Miah & Anor, R v

On Wednesday 30 March 2011, we heard appeals against conviction and sentence by Akmol Miah, who is still only 15, and Shihabuddin Choudhury, who is now aged 21. An order that had been made under section 39 of the Children and Young Persons Act 1933 in respect of Miah was revoked after the trial and we do not re-impose it. At the end of the hearing we announced that the appeals against conviction would be dismissed, for reasons to be handed down later. We reserved our decision on the sentence appeals because counsel asked for a little time to consider two questions that we put to them concerning this court’s decision in R v Babamuboni, Adigie and Malasi [2009] 1 CR App R (S) 51.

These are our reasons for dismissing the appeals against conviction and sentence. All three members of the court have contributed to this judgment.

The convictions and sentence against which the appellants appeal arise from a disastrous fire which occurred at about 4.30 am in the Masud family home at 86 Lessingham Avenue in Tooting, South London on 21 June 2009; midsummer’s day. Five members of the family were asleep in the house at the time. As a result of the fire, Maleha Masud, the youngest daughter in the family and aged 15, died on 25 June 2009. Nabiba Masud, aged 21, died on 25 July 2009. The three other members of the family, Zain, the eldest son aged 22, Junaid, his brother aged 17, and their mother, Rubina Masud, were all injured but survived.

The two appellants, together with a co-accused, Rasan Khan, were charged with the murders of Maleha and Nabiba and the attempted murder of the other three victims who survived. There was no alternative count of arson with intent to endanger life. On 26 May 2010 after a trial in the Central Criminal Court before HHJ Moss QC and a jury, the appellant Miah was convicted of murder (counts 4 and 5) and attempted murder (counts 1, 2 and 3). On 27 May 2010 the appellant Choudhury was convicted of the same offences.

Rasan Khan was acquitted of all counts.

On 9 July 2010 the appellants were sentenced as follows:

The appellant Miah had been in a teenage relationship with Maleha Masud since March 2009. They had kept their relationship a secret from their parents and communicated by mobile phones and texts. In the days preceding the fire the two had argued and had fallen out. The prosecution case was that Miah had wanted revenge for the breakdown of the relationship. It was alleged that he had enlisted the help of his cousin, Choudhury, to set fire to Maleha’s home. The two were linked by a number of telephone calls between them leading up to and after the fire and by MSN messages sent to each other. The prosecution case was that Khan was to collect Choudhury from his home in Nottingham and to transport him to London and meet Miah. The prosecution alleged that Khan took part in the offence, but this was not accepted by the jury.

The defence cases were as follows: Miah said that he had not been involved in either the planning or execution of the offences. He said that he had not been present but had suspected that Choudhury had been involved. In the alternative he denied any intent to kill or cause grievous bodily harm. Choudhury’s case on the facts was based on what he had said in interview. He therefore accepted that he had been brought into the plan by Miah who, he said, had set light to the house with Khan. He said that he had withdrawn from the plan at the last moment.

Choudhury’s case, on the basis of the facts as set out in the interview and the medical evidence called on his behalf, was therefore put on three bases: first, he had withdrawn from participation in the offences before the actus reus of arson was committed. Secondly, he did not have the necessary intent to commit any of the offences of which he was charged. Thirdly, even if the prosecution proved participation and, prima facie, intent on the murder charges, the medical evidence demonstrated that Choudhury was suffering from an abnormality of mind which substantially impaired his mental responsibility for the killing of Maleha and Nabiha. Therefore, in respect of the two murder charges, he could rely on the partial defence of diminished responsibility, pursuant to section 2 of the Homicide Act 1957, which was still then in force.

Khan accepted that he had driven Choudhury from the Midlands to London that night. He said that Choudhury and Miah (whom he had never previously met) had gone into a shop and had bought matches. They had returned to his car about 10 to 15 minutes later and told him to drive off. He had had no knowledge of the fire.

The prosecution called evidence of fact from Mrs Masud and two friends of Maleha.

There was evidence from two forensic scientists about the fluid used to accelerate the fire. A piece of green painted wood from the front door of number 86 bore traces of Shell additives. Ms Rebecca Pepler, who is a forensic scientist, chemist and fire investigator said that her analysis of the green container (which had no liquid in it upon her examination) demonstrated the presence of both Shell and Esso additives, although it was mainly Shell. Her analysis of the green container recovered from the ground floor cloakroom of Miah’s home address (which had no liquid in it upon her examination) demonstrated the presence of both Shell and Esso additives, although it was mainly Shell. In cross-examination she said that she was able to conclude that the additives contained in the petrol used to light the fire at 86 Lessingham Avenue and the additives in petrol residues found in a green petrol container were not dissimilar, but not the same. Mr Ian Peck, whose evidence was given through Ms Pepler, said that the fire had been caused by a spark or flame. He had examined clothing attributable to Miah and he confirmed that common flammable liquid residues were found on any of the items that he had examined.

Brian Kennedy (who is a computer expert with the Metropolitan Police) gave evidence that he had examined Miah’s lap top. Miah was the registered owner and there was one user profile related to him. There had been no attempt to delete the internet history. There was a photograph of the fire damaged house taken from the Daily Mail and this was set as “wall paper” on the computer.

Acting Detective Inspector Harper, the investigating officer, said that there was a Shell petrol station in Whitehorse Road in the direction of Croydon within walking distance of the Miah household. He accepted that there was no CCTV evidence of Miah purchasing petrol from the petrol station. He confirmed that after viewing CCTV images of an unknown and unidentifiable male in a street next to the Miah address a search was made in the area. Two plastic bottles in the undergrowth near to Miah’s home were recovered. The smaller of the two had once contained white spirit. However, that was definitely not the accelerant used in the fire.

Inspector Harper also gave evidence that it was known that Choudhury had been collected from work on the night of the fire by a red Corsa vehicle driven by the co-accused Rasal Khan. The vehicle was tracked via CCTV images from the Midlands to London and then down to Croydon and on to Tooting before returning to Croydon and then travelling back to the Midlands. He gave evidence that Choudhury and Miah were further linked by cell site evidence.

With regard to the police interviews, Miah gave a full comment interview after his first arrest. He also put forward prepared statements which foreshadowed his evidence at trial save that he later accepted that he did not mention his suspicions regarding Choudhury’s involvement. Nor did he say that he had carried out a Google search obtaining information about how to burn down a house.

