Hafiz & Orsl v R

These applications for leave to appeal against conviction and sentence have been referred to the full court by the Registrar. The appellant Hafiz requires an extension of time of 25 days. We granted that extension during the hearing on 14 December 2011. We indicated at the conclusion of the hearing that we would refuse leave to appeal against conviction in the cases of the applicants Mohammed Idris Hafiz (“Hafiz) and Akmal Ali Afzal (“Afzal”) and that we refused leave to appeal against sentence in the case of Afzal. This judgment contains our reasons. In the case of the appellant Arfan Rafiq (“Rafiq”) we reserved our decision.

On 16 November 2010 the trial commenced at Manchester Crown Court of these appellants together with Ryan Wayne Manning before Spencer J. The indictment contained 6 counts:

On 11 February 2011 the defendants were sentenced. Henderson was sentenced as follows:

The following is a description of the factual background to the trial. On Saturday, 4 July 2009, at about 8.50 pm Ryan Manning drove Simeon Henderson to the shop premises of Brookhouse Wines, in Brookhouse Avenue, Eccles in Greater Manchester. Henderson was armed with a prohibited weapon, a Russian made CZ sub-machine gun. Henderson entered the shop aiming the weapon at the store assistant, Nasar Shazad, and pulled the trigger. The gun did not fire. He manually cleared the chamber and again pressed the trigger. The gun repeatedly fired. Four or five bullets entered Mr Shazad’s upper chest and he died before he reached hospital. Henderson left the shop and returned to Manning’s car. He was driven to a further rendezvous with a taxi driven by Afzal. Afzal drove Henderson with the gun in the car back to Oldham. When they arrived in Wall Street they saw two armed response vehicles. Afzal parked up. Henderson fled the car leaving the gun in the taxi. He then walked and took a further taxi to his home. After spending the night in Oldham, Henderson fled first to Huddersfield and then to Leeds. He was arrested in Leeds on 23 July 2009.

In the meantime, on Sunday, 5 July 2009, Afzal telephoned the police. DC Storey called him back. Afzal told him that at about 8.45 pm on the previous day he had been asked to pick up a fare, “a big black male” wearing a hoodie. When he saw the male he drove away. On the following day, 6 July, Afzal met two police officers, DC Barnes and DC Hannah, at the Premier Inn in the Trafford Centre. This time Afzal told them that he had been instructed by a man called Tanveer to meet someone at a roundabout in Eccles. Manning turned up driving a Mazda car. When he saw Manning’s passenger he drove off. Later the same day Afzal was arrested on suspicion of assisting an offender. On 7 July he was interviewed under caution. This time he admitted that Manning’s passenger, who was called Henderson or Simeon, had an object with him. He had driven him to Oldham where Henderson had got out of the car, taking the object with him.

A decision was taken to treat Afzal as a witness, a decision which was the subject of prolonged criticism at trial by counsel on behalf of Hafiz. A witness statement was taken from Afzal. In it he claimed that only later on the evening of 4 July had he learned of a shooting and realised that the object carried by Henderson might have been a gun. Afzal was released on bail. As he was being released, Afzal told DC Barnes that Tanveer, the man from whom he had received his instructions, was a friend of Gulfan Khan (nickname “Go-Go”) who was, the police discovered, the owner of Pennine Vehicle Services, a business in Oldham. The reason for the shooting, Afzal had heard, was that the owner of Brookhouse Wine had arranged for Tanveer to be shot by people who were coming from France. Afzal surrendered a mobile phone to the police and on 11 July gave them his SIM card too. On the same day a video identification procedure took place at which Afzal identified Manning.

On 26 July, three days after Henderson’s arrest, he stood at an identification parade and Afzal identified him as the man he had driven from Eccles to Oldham. Henderson declined to comment in interview. On that day he requested a new solicitor from Yorkshire. On Monday, 27 July, Henderson admitted being the gunman and gave a detailed account of events. He told the police that he had left the gun in Afzal’s car. At 6.45 am on 5 July, a Mr William Brown, walking along Hinton Street, Oldham, from work, had noticed the gun partially concealed under a parked Vauxhall motorcar close to the position in which Afzal was parked when Henderson had run away. At 8.35 pm on 27 July Henderson was charged with murder. During the course of his interviews Henderson had implicated Hafiz, Rafiq, Afzal and his driver who had introduced himself as “T”. At trial Manning accepted that he had been Henderson’s driver.

While remanded in custody Henderson engaged from prison in a campaign to extract money from those he believed had set him up. His belief arose from his discovery, on his return with Afzal to Oldham after the shooting, of the presence of armed response police officers in Wall Street. The target of Henderson’s attempt to extort money was primarily his friend, Hafiz, who had been acting, Henderson thought, on behalf of Gulfan Khan. The last such attempt was made on 9 October 2009 by telephone.

