Judgment

Lord Justice Pitchford:

Introduction

1. On 26 April 2012, following a trial at the Central Criminal Court before His Honour Judge Wide QC, each of the appellants was convicted by the jury of count 1, charging them with the murder on 20 April 2011 of Milad Golmakani, and count 2, on the same occasion, the attempted murder of Zain Salah Uddin. On the same day the appellants Sean Hutton, Sean Ferdinand and Mohammed Hashi were sentenced to detention for life for murder with a minimum term of 22 years. Concurrent terms of 17 years detention were imposed for the offence of attempted murder. For the offence of murder Lij McSween was detained at Her Majesty’s pleasure with a minimum term of 19 years; for the offence of attempted murder he was ordered to serve 14 years detention in a Young Offender Institution. Although making no practical difference to the period to be served, the latter sentence should have been announced as a period of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We shall order the appropriate correction.

2. Lij McSween was born on 15 August 1994. He lived at Maitland Park Road, London NW3. He was aged 16 years 8 months at the time of the alleged offences (“the relevant time”). He was represented at trial and in the appeal by Mr Grunwald QC. Sean Hutton was born on 5 May 1992. He lived at Malden Road, London NW5. He was aged 18 years 11 months at the relevant time. At trial and in the appeal he was represented by Mr Richmond QC. Sean Ferdinand was born on 30 June 1992. He lived at Gilbey’s Yard, London NW1. He was aged 18 years 10 months at the relevant time. He was represented at trial and in the appeal by Mr Holland QC. Mohammed Hashi was born on 21 January 1993. He lived at Agricola Place, Enfield. He was aged 18 years 3 months at the relevant time. He was represented at trial and in the appeal by Mr Birnbaum QC.

The grounds of appeal

3. The appellants Lij McSween, Sean Hutton and Sean Ferdinand have leave from the single judge to pursue grounds 1 and 2, each of which concerns the decision of the trial judge to admit in evidence the hearsay statements of Bajrmshame Hashani. It is contended that the judge had insufficient evidence on which to make a finding that Ms Hashani was “unfit to be a witness because of her bodily or mental condition” for the purpose of section 16(2)(b) of the Criminal Evidence Act 2003; secondly, that the effect of the judge’s decision was unfairly to permit the prosecution to undermine the credibility of its own witness, whose statement of evidence in the form provided by section 9 of the Criminal Justice Act 1967 had already been read to the jury by agreement.

4. The appellants McSween and Ferdinand advance further grounds of appeal 3 and 4 that have been referred to the full court by the single judge. It is contended that the prosecution, without the leave of the trial judge, elicited from Sean Hutton during cross-examination that the night before the murder of Milad Golmakani he had been in the Pimlico area of London dealing in class A drugs. It is submitted that in so doing the prosecution adduced bad character evidence whose effect was to undermine an understanding between the prosecution and defence that evidence of motive would not be introduced, to the unfair prejudice of the cases of McSween and Ferdinand.

5. The appellant Ferdinand seeks to renew ground 5, namely that the judge in his summing up misdirected the jury as to fact when summarizing the evidence in his case and failed when so invited to make a full or adequate correction.

6. The appellants Ferdinand and McSween seek leave to rely upon a new ground of appeal (that we shall call ground 6), namely that the fresh evidence of an eye witness, Milos Charlesworth, should be admitted in the appeal pursuant to section 23 of the Criminal Appeal Act 1968. Should the evidence be admitted it would cast doubt upon the identification of the appellants’ group as that which attacked and wounded Milad Golmakani and Zain Sala Uddin. It therefore affects the position of all four appellants.

7. The appellant Hashi challenges his conviction on the ground (which we shall call ground 7) that the expert evidence of a consultant podiatric surgeon, Mr Barry Francis, was flawed so as to render unsafe the jury’s conclusion that Hashi was present and participating in the attack on the victims.

8. Finally, Lij McSween’s application for leave to appeal against the minimum term of 19 years imposed in respect of count 1 has been referred to the full court.

The cases at trial

9. At 4.30 pm on 20 April 2011 Milad Golmakani, Zain Salah Uddin and several other youths of various ages had congregated in and in the vicinity of the fenced basketball and games court alongside Sandbourne House, Abbey Road Estate, Kilburn in north London. At the same time a taxi summoned by the appellant Hutton arrived and parked at Boundary Road, on the adjoining Rowley Estate. At 4.33 pm CCTV cameras captured four young men, including Hutton, walking from Boundary Road towards the basketball court. Their route took them alongside Stevenson House to Langtry Walk. All four were wearing dark jackets with hoods. It was the prosecution case that the four men captured on CCTV were the appellants. During their walk along Langtry Walk Hutton left the group and returned to the taxi to instruct the driver, Mr Gurhey, to drive the car closer to the basketball court. Hutton’s purpose was, the prosecution contended, to facilitate the escape of the group from the scene of an attack that he knew was imminent. Between 4.36 pm and 4.39 pm CCTV captured the remaining three members of the group walking along Langtry Walk, across Abbey Road and, thence, into Abbey Road Estate. They emerged into the area outside the basketball court through a passageway under Sandbourne House. Meanwhile Mr Gurhey and Hutton travelled in the taxi to a position on Abbey Road at the entrance to the estate. Hutton left the taxi and, at 4.42 pm, followed his three companions into the estate.

10. The prosecution was unable to assign specific roles to any one of the appellants save for Hutton who had ordered the taxi and made preparations for the group’s escape. It relied upon the inference that anyone proved to have been a member of the hooded group entering Abbey Road Estate at 4.40 pm did so for the purpose of carrying out, with knives, a murderous attack on the deceased and others. Witnesses described a group of men wearing jackets with their hoods up entering Abbey Road from the direction of Sandbourne House. They chased Milad Golmakani and Zain Salah Uddin out of the basketball court and attacked them with knives. Mr Golmakani suffered fatal wounds. It is probable that two knives at least were used to inflict Mr Golmakani’s wounds. Mr Salah Uddin, while stabbed from behind in the area of his right shoulder, was able to run from the estate and was captured on CCTV doing so at 4.43 pm. At the same time four men were seen on CCTV returning to the taxi as Mr Gurhey was making a turn. At Hutton’s instruction the taxi took the group to the vicinity of St Mary’s Church in Primrose Hill. At the youth centre a barbeque commenced at 4.00 pm.

11. Hutton and McSween admitted that they were members of the group captured on CCTV entering and leaving the Abbey Road Estate. Their case was that they had visited the Estate looking for a man called ‘Smokey’ from whom to make a purchase of cannabis. They claimed that they were accompanied by two youths known only to them as ‘Toothpick’ and ‘Iceman’, and not by Ferdinand and Hashi. McSween gave evidence that he was the first to enter the Estate. As he approached the basketball court a group of five or six males approached from his left and attacked him. He was punched to the face. Someone aimed a blow with a knife. McSween claimed that he put up his hand in a defensive manner and the knife made contact causing a cut that bled profusely. He immediately ran back to the taxi in the direction from which he had entered the estate. As he ran McSween left a trail of blood spots subsequently analysed to establish his identity. Ferdinand’s fingerprints were lifted from the rear passenger window of the taxi. His defence at trial was alibi. He said he had been attending the barbeque at St Mary’s Church youth centre. Ferdinand said that the discovery of his fingerprints was mere coincidence; he had used the same taxi firm, Fleet Cars, on many previous occasions and it was not possible to date a fingerprint. The prosecution also relied on cell site evidence to establish the movement of Ferdinand’s mobile phone towards and away from the scene of the attack at the relevant times. Ferdinand and Hutton both claimed in evidence that this too was coincidence. At Hutton’s request Ferdinand had lent his phone to Hutton at about 1.30 pm and Hutton returned it at about 5 pm at St Mary’s Church youth centre. The cell site evidence established only Hutton’s and not Ferdinand’s movements. Hashi advanced no positive case at trial and did not give evidence.

