Grove, about 80-100 metres from the zebra crossing, there was an admitted struggle between Kodjo and BR. Whether others were involved in the struggle was matter of dispute. At some point during the incidents Kodjo received the fatal stab wound. There was conflicting evidence as to whether the deceased had been stabbed near the zebra crossing or outside 174. Sir Allan Green QC for the prosecution did not, in his final speech, seek to persuade the jury that one or other of the two locations was more likely. If the deceased was stabbed outside 174 (as TD contended) then it was more likely that it was BR who stabbed the deceased, given the amount of Kodjo’s blood found on BR’s clothes (there was no evidence of droplets but there was a significant amount of blood which might have covered droplets) and given the fact that it was his case that he was alone with Kodjo at that stage. However no weapon was seen by the eye-witnesses being used and the description given by a Mrs Quinn of a man going back towards the zebra crossing with a blood covered knife did not fit BR. If the stabbing took place near the zebra crossing (as BR contended) then both BR and TD were candidates but so probably were others.

According to the pathologist, the fatal wound was inflicted by a single edged weapon. The passage of the weapon came from above and downwards from the deceased's left to right, and from front going backwards. The wound passed through skin, fat and muscle of the chest wall, and then penetrated the pericardium sack and entered the left side of the right atrium via a 3 centimetre incision passing into the chamber. The wound track measured between 2 and 5 centimetres. Thus on the pathologist’s evidence the length of the knife blade had to be between 2 and 5 centimetres. In cross-examination he estimated the width of the blade as 2.5 centimetres.

No weapon was recovered. There was evidence that TD was carrying a Stanley knife but the evidence of the pathologist was such, as Sir Allan accepted, that the jury could not have been sure that the Stanley knife caused the fatal injury. In the words of the pathologist as summarised by the judge:

So far as a Stanley knife is concerned as the candidate for the wound, they have a brittle blade and a narrow breadth and it could well have snapped off as it cut into the breastbone, if it did, and could result in a slim wound to the skin. He said, "I tend to exclude a Stanley knife but I cannot completely rule it out."

Later he said he said that a Stanley knife results in very narrow wounds. In passing sentence the judge said that it was doubtful whether the Stanley knife was the fatal weapon. “It is far more likely that a more substantial weapon was used to stab him ...”

The pathologist also described what other injuries Kodjo had:

There was a 0.9 centimetre stab wound on the back of the left middle finger, which penetrated through the skin and the fat of the finger but not the bone. On the knuckle of the left index finger was a similarly orientated 0.9 centimetre incised wound, penetrating skin and fat. There was a linear incised wound over the first segment of the left ring finger, 0.9 centimetres again, of limited penetration. On the back of the left hand, on the line of the left ring finger, a linear 1.2 centimetre incised wound. Adjacent to this, and beneath the web space between the left ring and little finger, was a 1.7 centimetre incised wound. There was a linear scratch over the base of the left little finger, measuring 2.5 centimetres and there was a scratch present on the sole of the right foot on the side of the fifth toe. He described the injuries to the hand as being classic defence type injuries.

There was no evidence on the body of a significant protracted physical assault, nor was there any evidence of any form of marking from blows from the shod foot upon the body.

In his final speech Sir Allan said, according to a note taken by Mr Spens:

There are two main contenders for the role of principal. TD. He was seen running with a Stanley knife. ... As to BR it may be that he stabbed Kodjo further up Hammersmith Grove but Mrs Quinn’s description does not fit him. There are difficulties in the way of being sure about either of them, so consider if they are secondary parties. ... Even if you cannot be sure that it was TD or BR they were at least secondary parties.

In passing sentence the judge said that on the evidence it could not be said “which of you was armed with the murder weapon”.

We turn to the evidence from those at the scene as summarised in the summing up. We have not found it easy from the summing up to follow the twists and turns in the evidence. That is in part due to the fact that the judge reminded the jury of the evidence witness by witness largely without cross-referencing one piece of evidence to another. That may well not have been necessary for the jury who had heard the evidence over many days and who would have had a comprehensive knowledge of the area by the end of the trial, but it made our task more difficult.

CCTV evidence of the early part of the chase showed Kodjo, with a dog at his feet, being chased by BR, MW and TD, with Shar-de Cummings, the 15 year old girlfriend of Kodjo, running behind them. Yemoh was 2 seconds behind the first group, followed by another person and someone seen from the waist down, identified by his trousers as JB. The CCTV evidence did not cover the areas of the zebra crossing and further up Hammersmith Grove.

Shar-de Cummings gave evidence. On the afternoon of 14 March 2007 she was out with Kodjo. TD approached them and said he had heard that Kodjo wanted to fight him. Kodjo told her that it would be a one-on-one fight, that he was not scared and that he would fight if TD wanted. BR approached TD. BR was saying he was going to “dap” Kodjo, meaning bang him up.

TD took off a jumper and was wearing a white shirt. He was saying “Let’s fight” but then he said “Give me a minute” and 8 or 9 boys, including the other appellants, the co-defendant CM and TD’s younger brother Rodney, came up. They had bats and knives. One of them took a bull terrier off its lead and set it on her and Kodjo (this must have been JB). TD held a knife to Kodjo. Kodjo said “Do you think you are a big boy because you’ve got a knife to me?” TD said he did not care. He wanted Kodjo to respect him. Kodjo started to run.

Kodjo swung at BR with his fist. She was not sure if that sparked off the group attack on him. The dog was still chasing Kodjo. She followed TD, who had the knife, up Adie Road to Hammersmith Grove and was shouting at him not to stab Kodjo. (This point of Hammersmith Grove is about 60 metres from the zebra crossing which is further up Hammersmith Grove.)

Shar-de kicked TD to the floor but he got up and said “I’ll shank you.” BR had a weapon in his hands but she could not say what it was although it was not a small baseball or rounders bat; she thought MW had that. She said BR had a knife and 3 others had bats. She was restrained by a boy (wearing a beige jumper), whom she did not know. She was in the middle of the road in Hammersmith Grove, further up from the Grove restaurant. (The Grove Restaurant is between Adie Road and the zebra crossing.)

Kodjo was still running and she shouted at him to run faster but he was still trying to fight and punch them. Then he ran. He was quite a fast runner but the dog tripped him and he fell over a motorbike onto the pavement. They threw his shoes off. She believed they stabbed him in the foot (an observation supported by the pathologist) because when she got to him there was blood all over his foot, although it may have come from the blood where he was lying. He was behind a white van when he fell and she could not see what happened as she was held back. A lot of people, including BR, TD, Yemoh and MW went up to Kodjo. MW, who had thrown his bat at Kodjo’s head and struck him when he dropped to the floor by the motorbike, probably kicked him. She saw TD go for Kodjo with the hand that held the knife. Kodjo was attacked on the pavement and then he crawled into the road.

A man came out of a restaurant (Chez Christophe, very close to the zebra crossing) and said he was going to call the police. The boy let go of her and everyone started to run back (South) towards Hammersmith. Shar-de did not know where Mason or Rodney went. MW had a bat or wooden stick in his hand. TD and BR were the last people to run back. BR was the last person to leave. Shar-de ran up to Kodjo who was on the floor (outside 174 Hammersmith Grove). There was a lot of blood coming from his heart and foot and from his mouth. He was moaning, she rocked him a little and held her hand over his heart. Then the paramedics came.

Shar-de had seen 2 knives. She thought BR had one but she could not identify it and it could have been just something sharp. TD’s knife was silver with a black button which could be pushed to release the blade. She agreed that it was a Stanley knife. He pulled it from behind his back with his right hand. TD and BR had 2 different knives.

In cross-examination on behalf of TD, she said that Kodjo was running backwards when he fell. She side-kicked TD on to a wall. He got up and threatened to shank her. She saw BR with a weapon. At first she said it was a knife but she could not exactly identify it. TD was behind the other three, which included BR, until they got to the white van where Kodjo fell.

In cross-examination on behalf of BR and commenting on the video, she said that (when things started) she was on Kodjo’s phone talking to his friends about the fight. TD had asked if Kodjo was sure he wanted to fight. Kodjo was not really saying anything. BR walked up, talking about what he was going to do about the fight. She gave the phone back to Kodjo who then used it. TD was talking to her. She identified TD, BR, Rodney, CM and MW (who had a hat) on the video. She was asking TD why he wanted to fight and he told her to stay out of it. The group moved off followed by Kodjo because TD wanted to fight. Shar-de said that she had seen BR with a weapon, which could have been a bat but she did not know. Then she said that she assumed it was MW who threw the bat.