Choudhury gave a full comment interview and said that Miah had called him on 20 June asking him to burn a house in Tooting. He eventually agreed and asked his friend Khan to drive him to London. He said that when they later picked up Miah he had with him a green petrol can and an empty plastic bottle. He admitted he bought some matches. He said that Miah directed them to Lessingham Avenue and they got out of the car. Miah then poured petrol from the can into the plastic bottle. When they arrived at Maleha’s house he said that he could not go through with the plan and so withdrew. Miah had then snatched the petrol from him and had gone through the front gate with Khan. Khan had opened the letter box and Miah had poured the petrol through it. Khan had then put a lighted match through the letterbox. He said that all three men had then run back to the car.

Inspector Harper described how Choudhury had behaved in his interviews. He said that Choudhury had remained cool and calm and was matter of fact in his approach to them. He, the officer, did not believe that Choudhury had told the truth about his educational abilities or his use of alcohol.

The appellant Miah gave evidence. He denied knowing or ever having seen Khan before the trial. He said that he was jealous because Maleha had been having MSN conversations with other boys. He accepted that he had discussed the issue with Choudhury in an MSN conversation on 20 June 2009 and that Choudhury had told him to type into a Google search “How to burn a house down” which he did but he abandoned the search after visiting two sites.

In cross-examination on behalf of Choudhury he accepted that he had lied to the police but said that he had chosen not to mention Choudhury’s name because he had wanted to confront Choudhury himself.

When he denied that he had been in an intense relationship with Maleha it was put to him that over 87 days there had been 1,679 calls and texts between them. He denied that he was blackmailing her into keeping the relationship going or that he had threatened her or her family. He said that Choudhury was lying in his interview when he told the police that he, Miah, had told him that he had wanted to burn down the house and that he had needed Choudhury’s help. He denied that he had never told Choudhury about Maleha. It was put to him and denied that he had lied about taking Choudhury past her house or that Choudhury had spent 5 days in his house. He asserted that Choudhury was lying and that he was ‘setting him up’.

In cross-examination on behalf of Khan, Miah denied that he had not wanted to mention Choudhury’s name to the police because this would have exploded his alibi; instead he pointed the finger of suspicion at Ajmal Khan and Maleha’s brother. It was put to him and he denied that he had been picked up in Thornton Heath by Khan on the night of the fire having first sneaked out of his house.

In cross-examination by the prosecution he denied that he had been obsessed with Maleha or that he had threatened her. He agreed that he made no mention of a Google search in his police interviews or the MSN conversation with Choudhury but he denied that he had told lies. He denied that the Google search had been his own, unprompted idea. He denied that he had been picked up by Khan and driven to Lessingham Avenue and then returned to his house after the event. He agreed that CCTV images appeared to show a third person in the car but this person was not him. He could think of no reason why Choudhury would have wanted to set light to the property. He said that there was nothing unusual or strange about having a picture of the burned house as wallpaper on his computer.

Ajmal Miah, Akmol’s brother, gave evidence.

The appellant Choudhury did not gave evidence but Mo Choudhury, his elder brother and Misbaur Rahman, a friend of the family, gave evidence on his behalf.

Expert evidence was called on Choudhury’s behalf. First, Estelle Makin, who said she was a teacher who had qualified in 1972 and specialised in special needs education. She had been Choudhury’s personal tutor from 2002 to 2004. She said that he was a nicely spoken young man but that there was very little depth to his understanding. She described him as ‘concrete operational’ i.e. he had to be shown how to do things and did not learn by reason. He did not have independent thought or his own opinion and did not think through the consequences of his actions and would have difficulties in appreciating other people’s feelings or emotions. She never saw him being out of control or being abusive.

Dr Daphne Keen, who had been a consultant neurodevelopmental paediatrician for Choudhury, said that his medical history indicated that there was unequivocal evidence of neurological damage of considerable degree. It was her opinion that Ms Makin’s report revealed patterns of difficulty which were consistent with executive dysfunction.

Professor Eastman (a Consultant forensic psychiatrist) said that it was evident that Choudhury had suffered brain damage at birth which probably explained his low IQ together with emotional and personality problems linked to his disabilities. The executive dysfunction would manifest as a failure to see consequences, lack of judgment and ‘concrete thinking’, not correcting errors, lack of planning, lack of flexibility, not dealing with novel situations, lack of logical thinking. He acted in a childlike and naïve way. If there was brain damage in childhood it was unlikely to go away in adulthood. He had adopted a behavioural style of trying to please others and he tended towards being very compliant. His disabilities were relevant to the jury’s consideration of the question, concerning whether he withdrew from any initial plan. Given his cognitive disabilities he was ill – equipped to deal with hostile cross-examination. With regard to withdrawal from a joint plan, passivity and compliance flowed from his brain damage; a plan to do something was more abstract than actually doing it. In cross-examination by the prosecution he denied the assertion that he had been taken in by Choudhury.

Dr Tim Green, a clinical psychologist, said that Choudhury had some unusual elements to his presentation due to brain damage caused by perinatal hypoxia. He had seen Choudhury in November 2009 and on two occasions in Belmarsh prison. He had two spells in the health care wing with mental problems and suffering hallucinations. He carried out tests and concluded that Choudhury had a lower than average IQ somewhere between 61 and 80. He was not more suggestible than the average person but he was highly compliant and likely to follow the will and wishes of others without thinking for himself and had difficulties in thinking through consequences. In cross- examination by the prosecution he agreed that there was an element of concern in that Choudhury may have faked some of his responses in the tests and that the results should be taken with a pinch of salt.

However, his account of his actions was consistent, and he said that Choudhury had told him that Miah told him that he wanted to kill people in the house and that he, Choudhury, had wanted to help him. He agreed that there was nothing to suggest that he was confused or being led by the police during his interview.

The Prosecution called two experts in response. Professor Gisli Gudjonsson, a Consultant forensic psychologist, said that from his tests Choudhury was a man of reasonable intellect and was not a learning disabled individual. There was no evidence that he suffered from mental illness, however, birth trauma was a permanent condition throughout his life and he was probably functioning in the low/average borderline range of cognitive function. He was not an unusually compliant individual but his memory recollection was highly selective. Whilst he had some odd personality traits he did not have a personality disorder. There was no basis for diminished responsibility.