Evidence of eyewitnesses

12. Witnesses described a group of youngsters of different ages congregating in and around the basketball court; some were playing football, others were standing or sitting around. Zain Salah Uddin said that he was playing basketball. He saw a couple or a few people come towards “the pitch” from the passageway through Sandbourne House. They had hoods up and the strings of their hoods were pulled so that he could not see their faces. He saw Milad (street name ‘Dirty’) and ‘Antics’ start to run, so he did too. Zain slipped and as he was getting up he was stabbed. He could hear Milad screaming. He looked across and saw “hoodies” standing over him. Zain ran to Boundary Road where he was given assistance.

13. Connor McGovern noticed Dirty and Antics leaving the pitch as people were coming from the direction of Sandbourne House. Connor ran with Yassir Bashira in the same direction as Zain towards the Sandbourne House passageway. Ryad Hassan said he was playing football when he heard one of his friends shout. He saw someone coming from the direction of the Sandbourne House passageway. This person had his head covered with a hood and he was wearing a bandana over his nose and mouth. He was wearing a dark top, possibly black. Ryad also ran away. Yassir Bashira said he heard a shout and ran. Men were approaching from the passageway, he thought five or six of them. They were wearing masks or bandanas and had their hoods up. In his statement Yassir had said that the men were wearing black hooded tops or jackets. When recalled to give further evidence, he said that the tops were red, green and white. The judge permitted the prosecution to treat the witness as hostile. He claimed that his memory varied as to the colour of the men’s clothing. When he made his statement he had genuinely been trying to remember.

Bajrmshame Hashani

14. Ms Hashani, a local resident, was giving assistance to the dying Milad Golmakani when the police and ambulance personnel arrived at the scene. She was treated as a significant witness. On 21 April 2011 DC Kohli visited her at her home and took notes of their conversation. On 22 April Ms Hashani attended the police station where she took part in a recorded interview which, with breaks, lasted from 11.30 am to 4.35 pm. The transcribed record of interview was served on the defence as unused material. On 21 February 2012 Ms Hashani signed a witness statement that had been prepared for her from the transcripts of interview. It was served with a notice of additional evidence and Ms Hashani was made a fully bound witness. On 19 March 2012 counsel for the prosecution, Mr Moore, sent an email to defence counsel with a running list of witnesses for trial. Ms Hashani was marked as a witness to call although it was noted “NB: cannot attend, unwell”. On the following day the prosecution served statements from Ms Hashani’s general practitioner, Dr Patel, and DC Larson, who had made a recent visit to the witness.

15. Mr Moore informed this court that early in the trial he had run out of ‘live’ witnesses and was using the time available to read the statements of witnesses who were not required to attend. In the course of this process he learned that the defence was content for the statement of Ms Hashani to be read. Therefore, he read an edited version of the statement to the jury. In that statement Ms Hashani described the incident as follows:

“On Wednesday the 20 April 2011 between 4.10 pm and 4.20 pm I left my home address and walked through the Abbey Road estate to go to the shops. As I was walking out of the estate I went past the stadium on my right hand side. I would describe this as a small play area with a fence round it where they play football. As I’ve gone past this stadium I saw the victim who was later stabbed playing football inside the stadium with about 15 to 16 other youths. I would describe the male who died as being mixed race, abut 20 years old, he’s got shoulder length, what I would call locks. I am not sure whether they were plaited or twisted but he had a small beard on his chin and he had a short sleeve t-shirt which was white without any logos on it and it was short in length showing his midriff and he had light blue or white jeans on. I walked past him and went to do my shopping. About 20 minutes later I returned with my shopping and stopped by a barrier that is there to stop cars from driving onto the estate. As I was stopped, I could see to the left of me the stadium and from there I could see 3 youths armed with knives chasing the victim and his friends. Initially they’re chasing them inside the stadium and then they chase him out the stadium and catch up with him. They chase the victim and 3 of his friends out the stadium, the 3 friends manage to run away but they manage to surround the victim, and while they’re chasing them inside the stadium and out the stadium they’re shouting and swearing at him. They shouted out to his 3 friends that ran away, “come back, we’re gonna do the same to you right”. The 3 suspects then surround the victim and as soon as his friends had run one suspect stabbed to the front and because the other 2 guys were behind him so he could not escape. He stabbed him in the heart area, once or twice and I think they did about 3 times in the back. I just said, “stop stop”.

The victim then staggers about the place and collapses. Upon stabbing him the 3 suspects then run off in the passage way that runs parallel to the children’s playing area, which is on my left and they were laughing as if they had not done anything. In the play area there are 4 children swings in this play area and that’s the only children’s play area on the estate. I went over to the victim and I asked him if he would like some water as he was shouting for help and an ambulance. I left him and walked back to my home to get some water and was only a couple of minutes. I came back with 2 bottles of water, opened one of the bottles of water and while he’s lying down I helped him drink some by pouring it into his mouth initially he drank. It was quite sudden but he then lost consciousness and lies on the floor. I saw that he had stab wounds at the back and front. After a while the police and the ambulance arrive so I left and went back to my flat.”

“I would describe the 3 suspects as: The second one to run out of the stadium was a dark skinned black male about 5’10” – 5’11” tall, slim build. He had his hood up so I could not see his hair. He was wearing a red or plum hooded top. It had a logo which was black and white, capital letters across the chest. He had light blue jeans on which he wore quite low like most of the youths do nowadays. They were baggy jeans but didn’t have any distinctive logos or any marks on them that I remember. I cannot remember what sort of footwear he had on. He had a knife in his right hand and the blade of the knife came out the bottom of his hand. When he surrounded the victim he stood, sort of behind the victim. I drew a picture of this knife which I exhibit as BH/1. I think the blade was about 10 inches in length. I didn’t actually see him stab the victim but he was stood behind him making movements with the knife. After that he ran off past the children’s playground.

The second suspect was directly behind the victim as they ran out of the stadium. I would describe him as a black male, about 16-17 years old, dark skinned and he was wearing a grey/grey hooded top. I couldn’t see his hair because he had the hood up but on the back of the hooded top he had a black and white football logo and dark jeans. He was carrying a knife in his right hand and the blade of that knife was coming out the top of his hand. I cannot remember the blade but it had a silver handle. I saw him stab the victim in the area by the heart as he stood in front of the victim and thrusted the knife twice with a trusting motion. He then ran off towards the passageway past the children’s playground and as he did it looked like blood on the knife.

The final suspect was the third person to come out the stadium. I would describe him as a male, mixed race, very fair skinned. He was about 16-17 years old with a white hooded top, with the hood up and he had small letters across the front of the hoody where the pockets are which is across the stomach. He had light blue jeans but nothing distinctive. He had the knife held in his left hand but I cannot describe it. He was stood behind the victim to the right. I saw him making movements with the knife in his hands towards the victim’s back.

I was left shocked and scared by the incident and was trembling.”