Cross-examined on behalf of MW, Shar-de agreed that she told the police that MW had thrown a piece of wood which hit Kodjo’s head. However she agreed that it could have been BR who did that. She never saw MW with any other weapon. She believed it would be wrong to say that it was MW who grabbed her. She told the police that MW had given Kodjo a couple of kicks but she did not see that; she just assumed he had done so.

Cross-examined on behalf of Yemoh, Shar-de said that she told the police that she thought Yemoh was behind the white van but she was not sure. She knew he was there; she saw him run behind and leave from behind the van. Later she said she could not be sure he went behind the van. BR was the last to come away; he was still at the van when the man stopped his car and said he was going to call the police. They were still kicking Kodjo and she was screaming at them not to hurt him. At that stage the boy was still holding her and she thought they were just beating him up.

In this part of her evidence Shar-de appears to be saying that it was not only BR who was outside 174 but others who were kicking Kodjo. The fact of the kicking was not supported by the pathologist’s evidence.

A number of witnesses were called who saw the start of the altercation and saw Kodjo being chased by a number of youths up Hammersmith Grove towards the zebra crossing.

Deepika Kohli said that she was pushing her child in a pushchair in Hammersmith Grove near the Grove pub (on the corner of Adie Road and Hammersmith Grove). She saw eight to ten boys screaming and chasing a boy and two girls crying “leave him alone”. Someone said “Catch him and kill him.” The victim crossed the road, shrugged himself free of the boys and ran away, but they grabbed him again and pulled him down. One tall boy, who had a cream or biscuit-coloured jacket, jumped on his back and two or three shorter boys were pulling his legs. They pulled off a shoe which flew off and landed near Ms Kohli. She did not see much after that because of the parked cars. The boys ran away. The girls were crying and saying “leave him alone.” When they stabbed him or whatever they did, they were laughing and seemed very happy. The victim was on his stomach. A girl, who was crying, was with him. A man came to help her. When they turned him over there was blood on his shirt and he was not moving. In cross-examination on behalf of BR Ms Kohli said she was near Chez Christophe, which is very close to the zebra crossing. The victim was between 172 and 160 Hammersmith Grove, in other words further North.

The evidence of Deepika Kohli to the effect “When they stabbed him or whatever they did, they were laughing and seemed very happy” tended to support the theory that there were more boys around the deceased than just BR outside 174 Hammersmith Grove.

Negine Pascar gave evidence that she was walking along Hammersmith Grove and heard lots of screaming. A male voice said “Come back”. She heard a female screaming and then a crowd of children (ten to fifteen, mainly male and probably four or five girls) ran into Hammersmith Grove. A dog was barking. Someone said “Get him, punch him, kick him.” The boy being chased fell almost in front of her and the dog was on top of him, trying to attack him. When he was on the ground three of the group kicked him on his legs and body. He got the dog off him and got up. He ran off and the crowd ran after him.

One boy (the prosecution said TD) had a Stanley knife with a thick silver handle and a blade which was about five inches long (that must have been an exaggeration if it was a Stanley knife). The boy with the knife was 5’2” to 5’3”, black but did not look mixed race, with short hair, a small face and a big nose. He was about 14 to 15. He looked skinny and petite. He was wearing school uniform with a hoodie over it. When the girl told him to stop he refused and turned back and chased the victim.

The victim ran a short distance and was pushed onto a car causing the alarm to go off. He carried on running. They chased him. He reached the middle of the road on the zebra crossing. Three boys, including the one with the knife, were nearer to him than the main group. The victim quickly ran away from the zebra crossing. Everyone else speeded up. Some hit him three or four times on the upper body with wooden sticks. Then he fell to the ground. There was blood everywhere. She could not see the Stanley knife at that stage. She could not see which one stabbed him as a few were gathered round him, kicking him forcefully to the legs and body. Ms Pascar called the police. She hurried to keep up with the group to see what happened. The traffic stopped and people were getting out of their cars. Those who were standing over the victim ran away when the unmarked police cars arrived.

She described a second boy, who had a piece of wood, and a boy holding some plastic piping. Both were involved in the chase up Hammersmith Grove. The last person to leave the victim was a mixed race boy wearing a blue jumper. (It was accepted that this person was BR).

This evidence also tended to suggest that BR was not alone in the area of 174 Hammersmith Grove.

Cross-examined on behalf of BR, Ms Pascar said the boy with the knife was dark-skinned, possibly of African descent, with short hair close to his head. He was wearing dark trousers, a white shirt and a blazer. He did not have a satchel. A few boys had rucksacks but none of the three boys at the front had bags. She could see the crossing. She could not recall if a girl confronted the man with the knife. The knifeman was closest to the victim. There was pushing and shoving between the knifeman and the victim and then the victim turned and began to run away. Then he slowed and the pursuing group caught him up. Ms Pascar crossed Amor Road by the crossing. Then the victim was on the floor. The boy with the knife had gone and the other 2 were standing over him. Then the two black boys ran off, leaving the mixed-race boy on his own. He (BR) ran after the group. Ms Pascar could not see anything in his hands.

Cross-examined on behalf of TD Ms Pascar said that the boy with the Stanley knife was short. He wore a blazer, with a hoodie over it, and a white shirt that was coming out. He had no rucksack on his back. She did not see him punch the victim, just shoving with the others. The other boy, who had a round, small face and a big nose and who looked about 14 to 15, just seemed to be going along with the crowd. There was a confrontation at the zebra crossing between the victim and the boy with the knife and the two other boys with the wood and the piping. The knifeman, who was closest to the victim, pushed and shoved him (although she agreed that was not described in her police interview). The mixed race boy had a roundish-shaped object with him before he got to the zebra crossing but she was not sure he had it at the crossing.

When being cross-examined on behalf of BR, Ms Pascar said that after the confrontation at the zebra crossing, three boys continued the chase. They were of similar height to each other but shorter than the victim. The one with the Stanley knife was 5’3” to 5’4”, aged about 14, skinny, dark-skinned black like a Jamaican with short hair, longer on top and with a biggish nose. He had a uniform on with a blazer and a hoodie on top. The second person, who was holding a wooden post (like a for sale sign), was small, and with a white hoodie over his blazer. He was similar in build and height to the boy with the knife and was aged 14 to 15, with short hair. The third boy, who had a plastic pole or rounders bat, had no uniform but was wearing a long-sleeved turquoise T-shirt and dark jeans. He was mixed race with quite a chubby face and mini-Afro hair tight to his head. He was of medium build.

The evidence of Negine Pascar also supports the proposition that there were more boys around the deceased that just BR outside 174 Hammersmith Grove

We turn to the evidence of Angela Quinn, the summary of which we take from the summing up.

She was cycling up Hammersmith Grove towards Shepherds Bush when she noticed people, school children, she said, in the road ahead of her on the right-hand side. She had just passed the Grove public house just past Adie Road [South of the zebra crossing] "The group were running ahead of me on both sides of the road. They were converging about 20 metres away to my right. I would say there were 25 to 30 people, maybe more, a lot of school children running in the road ahead of me, rushing and shouting, a very excited group of young people spread out on the road going north."

…

"When I saw the group I got off my bike. I wondered what was happening. I was a bit alarmed. As between boys and girls, there were quite a few girls. It was pretty equal, but I cannot be sure of that. I heard a girl's voice, 'They're going to stab him.'"

She agreed in cross-examination by Mr Turner that what she said she heard was, "He's going to stab him," and when cross-examined on behalf of MW by Mr Sallon, she agreed that she had said in her statement that it was said more than once, and that her statement was accurate. Then seconds later, back to her account, "'They,' or 'He's stabbed him.' I think it was, 'He's stabbed him,' she said. I thought it was the same voice. I immediately put down my bike and ran into the deli part of Chez Christophe [very close to the zebra crossing] and told them to call an ambulance.”

This was important evidence to support the theory that the stabbing took place in the area of the zebra crossing and not outside 174 Hammersmith Grove. However, as recorded in the next passage which we set out below, she agreed with Mr Spens, on behalf of TD, that when she heard, "He's going to stab him," and, "He's stabbed him," they were in the area between the crossing and number 156. Mr Spens, on behalf of TD, was seeking to show that the stabbing took place outside 174.

The judge continued summarizing her evidence and in particular her account of seeing a boy, whose description did not fit BR, carrying a knife with blood on it:

When I came out of the deli, I went and picked up my bike and was just about to proceed towards Shepherds Bush when I became aware of a boy, two boys, coming towards me. I was particularly struck by the bigger of them. I was still outside the deli. The two boys were on the pavement to my left. They came from the Shepherds Bush end of Hammersmith Grove, going south, and we happened to converge at the same point.