Dr Chesterman, a Consultant forensic psychiatrist said that there was no evidence of developmental delay or abnormal development and whilst at birth he may have been exposed to a possible cause of brain damage that did not mean he had actually sustained such damage. There was no evidence of enduring brain damage. Choudhury was just not very bright and his IQ of 80 was within the normal range. Choudhury did not meet the criteria for diminished responsibility.

At the outset of the trial on 15 April 2010, counsel for Miah and Khan submitted that the judge should sever the trial and that the case should proceed against Miah and Khan without Choudhury. At the same time counsel for Choudhury submitted, for different reasons, that the trial of his client should be severed from the trial of the other two. The judge gave his first ruling that day. It was very short and simply said that there were presently no reasons such as would compel him to exercise his discretion to order the separate trial of any of the defendants. He accepted that the issue might need to be reconsidered at a later stage in the trial.

Subsequently, on 30 April 2010, the judge handed down a more detailed written ruling in respect of that first application. In it he said that the “three way cut throat” nature of the case did not make it so exceptional that he should exercise his discretion to sever the trials of the defendants. He recognised that this type of case occasionally presented potential difficulties for the judge when it came to directing the jury on the admissibility of certain evidence in the case of one defendant or another. He said that there were strong reasons for having a joint trial. However, he recognised that circumstances might yet arise which would justify reopening the issue.

In fact it was reopened again that very day, because the interviews of Choudhury were to be adduced in evidence so that, as the judge put it in his ruling of 4 May 2009, “the cut-throat nature of the defence cases is likely to become obvious to the jury”. He therefore decided that it was time to “grasp the severance nettle”.

In his ruling the judge said that any difficulties and potential prejudicial conflict that might arise in the course of the remainder of the prosecution case and during the cases for the defence could be satisfactorily dealt with by way of careful and firm directions to the jury. He said: “the scope or that task is not so exceptional or difficult as should oblige me now in the proper exercise of my discretion to order the separate trials contended for”. So he refused the application.

When the prosecution made its application to adduce this evidence on 21 April 2010, the judge ruled against it. In giving his ruling he said that he saw the “relevance” of the evidence because it suggested that if the person shown in the CCTV images was Miah then that was evidence that he “may have discarded, or did discard” two plastic bottles at the side of Whitehorse Road very shortly after arriving back at his address after the time of the fire. That would be consistent with the prosecution case on timing. However, the judge said that the prosecution had no evidence to link either of the two plastic bottles with either the fire or with Miah. He regarded that as a problem of “fairness” rather than “admissibility”. Therefore, although he ruled it was admissible evidence as between the prosecution and Miah, its admission would have such an unfair effect on the proceedings that he ought not to admit it pursuant to his power under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). He reserved the position as between co-accused if either Choudhury or Khan wished to adduce that evidence as part of his case.

The judge accurately predicted that this issue would arise and it did the very next day, 22 April 2010, when counsel on behalf of Khan sought to adduce the evidence as a part of his case. The judge ruled that it was “unarguable” that, as between Miah and Khan, this evidence was relevant. He said “that being so it seems to me that is the end of the matter as between those two parties” . He said that it would be quite wrong to prevent Khan from adducing before the jury evidence on which he wished to rely in support of his case, whether or not he later gave evidence. It was argued that the evidence about the CCTV and the bottles supported his prepared statement, given to the police in interview, that he had no knowledge of the fire and had no part in it after he had driven off. The judge ruled that counsel for Khan could therefore cross-examine the investigating officer in the case so as to introduce that evidence before the jury.

The prosecution sought the admission of this evidence. The wallet was found in the bedroom used by Miah’s brother, Ajmal Miah. He gave a statement to the police saying that the card holder was his and that he believed that he was responsible for the writing on it. The question of its admissibility arose on 22 April 2010. In a short ruling, the judge held that the evidence “might be referable” to Miah. He said that the statement of Miah’s elder brother, Amjal, could be put before the jury if it was admitted. He therefore ruled that the evidence was “relevant”, “admissible” and that there was no reason to exclude it. He did not, specifically, consider the possible impact of section 78 of PACE. The statement of Amjal Miah was served as “unused material”. However, it did not go before the jury because the prosecution would not agree to that course. Amjal Miah was called as a witness by Miah and he gave evidence about the wallet that was consistent with his police statement on that point.

This issue arose on 11 May 2010 when counsel for Miah, supported by counsel for Khan, sought to adduce evidence of Choudhury’s “bad character”, viz. a previous conviction for a robbery committed on 29 May 2008, relying on paragraph (e) of section 101(1) of the CJA 2003. The judge characterised the application as “one of the clearest applications that I think that I have ever seen for permission to adduce bad character evidence” and he could not understand on what basis it was being resisted by counsel for Choudhury. It was put before the jury in the form of an admission. The robbery involved a group of youths, who took the victim’s mobile phone. Choudhury pleaded guilty at the Youth Court, where he was unrepresented.

The principal ground of both appellants is that the judge refused to agree to there being separate trials of the two appellants. However, the bases on which the appellants put their arguments are not the same. We will have to consider them in more detail below. This was the sole ground for which the single judge gave leave to appeal, although within that one ground he refused leave on one particular aspect so far Miah was concerned. This was that there should have been severance because of the sheer weight of expert medical evidence concerning Choudhury that was before the jury which led to unfairness against Miah.

Miah proposed four additional grounds of appeal in his application to the single judge. The judge refused leave on each of them. Miah renews his application in respect of each of them.

The first is that the judge erred in law when directing the jury as to how they should approach Choudhury’s evidence in relation to Miah. Whereas when rejecting the severance applications (two had been made in the course of the prosecution case), the judge had said that he would give a careful and firm direction on the admissibility of a co-defendant’s evidence, it is said that he failed to do so. In particular, it is said that the judge failed to give a direction that what had been said by Choudhury to his medical experts and which was repeated in their narratives of his history of the offences was not evidence that could be used by the jury against Miah. We will call this Miah: ground two.

The next ground is that the judge erred when he ruled that evidence of CCTV images of an unidentified person seen walking along the street where the appellant Miah lived at 5.06 am on 21 June and evidence that two plastic bottles had been found in a garden on a street immediately parallel to Miah’s street could be adduced in evidence by the co-accused Khan, for use against Miah. It is said, on behalf of Miah, that the judge failed to consider whether that evidence was, in fact, relevant when considering the application on behalf of Khan. We will call that Miah ground three.

