Willett, R v

On 22 December 2010 at the Crown Court at Woolwich, after a retrial before His Honour Judge Byers and a jury, Tommy Willett was acquitted of murder (count 1) but was convicted on an alternative count of manslaughter (count 2). He was sentenced to 16 years’ imprisonment, with time spent in custody on remand to count towards sentence. He now appeals, with leave of the single judge, against conviction and sentence.

The appellant’s first trial took place in 2008 at the Central Criminal Court. On that occasion he was convicted of murder. But on 13 July 2010 the Court of Appeal allowed an appeal against conviction and quashed the conviction, and on 30 July 2010 it ordered the retrial.

The appellant’s brother, Albert Willett, was also convicted of murder at the first trial. The Court of Appeal dismissed his appeal against conviction but allowed his appeal against sentence to the extent of varying the minimum term under the life sentence to 25 years.

The incident that gave rise to the charges took place on 12 January 2006. The appellant and his brother Albert had driven in Albert’s Ford Mondeo motor car to a car park in Francis Street, Stratford, intending to steal from vehicles. As the appellant was trying to break into a van, the van owner, Mr Matharu, saw the attempt and shouted. On hearing the shout the appellant ran back to Albert’s car. Albert then drove to the exit of the car park. Mr Matharu stood in front of the car to try to prevent their escape, but Albert drove over him, causing fatal injuries. The prosecution’s primary case was that Albert deliberately drove at Mr Matharu, encouraged by the appellant. The defence case was that the appellant was not aware that Mr Matharu was in front of the car when Albert drove forwards; he thought he had fallen to the side.

There was eye witness evidence from three witnesses, only two of whom gave evidence of any substance. Yusuf Musoke, a cab driver, was parked by the car park waiting for a job. He saw a man running towards the car park shouting “Don’t do that; don’t do that”. The man was in front of the car and was knocked down by it as it was trying to come out into Francis Street. It pushed his body into the main road. By the time Mr Musoke came out after going into a shop to tell them what had happened, the body was in the middle of the road some distance up Francis Street. A second witness, Haviz Rehman, also a cab driver, saw a man run across the road towards a car and stand in front of it with his hands on the bonnet, trying to stop the car. The car was edging forwards and moved out of the car park. The man was under the engine of the car, holding onto something. Mr Rehman got out of his vehicle and ran after the car. He called the police. The car drove off, leaving the man in the road.

The pathologist concluded that the cause of death was blunt trauma to the chest and abdomen. Bruising and abrasions to the right shin were consistent with contact with the bumper, and other injuries were consistent with being scraped along under the vehicle. The pattern on the left shoulder was consistent with the vehicle’s tyre mark.

A police officer who had attended the scene and taken measurements expressed the opinion that there would have been many indications to the occupants of the car that the man had fallen beneath it and had been run over by one or more of the wheels. He referred in his evidence both to noises that would have been noticeable from the inside and to the retardation to the car’s movement along the road resulting from the presence of a man underneath it.

There was, in addition, evidence from two witnesses of central relevance to the issues in the appeal. They were Nicola Nolan and a witness who was granted anonymity and was referred to as witness B. Both of them had given evidence at the original trial. Following the quashing of the original conviction and the ordering of a retrial, they were visited by the police to see whether they were prepared to give evidence at the retrial, which they both agreed to do. The circumstances of those visits form the basis of the first ground of appeal and are considered below in that context.

Nicola Nolan was a young woman aged 26 who had had a number of court appearances and was involved in taking heroin and cocaine. She met the appellant while living at a squat in Stratford. At some point they formed a relationship. The key part of her evidence at the retrial was summarised as follows in the judge’s summing up:

As to Nicola Nolan’s evidence that the appellant claimed to have been the driver, this formed no part of the prosecution case: it was accepted that his brother Albert had been the driver. Her evidence that the appellant admitted having said “If you don’t move out of the way we are going to run you over” was, however, central to the case that the appellant had actively encouraged Albert to run Mr Matharu down.

Witness B gave evidence that he met the appellant and Albert in HMP Pentonville and that he shared a cell with the appellant between 23 June and 26 July 2006. He recounted what the appellant had told him about the incident while they were in prison together. The judge’s summary of the key part of his evidence, picking it up from the point where the appellant told him about an Asian man coming out to try to stop them during the attempt to break into a van, was as follows:

At the close of the prosecution case there was a submission of no case to answer, which the judge rejected.