"I took the bigger boy to be black Caribbean or black African. He was 15 or 16 years old." She said, "I am a teacher in a secondary school, mainly 11 to 16 years old. He was 5 foot 8 to 5 foot 9, quite a tall, well-built boy. I think he had short hair, quite close cropped. I think all the young people were wearing black, as if a uniform. In my statement I said dark clothing, which could well have been a school uniform. I thought he may have been wearing a scarf, but I cannot say for sure, and it is not in my statement, but I did say in my statement that he may have been wearing a neck chain."

The description did not fit BR. It was submitted on behalf of BR that it fitted the description of TD. The judge continued:

Cross-examined by Mr Spens, she said, "I think he did have a gold chain. I have an inkling there was a football scarf, I can't swear to that, I might be mistaken. His face made an impact," she said. "He was walking tall as if he was filled with adrenaline. A knife was held at arm's length, in a gesture of triumph, really. His eyes were very wide. It could have been to do with his height and state of excitement. The knife I thought was in his right hand, I am almost sure. The blade was fairly long, perhaps 5 inches, a fairly long, slender knife, a shaped knife, quite slim, it had a shape to it, probably a bit tapered. I thought at the time it had a black handle. I didn't see much of the handle. It was covered in blood right down to the handle, the length of the blade. He was holding it, his arm was straight, straight out in front of him, the blade pointing to the sky. His posture was firm and tense, as a soldier might be tense. There was muscular tension there, it was not through nervousness. He looked psyched up, an excited, very intense expression. I rather instinctively spoke without thinking, I said, 'What have you done?' We were face to face. He answered, 'Shut your mouth.' His manner was very intense, very full on, quite clear and loud and aggressive. I said, 'Bastard,' and that was it. He carried on walking up Hammersmith Grove. I picked up my bike and went on my way. I didn't follow his movements much."

…

When her statement was put to her by Mr Spens, "I was only in the deli for seconds. I came out and picked up my bike. I then continued to walk north. I saw several of the groups scattering and running south down the Grove, but some of whom could have gone north. I had just pushed my bike into the road when I saw a young West Indian boy about 6 foot in front of me." She said, "Yes, I agree, it jogged my memory. When I heard he stabbed him, I can't say whether the group were nearer leaving the scene," but she agreed with Mr Spens that when she heard, "He's going to stab him," and, "He's stabbed him," they were in the area between the crossing and number 156.

Cross-examined by Mr Turner, she said, "The boy was dark skinned and had closely cropped hair tight to his head. I made an assumption of dark clothing, as all the young people were. I came quite close to the boy with the knife, I think came within a couple of metres of me. He [that is the taller boy] had very staring eyes. The smaller boy was the same nationality and black. He appeared younger. It could be because he was much smaller. I had the impression of a younger boy. He was next to the boy with the knife. He had a dog on a lead, a small dog. I think it was a Staffordshire terrier, a stocky Staff on a lead. I thought he was a young dog. He was all together more slight, a much smaller boy, I would say a very slight build, shorter and fatter than the boy with the knife, a roundish innocent face. He could have been younger."

Cross-examined by Mr Turner, "I think he was head and shoulders smaller than the bigger boy." She went on, "I saw the injured boy and I felt shocked and quite angry. I was angry and upset and surprised by the incident and that it should happen at all. It was unusual for the area."

Mrs Quinn did not pick out BR or TD at the identification procedures.

Natalie Speir gave evidence that her husband was driving their car and she was a passenger. He turned into Iffley Road. She heard a loud clamour and a band of schoolchildren, predominantly boys but some girls, crossed the road in front of the car, oblivious to it. A boy was on the ground a few feet from Trussley Road (which is just South of the zebra crossing). He was being hit over the head more than once (not less than 3 times) with a stick or rod by one person, almost certainly a male but she could not give an age. He was trying to protect his head with his arms. The attacker had a pale greyish or lightish blue jacket or T-shirt. The others were highly excited and were encouraging him. She phoned the police on her mobile.

Adrian Molony gave evidence that he was in his BMW car driving south on Hammersmith Grove. A tall dark-skinned boy (Kodjo) was coming down the pavement and, thinking he would run into the road, Mr Moloney stopped the car. There was another lad lighter-skinned, possibly Moroccan. On behalf of BR counsel accepted that this boy was him. They looked as though they were fighting, but not very seriously. The tall dark-skinned boy dropped to the ground. Mr Moloney beeped his horn and got out of the car. The other boy, whom we know to be BR, ran off but he did not see where he went. The injured boy was breathing hard and there was blood on his jacket. His shoes were on the ground. His girlfriend (Shar-de) was there. Mr Moloney saw no knife.

Cross-examined on behalf of BR, Mr Molony said that it looked like a schoolboy fight, lots of pushing and pulling. If they were holding anything, he would have seen it. Cross-examined on behalf of TD he said it looked like the lighter-skinned boy, BR, was trying to grab Kodjo’s belt and within seconds, Kodjo’s expression changed and he looked hurt. (Mr Spens was suggesting that BR was stabbing the deceased).

Lavinia Young gave evidence on behalf of TD. She was riding her motor scooter south down Hammersmith Grove. She had to move around 2 men who were tussling with each other in the street. She turned her head to see what was happening and saw a boy cradling another boy, holding him in one arm and making a repeated stabbing motion (three or four times) into his chest (there was, however, only one fatal stab wound, albeit a number of defensive wounds). Ms Young did not see his hand or an implement. The victim was not struggling; his head was lolling back and blood was coming from his mouth and stomach. Then the assailant dropped the victim and ran. The victim landed on the ground and did not get up. She saw another boy in the vicinity on the pavement parallel to the other two. He was running up and down saying “He’s killing him, he’s killing him.” He sounded as though he was panicking and crying for help. He was quite small (about 5’6” or 5’7”, not as tall as the other two and he looked much younger (about 12 or 13). His hair was tight Afro. That was not a description which fitted TD. She said that she saw no-one else in the immediate vicinity but she later said that there were 3 or 4 including the assailant. She also said that people were running away from the scene.

Ms Napier gave evidence on behalf of TD. She was at home on the third floor at 175 Hammersmith Grove. She heard shouting in the street and saw 4 or 5 boys down the street near the crossing. A taller boy (Kodjo) was running away from the group. A smaller boy (BR) went after him and caught up with him just past her house. He pulled the taller boy down from behind and appeared to be punching him in the stomach 2 or 3 times but she could not see his right hand. The taller boy tried to pull away and said “Stop, I can’t breathe.” They were together a minute or two and then he pulled away and the smaller boy stopped. The taller boy staggered back and fell to the ground. The smaller boy stomped down on him with his foot on the middle part of his body 2 or 3 times. She could not assess the force used. A vehicle had stopped and the driver called “Stop” as the boy ran away down the street towards Chez Christophe. He was chanting and his hands were raised. He did not seem upset. It was almost victorious. The assailant had dark clothes and was of dark complexion but not as dark as the boy on the ground. The victim did not get up again. (This supported TD’s case that the stabbing took place outside 174.)

Cross-examined on behalf of BR, she said that the smaller boy, who seemed a cute little boy, seemed much stronger. She was surprised that the taller boy, who did not seem aggressive, did not push him away although he could have been injured already. She saw grappling and punching. When the taller boy said he could not breathe he was struggling. She saw stomping but it could have been harder. She agreed that in interview she had said that she thought that the driver of the BMW would have seen everything that she saw. The smaller boy ran off excitedly, hands in the air, and she saw no knife.

Cross-examined on behalf of MW, she said that she did not see blood as they fought. In cross-examination on behalf of JB she said that she had not seen a dog.

Philip Elliott’s statement was read on behalf of BR. He said that he was outside number 184 Hammersmith Grove. Suddenly he saw a group of 15 to 20 youths (male and female) running from the direction of Hammersmith. Shoes were thrown in the air and there was a lot of shouting and screaming. Two coloured males were at the front; one was darker than the other. The darker youth (Kodjo) threw the first punch. Then they both threw punches at each other, but did not appear to make contact. Then they were grappling with each other. The lighter male (BR) appeared to lay the darker male on the ground as though he was a heavy-weight. Mr Elliott saw no weapons. Then the police arrived.