17. Almost as soon as Mr Moore had finished reading the statement he realized that there was now before the jury an unchallenged description from an eyewitness of the clothing worn by the attackers that was in some, but not all, respects inconsistent with the clothing of the group of men to be seen in the CCTV recording making their way to the scene of the attack. Having read, or re-read, the contents of the interview transcripts Mr Moore resolved to make an application to the trial judge for leave to adduce further hearsay statements made by Ms Hashani. His purpose was to introduce into the evidence of Ms Hashani her expression of uncertainty as to whether she was able to provide any description of the attackers. There has been some disagreement at the Bar as to the precise sequence of events but there is no doubt that shortly after Ms Hashani’s statement was read to the jury Mr Moore realized he had acted mistakenly and in haste.

“The contents of this statement constitute a summary of an interview conducted by DC KOHLI, DC POULTON with an interpreter Albert PRETESHI at Kilburn police station on 22/04/2011 between 1130 hours and 1645 hours. This statement does not purport to be complete and, for completeness and accuracy, it must be read in conjunction with the interview transcripts, exhibits TK/1A, TK/2A, TK/3A, TK/4A, and TK/5A.”

19. In her interviews Ms Hashani had given a coherent and consistent account of the nature of the events she had witnessed (as at paragraph 15 above). However, when asked to describe the attackers she said:

“I don’t remember [the] three of them at all. I only remember his [Milad’s] friends because the other guys all had hoodies on…Only his friends I saw well. I only know that…they were black.”

DC Kohli informed Ms Hashani that they needed to go through each one individually so that she could describe how he looked, what he wore and anything else the witness could remember. Ms Hashani responded:

“I don’t remember at all because I was so confused and upset….I would like to finish as soon as possible…I just know they were black boys with hoodies.”

DC Kohli asked Ms Hashani to concentrate on any one of the attackers and describe his hoody. She replied:

“I don’t remember because I was in shock. I was trembling.”

DC Kohli asked whether “it” was a dark or a light coloured hoody. Ms Hashani replied:

“No, all dark hoody; one was like red or plum, dark but they were all dark hoodies.”

Ms Hashani said that the one wearing the red or plum coloured hoody was about 5’10” in height and the others were taller. He was wearing baggy jeans. They were all skinny and aged 16 or 17 years. By a series of questions DC Kohli was able to elicit the descriptions that later appeared in Ms Hashani’s witness statement (as at paragraph 16 above). In some respects the descriptions matched the appearance of the young males who could be seen in the CCTV recording. However, some of the specific features of colour and marking of the upper clothing of the attackers was inconsistent with Ms Hashani’s words “they were all dark hoodies” and the appearance of the group recorded in Langtry Walk.

Evidence of movement

21. It was not in dispute that the four appellants were friends. McSween, Hutton and Ferdinand lived in the same general area and Hashi was a regular visitor. The prosecution case was that they met up in Malden Road at about 2.50 pm on 20 April 2011, close to Ferdinand’s home, and remained together until about 3.50 pm when Hutton called the taxi to take them in search of their victims. The prosecution relied on CCTV footage of a group of four young men recorded in Malden Road at 2.30 pm – 2.50 pm, in Ferdinand Street/Chalk Farm Road at 2.50 pm – 3.15 pm and in the Rowley Estate at 4.33 pm – 4.40 pm. McSween and Hutton accepted that they were present at the relevant times. They were referred to as Suspect 3 and Suspect 4 in the evidence. During the course of the trial it was accepted that those referred to as Suspect 1 and Suspect 2 were also present on each occasion. The issue for the jury was whether Suspect 1 was Ferdinand and Suspect 2 was Hashi. Hashi did not contest that he too was seen at the youth centre at around 5 pm.

22. At 1.25 pm Hashi was captured by a CCTV camera in Mare Street, Hackney driving a Vauxhall Corsa motor car taken without the consent of the owner. He subsequently pleaded guilty to the offence and later admitted at trial that he was the person to be seen in the CCTV recording driving the vehicle. He was wearing a grey coloured T shirt over a white undershirt. The white rounded neck band of the white undergarment could be seen protruding above the rounded neck of the grey T shirt. On the front of the grey T shirt was a diagonal, oblique block capital logo in white spelling the word ‘NIKE’. From a distance the logo bore the appearance of a block of white colour on a grey background. At 3.13 pm CCTV captured a group of four men walking in Ferdinand Street. Two of them were admittedly McSween and Hutton. A third was said to be Ferdinand but that depended primarily on inference from the fingerprint and cell site evidence, the telephone traffic and the conclusion that, despite his denial, he was carrying his own mobile phone. The judge directed the jury that the CCTV recording was of insufficient quality to attempt a facial identification and, while the jury could use the CCTV evidence to examine general consistency or inconsistency with build and height, they were forbidden from undertaking any exercise in facial identification. The head of the fourth man could not be seen in the recording but he was wearing garments that bore close similarity with the image of Hashi seen in the admitted CCTV recording of the Vauxhall Corsa: the white collar band of an undershirt could be seen protruding above the outer garment on which was to be seen a diagonal block of white in the same position as the ‘NIKE’ logo shown in the earlier film.

23. A consultant podiatric surgeon, Mr Barry Francis, gave evidence that he had compared the walking gait of the person he referred to as ‘Suspect 2’ in CCTV footage recorded in Malden Road at 2.50 pm with a person recorded by CCTV in the Rowley Estate at 4.35 pm and with an admitted CCTV recording of Hashi in police custody on 27 April 2011. Mr Francis identified several features of walking gait that were common to Suspect 2 and Hashi, and he found no differences that could distinguish them. The prosecution asserted that it was safe to conclude that Suspect 2 in all four recordings was Hashi; accordingly that he was one of the attackers who entered Abbey Road Estate at 4.40 pm.

The alibi evidence

24. Ferdinand and Hutton asserted that some time before 3 pm on 20 April 2011 they met in Malden Road and smoked cannabis together. Hutton needed a phone because his own was running low on battery charge. Ferdinand lent Hutton his phone. Ferdinand said that at the time of the attack he was at the barbeque in St Mary’s Church youth centre. Hutton entered the centre after the taxi had driven him to the vicinity and he returned Ferdinand’s phone. A youth worker, Dayne Ayok, gave evidence that he saw Ferdinand at the barbeque at, maybe, 3.15 pm to 3.30 pm. It was common ground that the police entered the centre at about 5 pm. Mr Ayok said he had seen Ferdinand some half to three quarters of an hour before they arrived, and again at about the time the police had arrived. Jason Allen was the manager of the youth centre. Although he saw Ferdinand at the barbeque he could not say at what time. The other three appellants had also attended. The barbeque had ended at about 9 pm.

The issues before the jury

Grounds 1 and 2: evidence of Bajrmshame Hashani (McSween, Hutton and Ferdinand)

27. The appellants rely upon the adversarial nature of a criminal trial. There was evidence from Ms Hashani and others that a single group of hooded youths entered the area of the basketball court and attacked Milad Golmakani. This was inconsistent with the account given by McSween who claimed that he was set upon by a separate group that approached him from the opposite direction. On the other hand, Ms Hashani had given a description of the clothing worn by the attackers which in some respects cast doubt on the prosecution case that those who attacked Golmakani were the same group as those who could be seen in the CCTV film approaching Abbey Road Estate along Langtry Walk. The defence reached the conclusion that although Ms Hashani’s evidence tended to establish a joint enterprise they had ground to gain from the inconsistency revealed by Ms Hashani’s descriptions of clothing and, for this reason, it was agreed that the evidence of Ms Hashani should be read, despite its capacity also to undermine the case for McSween. Mr Grunwald QC, on behalf of McSween, assured the court that had the prosecution not adduced the evidence of Ms Hashani he would certainly have called her during the defence case. It was submitted on behalf of Hutton by Mr Richmond QC that once agreement had been reached between the prosecution and the defence for the reading of the evidence of the witness, the prosecution should not have been permitted to undermine that evidence. To do so immediately created unfairness to the defence. Had the defence known in advance of the prosecution’s volte face it would not have agreed to the reading of the evidence in the first place.