On 26 January 2010 Henderson appeared at the Crown Court and pleaded guilty to the charge of murder. He did so on a basis accepted by the prosecution, namely that he had not intended to kill. His intention had been to shoot the shop assistant in his legs. Henderson then made an agreement under section 73 Serious Organised Crime and Police Act 2005. His de-briefing interviews commenced on 7 April and were completed on 28 May 2010. In the course of those interviews, Henderson made admissions to further offences to which he also pleaded guilty, some of which which formed the basis of the indictment faced by these appellants. Henderson’s information led to a reconsideration of Afzal’s position. He was re-arrested, re-interviewed and subsequently charged.

In summary, Henderson’s evidence at trial was that he was a 28 year old native of Huddersfield. He had several previous convictions including for offences of burglary, assault and robbery. He met Hafiz in prison in 2005, while serving a sentence of 4 years imprisonment for robbery, and they became friends. Henderson accepted that he had been living a life of crime, including drug dealing, for most of his adult life. In Oldham, after his release from prison, Henderson spent much of his day at Pennine Vehicle Services of which he thought Hafiz was part-owner. Hafiz himself described being a manager although, in his interview under caution, he also referred to himself as a part-owner. Henderson knew Gulfan Khan, his brother Manny (who was killed in September 2009), and Mohammed Safdar who was regularly at the business premises, as also was Rafiq. Henderson said that he did not know either Manning or Afzal before 4 July 2009.

As to count 1, Henderson said that Gulfan Khan had a grudge against Mohammed Farid who, it was said, had been talking out of turn behind Gulfan Khan’s back. There were two attempts to intimidate Gulfan Khan by visiting him at his home and business premises, following which Gulfan Khan said he wanted Mohammed Farid shot. Hafiz gave Henderson the order. Hafiz obtained the gun during the days before the shooting. On 15 December 2008 Henderson was driven in a stolen car to Mohammed Farid’s office; Hafiz followed in another car. Henderson entered the office and fired three shots which he aimed at the floor. The car was taken afterwards to Schofield Street in Oldham where Najid Singh (nickname “LaLa”) carried on business as a mechanic.

As to count 2, the intended victim was Imran Khadam. According to Henderson, Imran Khadam had insulted Hafiz by referring to him as an “old timer”. On 3 March 2009 Hafiz picked Henderson up from his flat and drove to Pennine Vehicle Services. Again a stolen car was used. The driver, said Henderson, was Rafiq. Hafiz supplied the gun. Rafiq drove Henderson to Imran’s house and they waited for him to return. Imran Khadam arrived in a car with his brother, Sajjad Malak, about an hour later. When they got out of the car Henderson fired in Khadam’s direction but the gun jammed. He took out the clip, re-loaded and fired again. By that time Imran Khadam had taken cover behind a wall. Imran Khadam’s brother, Sajjad Malak, was hiding behind the car. Henderson aimed a shot which struck Malik in the buttock. Henderson climbed back into the vehicle which Rafiq drove to Pennine Vehicle Services.

The offence of murder charged in count 3 was, said Henderson, orchestrated by two men, Mohammed Safdar and Tanveer Akbar. In order to distance themselves from the shooting they and a third man named Mazhar Hussain had driven in an Audi car and taken the ferry to Amsterdam, returning on the Monday after the shooting. While they were away they were in regular telephone contact with Hafiz and Manning. The prosecution case was that they were also in telephone contact with Rafiq and, at the last moment, with Afzal. Henderson agreed with Mohammed Safdar that he would do the job. It would appear that the shooting was the culmination of a feud between two Bolton gangs. The shooting was to be carried out by Henderson on behalf of one of those gangs.

A few days before the shooting, Hafiz supplied Henderson with a black tracksuit with which to cover his clothing. On Saturday, 4 July, Hafiz drove Henderson in his black Mercedes car to Pennine Vehicle Services. On the way on Henderson’s account, Henderson placed his keys and mobile phone in the central console for the purpose of preventing the police tracing his movements using cell-site evidence. They visited a petrol station and met up with Ryan Manning, who introduced himself as “T”. Henderson climbed into Manning’s Mazda. Manning followed Hafiz’s Mercedes car to Wall Street. After 10 minutes or so Rafiq arrived with the gun which he carried in a paper bag. Rafiq told Henderson not to touch the gun without gloves. An issue arose as to how Henderson was to be returned to Oldham after the shooting. Manning had been instructed to burn the stolen Mazda after the shooting; then, he had to clock on for work at 10.00 pm. He would have insufficient time to act also as Henderson’s get-away driver. Rafiq refused to take over as driver because he was expected back at his cricket match in Glodwick (which was to be his alibi at trial). This was a last minute problem which had to be solved. Hafiz was on the phone to Mohammed Safdar in Amsterdam. The last minute replacement driver was the appellant Afzal, recruited by Tanveer.

In evidence Henderson said that he too had spoken to Mohammed Safdar using Manning’s or Hafiz’s phone. Henderson said that his initial instructions had been to fire at the shop. This time Safdar told him that he wanted the shop keeper shot in the legs if it was a young man; otherwise, if it was an old man only the shop should be shot up. When Hafiz understood the change in arrangements he too spoke to Safdar and told him that it would cost more money. Henderson said that he, Hafiz and Manning all understood the change of instructions.