Henry Brill gave evidence on behalf of BR. Between 5.30pm and 6.00pm on 14 March he was at his home on the west side of Hammersmith Grove between 129 and Amor Road (just North of the zebra crossing). There was a commotion outside. He could see right and left but not straight down because of a balcony. At the corner of Amor Road and Hammersmith Grove there was a group of 7 to 10 kids, later reduced to 6 or 7, on the corner. There were boys and girls, mostly boys, black and white, talking excitedly. They went down Amor Road. A boy, of mixed race and with very short hair or a shaved head (said to be BR in BR’s advice on appeal) ran after the group and shouted “You idiot (or idiots), you killed him”. He disappeared .

Cross-examined on behalf of TD he said that when he first saw the boy, he was coming from the direction of the scene of the crime, not crossing the road. He was always on the west side of the road. Mr Brill thought he was of mixed race with light brown skin and very short hair. He looked about 12 or 13 and had a young voice. Mr Brill was not sure if he ran down Amor Road.

We now turn to the evidence of two police officers who arrived at the scene very soon after the collapse of Kodjo outside 174 Hammersmith Grove. It is the evidence of the second officer, DC Smith, which is said to give rise to the juror ground.

In the words of the judge:

Detective Constable Jason Cayley was with DC Smith in a rented van. He, Cayley, was the driver. They stopped behind Mr Maloney's BMW. In fact, Mr Cayley pulled over to the nearside to allow vehicles to come past the other way, as he thought he would have to, and he leaned across and saw, "Two heads of two black guys who looked as if they were wrestling face to face. DC Smith got out to see what was going on. I turned off the engine and went to the front of the BMW. Mr Malony said to me, 'He's been stabbed,' and I saw a young man lying in the road, face down, feet towards parked cars. There was a separate pool of blood near his feet. He was moaning and breathing deeply. Another young man, who was black, about 13, was standing nearby on the phone talking to the ambulance controller. I took the phone off him and spoke to the controller. I noticed a young black girl in an hysterical state. I could see the young man getting weaker. I vaguely remember people running away in the distance."

Cross-examined by Mr Turner [on behalf of BR], he said, "I never saw the victim being attacked on the ground."

Now the young black man aged about 13 standing nearby on the phone talking to the ambulance controller I think by common consent must have been Marcus Wiggins, and of course there is an issue as to whether he was there and how long he remained there. It is for you to consider.

Mr Spens for TD relied on this evidence to show that BR was alone outside 174 attacking the deceased. Mr Turner, on behalf of BR, relied on this same evidence to support his case that the stabbing had occurred near the zebra crossing and that he BR had alone followed Kodjo up the road.

The judge then summarised the evidence of DC Smith.

DC Richard Smith was the companion of DC Cayley. As their vehicle came to a stop, he said, "I looked ahead on the nearside and I saw some sort of disagreement in the road. It looked like a bit of a fight. It concerned," he said, "Six to ten black males and a black male victim. The victim was on his feet. He fell to the floor. I saw two of the males kick him several times while on the floor, with intent and violence. There was a male slightly lighter skinned who shouted at the male on the floor.

"I got out of the van and took the police radio. The youths were making off from the motionless victim who was lying in the road. They jogged away, not sprinted, and at first I ran after them.

"There was a large amount of blood on and around the victim. I radioed for assistance and then I indicated the direction of the young men who had run away to an unmarked police car. I felt for a pulse and was unable to find one."

Cross-examined by Mr Turner, he said, "I saw two males give him a violent kicking and I would envisage there would have been some injury from it. I could see perfectly well from my position in the vehicle. I don't recall the male being between two parked cars, but I agree that the driver of the BMW had a better vantage point than me, but I know what I saw and I know that I could see what happened."

Well, Mr Sallon cross-examined this witness very firmly indeed and put this to him, "Your evidence is a way of implicating as many people in this alleged murder as you can. It simply did not happen." The witness did not respond to that suggestion.

The evidence of DC Smith was being challenged by all the defendants. The evidence strongly supported the theory of a group attack on Kodjo outside 184.

Crime scenes officers gave evidence of blood at the scene. There were blood drips and smears on the road around the BMW and the adjacent pavement. There were blood marks on the pavement outside number 176, which appeared denser towards the 170 end and tailed off towards 156. There were no stains south of number 156 (half way back towards the zebra crossing). There were shoe marks in blood (which could have been made by BR’s trainers but not by those of the others), which decreased going south on the east pavement. It was assumed that the person leaving the footprints had been running because they were roughly the same distance apart. All the marks found in Hammersmith Grove came from Kodjo.

The absence of blood stains in the vicinity of the zebra crossing was consistent with TD’s case and that of the other defendants, except BR.

Norman Kemp gave evidence that as to the clothing of BR, there were very heavy contact stains, from contact with someone bleeding or a blood-stained surface on the blue top which was found where BR was arrested. Four areas of blood staining gave a full DNA result for Kodjo. The combat bottoms were extensively stained with blood. There were blood stains on a T-shirt. There was a full DNA profile for Kodjo and one incomplete one. The DNA of Kodjo was on both trainers. In cross-examination on behalf of BR he agreed that there was heavy contact staining on the top left of the trousers and there were complex patterns with staining, soaking, splashing and drips. Kodjo’s DNA was found. The staining on the T-shirt was contact staining. There were blood splashes on the front of the left trainer and blood in the ridges of the soles of both shoes.

As to the clothing of TD, Mr Kemp had never been given TD’ black top to examine. The white shirt associated with him had 2 tiny blood stains on the outside inner left front, which were airborne rather than contact stains and had a weak and incomplete DNA profile for Kodjo. In cross-examination on behalf of TD he said that he could not rule out that the blood stains were old blood rather than new. The shirt did not appear to have been recently washed. If it was Kodjo’s blood it was more likely caused by airborne blood but contact between the shirt and a surface wet with blood could not be ruled out but it would not be from large scale staining. That volume of blood could not be flicked from a hand because there would be secondary spatters. The stains on the white shirt were 5” and 9” respectively from the bottom hem. Blood stains matching Kodjo’s DNA, which must have come from wet blood, were found in at least 5 places at 27 Iffley Road, where TD was arrested. There was no sign of blood or any other DNA connection with Kodjo on the clothing of the other appellants.

TD gave evidence, and was the only defendant to do so. He was 15 at the time of the offence and lived in Shepherds Bush with his divorced mother, two brothers, one of whom was Rodney, and a sister. His older brother, Ellison, lived at his grandfather’s house, 27 Iffley Road.

14 March was a school day and he was wearing school uniform (black trousers, white shirt, no tie, black trainers). He had no blazer but was wearing a black hooded jacket. His hair was very short (level 1 all over). He went to the shopping centre at Hammersmith Broadway. On the ground floor he spoke to Shar-de, whom he knew well, but said nothing to Kodjo, whom he did not know well. Sowad, one of the girls who were present, said that Kodjo wanted to beat him up. TD knew what she was talking about as Michael (Perry) had told him a week earlier that Kodjo was going to beat him up when he saw him. TD asked Shar-de if she knew why Kodjo wanted to fight him or if she could find out but she said it was between them and she was not going to get involved. Kodjo moved towards TD and asked what he was looking at and what the problem was and if he wanted to fight. TD said he had heard that Kodjo wanted to fight him. Kodjo said not there but round the corner. They walked off. Although TD did not want to fight Kodjo, who was bigger than he was, he went along with it as he did not want to lose face in front of his friends and the girls. TD received a call from Yemoh who said he had heard he was going to fight Kodjo. TD said he was going to his brother’s house. It was to be a one-to-one fight and TD did not want anyone else involved so he locked out the phone because Yemoh kept asking where he was. TD saw Kodjo hand stuff to Shar-de so he gave his rucksack to BR. He did not expect BR to get involved in the fight.

As they went up Hammersmith Grove, Kodjo was on the phone telling people that TD was with BR and others. TD did not want to fight Kodjo and was not going to start it, but was prepared to fight. Kodjo was giving people directions to the Grove public house. They got to the Grove and TD walked down Adie Road. Kodjo told him to stop and he did so. TD told Kodjo that if he wanted to fight him he must go round the corner. He thought he would lose the fight but did not expect to get seriously hurt; somebody would stop it. Kodjo said they were waiting for his friends to come as TD had his friends and he thought he was going to get rushed. TD said they were younger and would not get involved. Shar-de asked why TD was concerned about Kodjo calling his friends. TD asked why he needed them as he (TD) was not calling anyone. He said he was not scared but he was. Marcus Wiggins and Brian Odour, friends of Kodjo, arrived. They said they were there to make sure no-one got rushed.