The next ground is that the judge erred in law when ruling that the prosecution could adduce evidence of the wallet the words “Fire bun them” on it. It is argued that the judge should have exercised his discretion under section 78 of PACE and excluded that evidence. We will call this Miah ground four.

Lastly, on behalf of Miah it is said that the judge erred when summing up the evidence of the petrol expert Julia Pepler. The judge said to the jury that Ms Pepler was able to conclude that there was a “correlation” between the petrol used to light the fire at Lessingham Avenue and petrol residues found in the green container that had been recovered. The judge was invited to amplify that summary so as to point out that the question was whether there was a “correlation” between the additives found in the petrol used for the fire and the additives found in the residue in the container. Ms Pepler had found that there was only Shell additive in the petrol used to accelerate the fire, but there was both Shell and Esso additive present in the green container. The judge said that he would not add to his directions. It is said that this was too cursory a summary and that it resulted in unfairness to Miah. We will call this last ground Miah: ground five.

The single judge gave leave to Choudhury to argue two further grounds of appeal against conviction. The first, which we will call Choudhury ground two, is that the judge failed to give the jury sufficient directions on how to approach the evidence given that there was a joint trial and the difficulties of what material was evidence against which defendant.

The second was that the judge failed adequately to sum up Choudhury’s case given that he relied on his mental handicap, the “cut throat” attacks by the two co-accused and the fact that Choudhury did not give evidence. We will call this ground: Choudhury ground three, although it was originally ground four, because it is closely allied with ground two.

This appellant renews his application for leave to appeal on a further ground, which is that the judge erred in acceding to the application of both co-accused to adduce the previous conviction of Choudhury as “bad character” evidence and, furthermore, the judge failed to direct the jury as to how such evidence could or should be used on behalf of the co-accused. We will call this Choudhury: ground four.

On behalf of Miah, Mr Peter Griffiths QC submitted that it was clear from the outset of the trial that Choudhury would not be giving evidence. That proved to be the case. At all times Choudhury’s interview evidence, which implicated Miah, was therefore only going to be evidence against Choudhury, yet it was overwhelmingly prejudicial to Miah in two respects. First, as to the facts. Miah maintained that he had never left his home that night and was unaware of Choudhury travelling to London. Yet Choudhury’s interview asserted that Miah had telephoned Choudhury on the weekend before and said that he wanted to blow up a house in Tooting; that Choudhury had picked up Miah from his house at 3am on 21 June; that Miah had been carrying a green petrol canister with petrol in it and a plastic bottle into which the petrol was decanted; and that Miah poured petrol through the letterbox of the house, which Khan then lit.

Secondly, Choudhury’s interview was also highly prejudicial to Miah because in a number of places it referred to Miah’s state of mind and his intent. Mr Griffiths emphasised in particular the passages at page 76 of the Choudhury interview.

Mr Griffiths’ next submission was that severance was imperative because of the inevitable prejudice created by the repeated references to the history of events, from Choudhury’s point of view, which were contained in the narratives in the expert medical reports that were put before the jury on behalf of Choudhury. None of them was admissible as evidence of the facts stated in them, let alone as evidence against Miah. Yet, Mr Griffiths submitted, it would be impossible for the jury to put those narratives out of their minds when considering Miah’s case.

Mr Griffiths pointed out that when Dr Green gave evidence, his recital of the narrative given to him by Choudhury went before the jury in its entirety. Moreover, Mr Dennis QC, counsel for Choudhury, invited the prosecution to read into the record the contents of all the paragraphs under the heading “account of the index offences”; and that was done. The jury were therefore told that Choudhury had told Dr Green that Miah had told him that “they were going to burn down the house of his ex-girlfriend as a revenge” which he had not said in interview. He gave further examples of statements being read out from the narrative including one where Choudhury told Dr Green that Miah had said that he wanted to kill the people who lived in the house. Mr Griffiths therefore submitted that this was one of those most exceptional cases where, despite the fact that the three defendants faced the same charges on the same indictment, the interests of justice demanded that Miah’s trial should have been severed from that of Choudhury.

On behalf of Choudhury, Mr Dennis QC submitted that the unique position of Choudhury required that his trial be severed from that of the other two defendants. Choudhury did not dispute the content of his interview, which was, effectively, a confession of his involvement up to a certain point, but then demonstrated that he withdrew from participation in the offences. Mr Dennis submitted that the contents of the interview also demonstrated a lack of intent on the part of Choudhury to commit murder or attempted murder. Mr Dennis also emphasised the three bases on which Choudhury rested his defence, as set out at paragraph [7] above. He said that the issue of Choudhury’s fitness to plead was never far from the surface, although a decision not to try it out was taken at an early stage. However, he submitted that it was obvious, from the start of the trial, that Choudhury would not, indeed could not, give evidence. Yet he faced a “cut-throat” attack by Miah and Khan in which he would only be able to rely on cross-examination of others to bolster his account given in interview.

Mr Dennis therefore submitted that the only way for Choudhury to have a fair trial was for his trial to be severed from the other two defendants. That would not have resulted in an unfair trial to them. As it was, he submitted that the result of the joint trial was that there were inconsistent verdicts: Choudhury was found guilty whereas Khan was acquitted.

Section 5(3) of the Indictment Act 1915 provides:

Both Mr Griffiths and Mr Dennis accept that there are sound public policy reasons for having a single trial of defendants who are jointly charged with the same criminal offences arising out of the same central facts. They both accept that it is therefore only in very exceptional cases that a judge should exercise his judgment in favour of ordering a separate trial for one or more defendants pursuant to section 5(3). Mr Griffiths pointed to a case, R v O’Boyle [1991] 292 Cr App R 202, where the Court of Appeal allowed an appeal on the ground that the judge had wrongly refused to sever a joint trial where, subsequently, one defendant had been able to adduce evidence (by cross-examination) of an otherwise inadmissible confession of a co-defendant.

The question in this case is whether the factors relied on by Mr Griffiths and Mr Dennis on behalf of their respective clients take this case into the realms of being “very exceptional”. Only if they do can this court intervene and it would only allow the appeals on this ground if it is satisfied that the consequence of the decision not to sever the trial is that the convictions of Miah and/or Choudhury are unsafe.