The appellant then gave evidence in his own defence. Having described the drive to the car park and the attempt to break into the van, he said that someone shouted and he ran back and got into Albert’s car. Albert drove towards the entrance, and as he did that the appellant saw no-one. Albert turned, and as he did so someone jumped in front of the car. Albert stopped and then started edging forwards again, turning to the right. The appellant thought that the man fell to the left of the car and to the side. The man had banged on the bonnet, and when he banged he was near the passenger side, a bit over the headlight. Albert just drove off. The appellant said nothing to him as he drove off. He was not aware of the man. He did not look back. He was in pain and weak from withdrawal from drugs. Nothing was going through his mind. He did not consider that he had any control over Albert.

The appellant admitted talking to Nicola Nolan about the incident but denied boasting about it or saying that he was the driver or that he had committed a murder or that he had encouraged Albert in any way. Similarly, he admitted speaking to witness B but denied saying that he was the driver or boasting about the incident.

In his summing up the judge summarised his directions in relation to count 1, murder, in this way:

The judge left the alternative of manslaughter under count 2 to the jury in this way:

The grounds of appeal are that the judge erred in (1) failing to exclude the evidence of Nicola Nolan and witness B; (2) allowing the evidence of witness B to be given under an anonymity order; (3) allowing evidence to be given of the appellant’s previous conviction, in 2002, for an offence of aggravated vehicle taking, and directing the jury that the evidence might assist them so far as manslaughter was concerned; and (4) failing to allow a defence submission, at the close of the prosecution case, that there was no case to answer on either count.

Miss McAtasney QC made clear in her submissions on behalf of the appellant that there is a degree of interrelationship between those grounds and that reliance is placed on them cumulatively as well as individually.

The defence applied at an early stage of the retrial to have the evidence of Nicola Nolan and witness B excluded under s.78 of the Police and Criminal Evidence Act 1984. The application was based on the contacts the police had with the two witnesses prior to the retrial. The objection related not to the principle of such contacts but to the exchanges that took place with the witnesses in the course of them.

The background to this is the reasoning of the Court of Appeal in quashing the original conviction for murder. The judgment of the court, given by Moses LJ, stated at [16] that unless there was evidence that the appellant had encouraged his brother to drive the car at Mr Matharu in order to escape there was insufficient evidence upon which a reasonable jury could convict the appellant. The judgment went on to consider the evidence of Nicola Nolan and witness B. In the course of this it set out, at [19], Nicola Nolan’s evidence that “Tommy said that he got back into the car, and the man stood in front of it and said ‘you have to stop and wait for the police’ and that they (that’s Tommy and the other person) said, ‘if you don’t move, we’re going to run you over’”. Reference was made at [22] to counsel’s submissions as to the unsatisfactory source of the evidence of the two witnesses, and to the fact that on Nicola Nolan’s evidence the appellant was claiming to be the driver and it was wholly unclear who was speaking when she reported that the appellant said that “they” uttered the threat to Mr Matharu. The court held at [23], however, that the evidence of the two witnesses was a sufficient basis for the jury to find encouragement:

The court went on to consider the judge’s directions on the issue of encouragement, which were found to be deficient for the reasons given at [30]-[32]:

Thereafter, in November 2010, the police visited Nicola Nolan and witness B to check that they were willing to give evidence in the retrial. Witness B asked why a retrial was necessary. He was told that it was due to a technicality. He asked for more details and was thereafter given a fuller explanation. Nicola Nolan did not ask for an explanation but in the light of the request made by witness B the decision was taken to speak to her again and to give an explanation to her as well. The contact logs are patchy and there are said to have been inconsistencies in the accounts given in the course of a voir dire by the officers concerned, but Miss McAtasney referred in her skeleton argument to a witness statement of the officer in the case, DS Paisley, as containing the clearest example of what the officers said to the witnesses. DS Paisley states in the witness statement that he tasked officers to visit the witnesses and explain that this was going to be a retrial, and it was agreed that “if questioned about what was wrong with the first trial that it was down to the directions given by the Judge regarding the actions of what Tommy had actually done”. When it became apparent that witnesses wanted more detail as to why there was a retrial, he formed a more elaborate answer from the Police National Legal Data Base, which was that “for the jury to convict they had to be sure of active encouragement and not presence alone” and therefore the conviction had been quashed. DS Paisley said that he met Nicola Nolan on 17 November 2010 and explained that to her. He met witness B the following day and explained it to him. Although the precise words used in giving the explanations were not recorded in the contact logs, it is implicit in the judge’s ruling that he accepted that they were along those lines.