28. The overriding objective is that criminal cases should be dealt with justly, which includes the requirements that the prosecution and the defence should be dealt with fairly, that the Article 6 ECHR rights of the defendant should be recognized and that the interests of witnesses should be respected (CrimPR, Rule 1).

29. In our judgment, the fact that the prosecution had read the evidence of Ms Hashani created no automatic prohibition against its subsequent application to adduce further evidence. The objective of the rules of evidence in a criminal trial is not to create a windfall forensic advantage for one side or the other but to do justice. It seems to us that in the absence of agreement by the prosecution as to the accuracy of Ms Hashani’s descriptions, her expressions of doubt as to her ability to provide accurate descriptions were undoubtedly admissible. If the jury were denied access to the context in which Ms Hashani’s descriptions were given they may have been misled as to their reliability. Whether the prosecution should be permitted to succeed in its further application seems to us to depend upon the circumstances, including the stage that the trial had reached, and the ability of the trial judge to avoid unfair prejudice to any defendant. We accept, as the trial judge clearly did, that Mr Moore made an error in failing to appreciate, before reading Ms Hashani’s statement to the jury, the capacity of the witness statement to mislead. We accept that there were proper grounds, subject to fairness to the defence, on which the prosecution should have been permitted to correct that error.

30. In the ordinary course, had the application to adduce further evidence succeeded, the witness would have been called by the prosecution to give evidence in person. The prosecution would not have been permitted to cross-examine its own witness. Mr Moore would have been limited to asking the witness for her own assessment of her ability to give an accurate description, if necessary enabling the witness to refresh her memory from her previous statements, including the recorded interview. As Mr Richmond QC correctly observed, had the witness expressed the same reservations in evidence as she did in interview as to her ability to provide descriptions, there was available to the defence the ability to ‘bolster’ the credibility of those descriptions by reference both to the statement and to the interview. We have read the interviews in their entirety and we acknowledge that there was available to the defence the cogent argument that, while Ms Hashani was at first most reluctant to commit herself to a description of individuals, she was able with some fluency and without expressions of doubt to describe the clothing that the attackers were wearing. It was on the witness’s description of clothing that the defence relied for its attempt to undermine the prosecution case. In our view, had the prosecution applied to call Ms Hashai to give evidence in person there would have been strong grounds for allowing it. It was a matter for the jury to assess the extent to which the witness’s descriptions were reliable and the further evidence would assist them in that regard. However, the prosecution asserted that Ms Hashani was unfit to give evidence.

“116 Cases where a witness is unavailable

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter;

(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are—

(a) ….

(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c) - (e) …”

In Riat and Others [2012] EWCA Crim 1509 (Hughes LJ, Vice President, Dobbs and Globe JJ) this court reviewed the operation of the hearsay provisions of the Criminal Justice Act 2003 in the light of decision of the Supreme Court in Horncastle & Others [2010] 2 AC 373; [2009] UKSC 14. The court re-iterated the default position that hearsay evidence is inadmissible unless admitted through a gateway provided in section 116 or admitted in the interests of justice under section 114 (or the evidence is admitted under one of the common law exceptions preserved by section 118). Hearsay evidence is not to be “nodded through”. It is a specific requirement of admissibility under section 116(2)(e) (witness absent through fear) that the evidence should satisfy the interests of justice test and that consideration is first given to the use of special measures to enable the witness to give evidence in person. In other cases the discretion remained to exclude evidence under section 78 of the Police and Criminal Act 1984 (“PACE”) and in making the appropriate judgement of unfair prejudice the court should use as an aide memoire the factors to be considered under section 114(2).

“…I believe that Ms Hashani suffered from significant anxiety/depression prior to this incident and has continued following. My concern as her GP is that she may not be able to deal with the stress of giving evidence at court psychologically. I feel if she was to give evidence, it would cause significant stress/anxiety and, therefore, have a detrimental effect on her both prior to her attendance at court and afterwards.”

“It is plain in my judgment, and I am sure, that she is unfit to attend as a witness.

He found that the medical and other evidence he had heard persuaded him that the use of special measures would not overcome Ms Hashani’s unfitness to give evidence.

37. It is contended on behalf of the appellants that the judge should have exercised his residual judgment to exclude the evidence under section 78 of PACE 1984. By permitting the prosecution to adduce further written evidence from the witness the defence had been deprived of the opportunity to cross-examine to effect so as to restore the credibility of her descriptions of the attackers. Although section 116(4) of the Criminal Justice Act 2003 expressly applied only to cases in which the witness was said to be absent through fear, the judge cautiously and rightly, in our view, applied the interests of justice test to the judgment of prejudice under section 78. He noted that there was nothing in the material that the prosecution sought to adduce that was contrary to the affirmative case of any defendant. The evidence of a joint attack by a group was confirmed by at least one other witness. As to the descriptions given by Ms Hashani, the judge noted that her witness statement made specific reference to the interview as providing the complete and accurate account of her evidence. The judge did not regard the admission of the evidence as tantamount to cross-examination of the witness on the credibility of her evidence. It was, he said, merely placing before the jury the whole of her account and not just part of it; it was difficult to see how that process could involve unfairness to the defendants.

38. We do not take as laconic a view of the issue of unfairness as did the judge. We acknowledge that the absence of the witness was capable of creating unfairness to the defence in the light of the previously made decision to permit the prosecution to read her statement. However, such unfairness as might be generated arose only from the capacity of the further evidence to diminish a submission available to the defence at the close of the evidence, to the effect that an eyewitness had given an apparently reliable account which had the capacity, depending on the jury’s view, to cast doubt on aspects of the prosecution case. There are, it seems to us, two reasons why no unfairness was done to the appellants in the result. The first is that the judge was correct to rule that the witness was unfit to attend. Had the prosecution, in the first place, received the judge’s leave to read Ms Hashani’s account under section 116(2)(b) instead of seeking agreement from the defence to read only the statement, the appellants could not have resisted the application to read both the witness statement and the interviews, the former of which expressly adopted the latter. The appellants were not, therefore, placed in any worse position than they would have been if there had been no agreement to read the statement. Secondly, we have referred already to the capacity of the interviews to support the defence case that, far from undermining Ms Hashani’s description of the clothing worn by the attackers, the manner in which the evidence emerged demonstrated its reliability. Defence counsel were able to make the very submissions to the jury that they had always intended. The only adjustment required was an examination of the interviews to show how those descriptions had emerged.

Grounds 3 and 4: cross-examination of Sean Hutton (McSween and Ferdinand)

40. At the commencement of trial the prosecution indicated that it did not propose to introduce evidence that the victims and the defendants were members of opposing gangs in north London and, therefore, evidence of motive. If, on the other hand, the defence sought to introduce evidence that the victims may have had enemies other than the defendants the prosecution would seek to adduce evidence of gang membership. The defence, acting on that assurance, did not seek, by cross-examination or otherwise, to introduce evidence of motive.