The fight started at the junction of Agate Road and Markham Road. Kodjo walked up and punched him hard in the face. TD punched Kodjo in the face. They gripped each other, going back towards Adie Road. A dog was barking and jumping on their legs. Kodjo started running backwards towards Adie Road and the dog chased him. TD chased after him. He did not notice any fresh people there. In Agate Road, BR, who did not have a rounders bat, was throwing punches across TD onto Kodjo. TD saw Perry, Bridgeman and Yemoh but he had not asked them to come. In Adie Road the dog was chasing Kodjo who was going backwards into Hammersmith Grove. TD and BR were chasing him. MW was with them. Kodjo and the dog crossed the road. TD was chasing Kodjo as he wanted to beat him up. BR caught up with Kodjo and TD started to back away and was not very close to him. BR was closest to Kodjo. MW was just in front of TD. No-one made physical contact with Kodjo at that stage. The dog was still around his legs. He moved towards Trussley Road (i.e. up Hammersmith Grove) still facing towards the Broadway. He started stumbling because of the dog. BR was leading the following group, which comprised a boy called Andrew (wearing a white hooded top), his brother (wearing a black hooded jumper, black trousers and school uniform and with a rucksack on his back), MW, Yemoh, JB and finally TD.

BR and Kodjo started to fight. TD was amongst the people further back. He went up the road to see what was going to happen. Shar-de was in front of him; he was not kicked by her, did not fall to the ground and did not threaten to stab her. He did not have a knife and saw no-one else with one. He saw nothing to make him think that any of the group had a knife. BR threw a rounders bat at Kodjo and then ran towards him and they came together by the crossing. They were gripping onto each other, holding each other’s clothing. TD could not see what BR was doing or what Andrew or Rodney were doing because Yemoh and MW were in front of him. He could not see the dog. Kodjo and BR were still gripping each other; TD saw no other movements between them. He ran up the road to see what had happened. People were saying “stop” and were calling the police. TD was frightened and realised he had to get out of the area because the police would arrest him for fighting. He reached number 27 Iffley Road with CM and MW. There was a delay in getting into the house. He was told that Kodjo had fallen. BR then came through the gate. He was covered in blood and because TD thought he was injured, he opened the door to him. BR ran into the house, passing very close to TD. BR was in a panic and told him to close the door as the police were around. There was wet blood all over BR’s clothing and on his hands. BR left the house at the request of TD via the back door. The police came and TD was arrested and taken to the police station.

In cross-examination on behalf of BR, TD said he did not know who stabbed Kodjo to death. He agreed that it was his fight with Kodjo; it was supposed to be one-on-one and he had not asked anyone to help but he was allowing friends to come and watch. The fight escalated. He did not know that Kodjo was dead or seriously injured when he was at number 27. Rodney had said he dropped but TD did not know what from. TD established that BR was not injured when he was at the door but did not ask him why there was blood on him. TD denied that he had stabbed Kodjo. He denied that he took off his jumper because he did not want anyone to recognise him; he always took off his jumper (in the house).He denied stabbing Kodjo; he did not have a Stanley knife. He was not the person described by Ms Pascar and did not know who it was. He did not know how he got the blood on his shirt; it was not from stabbing Kodjo.

Cross-examined on behalf of the Crown TD said that he did not approach Kodjo with a knife in his hand. When they were in Hammersmith Grove Kodjo did not say “You think you are a big man with a knife”. TD pursued Kodjo because he had punched his face. He wanted to beat him up but Kodjo soon disappeared. He was not excited when he chased him. Later he did not want to beat him up but he did not try to hold back the others, who were chasing him. He only saw BR’s bat; he did not see any other piece of wood. TD was not the boy with the knife covered in blood whom Mrs Quinn asked “What have you done?” and received the reply “Shut your mouth”. The quarrel with Kodjo was his quarrel. He expected a one-on-one fight and did not chase him with the others and stab him (vol III:31D-E).

It was the case of BW, unsupported by any oral evidence from him, that Kodjo was stabbed by TD in a one-on-one fight near the zebra crossing and not by him. BR was not initially involved and TD gave him his rucksack at the initial confrontation. BR only became involved when Kodjo swung a punch at him. His only weapon was a small baseball bat. He was the one who ran down the road screaming “You idiot you have killed him.” Mrs Quinn must have seen the murderer and by her description it was not BR.

A few days after the trial started the judge learnt on 15 February that on the jury was a policeman. He did not tell the parties until Wednesday 9 April whilst the jury were deliberating. On that day he addressed counsel through Sir Allan Green in this way:

I think it is right that I should report to counsel, through you, that earlier on in this trial, it was discovered that one member of this jury is a serving police officer; and we discovered that quite by chance.

It is a member of the jury who is as it seems to me to be the foreman, who is sitting in position number one and who has sat in position number one throughout the trial. The court staff discovered early in the trial, when it started, that he was a police officer because he told Mrs Miller, who is the clerk (inaudible) that he thought he had a court appointment to go to, explaining that he was a serving police officer. She immediately told me about it, obviously. I caused the enquiry to be made by another clerk, who was then (inaudible), as to where he served and details of his service and so forth. I was told that he had told the Court Clerk that he is a Detective Sergeant at Wembley, nothing to do with the Hammersmith area at all and that he knew nothing about this case, those were the questions that were asked of him.

Now, on that basis, it seemed to me there was no reason to report that to counsel, for obvious reasons, and so I did not; but I thought it right that counsel should know about that now particularly in view of the authorities, as it is today, in The Times [Khan]. I do it really so that counsel are fully informed and to reassure counsel, and I hope it does, that proper enquiries were made at the time. It seemed to me that there was no reason for any alarm, that was the decision that I made, but I simply say it so that you all know about it.

A short time later the following interchange took place:

Sir Allan, I should have said, ... that one of the matters that I had well in mind was that in this case any police evidence is really less than contentious --

SIR ALLAN GREEN: Yes.

JUDGE MOSS: -- and that was a matter that I had well in mind --

SIR ALLAN GREEN: My Lord, yes.

JUDGE MOSS: -- so far as this case is concerned.

SIR ALLAN GREEN: Yes.

JUDGE MOSS: Had it been otherwise, I would have reported the matter immediately.

In this passage the judge is saying that if he had thought at the time that the police evidence was “contentious” he would have reported the matter to counsel. The judge also seems to be of the view that the police evidence was not “contentious”. He said this notwithstanding the fact that the evidence of DC Smith was “firmly contested” to use the judge’s words.

The judge said that if the fact had been known when the jury were being empanelled, he would have heard submissions about it. He said:

I am bound to say that if he had declared himself at the time when the jurors were being empanelled, and if the same enquiries had been made and there would have been no other enquiries as to his position there -- of course, I would have heard submissions on it if necessary -- but so far as I can see there would have been no reason why he should not serve.

Mr Turner made submissions, adopted by other defendants, that the jury should be discharged. The transcript records the following exchanges.

MR TURNER: My Lord, can I be utterly frank?

JUDGE MOSS: Yes.

MR TURNER: And tell your Lordship what would have been my observations at the time --

JUDGE MOSS: Yes.

MR TURNER: -- had we known. We would have made application to your Lordship that it would have been inappropriate for him to serve on the jury for these reasons: firstly, so far as our case is concerned, we would have said that there is a very strong attack on Detective Constable Smith and we say that what he said he saw just could not have happened on any view.

JUDGE MOSS: Yes.

MR TURNER: That is the first point. Secondly, we would have been concerned about his position as a London police officer. He is not a million miles away from Hammersmith. I understand that he served in the Harlesden district --

JUDGE MOSS: Wembley area.

MR TURNER: Wembley area, still not a million miles away. Thirdly, what really would have concerned us in the context of this is that there is an undertone of youth gang violence. This will not have been something that Wembley or any other part of London is immune to. That you have on the jury someone who potentially will say, "well, I know what these gangs know and don't know. I know what they get up to," and which would have been particularly acute in relation to this because this is a joint enterprise case.

JUDGE MOSS: Yes.

MR TURNER: One of the things that the jury will have to decide for those who did not have weapons, is whether they had knowledge of anyone else. We would have been particularly concerned if there is someone purporting to have specialist knowledge about how these boys club together and operate. What one can simply imagine in common sense is that if anyone has such knowledge passing in common:

"Well, of course, they know, they all know that each other is armed, that is how they go about London."

JUDGE MOSS: One might say the same of a number of professions. I mean I happen to know, there is no reason why anybody else should have known, that another of the jurors is an inner city middle school teacher, you might say the same about her, (inaudible) but it would be absurd to suggest that she could not serve on the jury.