We are quite satisfied that this is not a “very exceptional” case from the point of view either of Miah or of Choudhury. Dealing first with Miah, the fact that a co-defendant is running a “cut throat” defence is common and is very seldom a successful ground, standing alone, for severance. Nor is the fact that one co-defendant has implicated another in the offences charged in the course of a police interview, which is denied by that second co-defendant and which is not admissible as evidence against him. Further, there is always the possibility that a co-defendant who has made an exculpatory statement in interview but at the same time has implicated co-defendants will decide not to give evidence at the trial and rely on just his police interview. Those factors are commonplace.

As far as Miah’s position is concerned, the only thing that might make this case more exceptional is the fact that Choudhury was not only not going to give evidence but was also running a defence of diminished responsibility. He would therefore be relying on medical evidence about his abnormality of mind to support his case (which was ultimately a matter for the jury) that his mental responsibility for his acts was substantially impaired at the time of the offences alleged. We accept that the medical experts were entitled to consider the facts of the offence (from Choudhury’s viewpoint) in order to give their opinion on his mental responsibility, although, ultimately, that is a matter for the jury to decide on all the evidence. But the fact that the defence of diminished responsibility was being advanced, with the necessity to have medical expert evidence which would involve narratives of the facts did not make this case so exceptional that it required there be severance in order to give Miah (or Khan for that matter) a fair trial. What it required was, first, trial management so that the expert witnesses’ reference to the facts concerning Choudhury’s part in the events was kept to the minimum necessary to expound their opinions on impairment of his mental responsibility concerning the killing of Maleha and Nabiha. As we say, that, ultimately, was a matter for the jury to decide. Secondly, it required a clear direction from the judge in his summing up that both the evidence in Choudhury’s interview and any evidence about the facts given by the medical experts (which was, by itself, inadmissible hearsay evidence) were to be totally put on one side when the jury was considering the cases of Miah and Khan.

Lastly, with regard to Miah, we were not impressed with the submission that the weight of the medical evidence relating to Choudhury’s mental state so unbalanced the trial that it made it unfair for Miah. We are quite satisfied that the jury was capable of keeping issues and evidence relating to one defendant separate from that concerning another.

As far as Choudhury is concerned, we are unable to accept that the combination of factors relied on by Mr Dennis makes his case “very exceptional”. The consequence of running a case of “diminished responsibility” in relation to the two murder charges coupled with a case that Choudhury was generally mentally impaired may have had the result that he would not give evidence, but that was a positive decision taken after advice was given. We accept that the defences being advanced (on the basis that the facts set out in the police interview were not to be challenged) were both complex and subtle for a jury. But we do not accept that they were such that Choudhury could only have a fair trial if his case was heard alone and in isolation from the cases of the other two defendants said by him to have been involved in the same events. In our view fairness to all defendants, as well as the prosecution, required that the case of all three be heard together in one trial.

We therefore dismiss this ground of appeal so far as both appellants are concerned.

This concerns the judge’s directions concerning the factual evidence about the events as given by Choudhury to the medical experts who examined him and which was before the jury as a result of the experts’ reports and/or evidence. We grant leave in respect of this ground.

Mr Laidlaw QC for the Crown accepted that there was no specific direction by the judge that when the jury were considering the cases of Miah and Khan they must take no account of any hearsay factual evidence given by the medical experts about the events as narrated to them by Choudhury. Mr Laidlaw accepted that it would have been better if the judge had given such a specific direction. However, he submitted that, despite this omission, there could be no question of the conviction of Miah being unsafe. First, Mr Laidlaw pointed out, correctly in our view, that the account given by Choudhury to the police and to the medical experts was broadly similar, so that there was no new or additional fact of significance that was introduced by the medical experts recounting what Choudhury had told them. Moreover, the only substantial introduction of the facts by the medical experts was by Dr Green. Secondly, there was no discussion of the factual aspects of Choudhury’s account during the medical experts’ evidence. Thirdly, Mr Laidlaw said (and Mr Griffiths accepted) that before Choudhury’s interview was read to the jury, the judge explained to them that the facts in it could not be evidence against Miah or Khan. Moreover, he explained why that was the case, ie because they were allegations against them when they were not there to admit or deny them.

Mr Laidlaw submitted that, in those circumstances, the direction that the judge did give to the jury was adequate. The judge told the jury that it must take great care in this case because each defendant blamed the other. He directed that the jury must consider the case for and against each defendant separately. He said that the jury must decide the case of each defendant on all the evidence including that of a co-defendant. After one further direction, the judge directed the jury:

It would have been better if the judge had emphasised to the jury that any statements about what other defendants had done (or not done) that emerged from the accounts given by Choudhury to the medical experts could not be evidence against the other defendants. But, overall, we are satisfied that it would have been sufficiently clear to the jury that all allegations made by Choudhury against other defendants, whether made in interview or when giving his account to the medical experts, could not be evidence against other defendants. In this regard, we note that this point was not raised with the judge by Mr Griffiths at the time.

Therefore we dismiss this ground of appeal by Miah.

When the judge ruled that the CCTV images and the associated evidence of the recovery of two plastic bottles could not be adduced by the prosecution, he said that the problem was that there was no evidence available to link either of the two plastic bottles to the fire itself or to Miah. The judge characterised this as being not a problem of “admissibility” but one of “fairness”: ruling page 3B. Therefore he exercised his discretion under section 78 of PACE to exclude the evidence. But when the judge ruled that, as between Khan and Miah, the same evidence was admissible at the hands of Khan, he said that the evidence was unarguably relevant: ruling page 3B.

We find this reasoning difficult to follow. It seems to us that if there was no evidence to connect the CCTV images and the bottles with either the fire or Miah then this evidence was irrelevant and simply prejudicial. There was no evidence that the prosecution could adduce to make a link and nor was there any that was going to be proffered on behalf of Khan to make any links. The evidence was simply irrelevant. Mr Laidlaw accepted as much. We therefore grant leave to Miah to argue this ground of appeal.