Immediately after the explanation was given to Nicola Nolan, the police took her through a transcript of her evidence at the original trial. When she came to the part where she had said “They said to him, ‘if you don’t move we’re going to run you over’”, she interjected and said, “It was Tommy that said that”. She said the same in the course of her evidence at the retrial itself.

Criticism is justifiably made of the decision to give an explanation to the witnesses (and in particular to Nicola Nolan, who had asked for none) as to the reasons for a retrial. No legal advice was sought by the officers at the time. The judge observed in his ruling that if it had been sought the answer would have been an emphatic “no” and that it would have been happier if the officers had taken a somewhat more robust stance with the witnesses. As Miss McAtasney submitted, the appropriate course would have been for the officers simply to state that the Court of Appeal had directed a retrial and that they were unable to explain the detail as it could taint the witnesses’ evidence and prejudice the retrial.

Despite his concerns about what had happened, the judge ruled against the application that the evidence of the two witnesses should be excluded. He noted that there was no guarantee at that stage that the witnesses would depart from the evidence that they had previously given. If they did, the defence had all the ammunition they required in order properly to cross-examine them. The trial process was equipped to deal with the matter. He accepted that, if cross-examination was required, it might be inevitable that the fact of a retrial would be mentioned, but it was not inevitable that the conviction for murder would need to be mentioned, and he was satisfied that proper cross-examination could take place, if necessary, without so doing. He was also satisfied that there was no suggestion of deliberate mala fides and that the trial could be conducted in a fair and proper manner. With appropriate directions, no injustice would be done.

The appellant’s case under ground 1 is that the judge erred in so ruling: he should not have allowed the evidence of the two witnesses to be given at all. It is submitted in the alternative that, if the judge was entitled to wait until the evidence had been given in order to assess the impact of the police contact with the witnesses, then by the close of the prosecution case he should have removed count 1, at least, from the jury: that is the subject of ground 4, considered below.

Miss McAtasney’s submissions on ground 1 were directed primarily at the position of Nicola Nolan and had two main features to them. First, she submitted that what took place in relation to Nicola Nolan amounted to coaching of a witness, even if done inadvertently. There was no proper reason for tipping off the witness as to the reasons for the retrial. There was no necessity to take her through the transcript of her evidence at the original trial. It cannot have been a coincidence that she chose to clarify the one very material area of her evidence quoted in the judgment of the Court of Appeal quashing the original conviction. From her exchanges with the police, she knew that in order for the appellant to be convicted she had to make absolutely clear that he admitted to her that he had encouraged Albert. Thus it was that she added the prejudicial statement, “It was Tommy that said that”, and in her evidence at the retrial she repeated that and took every opportunity to emphasise that the appellant was a murderer confessing to murder. The vice of the coaching alone should have resulted in exclusion of the evidence.

The second feature of the Miss McAtasney’s submissions concerned what was said to be a separate and prejudicial difficulty arising out of the admission of Nicola Nolan’s evidence. The defence could not cross-examine effectively on this issue without revealing to the jury that the appellant had been convicted of murder by another jury at the original trial. Moreover, it was necessary for the officers who had spoken to the witnesses to be called and for the contact logs to be put in evidence. Exploration of the judgment of the Court of Appeal and what the officers had said to the witnesses added to the prejudicial effect on the jury. The overall prejudice could not be corrected in the trial process and it outweighed the need for the evidence to be admitted.

Similar points were advanced in relation to the effect of the contacts with witness B. Witness B did not add anything to his evidence at the time of those contacts but the same difficulties would arise if he embellished his evidence at the retrial; and he did in fact embellish it, introducing for the first time that the appellant had described in detail how it felt to drive over Mr Matharu, which can only have been done in order to implicate the appellant further. The fact that the police had originally told witness B that the need for a retrial was due to a technicality also added to the prejudice: the jury would learn not only that the appellant had previously been convicted of murder, but also that it was the opinion of the officers that a retrial was the result of a technicality, suggesting that the appellant had been “lucky” to have his conviction quashed.