Miss Dempster on behalf of Yemoh added a further reason. To understand that reason it is necessary to mention that the prosecution had sought to introduce into evidence the fact that Yemoh had said on being charged with murder “Fuck the police, fuck the police”. An application was made under section 78 to exclude the evidence. The judge held that it was admissible evidence saying:

... the jury are entitled to hear what he says, and in those circumstances I decline to exclude it. It is plainly admissible. There is no reason to exclude it.

Although of no relevance to this appeal, we confess to some difficulty in understanding how this insult could possibly assist the jury in deciding the case against Yemoh.

Returning to 9 April the transcript reads:

May it please your Lordship, I do not go as far as joining that application but you may recall that on day 22 of this trial, Mr Benson made an application under section 78 to exclude a particular remark.

JUDGE MOSS: The remark made on charge.

MISS DEMPSTER: The fact of the police remark. I can say I think with some certainty that had we known of the membership of the jury, at least of that juror, we would have weaved that into that application; that in this case that may be a particularly offensive remark for that juror to hear. Secondly, that was not a piece of evidence, like many in this case, that went without a certain reaction because there was a twin reaction. I am told there was one from the dock of laughter, to put it bluntly, and second from the jury, shall I use the word, disgust, and that is entirely understandable given the nature of the remark.

JUDGE MOSS: Funnily enough, I would have thought that if there was any reaction from the jury it would be unlikely to come from the police officer whom I dare say is only the (inaudible).

The judge made it clear that at the time of the application he knew that the police officer was on the jury. The judge said:

You would have been in the position to use that information in support of your application to exclude that evidence and your application would, even if you had included that matter, been unsuccessful.

The judge then gave his ruling:

Application is made to discharge this juror by a number of learned counsel on behalf of some of the defendants on the basis of the information that I gave the court this morning. The application is refused. If I had known at the time of the profession of this particular juror, who would have been a potential juror then, even had I heard argument then, as of course I would have been prepared to, along the lines of that which is now advanced principally by Mr Turner I would not have stood down that juror, or the potential juror, but in the circumstances of this case I would have allowed him to serve.

Certainly, I make it plain that when I did receive the information of his profession and had the enquiries made that I did, I considered two things: first, whether it was a matter that I ought to report to counsel and I decided that there was no need and so I did not. Secondly, whether in considering that, there would be any proper applications made to discharge that juror and I decided that (inaudible). It is in those circumstances that the matter did not come to be reported until today. The application for those reasons is refused.

All counsel now submit that the judge was wrong not to disclose what he had discovered. In Abdroikov and others [2007] UKHL 37 Lord Bingham pointed out that the expectation of Lord Justice Auld, as enunciated in his Review of the Criminal Courts of England and Wales (2001), “that each doubtful case would be resolved by the judge on a case by case basis is not, he pointed out, met if neither the judge nor counsel know of the identity of a police officer or the juror, as appears to be the present practice” (para. 326).

We have considerable sympathy with the argument that the judge should have told the parties what he had discovered towards the start of the trial. The judgment in Abdroikov had been delivered in October 2007 and the trial had started in February 2008.

However the issue which we have to resolve is a different one: “Did the appellants have a fair trial?”

It is submitted that, if the judge had told the parties, then enquiries could have been made of the officer to ascertain whether he was privy to local intelligence which it is said by Mr Turner “would have undoubtedly cut across the MDP gang and their related activities”. Enquiries could have been made to find out whether he had information not in evidence and not available to the defence. The questions asked by the court official only related to whether the officer had anything to do with the Hammersmith area and whether he knew about this case. It is submitted that the officer’s answer to the court official, as recorded by the judge, that he knew nothing about this case, is incredible. The killing of Kodjo was very much in the news and a matter of considerable public disquiet and he must have known something about it.

It was submitted that, if we were minded to reject the appeal in the absence of evidence about the officer, we should ask the Criminal Cases Review Commission (“CCRC”) to carry out the enquiries that could have been made of the officer at the time.

It is submitted that the contested evidence of DC Smith that there were a group of boys involved in the attack on Kodjo outside 174 Hammersmith Grove supported the prosecution’s case on murder and manslaughter. The evidence undermined the case for all appellants that the struggle between Kodjo and BR did not involve others and the case for TD and others that during the struggle BR stabbed Kodjo and did so without TD and other possible attackers being present. It is submitted that the jury may have reached the conclusions which they did on the basis of DC Smith’s evidence, being evidence which the officer on the jury would be more likely to accept simply because he is a fellow police officer.

It is also submitted that the fact that the police officer was the foreman further supports the appellant’s case on partiality. As we shall see, that is not a point open to the appellants on the authorities.

The history of the changes to the law that removed the disqualification on police officers sitting on a jury is set out in detail in the speech of Lord Bingham in Abdroikov and it is not necessary to repeat it. Lord Bingham expressed his concerns about the changes (see paragraphs 23-24).

There is no evidence of actual bias in this case. No juror complained about the police officer. We assume that the standard JSB direction was given to the jury at the start of the trial:

Let me mention some of your responsibilities as jurors during this trial:

It is your duty to try this case on the evidence, and not to be influenced by any external matters (such as media reports whether before or during the trial, if there are any).

The evidence is what you hear in court and nowhere else; and it is for you, the jury – and no one else – to assess it.

For these reasons please do not speak to anybody outside the jury -that includes your family and friends - about the case.

In addition, please do not try to obtain information elsewhere (e.g. on the internet) about the case in general or about other matters that are raised during the trial. The reason for this is that if you were, unknown to the prosecution and defence, to research your own sources of information they would not be in a position to comment on or otherwise deal with it and that would not be fair.

All 12 of you are responsible for reaching a verdict in this case. Therefore, you should only discuss the case amongst yourselves when you are all present in the privacy of your jury room. So please do not discuss the case in small groups when the others are not present.

Very rarely something may happen (either outside your jury room, e.g. someone who is not on the jury may apparently try to speak to you about the case, or something may happen in the jury room itself) which causes you real concern.

If any of you has such a concern, please inform me about it at once discreetly in a written note via the court clerk or the usher. Do not leave it until the case is over, because it might then be impossible to put matters right.

Given that the jury deliberations are secret it is impermissible now to ask the jurors whether the officer revealed any bias towards the defendants during the course of those deliberations.

Was there then an appearance of bias? The test that we must now apply is well established: “Whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (See eg Abdroikov para. 15). In that case Lord Mance said: “... the fair-minded and informed observer is him or herself in large measure the construct of the court.”

The fact that a person has the necessary training and qualifications to resist any tendency towards bias is not relevant when considering whether there was an appearance of bias: see R. v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119.

Lord Bingham said this about the first appellant’s case in Abdroikov:

25.

In the case of the first appellant [Abdroikov], it was unfortunate that the identity of the officer became known at such a late stage in the trial, and on very short notice to the judge and defence counsel. But had the matter been ventilated at the outset of the trial, it is difficult to see what argument defence counsel could have urged other than the general undesirability of police officers serving on juries, a difficult argument to advance in face of the parliamentary enactment. It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant, and it makes no difference that the officer was the foreman of the jury. In the event, confronted with this question at very short notice, defence counsel raised no objection. I conclude, not without unease, that having regard to the parliamentary enactment the Court of Appeal reached the right conclusion in this case, and I would dismiss the appeal.

As to the case of the second appellant [Green] he said:

The second appellant's case is different. Here, there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial. It cannot be supposed that Parliament intended to infringe the rule in the Sussex Justices case, still less to do so without express language. I would allow this appeal, and quash the second appellant's conviction.

Baroness Hale said:

I agree that, for the reasons given by my noble and learned friend, Lord Bingham of Cornhill, the appeal of Abdroikov should be dismissed and the appeals of Green [second appellant] and Williamson [third appellant, in which the juror was a member of the CPS] allowed. I add a few words only because I have not found this an easy case.

Baroness Hale continued a little later:

Parliament obviously intended that police officers should be eligible to serve on juries in some cases (although they may well have contemplated a rather closer inquiry into the circumstances of each individual police juror than in fact takes place).

Towards the end of her speech she said:

53.

In the Green case there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.

54.

The Abdroikov case was tried at the Old Bailey, which hears cases from all over London and sometimes further afield. There was no particular link between the court and the station where the police juror served. No important issue turned on a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they all served in the Metropolitan Police. It would be possible, perhaps, to conclude that Parliament had intended that no police officer should serve on a jury involving police witnesses from the same police force as that in which he served. Given the independence of each police force, that would have the attraction of consistency with the approach adopted earlier in relation to the CPS and other prosecuting bodies. With some hesitation, however, but because of the greater distance between the police and the prosecution process, I feel able to agree with my noble and learned friend, Lord Bingham of Cornhill, that there is not sufficient to raise the appearance of bias in this case.