The question is whether the admission of this evidence throws any doubt on the safety of Miah’s conviction. We are quite certain that it does not, because the judge directed the jury in terms that they should ignore that evidence so far as the prosecution’s case against Miah was concerned: summing up Day 1 page 44C-D. We must assume that the jury followed the direction given. Therefore that evidence could not have had any impact on the jury’s decision in convicting Miah.

Mr Griffiths argued that even if the judge was correct in ruling that the evidence of the wallet and the words on it was admissible and relevant, he should have exercised his judgment to refuse its admission under section 78 of PACE. The judge’s ruling does not expressly deal with the issue of section 78, although he does say that, in his view, there is no reason why he should exclude the evidence. We think it is implicit in the judge’s ruling that he must have been considering section 78 issues. The judge was aware of the statement of Miah’s brother that the wallet was his and that he had probably done the writing on it. There was nothing to stop him giving evidence and saying as much, as indeed turned out to be the case. We have concluded that the judge’s decision to admit this evidence cannot be characterised as either wrong in law or an unreasonable exercise of judgment under section 78 of PACE. We refuse leave on this ground.

Mr Griffith’s argument is that the judge did not give a fair summary of the evidence of Julia Pepler when he said that she had concluded that there was a “correlation” between the petrol used to light the fire and the residue found in the green container. We do not accept that argument. There was a correlation because the petrol used for the fire contained Shell additive and the residue in the container showed that there was “mainly” Shell additive present, although there was evidence of Esso additive as well. The judge’s short summary was, if anything, rather favourable to Miah because he did not highlight the specific and rather damning fact that Shell additive was present in the petrol used for the fire and it was “mainly” Shell additive that was present in the residue found in the container recovered from Miah’s home. We refuse leave on this ground.

Mr Dennis QC accepted that the directions that the judge gave to the jury on the need for particular care when considering the evidence of the defendants because each was running a “cut-throat” defence and the need to consider the case and evidence in relation to each separately (pages 10C-12A of Day 1) would have been sufficient in the ordinary case. But his submission is that this case was far from ordinary and required far more detailed directions. First, he submitted that the combination of the “cut-throat” defences and the fact that Choudhury did not give evidence required a much “stronger” direction on the need to separate out the evidence that was applicable to each defendant and the need for care in considering the “cut-throat” defences. Secondly, he submitted that the judge should have given further directions on the evidence relating to Choudhury’s mental problems and the consequence that he was not in as good a position as the other two defendants to deal with their “cut-throat” attacks on him. In particular, he submitted that the judge did not give any specific directions on how the medical evidence had an impact on Choudhury’s defences of (a) withdrawal; (b) lack of intent; and (c) diminished responsibility in relation to the murder charges. Thirdly, he submitted that there was no specific direction to the jury that the prosecution did not rely on the “bad character” evidence that had been admitted against Choudhury at the instigation of counsel for both Miah and Khan. Nor did he put the Choudhury’s case to the jury in relation to the robbery, which was that he was an inactive part of the group. Lastly, it is submitted that the judge never summarised in one place the three principal defences of Choudhury.

Mr Dennis accepted that he did not raise any of these alleged shortcomings in the summing up with the judge at the time. He said that they were so fundamental to the structure of the summing up that a request that he cover the points raised now would have amounted to a request that the judge should restart the whole of his summing up in respect of Choudhury, which was not a practical proposition.

Mr Laidlaw pointed out first, that the judge was summing up the case after the jury had heard detained submissions from four counsel and that they therefore had no doubts about the significant issues in the case and which evidence bore on which issues. Any defects in the summing up could, at best, only be characterised as a failure to “join up all the dots” in the picture which the jury knew well. Secondly, he emphasised that Choudhury’s case that he suffered from mental difficulties was hotly contested by the prosecution witnesses, particularly Professor Gudjonsson, whose evidence the judge summarised at pages 51-52 of Day 2 of his summing up. In sum, he considered that Choudhury was functioning on the “low/average borderline range of cognitive function” and that he did not suffer from any relevant abnormality of mind. Thirdly, he submitted that the judge had the difficult task of giving directions on the evidence as between the prosecution and Choudhury and also as between the co-accused and Choudhury. He submitted that, in the circumstances, the judge was right to give the legal directions and then to sum up the evidence in an even – handed way.

We are satisfied that the judge gave all the necessary legal directions and did so clearly so that the jury was in no doubt what the legal issues were. We are also satisfied that the jury would have been clear what the main defences of Choudhury were both before and during the judge’s summing up. Although it might have been better if the judge had identified the particular defence of Choudhury to which particular evidence related, this was difficult because it ran the risk of emphasising the areas of Choudhury’s defence at the expense of the co-accused’s cases. We are, overall, satisfied that there was no deficiency in the summing up that could put in doubt the safety of the conviction.

We give leave to appeal on this ground.

The “gateway” relied on by Miah and Khan for the admission of the “bad character” evidence against Choudhury was that it had “substantial probative value in relation to an important matter in issue between [Choudhury] and [Miah and Khan]”: see Criminal Justice Act 2003 section 101(1)(e). In his ruling on 11 May 2010, the judge identified three “important matters” in relation to which it was said that Choudhury’s conviction for a robbery was said to provide “substantial probative value”. These were Choudhury’s case that he had been asked by Miah to assist in carrying out the arson; secondly, Choudhury’s case that it was Miah, not him, who actually carried out the arson; and thirdly, Choudhury’s case that he was a compliant follower, not a leader.

The judge characterised the application as “one of the clearest” he had ever seen to adduce bad character evidence. We find that difficult to follow. We accept that the three issues that were identified were all issues between Choudhury and his co-accused. But we find it difficult to see how the robbery conviction could bear upon the issue of whether it was Miah or Choudhury who instigated the plan or who actually carried it out or his mental difficulties. In our view, the only issue between the defendants to which this conviction might be relevant was the credibility of statements in Choudhury’s police interview that implicated the co-accused. Given the fact that the interview was not evidence against them, it is very difficult to see how the robbery conviction had “substantial probative value” in relation to that issue, given his guilty plea. It was not suggested that the robbery conviction had substantial probative value of “propensity” to commit the offences alleged against Choudhury.