We are not persuaded by those submissions. In our judgment, the judge’s refusal to exclude the evidence of the two witnesses under s.78 of the 1984 Act was an entirely proper exercise of discretion on his part. The witness handling process had been conducted inappropriately but there was no finding of bad faith and, although the witnesses were alerted in general terms to the importance of evidence of active encouragement by the appellant, what happened could not fairly be characterised as witness coaching. In so far as Miss McAtasney suggested in her submissions that there had been deliberate coaching or that the attention of the witnesses had been drawn to specific passages in the judgment of the Court of Appeal (in particular, in the case of Nicola Nolan, to the paragraphs relating to her evidence that “they” uttered the threat to Mr Matharu), those suggestions cannot live with the factual findings implicit in the judge’s ruling; and his assessment, reached after hearing the evidence of the police officers in the voir dire, is one with which this court has no basis to interfere. In the circumstances it could not be said that the evidence of the witnesses was necessarily tainted by the process or that the fairness of the trial would inevitably be compromised by their giving evidence. Indeed, at the stage when the judge had to consider the matter, there was, as he said, no guarantee that the witnesses would depart at all from the evidence they had given in the original trial. He was therefore plainly right to refuse the application to exclude the evidence. But he was also right to consider that, if the witnesses did depart from the evidence they had previously given, the matter could be dealt with fairly and properly within the trial process.

In reaching those conclusions in relation to Nicola Nolan we have taken into account that her specific comment to the police, “It was Tommy that said that”, did signal a possible addition to the evidence she had given at the original trial. This was, however, only a possibility. Moreover, such an addition would on one view be no more than clarification of the evidence she had given at the original trial, which did not exclude the appellant but left it wholly unclear who was speaking when “they” uttered the threat to Mr Matharu. Her comment also reflected the account she had given in her first police interview, on 6 April 2007, long before the original trial, when she had said: “… Tommy’s told him to move out of the way, Tommy and Albert have both told him to move out of the way”. All this made it the more appropriate to wait to see whether she made the comment in her evidence at the retrial and, if she did, to allow it to be dealt with through cross-examination. There was a lot of material available for the purpose of any such cross-examination. At the time of the ruling under challenge, it was reasonable for the judge to consider that, if cross-examination on the issue did prove necessary, it should be possible for it to be carried out without mentioning the appellant’s conviction for murder at the original trial. In the event, as we were told, the cross-examination was extensive and brought everything in. That is something to which we will return when considering ground 4. It does not advance the appellant’s case under ground 1.

There is nothing we need add in relation to witness B. He had said nothing to the police to signal a possible departure from the evidence he had given at the original trial. Of course, the possibility still existed; but for the reasons already given, the judge was entitled to take the view that it was not a good reason for the exclusion of witness B’s evidence.

We therefore reject the appellant’s case under ground 1.

Ground 2 challenges the judge’s ruling that witness B be allowed to give evidence under conditions of anonymity.

The application for anonymity was governed by sections 86-97 of the Coroners and Justice Act 2009. Section 88 identifies the preconditions which must be established before a witness anonymity order may be made. It provides, so far as relevant:

By s.89, the considerations to which the court must have regard when deciding whether Conditions A to C are met include (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; and (f) whether it would be reasonably practicable to protect the witness by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.

Guidance on the approach to those provisions was given by the Court of Appeal in R v Mayers and Others [2009] 1 Cr App R 30, by reference to the corresponding provisions of the predecessor legislation, the Criminal Evidence (Witness Anonymity) Act 2008.

When the papers in the case were first served on the defence, prior to the original trial, there were five anonymised witnesses. Nicola Nolan was anonymised as witness A. The nature of her evidence was such, however, that the decision was taken prior to the original trial that it was incapable of presentation without disclosing her identity. She agreed to give evidence without anonymity, on the basis that other measures of witness protection would be given to her (though by the time of the retrial she had come out of witness protection for personal reasons). The only special measures applied to her at the retrial were the giving of evidence behind screens. Witnesses C, D and E gave evidence under conditions of anonymity at the original trial but were not needed at the retrial. Thus, by the time of the retrial the only remaining issue as to anonymity was in relation to witness B.

In his ruling the judge referred to the three statutory conditions and to the guidance in R v Mayer and Others:

Following the guidance, he considered Condition C first. He held that it was plainly important for witness B to give evidence: the evidence was of a frank confession by the appellant. It was in the interests of justice that the evidence should be received and it was plain that the witness would not testify if the anonymity were not given and preserved.

In relation to Condition A, the judge expressed himself satisfied to the highest standard that the proposed order was necessary to protect the witness from serious harm, observing that “[t]he Crown state, persuasively, that this is a case where the deceased was killed in order to escape capture and thus to escape from justice and there were suggestions, other suggestions, of money being offered either to sort out or get rid of another witness”. Those other suggestions came from witness B himself, who said that the appellant had offered him £5,000 to “take care of” Nicola Nolan so that she would not give evidence.