From Wall Street they went in convoy to Najid Singh’s garage to check the gun. Hafiz removed some of the bullets. Manning then drove Henderson to the shop in Eccles. Henderson was unaware of Hafiz’s movements after they separated in Oldham. En route to Eccles, Manning told him how the semi-automatic weapon worked. He had tested the gun, Manning told him, a couple of weeks previously. In Eccles, Henderson entered the shop. He saw a younger man. He said that he had aimed low. That was difficult because of the elevated level of the counter; the victim was, as we have said, shot in the chest. Henderson left the shop and Manning drove him a short distance before they were met by Afzal with his taxi. Afzal drove Henderson to Oldham. When they arrived at Wall Street and saw the police Henderson slid the gun into the boot through the aperture created by lowering the back seat. When eventually Henderson arrived at his home, he found that his girlfriend Carla’s friend, Chantal, owed a taxi fare. The taxi driver was outside threatening to call the police. Henderson used Carla’s phone to contact Hafiz who agreed to come and help. Hafiz arrived and paid off the taxi driver. Henderson then took his clothes in a bag in Hafiz’s car, first to Singh’s garage and then to Singh’s home where he stayed overnight.

The following day, Henderson’s cousin took him to Leeds where he stayed until he was arrested. While he was in Leeds, Hafiz visited with £200 in cash. He took Henderson to another house where he was given some cannabis. Hafiz, he said, promised to bring him food and provide a safe address but he had failed him.

During the course of the trial Ryan Manning’s defence took an unexpected turn. He was eventually to tell the jury that shortly before the Christmas break during the trial he had decided that his denials would not be believed, elected to tell the truth, and was visited in prison by his solicitors in order that they could receive a change of instructions. Manning was to admit in evidence that he was recruited as Henderson’s driver. He said, however, that he never understood that anyone was to be shot. When he drove Manning to Pennine Vehicle Services to check the gun he remained outside while Hafiz went inside with Henderson. Manning denied that he was a party to the conversations between Henderson, Hafiz and Safdar during which Henderson’s instructions had changed. Manning said that it was he who had originally been recruited to “shoot-up the shop”. That plan changed when Henderson was recruited in his place but he believed throughout that Henderson was simply his replacement and that it was only ever going to be a drive-by shooting. The jury plainly accepted Manning’s defence, at least in part, since they convicted him of manslaughter.

As to Henderson’s evidence affecting Hafiz, Rafiq, Manning and Afzal, the judge provided the jury with a warning, both orally and in his comprehensive written directions to the jury. At paragraphs 28 – 30 the judge said:

In any case where a witness has an advantage to gain by giving evidence it is necessary to examine his evidence with particular care. All the more so where, as here, that witness at an earlier stage attempted unsuccessfully to extort money by threatening to implicate those he says were involved unless he was paid £1 million. The defence say Henderson has a further motive for lying in that he believes Mohammed Hafiz “set him up”, and that Arfan Rafiq and Akmal Afzal were involved in that too. The defence say that quite apart from these motives to lie, Henderson himself accepts that he was abusing cannabis to the extent that it affected his awareness and his memory. He is a violent and dishonest criminal for whom the truth is a flexible concept.

It is my duty, therefore, to warn you of the need for extreme caution in relation to Henderson’s evidence. Ultimately the question for you is to resolve is whether you are sure that Henderson has told you the truth about the involvement of his co-defendants. A witness with a purpose of his own to serve may tell lies or he may tell the truth. In deciding whether he has told you the truth you should consider not only what he has said but the other evidence in the case. If you find support for Henderson’s evidence from other sources you may be the more disposed to accept what he told you.”

The judge itemised for the jury the evidence which was capable of amounting to support for Henderson’s account upon count 3, leaving to the jury the question whether, in their view, it did as a matter of fact support Henderson. In the case of Hafiz the judge identified the following at paragraph 34 of his written directions:

Mohammed Hafiz’s denial in his police interview in July 2009 of any knowledge of the Mazda, provided you are sure this was a deliberate lie told because he knew the role the Mazda played in the shooting.

The CCTV footage at the Shell petrol station showing the Mercedes and the Mazda arriving together, waiting side by side and leaving together as if in convoy, if that is your interpretation.

The way in which, on Mohammed Hafiz’s own account, Henderson was effectively following him about in Oldham that evening.

The cell siting of Henderson’s phone in the vicinity of Mohammed Hafiz’s home close in time to the shooting, consistent with Henderson’s evidence that he had left his phone in the Mercedes.

The frequent telephone contact between Mohammed Hafiz and Safdar on the evening of 4 July, around the time of the shooting, provided you are sure Safdar was involved in the planning of the shooting.

The persistent calls made by Mohammed Hafiz to the taxi driver Shafak Hussain at the very time when, according to Henderson, an urgent problem had arisen over finding a driver to take Henderson back to Oldham, provided you are sure those calls were made for the purpose of recruiting such a driver in connection with the shooting.

The pattern of calls between Amsterdam and Mohammed Hafiz interspersed with calls between Amsterdam and others involved in planning or carrying out the shooting (provided you are sure those others were so involved), when on Mohammed Hafiz’s account his calls with Amsterdam were only about his previous assault.