41. Cell site evidence showed that on the night before the killing of Milad Golmakani Sean Hutton had been in the Pimlico area, London SW1, and had remained there until the early hours of the morning. While Sean Hutton was giving evidence a discussion took place between Mr Moore and Mr Richmond QC during which Mr Moore indicated his intention to ask questions of Hutton as to his movements in Pimlico. Mr Moore was informed that Hutton would say he had been dealing in class A drugs. There was no objection from Mr Richmond to this line of questioning. There were two purposes behind Mr Moore’s questions: Hutton and McSween claimed that they went to some trouble to find Smokey, a person they did not know, in an area some two miles distant from their homes, in order to make a purchase of cannabis. Mr Moore wished to suggest that if Hutton had access to class A drugs it was unlikely that he had any need to go to the lengths he did to purchase cannabis from a stranger. He would have ready access to drugs from trusted suppliers. Secondly, Mr Moore wished to demonstrate that if Hutton was a dealer in class A drugs it was improbable that he would allow the battery on his mobile phone to run low on charge or that he would take the risk of using another’s person’s mobile phone to deal in drugs. Both these points, if well made, tended to undermine the account given by Hutton and McSween as to their purpose in seeking out a man in the Abbey Road Estate, and Ferdinand’s and Hutton’s account that Hutton needed to borrow Ferdinand’s phone.

42. When the evidence emerged in cross-examination Mr Holland QC sought the discharge of the jury. The judge rejected the application. It is now argued on behalf of the appellants Ferdinand and McSween that the cross-examination of Hutton was improper. It took place without consultation with counsel for the defendants and without application to the trial judge. It is submitted that the prosecution had in effect resiled without notice from its undertaking not to introduce evidence of motive. The defence cases had been conducted in reliance upon the undertaking given. Had it been anticipated that the prosecution would act as it did the defence would have been conducted differently. Asked by the court to explain the connection between Mr Moore’s cross-examination of Hutton and motive, Mr Holland QC suggested that the jury might jump to the conclusion that the visit by the group of four to Abbey Road Estate had something to do with Hutton’s class A drug dealing the night before.

43. Section 101(1) of the Criminal Justice Act 2003 defines the circumstances in which evidence of bad character may be introduced in evidence. Section 101(1)(a) provides that such evidence may be admitted when all parties consent to its admission. In the present case the prosecution did not seek the consent of the other parties, only counsel for Hutton; neither did the prosecution make an application to HHJ Wide QC for leave to introduce the evidence under one of the other gateways available. Mr Moore accepted that this was an oversight on his part. It is accepted that had the application been made, as it should have been, the other defendants would have had the opportunity to make submissions which might have affected the merits of the application. This is a most unsatisfactory state of affairs. As Mr Holland QC’s application to the judge demonstrates, the failure to follow the requirements of the statute could have led to serious consequences for the continuation of the trial.

44. We are satisfied, however, that had the application been made to the judge there would have been strong grounds for the admission of the evidence under section 101(1)(d). The evidence was relevant to important matters in issue between Hutton and the prosecution, namely his purpose in being at the Abbey Road Estate and his explanation for the movement of Ferdinand’s phone to that part of London. There was no objection from the defendant whose case was immediately affected. If the judge had so concluded the evidence would have been admitted subject to its effect upon the fairness of the proceedings generally under section 78 of PACE 1984.

45. As to Mr Holland QC’s first submission, we fail to understand how Mr Moore’s questions could, without more, have had any effect upon the undertaking not to introduce evidence of motive. In our judgment, the argument that the jury might conclude that drug dealing in Pimlico was the explanation for the killing in Kilburn does not bear examination. The judge dealt with the complaint made on behalf of Ferdinand by requiring an explicit admission from the prosecution. It was as follows:

“Cannabis is a class B drug.

Mr Hutton’s involvement in dealing class A drugs is only relevant in this case to the use of his own telephone and his explanations as to why he was purchasing cannabis on 20 April 2011.

There is no suggestion, and it is is no part of the prosecution case, that Mr Hutton’s activities in dealing class A drugs has any other relevance to his case or to the alleged offences on the indictment.”

The judge emphasised the importance of those admissions in the course of his summing up. We accept that the process by which the evidence was introduced was unsatisfactory but we do not accept that the answers given by Hutton created any unfair prejudice to the cases of the other defendants.

Ground 5: misdirection of fact (Hutton)

46. The jury heard evidence that two police officers, PC Robson and PC White, were in the Primrose Hill area at about the time when Mr Gurhey deposited his passengers not far from St Mary’s Church youth centre. They saw three people wearing hooded jackets who appeared to be running away from them, so they gave pursuit. They ran to the youth centre and the officers entered behind them. They made a search but could not find the people they had followed. At 4.59 pm Lij McSween was to be seen on a CCTV recording cycling over a railway bridge near Chalk Farm tube station. Ferdinand’s case was that he was already at the barbeque when the police arrived. The prosecution case was that he was one of the three individuals who ran into the church followed by the police. McSween in the meantime had separated from the other three with the intention of seeking treatment for his injured hand. Ferdinand gave evidence that he walked home from the barbeque shortly after the police left at about 5.00 pm. He wanted to smoke cannabis. The judge reminded the jury of the evidence of Mr Baxter, the cell site expert, that between 5.41 pm and 5.47 pm, when on Ferdinand’s account he had recovered his phone from Hutton, Ferdinand appeared to be moving west towards the church at a time when Ferdinand had said he did not leave his block. The judge then referred the jury to cell site evidence that, the prosecution had argued to the jury, suggested that Ferdinand had moved to the west of St Mary’s Church. Mr Holland QC interrupted the judge’s summary of the evidence (transcript 19 April page 86) to remind him that Ferdinand’s evidence was that he was moving west during this period, towards St Mary’s church, not that he was at home (see also paragraph 25 above). The judge acknowledged that Mr Holland was “absolutely right”. After further discussion in the presence of the jury, during which Mr Holland submitted that the cell site evidence did not support an assertion that Ferdinand was west of the youth centre rather than moving from his home towards the youth centre, the judge repeated that Mr Holland was “absolutely correct”. He continued, “That is a point very well made and I am grateful to you”. The jury heard all of these exchanges and in particular the judge’s endorsement of Mr Holland’s submissions.

47. Mr Holland again raised the matter with the judge at the lunch adjournment. Mr Baxter had given evidence that the call sequence was consistent with Ferdinand’s phone moving westwards towards and to St Mary’s Church. The prosecution had argued that it was also consistent with it moving west of St Mary’s church. Mr Baxter had never been asked for his opinion whether a call that picked up the Centre Heights mast was inconsistent with Ferdinand’s case, but that now appeared to be the submission made by the prosecution to the jury. Mr Holland sought from the judge a specific correction. The judge offered to remind the jury that there was no evidence of the area covered by the Centre Heights mast. Mr Holland responded, “That is as much jam as I can ask for, even if I cannot have the cream”. As soon as the jury returned, the judge was as good as his word. He added, “the safest thing to do is to ignore it and that is what I direct you to do”. At the end of the day Mr Holland QC again rose, in the absence of the jury, to suggest that the judge in making his further correction had neglected to refer to the sequence of calls that was consistent with Ferdinand’s evidence as to his movements. The judge emphasised that if he had misunderstood Mr Holland’s point he was anxious to correct the error. On 23 April, while summarising Ferdinand’s evidence the judge repeated his warning to the jury that they should not use the cell site evidence to reach any conclusion that Ferdinand moved to the west of St Mary’s church at about 5.40 pm.

Ground 6: fresh evidence (all appellants)

49. The appellant Ferdinand, with the support of the appellant McSween, seeks leave to adduce in the appeal the evidence of Milo Charlesworth. If admitted his evidence affects the cases for each of the appellants. The court heard the oral evidence of the witness with a view to reaching a decision whether it should be admitted under section 23 of the Criminal Appeal Act 1968.