In relation to Condition B, the judge was satisfied that a fair trial could take place and that the effect of the proposed order would be consistent with the fair trial. He said that in reaching that conclusion he had taken into account the various statutory considerations. He referred inter alia to the absence of any suggestion that the appellant might be the victim of a malevolent plot to incriminate him; and to the fact that there had been full disclosure of the witness’s record, including many convictions for dishonesty. He said that “[i]t is difficult to see how other than his name there could be more disclosure than there already has been”.

Both at the time when the witnesses gave evidence and in his summing-up the judge gave the jury an appropriate warning about the special measures applicable to them. What he said in his summing-up was this:

Miss McAtasney submitted that the conditions for an anonymity order were not met and that the judge therefore erred in making the order. The main thrust of the submissions was directed towards Condition A, on the basis that witness B’s professed fear for his safety was not reasonable and that an order was not necessary to protect his safety. The appellant must inevitably have known who he was. It was witness B’s evidence that he had shared a cell with the appellant at HMP Pentonville during a defined period in June/July 2006. It was plain that the identity of his cell-mate would be known to the appellant. Indeed, the appellant gave evidence, as the judge reminded the jury in his summing up, that he knew whom he was sharing a cell with when he was taken away (i.e. to be arrested and interviewed); and he accepted that he spoke to that person when he came back from interview, though he denied having said that he was the driver or having boasted about the incident. Thus, the position was the same as for Nicola Nolan: just as her identity was disclosed because it was obvious to the appellant who she was, so the identity of witness B should have been disclosed. Nor was there any reasonable basis for witness B to fear reprisals from the appellant or persons connected with him. No approach or attempted approach had been made to him prior to the retrial, in spite of the fact that he had given evidence against the appellant at the original trial and the appellant had been convicted of murder.

As to Condition B, Miss McAtasney submitted that the effect of granting witness B anonymity, together with related measures for screening and voice modulation, was not consistent with a fair trial. The prejudice to the appellant was huge. No jury would accept that anonymity and voice modulation were “quite usual”, as the judge told them, and no directions were capable of dealing with the impact on the jury and curing the prejudice. A further criticism of the directions was the judge’s statement that “the defence still have no information as to who the witness is”: this was said to have been artificial and to have tended to undermine the appellant’s own evidence that he knew who the witness was.

As to Condition C, Miss McAtasney submitted that the interests of justice did not require witness B to testify, in particular because his evidence was at odds with the Crown’s case: the Crown’s case was that the appellant’s brother was the driver, but witness B’s evidence was that the appellant was saying that he was the driver.

We have no hesitation in rejecting Miss McAtasney’s submissions in respect of Conditions B and C. Witness B had made clear from the outset that he would not testify unless he were granted anonymity. His evidence was of obvious importance despite the fact that the appellant’s claim to have been the driver was at odds with the prosecution case and the accepted facts: evidence that the appellant had been taking credit for the killing was still highly relevant to the issue of joint enterprise, in circumstances where the appellant’s case was that he was simply an innocent passenger. Witness B could be cross-examined effectively by the defence, with the benefit of full disclosure of details relevant to credibility. We do not accept that the judge’s directions were incapable of curing any prejudice that might otherwise arise from the giving of evidence anonymously or the related protection of screens and voice modulation. We are satisfied that the directions contained in the summing up, amplifying the warning we are told he gave the jury at the time when witness B was called, were strong enough to focus the jury’s attention on the evidence actually given by witness B and on the reliability of that evidence, putting the fact of anonymity on one side. By his observation that “the defence still have no information as to who the witness is”, the judge plainly meant that the defence had been given no such information by the Crown; and the observation formed part of a direction in the appellant’s favour: he was directing the jury to have regard to the possibility that, although there had been extensive disclosure of information about witness B’s criminal record and background, there might be other material which could have affected their judgment of him and that they should bear all that in mind and exercise caution when considering the evidence. What he said did not undermine the appellant’s evidence that he knew who the witness was. If anything, given that evidence, what was said was generous to the defence.