The fact that on receiving Henderson’s call at 21.35, after the murder, Mohammed Hafiz went immediately to Chadderton and paid off the taxi driver, giving him £20 and telling him to “do one”.

The fact that having gone to Leeds to visit Henderson, Mohammed Hafiz gave him £200 and arranged overnight accommodation for him.

Mohammed Hafiz’s “furtive” conduct in and around Woodlands Road and the roads nearby after the murder, and prior to the police vehicle switching on its flashing blue lights, provided you are sure his conduct was “furtive” in the sense the prosecution allege, and sure that he was behaving in this way because he believed the occupants of the vehicle were police officers and not “hoodlums” (as he suggested in evidence).”

In the case of Rafiq the judge wrote at paragraph 35:

The photograph on Arfan Rafiq’s phone of the machine gun and ammunition used in the murder, provided you are sure Henderson did not know about the picture before the murder.

The fact that Arfan Rafiq was, on his own admission, later in possession of the handset which received calls from Amsterdam, cell sited to the location of the cricket game (and that his thumbprint was found on the Terms and Conditions leaflet) consistent with Henderson’s evidence that when Arfan Rafiq arrived on Wall Street he said he had received a phone call from Safdar telling him to bring the gun over.

The fact that Arfan Rafiq was playing cricket that evening, consistent with Henderson’s evidence that Arfan Rafiq told him that he could not be the driver after the shooting as he was playing cricket.”

In the case of Afzal the judge wrote at paragraph 37:

The fact that the machine gun was left by Henderson in the taxi, as Henderson has always asserted.

Akmal Afzal’s acceptance in interview that Henderson was acting suspiciously in the back of the taxi on the journey from Eccles to Oldham, broadly consistent with Henderson’s own description of his behaviour.”

Hafiz’s case was that although he was in company with Henderson and Manning shortly before the time of the killing he was not an organiser and was not involved in it. He had indeed been in communication with those in Amsterdam but that was nothing to do with the killing. He told the jury that he was complaining about his treatment at the hands of some local youths on 2 July and wanted to know what Mohammed Safdar was going to do about it. Safdar was not giving him satisfactory answers. Hafiz agreed that he had given assistance to Henderson after the shooting, but he had only learned about the shooting when Henderson revealed it. He helped Henderson because Henderson was his friend. Mr Denney QC, on behalf of Hafiz, set out to establish that there was contact between those in Amsterdam and Afzal well before the killing. He demonstrated that there were telephone calls on 2 and 3 July. Mr Denney submitted to the jury that Afzal was plainly more deeply involved than he admitted. The conspiracy did not require Hafiz’s participation as organiser.

Rafiq accepted that there was telephone communication between himself and Hafiz. He and Hafiz both said that their calls were about plans to meet later in the evening to go night-clubbing in Leigh. Rafiq’s defence was alibi. He had spent the evening taking part in a cricket match. He called 11 witnesses to support the alibi. He said that he gave no assistance to the shooting and, in particular, he denied supplying the gun. A critical part of Rafiq’s defence was that he was not the user of telephone number 576, which had been contacted from Amsterdam several times during the evening of 4 July. When Manning gave evidence in his own defence he said that could not identify the person who had brought the gun to Henderson but asserted that it was not Rafiq. The photograph of the gun found on Rafiq’s telephone was not, Rafiq said, taken by him. He did not know it was there until the police found it. He called in evidence Manny Khan’s widow, Shamila Khan, to confirm that her husband was in the habit of borrowing Rafiq’s phone.

Afzal said that he received a call in his taxi at 8.17 pm from Tanveer. He thought his instructions were to pick Tanveer up just before 9.00 pm. When he arrived at the meeting point Manning and Henderson arrived in the Mazda. Henderson was carrying a gun. He drove him to Oldham because he was frightened. When he stopped in Oldham, Henderson just got out of the car and ran. Afzal said he picked the gun from the back seat and placed it under the Vauxhall car where it was found the following morning. As to the series of calls between himself and Tanveer between 8.17 pm and 8.44 pm, Afzal said he was speaking to Tanveer about directions. He did not realise that Tanveer was in Amsterdam. Tanveer called him at 9.36 pm and told him to throw his phone away. He did not know what was going on. The issue in Afzal’s case was whether he was knowingly involved in assisting the man who had just committed a shooting or had been innocently caught up in his escape, frightened to act otherwise.

We turn to consider the grounds of appeal in the case of Mohammed Hafiz. Mr Denney QC advanced three grounds:

Mr Denney submitted to the judge that the police and/or prosecution had abused the process of the court. First, he relied upon the handling of Afzal as a witness. Afzal had no significant impact upon Hafiz’s case at trial. However, Mr Denney’s purpose was to demonstrate that the handling of Afzal led to a suspicion that the police and prosecution may have acted improperly in seeking to rely upon the evidence of Henderson. As the judge summarised the argument in his comprehensive ruling, Mr Denney was asserting that the switch in Afzal’s status from suspect to witness and back again demonstrated an improper arrangement between Afzal and the police in which the Crown Prosecution Service was complicit. This had been followed by a failure to make due and timely disclosure of those events, in particular meetings and conversations between Afzal and the police. Some consequential disclosure had not been given for a period of 12 months.