50. Milo Charlesworth was born on 14 May 1995 and was therefore aged 15 years at the time of Milad Golmakani’s death. Mr Charlesworth said that he lived in Paddington but would visit the Abbey Road Estate frequently. He associated with a group called Sin City. There was trouble with a rival group, Queen’s Crescent, to which Ferdinand was affiliated. He knew Mr Golmakani as ‘Dirty’. Mr Charlesworth gave evidence that he went to the estate on 20 April 2011 to see his friend Yassir Bashira. He entered alone on a bicycle through a gate to the south of the basketball court. Mr Charlesworth was able to identify the gate from a plan and photographs used in the course of the trial. He saw Yassir, Milad and Vincent Kamara. A commotion was already taking place. His friends were trying to escape from a group of three attackers. From a distance of 10 – 15 metres he saw that the three attackers were 20 – 30 years of age and of black, west African appearance. They were wearing colourful clothing. He had seen Ferdinand in some YouTube videos and was 100% sure that Ferdinand was not one of them. He saw roundhouse swings towards those who were trying to escape. At first Mr Chamberlain was himself like a rabbit in the headlights. He heard screams and then he left for his own safety.

51. When cross-examined on behalf of McSween Mr Chamberlain said that Ferdinand’s solicitor had shown him photographs of the four appellants. He was sure that McSween was “not there, because of his skin colour”. When asked questions by Mr Moore Mr Chamberlain claimed that he had not discussed what he had seen with anyone before he had come forward a few weeks ago. That was because people did not come out after the incident. None of his friends told him that they were witnesses and he did not discuss the forthcoming trial with any of them. Asked why he had now chosen to come forward, Mr Chamberlain said that he had converted to Islam, turned his life around and could not sleep with the knowledge that he knew the appellants had not attacked his friends. Mr Chamberlain was the only witness to claim that the attack on Milad Golmakani had taken place on the far side of the basketball court from the gate through which he, Chamberlain, had entered the area. Mr Chamberlain said that he could not tell whether the attackers had been wearing masks or scarves but he could see their faces despite the fact that they were wearing hoods over their heads with the draw strings pulled. Mr Chamberlain was asked how he was able to exclude McSween when McSween was not known to him. He replied “from his skin colour and his stature”. When it was pointed out to Mr Chamberlain that the black and white photograph shown to him depicted only McSween’s head, face and neck, he replied, “The other men were like bouncers; they had very broad shoulders”. Mr Chamberlain accepted that he had been visited at home by a police officer on 5 July 2011. DC Hiscock had been seeking information from anyone who was present at the scene. He told DC Hiscock that he knew nothing about the incident, was rude and unco-operative. That was, he said, because the officer was arrogant and, in any case, he did not co-operate with the police. Mr Chamberlain told the court that he had himself been sentenced to a detention and training order for 24 months following his conviction for an offence of wounding with intent, committed on 12 January 2012.

Ground 7: gait comparison evidence (Hashi)

53. The trial judge directed the jury that they could not use the CCTV evidence to make any facial identification of Ferdinand or Hashi. The images were of insufficient quality to make the attempt. The prosecution relied upon the following features of the CCTV evidence to invite the conclusion that Suspect 2 in each of the images was Hashi:

(1) Suspect 2 was of similar build, skin colour and height to Hashi;

(2) Suspect 2 wore a combination of clothing that was similar to that worn by Hashi at 1.30 pm on 20 April 2011 (see paragraph 25 above);

(3) The walking gait of Suspect 2 bore strong similarities with that of Hashi recorded in the custody suite of Chelsea police station on 27 April 2011 and there were no differences between them (see paragraph 26 above).

54. The prosecution relied upon the evidence of Mr Barry Francis to establish the similarity of walking gait. Mr Francis is a consultant podiatric surgeon. For well over 25 years his clinical practice had required him to analyse walking gait for the purpose of ascertaining whether the patient’s condition was susceptible to treatment by surgery, usually to the foot or ankle. For this purpose Mr Francis had utilised video imaging and was used to the examination of such images. He was formerly a tutor examiner at the Faculty of Podiatric Surgery and chair of professional conduct for the College of Podiatry. He had given evidence on many previous occasions in the field of personal injury claims and had acted as an expert on five previous occasions in criminal cases for both the prosecution and the defence. Mr Francis’s qualification to act as an expert in this field was not challenged by the defence.

55. Mr Francis identified two different aspects of his analysis of gait: features and flow patterns. A ‘feature’ he described as an abnormality in the position of body parts in the walking cycle; a ‘flow pattern’, on the other hand, was a product of the walking cycle, such as its speed or length of stride. In his clinical practice Mr Francis would carry out such an analysis on his patients 35 – 40 times a week. Mr Francis had been visited by the police on or about 14 September 2011 and supplied with the CCTV footage at Malden Road, Rowley Estate and the Chelsea police station custody suite. In his report Mr Francis said that he was asked to examine the material with a view to expressing an opinion as to whether there were features of walking gait common between the images of any of the individuals shown in the footage. In a later passage Mr Francis referred to discs of footage of “an unidentified male seen in Malden Road…and Rowley Estate” which Mr Birmbaum suggests betrays a predisposition towards a finding or an assumption that the individual seen in that footage was one and the same person. We are not at all sure that is a fair inference. However, as it turned out, no-one disputed that Suspect 2 in the Malden Road and Rowley Estate footage was indeed one and the same person. Mr Francis described his process in detail. He commenced by examining the Malden Road and Rowley Estate footage, which he described as the ‘benchmark’ footage. His first task was to ascertain whether the quality of the images and variation of camera angles permitted any meaningful analysis to be made. He concluded that it did. Having decided that the images permitted analysis Mr Francis examined them for a period of 11 hours or so in order to identify any features or patterns that were repeated. Mr Francis concentrated on the person he called Suspect 2. Having identified patterns and features in the benchmark material he examined the custody suite footage in order to make a further comparison. Finally, he reviewed his findings frame by frame and selected still images from the CCTV recordings to illustrate his findings to the court.

56. Mr Francis found the following common features between the gait of Suspect 2 and Hashi in the custody suite:

(1) On the left side the toe was turned inwards;

(2) Knee-knock;

(3) The stance was upright without head-poke (that is, without the head being thrust forward);

(4) There was a long stride with ankle movement in the stride;

(5) There was a narrow base of gait (that is, the legs passed close together in the stride);

(6) When the suspect turned, he did so from the waist rather than the neck.

Of these six features the most prominent was the turning inwards of the left foot at (1) above. Mr Francis looked for any dissimilarities between features of Suspect 2’s and Hashi’s walking gait observed in each of the recordings and found none.

57. Mr Francis was asked to address the subject of evaluation of his findings. He made clear that there was no database against which he could make an assessment of frequency. He could only refer to his own clinical experience. Using that experience he expressed the view that the left sided inward turn would be found in less than 5% of the population. In Mr Francis’ opinion this feature of Suspect 2’s gait could only be caused by injury or by one-sided hypermobility, itself an unusual trait. In the absence of trauma Mr Francis would expect to see knee-knock in less than 10% of the population. He gave further estimates for other features of the walking gait expressed in more or less qualified terms. For example, he said that, of the people he sees in his clinic about 5% had such flexibility that they would turn from the waist. Mr Francis also explained that in his experience there was no predisposition to one feature in consequence of the presence of another. In other words, they were unconnected. It followed that a combination of features was more significant than the presence of any one of them.