We have found the position in relation to Condition A more problematic. We have taken on board the submission of Mr Heywood QC, on behalf of the Crown, that it is no answer for a defendant to say that he knows who the witness is and that anonymity cannot therefore be necessary: there is an important difference between a defendant thinking he knows who the witness is and the Crown affirming the true identity of the witness, and caution is needed about an affirmation of identity in a case where a witness has a justifiable fear for his own safety or the safety of others. We also accept, in the light of a witness statement made by witness B for the purposes of the retrial, that there was evidence before the judge that he did have a subjective fear that if his name or face were recognised he or his family might suffer harm from the appellant’s relations. It is difficult to see, however, how witness B’s true identity could reasonably have been considered not to be known to the appellant, given witness B’s own evidence not only that he and the appellant had shared a cell together during a defined period at HMP Pentonville, but also as to the nature and circumstances of the conversations between them during that period (and it appears that witness B gave evidence to that effect at the original trial as well as at the retrial). It is that consideration, rather than the fact that witness B had not in fact suffered retaliation by the time of the retrial despite the lapse of time, that causes us concern. If witness B’s true identity was already known to the appellant, an anonymity order could not realistically serve to protect him or his family from retaliation; his fear for their safety if he were identified could not be said to be a reasonable fear; and an order could not be said to be necessary in order to protect their safety. Thus, although anonymisation may have been entirely appropriate in the first place, we are doubtful whether the judge was right to find Condition A satisfied in the circumstances as they existed at the time of the retrial.

But even if the judge did err in making an anonymity order in relation to witness B, we are satisfied that this did not have any adverse effect on the fairness of the trial or the safety of the conviction. As we have already made clear when considering Condition B, the judge’s directions about special measures were entirely apt to prevent the jury from holding witness B’s anonymity against the appellant and to get them to concentrate on the evidence actually given by the witness, and there was nothing harmful to the defence in the directions given. Those directions ensured that no prejudice arose out of the fact that witness B remained anonymous.

Accordingly, ground 2 does not ultimately advance the appellant’s case on the appeal.

Ground 3 relates to evidence of the appellant’s conviction in 2002 for an offence of aggravated vehicle taking. A police officer was called to give the details of the offence to the jury. The appellant had been the driver of the car, his brother Albert the passenger. The appellant was asked by the police to stop but failed to do so and was pursued by the police for a few minutes. The car narrowly missed some pedestrians in the road (at least, the officer recalled that a member of the public had quickened his pace to get out of the road) and mounted the kerb twice. The brothers then got out of the car and hid in a shop. The appellant pleaded guilty to the offence and was sentenced to six months’ detention in a young offender institution.

The appellant had a large number of other convictions, for offences of dishonesty. No complaint is made about the fact that they were admitted into evidence. The complaint relates to the basis on which the 2002 conviction for aggravated vehicle taking was allowed in and the use to which the jury were directed that it could properly be put.

In his ruling that the evidence be allowed in pursuant to s.101(1)(d) of the Criminal Justice Act 2003, the judge said that it was “evidence which may go to show a propensity to drive dangerously if he and his brother were together, when the conviction occurred, were seeking to evade capture” but that it was relevant only to count 2 (manslaughter) because it was not an offence in which death or serious injury had been in contemplation. He then dealt with it as follows in his summing up:

Miss McAtasney’s submission was a short one. She acknowledged that a single previous conviction could in appropriate circumstances show propensity, but she submitted that in this case the 2002 conviction could not properly assist the jury. She asked rhetorically, how could the fact that the appellant drove as he did on a single previous occasion as a teenager, when there was no death, injury or collision, show that he would know on an occasion four years later that his brother would drive dangerously? There was simply insufficient relevance to satisfy s.101(1)(d). Similarly in relation to the way the judge dealt with it in his summing up, the 2002 conviction could not safely be evidence of knowledge that another person would drive dangerously on a separate occasion. It was further submitted that without the evidence of the 2002 conviction there was no other evidence on which the jury could safely conclude that the appellant knew that his brother would drive dangerously.

For the Crown, Mr Heywood accepted that this was not a true propensity case, but he submitted that the 2002 conviction did have a tendency to show that the appellant knew what was in the mind of his brother on this occasion. The prosecution case was that in the circumstances existing at the time of this offence (both brothers were drug addicts, both stole on a daily basis to feed their habit, both were under court orders, neither of them could afford to be arrested, they both needed to get away) the jury could infer that the appellant knew what was in the mind of the driver on seeing Mr Matharu running to stop them; and the fact that the appellant had on a previous occasion driven off at speed when asked by a police officer to stop was of obvious relevance to his state of mind on this occasion.

Mr Heywood submitted further that the 2002 conviction would have been admissible in any event pursuant to s.101(1)(f) by the end of the trial in order to correct a false impression given by the appellant during his evidence that he had no convictions for any offence of violence, when in fact in 2002 he had driven to escape so as to occasion an obvious risk of injury. Miss McAtasney took issue with that submission, contending that the 2002 conviction did not relate to an offence of violence and that the appellant had not created any false impression in giving evidence that he had no conviction for an offence of violence.