As to the handling of Afzal the judge said in his ruling in paragraph 38:

During the trial Mr Denney was permitted to re-run his arguments before the jury. The prosecution tendered DC Barnes, DS Hayward, the senior investigating officer, Detective Superintendent Mary Doyle, and Mr Ian Lee, a Crown Prosecutor, for cross-examination. During the course of his evidence DC Barnes conceded that he should have challenged Afzal as to discrepancies between his taped interview and the informal version given to the police at the Trafford Centre. He agreed he should have put to Afzal the version already given as a “significant statement”. DC Barnes denied that there was any ulterior motive for being soft on Afzal. He was treated as an important witness. He identified Manning and, later, Henderson. Afzal was still maintaining in November 2009 that Henderson had left the car with the gun. It was only after Henderson had given his witness statement in May 2010 that, realistically, Afzal could be re-arrested and re-interviewed. DS Hayward agreed that there were patterns of phone calls between Afzal and other persons implicated during 2 and 3 July 2009. However, Afzal was a taxi driver who said that he was known to the callers. The police were inclined to accept Afzal’s assertion that he was first contacted by Tanveer in relation to the shooting late on 4 July. As Detective Superintendent Mary Doyle said, “my interpretation was that Afzal did not have any part in the wider planning of the murder”.

Mr Denney recognises that in the face of a closely reasoned judgment ruling against his application for a stay, the hurdle which he has to cross is a high one. Mr Denney has failed, either in his written submissions or in his oral submissions to the court, to demonstrate that the judge was arguably wrong in reaching the conclusion that he did. As the matter was presented to the judge at the start of the trial the judge was justified in refusing to draw even a provisional inference of bad faith or manipulation for oblique motives against the prosecution. Having permitted Mr Denney to advance the same theory in cross-examination of the witnesses, it seems to us that the justification for the learned judge’s conclusion was confirmed, and the jury was, in any event, well able to assess the matter for themselves when they came to consider the evidence of Henderson.

Dealing with Mr Denney’s argument that there had been deliberate manipulation of the disclosure process to Hafiz’s disadvantage the judge said:

Mr Denney has pointed to examples of gross delay in particular items of unused material being placed on a schedule, delay then in serving that schedule, and further delay then in physically copying to the defence the material indicated for disclosure. Sometimes the delay between the beginning and the end of that process has been as long as 12 months. I repeat that this is most unsatisfactory. However, I reject the suggestion that it is evidence of bad faith.”

Mr Lee, the Crown Prosecutor, accepted in evidence before the jury that there had been deficiencies in disclosure. There were 8,000 items for inspection. He had not inspected a schedule of unused material dated 15 May until October or November. We conclude, as did the judge, that there was not a jot of evidence to support Mr Denney’s allegation of bad faith. The judge expressed himself “impressed” with the thoroughness which Mr Marks QC had brought to the review of disclosure, and had no doubt that no future problem with the performance of the prosecution’s responsibilities would arise. No such further problems have been brought to our attention. Mr Denney had been provided with extra time to review the unused material and had demonstrated by his command of the material that Hafiz was at no continuing disadvantage. In our view, the judge was plainly right when he made his ruling.

It was Mr Denney’s submission to the judge that Henderson was a witness incapable of belief and “the prosecution have failed in their duty of fairness and impartiality in deciding to call him as a witness at all, with the result that the indictment should be stayed as an abuse”. Alternatively, Mr Denney argued, the prosecution should not be permitted to rely on his evidence because the police had failed conscientiously to investigate Henderson’s conduct and it was unfairly prejudicial to rely upon his evidence. The judge was reminded of the evidence that, before he pleaded guilty and made the section 73 agreement, Henderson had attempted to blackmail Hafiz and others into paying for his silence. The implication, Mr Denney submitted, was that unless Henderson received money he would be prepared to give false evidence against Hafiz. The prosecution had shown a lack of impartiality by failing to investigate (and prosecute) Henderson’s blackmail attempts as a criminal offence.

The judge noted the statement of principle made by Keene LJ in Cairns [2002] EWCA Crim 2838, [2003] 1 WLR 796. In Cairns the court was considering the decision of the prosecution to rely on witnesses who had a purpose of their own to serve. Keene LJ began his examination of the authorities by looking at the duties of the prosecution to call a witness who is capable of belief. At paragraph 31 he said:

At paragraphs 58 and 59 of his ruling the learned judge said:

Whilst Henderson’s attempt at blackmail is a most unattractive feature of his evidence, I do not accept that Mr Denney’s analysis is correct. It is certainly not the only interpretation. There is no reason to think that Henderson was threatening, if the money was not forthcoming, that he would falsely implicate Hafiz (and others). The money, if paid, would simply buy his silence so that the truth would go unrevealed, by Henderson at least. Moreover the very fact that Henderson was bold enough to initiate a demand of such a large sum of money is capable of supporting the inference that he had a true account, rather than a false account, to give to the police of the involvement of Hafiz and others.”