58. The appellant Hashi relied upon the expert evidence of Mr Blake, principal podiatrist at the Nuffield Hospital. His training in podiatry was similar to that of Mr Francis save that Mr Francis had subsequently qualified as a surgeon. Mr Blake had given evidence in seven criminal trials for the prosecution and the defence. Mr Blake examined the benchmark material and concluded that it was of insufficient quality to attempt an analysis of walking gait. For that reason he did not proceed to attempt a comparison between the benchmark and custody suite recordings. Mr Blake pointed out that podiatists who use moving images in their clinical practice have access to equipment that records walking gait at 250 – 600 frames per second. When they are asked to view CCTV material they may be faced, as in the Rowley Estate footage this case, with time lapse footage recorded at one frame per second. That did not necessarily mean that the footage was unsuitable for analysis, and he had himself expressed an opinion from such footage, but it was one of the many considerations to be borne in mind when posing the question whether the material was suitable or when attempting an analysis. With regard to the Rowley Estate footage he agreed that “there might be in-toe” but he could not express the opinion that there was because he could not be satisfied of the repetition required to validate his opinion. He agreed that the Malden Road material, recorded at about 15 frames per second, was of better quality but it was still insufficient to make any reliable analysis.

59. At the conclusion of the prosecution case (during the course of which Mr Blake also gave evidence) Mr Birnbaum QC made a submission of no case to answer. He submitted that the quality of the material was such that the jury could not safely rely upon Mr Francis’ opinion founded upon it. The Rowley Estate footage was recorded from eight different camera positions; the custody suite footage from five different positions. The angles were different and the clarity of focus varied. The nature of the clothing worn by Suspect 2 tended to obscure features of gait. Mr Francis had conceded that the principal features of gait on which he relied were themselves subtle and only demonstrable intermittently in the footage examined when, in Mr Francis’ view, the quality of the footage permitted it. The value of Mr Francis’ opinion was affected by the indifferent quality of the footage. Some of the views were foreshortened, the effect of which was a loss of perspective. The lack of contrast in some cases deprived the observer of detail, for example as to when the shod foot made contact with the ground. There was some distortion and the angles at which the images were recorded might have given a misleading impression. Mr Birnbaum submitted that Mr Francis was not an expert in video or digital imagery. It was unsatisfactory that he should be permitted to express an opinion based solely upon trust that he had “allowed for” the exigencies created by images of indifferent quality.

60. The judge rejected the submission of no case. He concluded that Mr Francis had explained with care the reasons for his conclusion that the benchmark material was adequate for the purpose of analysis and for his identification in that material of the features he described. Neither Mr Francis’ expertise, nor his ability to provide the jury with assistance based on his clinical experience was challenged. It was for the jury to determine whether they accepted his evidence. If they did, taken together with the other evidence relating to the clothing of Suspect 2, the jury could properly conclude so as to be sure that Suspect 2 was the defendant Hashi.

61. In his summing up the judge reminded the jury of the important features of the expert evidence. He endorsed Mr Blake’s view that before the jury could act upon the opinion of an expert podiatrist it was necessary that the features on which he relied were “clearly demonstrable” to his peers and to a lay man. For reasons we shall explain, that, in our view, was an important direction. However, when deciding whether those features were demonstrated the jury should take account of the limitations created by the quality of the images. He reminded the jury of Mr Blake’s evidence that as a result of the quality of the Rowley Estate footage he could detect only one example of the in-toe abnormality. He summarized for the jury those aspects of the footage recorded in Malden Road and the Rowley Estate upon which Mr Blake had relied for his opinion that they were inadequate for further analysis. The judge reminded the jury of Mr Francis’ expression of self-discipline that before he could act upon a comparison he must see a pattern, a repetition of features. He then looked at the custody suite footage to ascertain whether the same features were present.

“At the heart of it is: Is the feature demonstrated? Is it demonstrated consistently so that you can see it, and, as Mr Birmbaum put it, so that you know what Mr Francis was going on about, so that you can see it for yourselves? Is it demonstrated and is it demonstrated consistently? Can it really be seen? Before you decide whether you have seen anything demonstrated, you have to take into account the size and clarity of the image, the possibility of distortion, barrelling as it is described, that bending of an image by reason of the camera. Is the foot really on the ground? If it is time lapse, what might the subject just have done and just be about to do and could that affect the position of the limbs? Does clothing have any effect? Do baggy trousers, for example, obscure limbs? Is arm swing restricted by a jacket over the shoulders? These are all things to be taken into account.”

The judge reminded the jury of Mr Francis’ responses in cross-examination to the effect that he personally had taken these factors into account before deciding upon the existence of a feature. The judge emphasised that although the jury could test Mr Francis’ evidence against the degree of care they thought he had exercised in the process of analysis, it was for the jury themselves to exercise care when deciding whether it was right to conclude that a feature was satisfactorily demonstrated to them. In this context the judge reminded the jury that the therapeutic podiatrist and the forensic podiatrist were performing different functions in that the purpose of analysis was different as was the quality of material available for analysis. The jury should take account of the danger, as Mr Birnbaum had put it, of rolling together the Maldon Road and Rowley Estate images so as subconsciously to produce a composite whole. The judge reminded the jury that, during cross examination, Mr Francis had purported to identify a narrowness of gait in the Rowley Estate by reference to footage from the custody suite, an error that Mr Francis would not concede that he had made.

63. The jury had viewed the recordings several times during the course of the evidence and they were provided with many pages of stills taken from those recordings. The judge took the jury, in summary, through most of the images and each of the features identified by Mr Francis in his evidence, reminding the jury as he went of Mr Francis’ response in cross-examination to Mr Birmbaum’s questions upon the quality of the images and the conviction with which he expressed his identification of features.

64. As to the assessment of frequency the judge reminded the jury that there was no database that supported Mr Francis’ evidence. His assessment was founded only on his clinical experience, although, in the case of the frequency of ‘head-poke’, there had been some exchanges of experience within the profession. The judge directed the jury that no-one was suggesting that the reference to percentages was precise; indeed some of them had changed somewhat in the course of the evidence.

65. It seems to us that the judge took the utmost care to ensure that the jury understood both the exercise in which Mr Francis and Mr Blake had been engaged and that they could accept the evidence of Mr Francis only if they were satisfied that, despite the limitations imposed by the quality of the material, Mr Francis had been able to demonstrate clearly to them the features to which he had directed their attention. He disallowed any evidence from Mr Francis that purported to express in terms of probability the likelihood that Suspect 2 and Hashi were one and the same person. Nonetheless, Mr Birnbaum submits that those limitations and the lack of a comparative database render unsafe any reliance upon the features identified.

66. We do not accept the criticism that Mr Francis’ evidence was flawed by his reference to the frequency with which, in his clinical practice, he came across the features he had identified. While, during the course of his evidence, he was referring to percentages as percentages of a population, he made clear that his assessment could be and was based only upon his personal experience in practice, and the judge emphasised that this was so. There was one exception that concerned the population of those under the age of 30 years who exhibited head-poke, in respect of which Mr Francis referred expressly to discussion among experts. In our view there was no risk that the jury may have been given a misleading impression of the value of Mr Francis’ evidence. They had been warned specifically as to the basis for Mr Francis’ assessment and to be wary about any assumption of precision.