The central question, as it seems to us, is whether the judge erred in his direction to the jury as to the use to which the 2002 conviction could be put. That direction accorded broadly with the basis on which he allowed the 2002 conviction into evidence, albeit the issue was not one of straightforward propensity; and if the direction was a proper one, it shows that the 2002 conviction was indeed relevant to an important matter in issue and was properly admitted under s.101(1)(d). Nothing turns on whether there was, by the end of the trial, an alternative basis on which the conviction might have been admissible: if the evidence had been admitted solely on that basis, the jury ought to have been directed differently in relation to it.

In our judgment, the 2002 conviction was of undoubted relevance to the appellant’s state of mind at the time of the later incident. Although the offence had occurred four years previously, when the appellant was a teenager, and although on that occasion the appellant had been the driver, not the passenger, the fact remained that he and his brother had been together in the car and had driven off dangerously in an attempt to escape from the police. This was plainly capable of having a bearing on what the appellant knew his brother might do when on this occasion they were trying to escape in the car from the scene of the attempted theft and Mr Matharu ran across to stop them.

The judge did not therefore fall into error either in allowing the 2002 conviction into evidence or in the directions he gave the jury as to the use to which the conviction might be put.

Ground 4 represents the alternative way in which the appellant puts the case under ground 1 (see [26] above). It is said that the judge erred in failing to accede to the submission of no case to answer at the close of the prosecution case.

The crux of the submission of no case was that the Crown’s case centred on the evidence of Nicola Nolan and by the close of the case that evidence was so discredited that it could not safely be left to the jury. In rejecting the submission, the judge said that he was not persuaded that Nicola Nolan’s evidence was so unreliable that a properly directed jury could not safely convict on it. He also referred to other evidence which was worthy of the jury’s consideration.

Miss McAtasney submitted that the judge ought to have withdrawn count 1, at least, from the jury. Although the jury acquitted the appellant on count 1, the failure of the judge to accede to the submission of no case on that count meant that the count had to have priority throughout the defence case, particularly in circumstances where the defence had been forced to disclose to the jury, through the cross-examination of Nicola Nolan, that the appellant had been convicted of murder by the jury at the original trial. If count 1 had been removed, the defence could have concentrated on count 2. But a further submission was that count 2 should also have been removed from the jury, since the only evidence of a joint agreement to drive dangerously came from Nicola Nolan, and the 2002 conviction did not provide a sufficient basis for a finding of guilt on count 2.

Mr Heywood supported the judge’s ruling and, in his written submissions, provided the court with a detailed summary of the prosecution evidence and of the factual conclusions which he submitted were open to the jury on the strength of that evidence.

We do not need to go into that detail, because we are satisfied that the judge was entitled to conclude that Nicola Nolan’s evidence was not so unreliable that a properly directed jury could not safely convict on it. By this time, of course, the court had heard not only Nicola Nolan’s own evidence but also the evidence of the police officers concerning their contacts with her. As to those contacts, in his ruling on the submission of no case the judge again criticised what had happened but observed that, whilst the jury might take a different view, he took the view that what happened was down to inadvertence, poor supervision and inexperience. That meant that the suggestion of coaching, whether inadvertent or deliberate, was properly left for evaluation by the jury, together with the other matters that were relied on by the defence as rendering Nicola Nolan’s evidence unreliable. They were all dealt with in due course in the summing up by careful directions, about which no complaint is made. It is true that, contrary to the judge’s expectation at the time of his ruling that Nicola Nolan’s evidence be allowed in, the cross-examination of her had brought in the fact that the appellant had been convicted of murder. But that, too, was dealt with in the summing up by a careful direction about which no complaint is made, and the fact that the cross-examination had taken this course did not provide a reason for finding that her evidence could not safely be left to the jury. As to whether the overall effect of the cross-examination was to discredit her, we can see no basis whatsoever for faulting the judge’s view that this was a matter that should be left to the jury.

If, as the judge was entitled to find, the assessment of Nicola Nolan’s evidence should properly be left to the jury, the challenge to his ruling on the submission of no case cannot succeed.

For the reasons we have given, the grounds of appeal, whether considered individually or cumulatively, do not cast any doubt on the safety of the appellant’s conviction of manslaughter. The appeal against conviction is therefore dismissed.

We turn to consider the appeal against sentence. The submission made on the appellant’s behalf is that the sentence of 16 years’ imprisonment was simply too long for this offence.