Mr Denney’s argument before this court became somewhat more nuanced. He submitted that the prosecution had made no assessment whether Henderson’s evidence was reliable or not. We reject his submission. Henderson was plainly considered as a witness at the time when the section 73 agreement was made. It is hopeless to suggest that his worth as a witness was not then considered. We have earlier in this judgment itemised the other evidence in the case which was capable of supporting the evidence of Henderson upon count 3 of the indictment. We reject the argument that the prosecution was acting in breach of its duty when exercising its discretion in favour of calling Henderson as a witness. The proper forum for testing Henderson’s credibility as a witness against Hafiz was the trial itself. The defence was provided with all the material it required to launch an attack on Henderson’s credibility before the jury, and it did so. We have earlier recited that part of the judge’s directions in law in which the jury was instructed as to the caution they must exercise. It is, in our judgment, not arguable that his direction was insufficiently strong to protect Hafiz from the risk of unfairness. Furthermore, the judge was meticulous in his rehearsal of the defence case, not just when reminding them of Hafiz’s evidence but also when reviewing Henderson’s evidence, including Mr Denney’s criticism of him as a witness.

Mr Denney argued, thirdly, that the jury’s verdict of manslaughter in the case of Manning was inconsistent with their verdict of murder in the case of Hafiz. There is, in our view, no such inconsistency. True it is that Henderson gave evidence that he, Manning and Hafiz were all aware of the new instruction to shoot the shop assistant in the legs if he was a younger man. But Henderson’s evidence was that it was he and Hafiz who spoke to Safdar on the telephone. Manning denied being party to the change of instructions. This was a discrete issue for the jury’s consideration and just the sort of area of dispute which the Court had in mind in Cairns. The jury had to reach a conclusion whether they were sure, in the light of Manning’s denial, that Henderson was right to attribute common knowledge to Manning. If they were not sure, they were entitled to distinguish between Hafiz and Manning. In his written submissions Mr Denney attempted to rely upon the inconsistent verdicts between counts 3 and 4 in the case of Rafiq, to which we shall come shortly. We see no basis for concluding that the issues arising in Rafiq’s case have any material bearing on the safety of the verdict in Hafiz’s case.

We find no grounds for doubting the safety of the verdict in Hafiz’s case and his application for leave is refused.

We turn to consider the grounds in the case of Arfan Rafiq. Rafiq seeks leave to appeal against conviction on two grounds:

Henderson’s evidence, confirmed by Manning, was that the enterprise in which the participants were engaged was to shoot up the shop. As Henderson put it:

By the time Henderson entered the shop the common design between Henderson, and on the jury’s verdict, Hafiz, was to shoot the younger man, if he was present, in the legs. Mr Riordan QC submits that this was a fundamental departure from the original common design which rendered Rafiq not guilty of any offence. The learned judge concluded that Mr Riordan was seeking to cast the common design too narrowly. Mr Riordan was seeking to characterise the common design as an intention to cause criminal damage. This ignored the essential feature of the common design which was to discharge a semi-automatic machine gun into the shop premises during normal business hours.

In his written directions to the jury the judge gave the following direction upon the requirements of murder in respect of any and all of the secondary parties:

that there was a plan, a common purpose, to discharge the machine gun to intimidate the proprietors and staff of the shop

that Henderson discharged the machine gun and shot the deceased in the course of that common purpose

that the defendant played some part in planning or carrying out the discharging of the machine gun for that common purpose

that when the defendant played that part he realised there was a real risk that Henderson might deliberately cause someone really serious injury by his use of the machine gun with the intention of causing such injury.

If, however, you conclude in respect of any defendant that he played a part in planning or carrying out the discharging of the machine gun, but you are not sure he realised there was a real risk that Henderson might deliberately cause someone really serious injury by using the machine gun with the intention of causing such injury, that defendant would be not guilty of murder. In that event, provided you were sure that the defendant at least realised that Henderson might cause some injury (whether serious injury or not), even unintentionally, by his use of the machine gun, that defendant would be guilty of manslaughter.

If your conclusion, in respect of any defendant, is that he did not or may not have realised even that some injury might be caused by Henderson with the machine gun, even unintentionally, that defendant would be not guilty altogether on Count 3.

In deciding what any particular defendant intended or realised Henderson might do, you will have to consider all the evidence. In relation to each defendant the evidence is different.”

In our view, the judge was correct to rule and to direct the jury as he did. The underlying common purpose was to discharge the firearm into the shop. What had changed was the intention of two of the participants to cause really serious harm to the shop assistant inside, if he was the younger man. Henderson’s change of intention undoubtedly increased the risk that really serious harm would be intentionally caused, but the issue in Rafiq’s case remained whether he knew, when he supplied the gun, that Henderson may in the course of shooting the shop use it to cause really serious harm to the shopkeeper with intent to cause him really serious harm. The judge directed the jury to consider whether, if there was a change of plan, it did indeed amount to a departure from the joint enterprise in which Rafiq understood he was engaged. If so, they could only convict Rafiq of murder if they were sure that he realised from the beginning that Henderson may, with intent, shoot to cause really serious injury. The jury plainly concluded that he did.