Lord Mance agreed with Lord Bingham and Baroness Hale but added these words about the Green case at the end of his speech:

83.

With regard to the case of the second appellant, as Lord Bingham and Baroness Hale point out in their paragraphs 26 and 53, the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as, and was as a result the "brother officer" of, the policeman on the jury. Further, the juror was posted to a station which committed its cases to the Crown Court of trial - a factor which Metropolitan Police Notice 20-2004 Item 1 identified as one to be avoided (see paragraph 11 of Lord Bingham's opinion). Absent such considerations, I do not agree that it follows automatically that a police officer is disqualified as a juror, even in a case of significant conflict of evidence between a police witness and a defendant.

Sir Allan Green points to the last sentence of this speech.

Lord Rodger and Lord Carswell dissented.

We turn to Khan and others [2008] EWCA Crim 531 [2008] 2 Cr App R 13. Lord Phillips CJ giving the judgment of the Court (sitting with the then President of the QBD and Silber J) said this about Abdroikov:

We have not found it easy to deduce on the part of the majority of the Committee clear principles that apply where a juror is a police officer. One principle is clear however. All five held that the fact that a juror is a police officer will not, of itself, disqualify the juror on the ground of want of impartiality. That decision inevitably followed from the fact that Parliament has made police officers eligible to serve on juries unless it were suggested, which it was not, that this provision is not compatible with Article 6 of the Convention.

Lord Phillips went on to say:

Our conclusion is, as already expressed, that the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror's partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.

Earlier Lord Phillips had expressed the test appropriate to this case in the following way:

10.

Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:

i)

Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so

ii)

Would the fair minded observer consider that this may have affected the outcome of the trial?

If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.

We asked Sir Allan for his submissions about the two questions i) and ii). He said, quite simply, that there is no evidence upon which a fair minded observer could reach the conclusion that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness or that this may have affected the outcome of the trial. To this the appellants respond, in effect: “We are prevented from obtaining the evidence because the judge never gave us an opportunity to have the necessary questions put to the juror and we are prevented from finding out what happened in the jury room during the deliberations.”

Although it might have been preferable for the judge to have asked more questions of the juror, it seems to us that we should accept the answer as conveyed to the judge that the juror knew nothing about the case, and by that we mean in his professional position. If he had inside information about the case or the background to the case as a result of his position as a police officer in Wembley, we take the view that he would have told the court official. Likewise the judge made it clear in his summing up that the jury had to decide the case on the evidence and we imagine he had said that on other occasions. If the juror was aware of information which did not form part of the evidence in the case then it seems likely to us that he would have publicly made that clear. Unlike in the United States, jurors are only rarely questioned in this country. Jurors are often told the names of witnesses in case they know them and are usually questioned before being empanelled on long complex trials, such as terrorism and fraud cases, but not otherwise. The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality. No appeal would succeed on the speculative basis that a juror may have been partial towards a witness. We see no need for any further enquiries to be made.

As we have already said, it is submitted to us on behalf of Yemoh that the introduction of what was said by Yemoh at the time of being charged adds additional weight to the submission that the appellant did not have a fair trial because of the presence on the jury of a police officer. We can deal with this submission shortly. We agree with the judge that the introduction of evidence abusing the police should not lead to the discharge of a policeman from the jury. In this respect a policeman is in no different position than a black juror trying a case in which there is evidence of abuse of black people. We would not expect the black juror to be discharged on the grounds of apparent bias.

In our view the only possible argument that could lead to us deciding that the trial was unfair relates to the challenged evidence of DC Smith. DC Smith was cross-examined by Mr Turner on behalf of BR, Mr Spens on behalf of TD and Mr Sallon on behalf of MW. All three strongly challenged his evidence.

DC Smith saw a number of boys attacking the deceased outside 174. If (contrary to DC Smith’s evidence) BR was alone with the deceased outside 174, that supported the case of other appellants that BR was responsible for the stabbing and that they had nothing to do with the killing or the causing of serious injury to the victim.

BR also challenged DC Smith’s evidence. It was his case that no-one had seen him using a knife on the victim and that the killing must have taken place near the zebra crossing. If DC Smith’s evidence was right, then that placed BR and others attacking the deceased outside 174 and made it more likely that the killing took place there.

We accept that a possible route to verdict for the jury was that the stabbing did take place outside 174 and that more than one person was involved at that stage, contrary to the evidence of Mr Maloney and DC Cayley.

It is submitted by the appellants that the evidence of DC Smith was the only significant evidence supporting this possible route to verdict. Sir Allan disagreed with that proposition. We agree with Sir Allan. In our necessarily detailed examination of the facts we have shown that there was other significant evidence from eye witnesses supporting this route.

Smith was not the only police witness. On the contentious point (who was present at 174 Hammersmith Grove at the end of the chase when blows were being delivered) DC Cayley gave evidence contradictory to that of DC Smith. The fact that there were two police officers from the same police district, whose factual accounts differed materially on the critical point, and that there were other witnesses on the same issue, removes the basis for an allegation of appearance of bias. In particular, there is absolutely no logical reason why, and no evidential basis for contending that, the juror would have preferred the evidence of DC Smith (and persuaded the other jurors to accept it) over DC Cayley merely because the juror was a policeman.

We reject this ground of appeal.

We turn to the other ground. It is submitted by Yemoh, MW and JB that the judge should have withdrawn from the jury the possibility of bringing in a manslaughter verdict or that he misdirected the jury when directing them about manslaughter. In the court below Sir Allan Green joined the defendants in the submission that manslaughter should not be left to the jury on the grounds that the unforeseen use of the knife would take the killing outside the scope of the joint venture.

The judge gave the jury written directions but for the purposes of this appeal it is necessary to refer to only one passage in the summing up. The judge said:

In this case you have first to consider whether you can be sure who was the person who deliberately stabbed Kodjo, that is fatally stabbed Kodjo, and so caused his death. If you are satisfied so that you are sure that you can identify that person, then that person will be guilty of murder, provided you are sure that the other ingredients of murder, as I have directed you, are proved, namely that that person acted deliberately and unlawfully and intended at the time either to kill his victim or to cause him really serious bodily harm. But in addition, any other person who took part in the fatal attack, and I underline the word fatal, which you may want to write in on the document which you already have, any other person who took part in the fatal attack upon Kodjo may also be guilty of murder but only if first he knew that the knifeman had a knife or other sharp implement and, secondly, he shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part. If, on the other hand, the prosecution proves against such a person that he participated in that attack and that when he did so, first he knew that the knifeman had a knife or other sharp implement and intended to use it to cause some injury or harm, but falling short of killing or causing really serious bodily harm, or he realised that that person might use the weapon to cause some injury, falling short of really serious harm, then such a person is guilty of manslaughter if the knifeman killed. (Emphasis added)

We note in passing that the judge was directing the jury that a defendant, to be guilty of murder, had to know that the knifeman had a knife or other sharp implement and thathe shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part. He was also directing the jury that a defendant, to be guilty of manslaughter, had to know that the knifeman had a knife or other sharp implement and intended to use it to cause some injury or harm, but falling short of killing or causing really serious bodily harm, or he realised that that person might use the weapon to cause some injury, falling short of really serious harm. It is sufficient for both murder and manslaughter that a defendant knew that one of the attackers, not necessarily the killer, had a knife and that his required state of mind related to that attacker: see Rahman [2007] EWCA Crim 342. To this extent the direction was more favourable to the defendants than it needed to be.

We start with the submission that the judge misdirected the jury about manslaughter in the second of the two italicised passages. It is submitted that a stab of the kind that was administered by whoever killed Kodjo was of a fundamentally different character to the injury intended or foreseen by the use of a Stanley knife and thus outside the scope of the joint enterprise. Reliance was placed on Attorney Generals Reference (No 3 of 2004) [2005] EWCA Crim 1882. In that case the cause of the victim’s death was the deliberate discharge of the firearm aimed at the victim. H had merely contemplated the deliberate discharge of the firearm but not at the victim. H had not foreseen the possibility of physical injury or death, let alone the deliberate causing of death. Thus what H had contemplated was fundamentally different to what occurred. As Lord Bingham said in Rahman [2008] UKHL 45 (para. 22):

In Attorney General's Reference (No 3 of 2004) it was the radically different nature of the act, not the principal's change of intention, which dictated the result.

This case is quite different. Given the passage which we have just quoted from the summing up and in the light of the findings of the jury, the appellants convicted of manslaughter knew that the knifeman intended to use the knife to cause some injury or harm or realised that that person might use the weapon to cause some injury.