However, even if, as we are inclined to think, the judge erred in allowing this “bad character” evidence to be adduced, it does not throw the safety of his conviction in doubt. The judge made it plain to the jury that this evidence was not put before them at the behest of the prosecution. He specifically directed them that this conviction made it no more likely that he was guilty of the offences alleged. The judge said “you must put the conviction out of your mind when deciding whether guilt is proved against him on the rest of the evidence in this case”: page 24G-25D of Day 1 of the summing up. We are satisfied that the force of that direction was not diminished by the fact that the judge went on to explain to the jury why the conviction might be relevant to the cases of Miah and Khan, although we note that the issues identified there are not the same ones identified in the judge’s ruling admitting the conviction.

However, for the reasons we have given, we dismiss this ground of appeal.

For the reasons we have given above, the appeals against conviction of both Miah and Choudhury are dismissed.

The appeals against sentence relate only to the minimum terms that the judge fixed in respect of the mandatory sentences for murder which the judge passed; detention at Her Majesty’s Pleasure in the case of Miah and life imprisonment in the case of Choudhury. As already noted, the minimum term fixed in respect of Miah was 23 years for each murder, to be served concurrently. In the case of Choudhury, the judge fixed a minimum term of 21 years for each murder, to be served concurrently.

When the judge passed sentence on the appellants he identified the following factors as being relevant in fixing the minimum term for Miah. First, the offences only occurred because Miah wanted to inflict revenge upon Maleha and her family for her ending the relationship. Secondly, the plan for the fire was devised by Miah and he deliberately enlisted his cousin, Choudhury, to assist in it. Thirdly, that the psychiatric and psychological reports ordered by the judge indicated that he was a 14 year old who had problematic personality traits and who was compulsive and dependent and who feared rejection by others. However, there was no clear evidence that Miah suffered from any major personality disturbance. Fourthly, the judge said that Miah did not have the mitigation of a “lack of intention to kill”, because it was his (and Choudhury’s) intent that the family should die. Fifthly, the judge noted that Miah (and Choudhury) had chosen to kill by arson and had attempted to kill five people and had succeeded in the case of two of them. Lastly, the judge noted Miah’s “extreme youth” and his previous good character.

The judge noted that in the case of Miah, the “starting point” when fixing a minimum term during which he must be detained at Her Majesty’s Pleasure in respect of the two offences of murder was 12 years, in contrast to that for Choudhury, which was 30 years. The judge then said in relation to Miah (page 5F-G of the sentencing remarks):

With regard to Choudhury, the judge found, first, that in his case he was a willing participant who had travelled from Nottingham in the full knowledge of what was to happen. Secondly, he too did not have the mitigation of a lack of intention to kill because their joint intention was that the family should die. Thirdly, he noted that Choudhury chose to kill by arson, had attempted to kill five people and had succeeded in killing two of them. Lastly, the judge noted that Choudhury was young and the fact of his “mental and cognitive disabilities of which there is a great deal of evidence which played a large part in your trial. The judge said he had had in mind the principles in R v Malasi in Choudhury’s case also. He said:

In support of Miah’s appeal against sentence, Mr Griffiths made three points. First, he submitted that the judge should not have applied the “principles” in Malasi to this case because there the two murders had taken place on different occasions and arose out of different acts; therefore it was distinguishable. Secondly, he submitted that even if the principles were applicable to this case, the judge misapplied them. Mr Griffiths submitted that it was wrong in Miah’s case to consider an “aggregate minimum term” of 30 years, then reduce it to 23 years. Thirdly and in any event, he submitted that a minimum term of 23 years was excessively long, given the statutory starting point of 12 years and Miah’s age at the time of the offences and his sentence.

In support of Choudhury’s appeal against sentence, Mr Dennis accepted that the judge took account of the low mental age of the appellant and his lesser culpability. Therefore, it was correct that Choudhury’s minimum term should be less than that of Miah. However, it was still too high. Alternatively, if there was any reduction in Miah’s minimum term then that to be served by Choudhury must also be reduced.

These sentencing appeals raise the question of how a judge should set minimum terms for two offenders who have (a) been involved in two murders that arise out of the same events; but (b) have different degrees of culpability; but (c) the offender who is the more culpable is the younger of the two, being only 14 at the time of committing the murders; but (d) his co-offender, who was 20 at the time of the offences, had “mental and cognitive disabilities”. On any view, this was not an easy sentencing exercise for the trial judge.

Section 269 and Schedule 21 of the Criminal Justice Act 2003 (“CJA”) deal with the principles to be adopted when a court has to determine a minimum term in relation to a life sentence is fixed by law, as in the case of a conviction for murder, which term has to be served before the “early release provisions” will apply to an offender. Section 269(3) provides: set out.

The combined effect of section 305 of the CJA and section 161(a) of the Powers of the Criminal Courts (Sentencing) Act 2000 is that where an offender is convicted of two murders in one set of proceedings then that makes each murder an offence an “associated” offence of the other for the purposes of section 269(3) of the CJA, so that they are to be taken into account when the judge has to fix the minimum terms for each offence.

Section 269(5) states that, when the offence is one of murder and the judge is considering the “seriousness of the offence” under section 269(3), he must have regard the principles set out in Schedule 21 of the CJA. Under Schedule 21 the judge has first to determine a “starting point”. Paragraphs 4 to 7 set out the criteria for establishing the “starting point” in the case of an offender who is over the age of 18 when he committed the offence. It is accepted, on behalf of Choudhury, that the judge was correct to conclude, in accordance with paragraph 5, particularly paragraph 5(2)(f), that the “starting point” in his case was one of 30 years. Paragraph 7 of Schedule 21 states that in the case an offender aged under 18 when he committed the offence, the appropriate starting point in determining the minimum term is 12 years. That is also not in issue in Miah’s case.

Schedule 21 then requires the court to take into account any aggravating or mitigating factors: paragraph 8. Paragraph 9 states that a detailed consideration of those factors “may result in a minimum term of any length (whatever the starting point)…”. Various “statutory” aggravating and mitigating factors are set out in paragraphs 10 and 11. Amongst the statutory aggravating factors is: “(a) a significant degree of planning or premeditation”. Amongst the statutory mitigating factors is: “(g) the age of the offender”.