We agree with Mr Riordan that the facts of the present case are rather unusual. There was direct evidence of a change of intention by two of the participants in the joint enterprise. As Mr Riordan recognised, directions to the jury in joint enterprise cases must be fact specific. The risk of formation of the intention by the principal offender was the very fact of which the jury would have to be sure before they could convict a secondary party of murder. The underlying common design had not changed. On the facts of the present case we consider that the judge was not in error.

We turn to consider Rafiq’s first ground. Both orally and in his written directions the judge identified the prosecution case against each of the defendants, each of whom was alleged to be a secondary party. Ingredient (3) (paragraph 42 above) of which the jury had to be sure, on the judge’s direction, was that “the defendant played some part in planning or carrying out the discharging of the machine gun for that common purpose”. The judge identified the part which the prosecution asserted had been played by each of the defendants. In Rafiq’s case, the judge said at paragraph 10 of his written directions, repeated orally:

As we have said, the first verdict returned by the jury was not guilty upon Count 4. That being the case, it seems inevitable that the jury were not sure that Rafiq was ever in possession of the machine-gun on 4 July. That should have resulted, on the judge’s directions, in a verdict of not guilty on count 3 since the supply of the gun was the sole possible basis advanced by the prosecution for Rafiq’s conviction upon that count. However, on 10 February 2011, the jury found Rafiq guilty of murder.

We accept Mr Riordan’s submission that these verdicts were, on the face of it, irreconcilable. We are told that the learned judge sought submissions as to the basis upon which he was permitted to pass sentence on Rafiq. He decided that he must sentence on the only basis left to the jury, namely the supply of the gun.

Mr Marks has advanced an argument that the jury may have convicted Rafiq on some basis other than that he supplied the gun. He points out that the judge directed the jury that they must consider each count separately and that conclusions of fact were for them. Having received an accurate definition of the offence of murder as it applied to secondary parties, the jury was entitled to find, so that they were sure, that Rafiq participated in the planning or execution of the murder in some way other than by supplying the gun. Mr Marks identifies evidence which he suggests may have led to such a conclusion. There was, as we have said, a photograph of the murder weapon on Rafiq’s phone memory. The jury probably rejected his account that the photograph may have been taken by Manny Khan. While the jury may not have accepted that Rafiq was the person who brought the gun to the Mazda car, they may have concluded, so as to be sure, that Rafiq had access to it and made arrangements for its collection and delivery by someone else. Rafiq could have arranged the delivery of the gun without being, himself, the delivery man. If that was the jury’s conclusion, they probably also rejected Rafiq’s denial that he was the holder of telephone number 576 to which calls were made from Amsterdam between 6.30 pm and 9.41 pm on 4 July. Furthermore, the jury was faced with the coincidence arising from Rafiq’s evidence that, according to him, he had met Hafiz socially for the first time on 3 July and intended to meet him again during the night of 4 July. Finally, there was a call from phone number 834 at 11.50 pm on 4 July to Henderson. According to Imran Rashid, a witness called in Rafiq’s case, this was the number of a SIM card in a phone being used by Rafiq. The same number called Hafiz on several occasions on 4 July.

We recognise that this is one arguable possibility. We notice, by way of further example, that the judge did not explicitly give to the jury a direction that there was any evidence in support of Henderson’s evidence relevant to count 4. On the other hand, the jury received explicit directions as to the evidence which supported Henderson upon count 3. He had also given the jury a Turnbull direction as to the reliability of Henderson’s identification evidence. It is possible that the jury may, by a convoluted form of reasoning, have arrived at the view that they could convict upon Henderson’s supported evidence as to count 3, but that they ought not to convict in relation to his unsupported evidence as to count 4.

Alternatively, it is theoretically possible that the jury having acquitted upon count 4 failed to appreciate the inevitability of a verdict of not guilty upon count 3. They did not receive an explicit direction from the judge that if they did acquit upon count 4 they must acquit upon count 3. It is possible the jury changed its mind after returning their verdict on count 4. We understand why the jury did not receive a direction that they could not convict upon count 3 if they acquitted on count 4. It was not in the contemplation of either counsel or the judge that the verdicts actually returned could, realistically, be returned upon the evidence and the arguments addressed to the jury.

We accept that Mr Marks could be correct. The jury may have been persuaded, particularly by the disagreement between Henderson and Manning as to the identity of the person who supplied the gun, that they could not be sure that Rafiq had his hands on the gun that night. They may, however, have been sure that Rafiq had something to do with its delivery or, in some unspecified manner, had something to do with the arrangements for the shooting.

All these are possibilities which we are unable to exclude. However, we are ultimately concerned with the safety of the verdict returned upon count 3. Mr Riordan was never required to face, nor should he have anticipated that he might be required to face, a case other than that being advanced by the prosecution. The appellant is in the position of not knowing on what basis he could have been convicted by the jury. A further troubling aspect of his conviction is that, in rejecting the prosecution case on count 4, the real possibility exists that the jury also rejected one or more of the features of supporting evidence (to which we have referred in paragraphs 20 and 48 above) upon which the prosecution relied. This court cannot therefore conclude, in the circumstances, that the verdict on count 3 was safe. We grant leave; we allow Rafiq’s appeal and quash his conviction upon Count 3. This order will take effect either (1) after 14 days of the date on which this judgment is handed down or (2) if within 14 days of the date this judgment is handed down the respondent makes a written application for a re-trial, the date when the court rules upon the respondent’s application.