This submission cannot succeed in the light of the decision of the House of Lords in Rahman, upholding the decision in the Court of Appeal. In Rahman it was argued that the fact that the stabber intended to kill (or may have intended to kill) took (or could take) the stabber’s actions out of the scope of the common design because what the stabber did was “fundamentally different” from what the appellants had intended or foreseen. All that they had intended or foreseen was the infliction of serious bodily harm. That argument was rejected.

The argument presented in this case on behalf of those convicted of manslaughter is only a slight variation on this argument. If a defendant knowing that the stabber had a knife intends the stabber to cause some injury to the deceased or realises that he might cause some injury, then the fact that the stabber stabbed the deceased intending to kill him is not “fundamentally different” from what the defendant had intended or foreseen. Counsel could point to no authority to the effect that the fundamentally different rule in manslaughter cases is different to the rule as it applies to murder cases. It follows that, in so far as this argument is concerned, there was no misdirection and it also follows that the judge was entitled if not obliged to leave manslaughter to the jury.

We turn to the final argument advanced in particular by Mr Sallon but adopted by the other appellants, excluding BR.

Mr Sallon submitted to the judge that the words in the italicised passages “or other sharp implement” should have been deleted. The judge refused the submission without giving reasons.

Before us Mr Sallon developed his submissions during the course of argument. He submits that no jury could have been sure that Kodjo was fatally stabbed with the Stanley knife. We agree. He submits that Kodjo must have been stabbed with the kind of knife described by the pathologist and the jury is likely to have been sure that he was stabbed with the kind of knife described by Ms Quinn. We agree. Thus, he submits, if a defendant knew only that one of the attacking group was carrying a Stanley knife, the fatal stabbing with the knife which was used was of a fundamentally different character to that which the appellants had intended or foreseen would or could be done with a Stanley knife. Alternatively that issue should have been left to the jury.

Mr Sallon in his speech to the jury said, amongst other things:

If a second weapon [i.e. not the Stanley knife] was produced unknown to the others (or unknown to the person whose case you are considering) and used in a way that was never contemplated then they would not be guilty of murder or manslaughter.

...

Those injuries and the defensive injuries were inflicted by a surprise weapon- a sharp slim bladed knife only seen by Mrs Quinn after the actual stabbing had taken place. Such a weapon is very different in character from a Stanley Knife.

Mr Sallon took us to the speech of Lord Hutton in R v Powell (Anthony), R v English [1999] 1 AC 1. He is well familiar with the case having represented English in the House of Lords. Lord Hutton identified what he described as the problem raised by the second certified question (page 28):

“there will be liability for murder on the part of the secondary party if he foresees the possibility that the other party in the criminal venture will cause really serious harm by kicking or striking a blow with a wooden post, but the other party suddenly produces a knife or a gun, which the secondary party did not know he was carrying, and kills the victim with it.”

The House of Lords decided that there should not be liability in these circumstances and, relying on a number of earlier authorities, concluded that if the jury considered that the use of the knife by the principal was the use of a weapon and an action on the principal’s part which English did not foresee as a possibility, then English should not be convicted of murder. The unforeseen use of the knife would take the killing outside the scope of the joint venture. (See page 30).

It should be noted that the principle being laid down in this case did not extend to the situation in which the defendant:

We add “so it was thought” in b) because in the House of Lords on appeal from the Court of Appeal in Rahman,Lord Brown (with whom two other members of the House agreed) extends the principle to cases falling within b). He said:

68.

If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B. (The italicised words are designed to reflect the English qualification).

The principle laid down in Powell and English now therefore applies in murder only if the defendant’s state of mind was less culpable than intending the victim to be killed.

The purpose of the principle laid down in Powell and English is to alleviate the harshness of making a secondary party to a joint enterprise if his state of mind was less culpable. The principle now only comes into play if the defendant:

Mr Sallon relies on a passage from the speech of Lord Hutton in Powell and English (page 30):

... having regard to the differing circumstances in which the issue may arise I think it undesirable to seek to formulate a more precise answer to the question in case such an answer might appear to prescribe too rigid a formula for use by trial judges. However I would wish to make this observation: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa. (Underlining added)

Mr Sallon submits that a Stanley knife is both different to the knife that was used and is less dangerous, or, at the least, the issue should have been left to the jury.

Mr Sallon also relies on the passage from the speech of Lord Brown set out above in paragraph 134. He submits that the knife used in this case is, or the jury could find is, more lethal than the Stanley knife and that therefore, if a defendant knew only of the Stanley knife, the act of the stabber is to be regarded as fundamentally different from anything foreseen by the defendant.

Whether or not what the principal did was fundamentally different from anything foreseen by the secondary party is a question of fact and is so treated by trial judges: see JSB specimen directions on joint enterprise and see e.g. Greatrex [1999] 1 Cr. App. R. 126 and Uddin [1999] QB 431.

If, however, a jury on the application of the principle could properly only reach the conclusion that what the principal did was fundamentally different from anything foreseen by the defendant, then the jury would have to be directed accordingly (see Attorney Generals Reference (No 3 of 2004), para. 53). Thus in this case although there was evidence that at least one of the attackers was armed with a piece of wood and another with plastic piping, the judge directed the jury that any other person who took part in the fatal attack upon Kodjo may also be guilty of murder but only if he knew that the knifeman had a knife or other sharp implement.

Furthermore although the issue whether what the principal did was fundamentally different from anything foreseen by the secondary party is a question of fact, there are limits on what the jury may take into account. Thus in Rahman, as we have seen, the fact that the principal intended to kill and the secondary party intended only serious bodily harm or some harm does not as a matter of law make the principal’s actions fundamentally different.

Sir Allan submitted that the judge did leave the issue to the jury. He pointed to a passage in the summing up which followed shortly after the passage we have set out in paragraph 118.

Finally in this regard, if you were to conclude that it might be the case that the attacker or attackers, whoever it was, acted not as part of any agreement or plan, but separately for reasons of their own, or went beyond anything that the others agreed or realised he or they might do, then the question of joint responsibility for the death of the deceased would not arise at all.

A passage to that effect is also found in the written directions given to the jury.

In our view that would be insufficient to meet the point made by Mr Sallon. If the judge was intending to leave the issue as to whether knowledge only of the Stanley knife and not of the other knife might justify a conclusion that what the stabber did was fundamentally different from anything foreseen by the defendant, then the jury would need that spelt out for them.

That said, we have no doubt that Mr Sallon is wrong to the extent to which he submits that, as a matter of law, knowledge of a Stanley knife only was insufficient and that manslaughter should have been withdrawn from the jury. Faced with the facts of this case, it cannot be said that, as a matter of law, no jury could properly convict of manslaughter a defendant who knew that an attacker was carrying a Stanley knife and intended him to use the knife to cause some injury or harm or realised that he might use the weapon to cause some injury.

The judge was right to refuse that submission, albeit it was supported by the prosecution at trial.

However, that leaves Mr Sallon’s second point, namely the jury should have been directed that they had to be sure that what the stabber did was not fundamentally different from anything foreseen by a defendant (with the requisite state of mind) who knew only that a Stanley knife was being carried by an attacker but did not know that an attacker was carrying a knife of the kind used.

It is common knowledge that a Stanley knife can be used to stab albeit not very deeply and not very efficiently. But a Stanley knife can also be used to cause serious injury or death when used in a slashing motion. In our view the difference between the infliction of death or serious injury by means of a Stanley knife, on the one hand, and by means of a knife of the kind used in this case, on the other hand, is not of itself enough to enable the factual issue of "fundamental difference" to be left to the jury. If left to the jury, the issue could only properly be decided one way. In that sense, given that the two knives with which we are concerned in this case are sufficiently similar in their capacity to cause death or serious injury (albeit one primarily by stabbing and one primarily by slashing) it cannot be said, as a matter of law, that the knife used to kill in this case is more lethal than a Stanley knife, to adopt the words of Lord Hutton in Powell and English. We therefore reject this submission also.

If we are wrong about that, we have no doubt that the conviction is safe.

On the evidence, the jury must, in our view, have reached the conclusion that a knife rather than a Stanley knife caused the deceased’s death. In the light of that conclusion, the jury’s verdict and the judge’s direction (see para. 121 above), TD (if not himself the stabber) knew that the knifeman had a knife and he shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part. In so far as any appellant convicted of manslaughter is concerned, the jury must have been sure that he knew that the knifeman had a knife and intended to use it to cause some injury or harm, but falling short of killing or causing really serious bodily harm, or he realised that that person might use the weapon to cause some injury.

For these reasons we dismiss the appeals.