In Attorney General’s References Nos 143 and 144 of 2006 (Deland Anthony Brown and Donnel Marcus Carty) [2008] 1 Cr App R (S) 28, this court reviewed a number of cases on the problem involved when a judge has to sentence two offenders for one murder and one offender is over 18 and the other is under 18 when the offence was committed when both were found to be equally culpable so far as the murder was concerned. In that particular case the victim had been murdered in the course of a robbery and the two offenders were 17 ¾ and 18 years and seven months at the time of the murder. The trial judge (Aikens J) had imposed a minimum term of 17 years in respect of the younger offender and one of 21 years in respect of the elder. Both appealed the minimum term; the Attorney – General referred the sentences to the court on the ground that they were unduly lenient. The court dismissed the appeals but allowed the Attorney- General’s reference in respect of the younger offender, whose minimum term was increased to 20 years. Lord Phillips CJ said, at [27] of the judgment of the court that where the facts of the offence are common to both offenders, but there are different “starting points” because of their ages, then “the sentencer should move from each starting point to a position where any disparity between the sentences is no more than a fair reflection of the age difference between the offenders”.

The problem of differing “starting points” in this case is made more complicated by the findings of the judge on the culpability of the two appellants. It is clear that Miah was the prime mover and the leader of the two; but he is six years younger than Choudhury, who had “mental and cognitive disabilities”.

The question of how this court should deal with an offender under 18 who had committed two murders, albeit in that case on separate occasions, was considered by this court in R v Babamuboni, Odigie and Malasi [[2009] 1 Cr App R (S) 51. Malasi had committed the first murder when the mother of a young baby at a christening party, was shot in the course of a robbery with a firearm. He was 16 ½ at the time of that murder. Subsequently he murdered a young woman with a knife, but there was no premeditation and there was a degree of non-technical provocation. He pleaded guilty to that murder after he had been convicted of the first murder. The trial judge (Gross J) ordered that Malasi be detained at Her Majesty’s Pleasure with a minimum term of 30 years being fixed in respect of each of the two murders, to run concurrently. Gross J first identified what his provisional view would have been if he had been separately fixing the minimum term in relation to each of the two murders. He concluded that the minimum term for the first murder should be 24 years and that for the second should be 12 years. In doing so he said that he took into account the “associated offence” of the other murder. Next, he accepted that he should not pass consecutive minimum terms. So he aggregated the two notional minimum terms, making 36 years and then considered the question of totality. He accordingly reduced the minimum term figure to 30 years, which would be the minimum term for each of the two murders, but they would be served concurrently.

Malasi sought leave to appeal the minimum term set by Gross J. This court refused to grant leave. In doing so Thomas LJ said, at [26]:

Thomas LJ then considered the various factors that had to be taken into account in Malasi’s case. In [31] he said that the way the judge approached the matter could:

At [32], the court concluded that when all the factors were taken into account the minimum term of 30 years “was in no way wrong in principle or manifestly excessive”.

We deal first with the submissions based on Malasi. Obviously, Malasi was a case where the two murders had been committed on different occasions, as opposed to the present case where the two murders arose out of the same acts. However, in our view that is not a relevant distinction, for several reasons. First, the judge in both Malasi and in this case had to set a minimum term for each of the two murders concerned and he was doing so at the same time. If, as this court held in Malasi, it is correct to set “one overall minimum term” (see [26] of Malasi), albeit a minimum term for each of the two murders, when the two murders were committed on different occasions, then, logically it must be correct to set “one overall minimum term” in respect of each of two murders that result from one set of actions, viz. the arson of the Masud family home on 21 June 2009.

Secondly, the judge in Malasi had to set minimum terms for one offender in respect of each of two murders and although the offender was not convicted of them in the same proceedings, the judge was setting the minimum term on the one occasion. Therefore, as this court confirmed, he was required by section 269(3)(a) of the CJA to take into account, for each murder, the seriousness of the offence of murder he was considering and “associated” offences; in that case, the other murder. In this case the two murders arose out of the same acts; they are therefore all the more to be regarded as “associated” offences as, indeed, must be the three attempted murders.

Thirdly, it is evident from the remarks at [31] of the judgment of this court in Malasi that it approved the approach of the trial judge in that case of considering the minimum term in respect of each murder, then aggregating the two together and then making an allowance for totality before arriving at “one overall minimum term” which would be applicable to each murder. HHJ Moss QC took the same approach in this case; hence his sentencing remarks at 5G –H. We accept that Thomas LJ makes it clear in Malasi, at [26], that the approach the judge took in that case and that HHJ Moss took in this case is not mandatory. Hence the remark of Thomas LJ that what is clear is that the CJA 2003 requires the fixing of a single overall term and “as long as a judge takes into account all the factors in relation to each of the murders before him, what the court must do is to consider whether that overall term is the correct one”. But a judge that adopts the approach set out in Malasi in an analogous situation such as the present case cannot be criticised for doing so.

Accordingly, we must conclude that the judge was correct to consider and apply the approach that was approved by this court in Malasi. The only remaining questions are, therefore, first, whether the judge correctly took account of all the relevant factors in relation to each murder before him; and/or, secondly, whether the “overall minimum term” he arrived at was one that was manifestly excessive.

We are satisfied that the judge took account of all relevant factors concerning the offences and the appellant. We are very conscious that Miah was a youth of only 14 when he committed these offences and that he suffers from signs of problematic personality traits, as noted by the judge. Against those factors we have to balance the factors that he was the instigator of the action which led to the deaths of two sisters and the serious injury of three others in the same family and that he must have intended to kill all of them.

After anxious consideration, we have concluded that the minimum term cannot be regarded as manifestly excessive. We accept that it was, when imposed, a period of 1 ½ times his age. But these were terrible crimes and we note that in Malasi the offender’s minimum term (where he had pleaded guilty to one impulsive murder) was nearly twice his age upon sentence.

Miah’s appeal against sentence is dismissed.

It follows from all we have said that in Choudhury’s case also the judge did not err in the approach he took in setting the minimum term of 21 years. Mr Dennis accepts that the judge took account of all relevant factors, but the minimum term was nonetheless manifestly excessive because he failed to give sufficient weight to the culpability and mental incapacity factors.

We cannot accept that submission. The judge was in the best position to decide what weight they should have, having heard all the evidence at the trial. The very significant reduction in the minimum term from the starting point of 30 years in our judgment properly reflected both the appellant’s role and his mental difficulties. We are also satisfied that the two year difference between the minimum term imposed for Miah and that for Choudhury was sufficient to mark his secondary role and mental state.

Therefore Choudhury’s appeal against sentence is also dismissed.