Finally, we turn to the case of Akmal Afzal. He seeks leave to appeal against conviction upon two grounds:

We have already noted that Mr Denney, on behalf of Hafiz, set out to demonstrate that Afzal may have been more deeply involved in the killing than he was prepared to admit. He demonstrated that there was telephone communication between Afzal and some of the other alleged members of the joint enterprise, particularly on 2 and 3 July 2009. Afzal’s case was that he often received legitimate requests from these persons. His first involvement, he said, began about half an hour before the shooting. Mr Stone submits that Afzal could not have had a fair trial while his co-accused was attempting to establish that he might be implicated in the murder, when the only issue between Afzal and the prosecution was the state of mind with which he drove Henderson from the scene and removed the gun from his taxi. Secondly, when Manning gave evidence he admitted that he had on a previous occasion discharged the murder weapon in Queen’s Park, Bolton. On that occasion, he said, Afzal brought the gun to the Park in the boot of his taxi. The emergence of this allegation in evidence rendered a joint trial of Afzal with Manning overwhelmingly prejudicial.

The judge provided detailed reasons for his decision not to sever Afzal’s trial. He said this, at paragraph 17 of his ruling:

We turn to consider whether the judge’s directions to the jury were sufficiently clear and explicit to enable to jury to understand and apply them to Afzal’s case. At paragraph 23 of his written directions, repeated orally, the judge said:

The judge proceeded to explain to the jury the difference of approach required when considering the case of Hafiz. He said at paragraph 24:

It will be remembered that it was Afzal who first implicated Manning and afterwards identified Henderson. He sought to persuade the police that he was innocently involved in the removal of Henderson from the scene. Had Afzal been charged with murder there could have been no realistic application for a separate trial. The only issue is whether the fact that Afzal faced the lesser count 5 and count 6 charges meant that fairness required a separate trial. We agree with the judge. It was important that the jury should be able to judge Afzal’s role in the context of events immediately surrounding it. It was desirable that Henderson should give evidence on one occasion challenged by each defendant as necessary. Mr Stone is correct in asserting that Afzal might have been at risk of prejudice from the sideways attack from Hafiz if he had not been protected from it. Note that we do not use the term “risk of unfair prejudice”: it was open to the prosecution to rely upon the evidence of the phone calls and/or Manning’s evidence to support the inference that Afzal was, from the outset, complicit in the carrying of Henderson to avoid arrest, and the murder weapon from Eccles to Oldham. But, whether Mr Marks was minded to do so or not, the judge prevented the prosecution from taking any advantage from the evidence. In our view, the judge explained in the clearest possible terms how the jury should approach their task and we have no reason to doubt that they did so conscientiously. The jury’s task of distinguishing between their approach to Afzal’s case and their approach to Hafiz’s case was assisted by the “red line” demarcation made by the judge between events which took place before 8.17 pm on 4 July 2009 and events which took place afterwards. The jury can have been in no doubt that their only focus, when considering Afzal’s case, had to be upon the request made to him at 8.17 pm and the events which followed.

In our judgment, it is not reasonably arguable that the judge’s conclusion was wrong and Afzal’s application for leave to appeal against his conviction is refused.

Afzal also seeks leave to appeal against sentence. Mr Stone argues that his case is in relevant respects similar to that of Harrison [2006] EWCA Crim 345 [2006] 2 Cr App R (S) 56 in which the minimum term of 5 years for possession of a prohibited firearm was reduced to 2 years imprisonment on the ground that there were exceptional circumstances relating to the offence. Mr Harrison, the court found, had discovered a gun in his home. The barrel was sealed with wax. He knew it belonged to his niece’s boyfriend because she told him so. At her request he removed the gun and was on his way to throw it into a lake when he was stopped by the police for a road side breath test. In the present case Afzal harboured a man who was clearly in possession of a prohibited firearm and had committed a serious offence with it. Far from putting it beyond the reach of those who might use it unlawfully or be harmed by it, he left it under a car in a public street. He then maintained a plea of not guilty. In our view there is no material comparison to be made between the two cases.

Mr Stone further submitted that the judge recognised the assistance which Afzal had, in the early stages, given to the police. We accept that this is so. However, Afzal’s assistance was entirely self-interested. His motivation was to avoid his own prosecution. Any credit to be given for that assistance must be modest. He did not have the further valuable credit of an acknowledgement of his guilt by a plea of guilty.

The judge had the important advantage of observing the trial and, in particular, Afzal’s contribution to it. After plainly giving very careful thought to Afzal’s position he concluded that even a 25 year old man of previous good character must for an offence of this seriousness expect to go to prison for a substantial period of time. We agree and we do not conclude that the sentence imposed was arguably excessive. The application for leave to appeal against sentence is refused.