The appellant was born on 5 June 1983 and was therefore 22 years of age at the time of the offence. He had a bad criminal record, but essentially for offences of dishonesty, motoring matters and breaches of court orders. They did not include any offences of violence: for this purpose, putting on one side the issue we have mentioned in the context of ground 3 of the appeal against conviction (see [53]-[54] above), we do not treat the 2002 conviction for aggravated vehicle taking as an offence of violence. His longest previous custodial sentence was 18 months’ imprisonment in 2006 for theft from a motor vehicle.

Given the way in which count 2 was left to the jury (see [16] above), the appellant fell to be sentenced on the basis that he agreed with his brother Albert that they should escape, was aware that Albert would drive dangerously, and agreed that Albert should do so to make their escape. It was therefore an offence involving a high degree of culpability. In sentencing him, the judge identified a number of aggravating features, namely the fact that it was an offence committed while they were escaping from crime; the use of the car as a weapon; and the fact that neither the appellant nor his brother took any steps thereafter to see whether Mr Matharu was alright: even after the car had driven over him, there was not even a falter, from the eye witness accounts, in the speed of the vehicle. The judge noted the absence of convictions for violence in the appellant’s criminal record, but observed that what happened on this occasion involved a high degree of risk and that, although the appellant may not have intended the death, the risk of serious injury and possible death was manifest from the outset.

The judge said that there was little mitigation. He took into account the fact that the appellant was on drugs at the time and may have been withdrawing (the appellant’s evidence was that he had been in pain for this reason). He noted that for a long time the appellant had shown no remorse and that the conversations with Nicola Nolan and witness B did the appellant no credit. The appellant had asked him to take into account late in the day that he was sorry for what he had done. The judge did so to an extent, but not a lot, because at least there were signs that the appellant while in custody had started to mend his ways and had addressed his drug problem.

The 16 year determinate sentence was imposed after consideration of the possibility of a life sentence or a sentence of imprisonment for public protection.

Miss McAtasney took issue with the precise factual basis upon which the judge approached the sentencing exercise, as revealed in his sentencing remarks, including in particular his reference to the speed of the car not faltering after the car had driven over Mr Matharu and his assessment that the risk of serious injury or death was manifest from the outset. As to such matters, however, it suffices to note that the judge, having heard all the evidence at the trial, was in an excellent position to determine the precise factual basis of sentencing and we are not persuaded that he fell into error.

A further, and more telling, submission is that the judge’s sentence failed to reflect the lower culpability of the appellant as a passenger in the car, as opposed to the driver with actual control over the car. Miss McAtasney referred to R v Dean [2005] EWCA Crim 1096, [2006] Cr App R (S) 12, at [22], as an instance where the driver of the car which killed the deceased was held to have a greater degree of responsibility for the death (though the actual contrast in that case was not between driver and passenger but between the driver of the car which killed the deceased and the driver of a second car involved in the same incident). She submitted that there was no authority to support a sentence as long as 16 years for a passenger; nor do the authorities relating to the sentencing of drivers support such a long sentence. Cases to which we were referred included R v Rule [2002] EWCA Crim 1858, [2003] 1 Cr App R (S) 47 (sentence of 9 years on a plea upheld in relation to a driver) R v Parfitt [2004] EWCA Crim 1755, [2005] 1 Cr App R (S) 50 (sentence of 12 years on conviction upheld in relation to a driver) and Attorney General’s Reference No. 111 of 2006 (Hussain) [2006] EWCA Crim 3269, [2007] 2 Cr App R 26 (which gives guidance for cases of manslaughter by gross negligence).

The authorities show that sentencing in a case of manslaughter is highly fact sensitive. Account also needs to be taken of the upward movement in manslaughter sentencing in recent years to reflect the higher minimum terms imposed pursuant to the provisions of the Criminal Justice Act 2003 in cases of murder (and one must not lose sight of the fact that the appellant’s brother, found guilty of murder arising out of the same facts, is subject to a minimum term of 25 years). The present offence was a very serious one indeed, with the aggravating features identified by the judge and with little mitigation. In our judgment, it called for a very long sentence.

We accept, however, that in the particular circumstances the appellant’s culpability as a passenger was lower than if he had been the driver, and we have come to the conclusion that a sentence as high as 16 years does not take sufficient account of the fact that he was the passenger. We do not think that a sentence higher than 14 years can be justified on these facts.

Accordingly, we allow the appeal against sentence to the extent of quashing the sentence of 16 years’ imprisonment on count 2 and substituting a sentence of 14 years’ imprisonment. Time spent in custody on remand will continue to count towards sentence.