67. In his written and oral submissions Mr Birnbaum QC took the court through some of the evidence placed before the jury. He criticised Mr Francis for inconsistency and lack of forensic rigour in his acceptance of instructions and approach. He criticised the absence of notes from Mr Francis identifying the limitation of the images with which he was presented and his need to acknowledge further limitations put to him in cross-examination. He submitted that Mr Francis had purported to identify features from images that were blurred or too small for the purpose. Mr Birnbaum submitted that there was a lack of scientific approach to the question as to how “allowances” were to be made for imperfections in the images on which Mr Francis relied. As an example, Mr Birnbaum relied on Mr Francis’ “remarkable” claim that although in the Maldon Road footage it was difficult to see where the suspect’s foot ended and the ground began, he considered that he could make that judgement. Mr Birnbaum asserted that in the manner of his answers (e.g. “I can see…”) the witness failed to acknowledge the need to demonstrate to others the appearance of the feature on which he relied. On occasions, it is submitted, there was evidence of bias. Mr Birnbaum sought to demonstrate in cross-examination that Mr Francis had failed in images 107 and 108 to allow for distortions caused by the nature of the image. Mr Francis sought to justify his opinion by reference to the known stance of Hashi to be seen in the custody suite footage. This betrayed a presumption, whose impropriety Mr Francis failed to acknowledge, that Suspect 2 in the Rowley Estate footage was the same man as that shown in the custody suite. In his summing up, the judge referred to this as “the clanger dropped” by Mr Francis of which the jury had been reminded by Mr Birnbaum in his final speech.

68. Since the technique of gait comparison is a developing science, Mr Birnbaum QC having received the assistance of Professor Wesley Vernon OBE of the Sheffield Teaching Hospitals NHS Trust, invited the court to have regard to three academic papers, unsupported by further expert evidence. With some hesitation we have considered the material proferred. Published (by the Forensic Science Society) in the journal Science and Justice issue 53 (2013) at pages 339-342, was the report of a study conducted by Professor Ivan Birch and others into the ability of individuals with experience in gait analysis accurately to identify ‘suspects’ by comparison of walking gait. Seven analysts were provided with CCTV recordings of five sample ‘target walkers’ for each of whom they were provided with recordings of five ‘suspect walkers’. The walkers were similarly dressed in loose fitting clothing and wore balaclavas. The images of the suspect walkers were recorded at different angles and in different planes. The results showed that the experienced analysts made a correct identification in 71% of cases. However, there were more correct identifications made when the footage of the suspect walker was recorded in the saggital plane (recorded from the side) (78.57%) and when the angle of recording was the same between the target and the suspect walker (also 78.57%). Mr Birnbaum QC correctly observes that in the present case none of the benchmark recordings was made in the saggital plane. However, the custody suite footage was recorded in a variety of planes as was the benchmark footage.

69. In the Journal of Forensic and Legal Medicine, issue 20 (2013) at pages 915-917 was published a report by Professor Ivan Birch and others of a study to develop a tool for assessing the quality of closed circuit camera footage for use in forensic gait analysis. The study identified a number of key factors and sub-factors that were capable of affecting the quality of images received in CCTV footage, chief of which were picture quality, lighting, direction from which the image was taken, frame rate and subject. The study assigned scores to different images depending upon the existence of the relevant factors and, by that means, placed them in bands so as to provide a rank of acceptability. By adopting the technique, which the article described as a simple tool, unsatisfactory material could be excluded from analysis. That tool was not available to Mr Francis and Mr Blake and no attempt has since been made to apply the study to the images in the present case.

70. In Justice and Science, issue 54 (2014) at pages 159-163, Professor Ivan Birch and others considered the effect of frame rate upon the ability of experienced gait analysts to identify characteristics of gait from CCTV footage. The study reached the (not unexpected) conclusion at page 162 that, “The subtleties of motion occurring during gait may become more easily identifiable as the frame rate increases, whereas gross positional or structural characteristics may be more easily detectable at all frame rates”. Mr Birnbaum QC acknowledged that Mr Francis distinguished between a flow pattern whose identification depended upon movement and features of gait anomaly that were not so dependent upon the rate of frames per second. It is right to recall, however, that Mr Francis himself acknowledged that in some images he was demonstrating subtle abnormalities in gait.

71. We have also been provided with the Home Office CCTV Operational Requirements Manual 2009. Mr Birnbaum QC sought to draw from the Manual a principle that in order to discern “some characteristic detail of the individual, such as distinctive clothing…while the view remains sufficiently wide to allow some activity surrounding an incident”, the figure targeted should occupy between 25% and 30% of the screen height. The purpose of the Manual is to give advice to installers as to measurement of the objectives of CCTV installation. The positioning and calibration of equipment will depend upon the purpose for which the images are required. A camera required to capture a wide area of activity will, of necessity, see individuals at a distance. They will occupy some 5% of the screen height. If, at the other end of the scale, the camera is to be sufficient to support facial identification of a single individual, the figure will need to occupy 100% of screen height. Mr Birnbaum’s point was that several of the images of individuals examined in the present case occupied less than 30% of the screen size. However, it is plain to us that the advice given does not purport to provide an industry or minimum standard as to the range at which a camera must be set to render analysis of gait permissible or possible. That seems to us to depend on a number of factors most significant of which is the sufficiency of the quality of images produced by the camera for the purpose for which they are examined.

72. Finally, the court was asked to consider the Law Commission’s report on Expert Evidence in Criminal Proceedings in England and Wales (Law Com No 325, 21 March 2011). The Commission re-iterated its concern of the risk that juries may abdicate their responsibility to ascertain and weigh the facts and simply accept the expert’s opinion evidence (paras. 1.9, 1.15, 1.20). The presence of an opposing expert will not necessarily ensure that reliability and weight are properly protected (para. 1.20). On occasions expert evidence is inadequately challenged in cross-examination. For this reason juries may not be provided with the tools required effectively to evaluate the reliability of the evidence (para. 1.21). The Law Commission proposed that to be admissible expert evidence should be shown to be reliable. It will be reliable only if (a) the evidence is predicated on sound principles, techniques and assumptions; (b) those principles, techniques and assumptions have been properly applied to the facts of the case; and (c) the evidence is supported by [that is, logically in keeping with] those principles, techniques and assumptions as applied to the facts of the case (para. 1.32). The Commission recommended that judges should be provided with guidelines against which to test the reliability and therefore the admissibility of the evidence (para. 1.40).

73. We turn to consider each of the appellant Hashi’s grounds for challenging the judge’s handling of the expert evidence. We note that no challenge was made to the admissibility of Mr Francis’ evidence notwithstanding Mr Blake’s view that the benchmark material was inadequate for the purpose for which Mr Francis used it. Mr Birnbaum QC did not and does not challenge the admissibility of such evidence in appropriate circumstances (see in this respect Otway [2011] EWCA Crim 3 at para. 23). He was able to rely upon the expert opinion of Mr Blake and it is clear that Mr Francis was subjected to searching cross-examination both upon the principles and the techniques of the admitted expertise and its application to the facts of the present case. He submits that the evidence was shown to be unreliable because (1) Mr Francis provided his opinion in a manner that was overconfident having regard to the material on which it was founded, (2) the material itself was inadequate for the purpose of identifying features of gait, (3) the expert was not qualified to make the “allowances” he claimed to be able to make and was unable to explain what allowances he had made, and (4) the value of the evidence was overstated by references to ‘population’.

74. In order to assess the cogency of Mr Birnbaum’s submissions each member of the court has viewed the images from which Mr Francis made his demonstration of features to the jury. We accept, as did the experts and the judge, that their quality is at times indifferent and that care is required to ensure that the feature demonstrated is reliably demonstrated. We do not agree that Mr Francis’s inability to specify in scientific terms how he had made allowances for an imperfect image rendered his opinion unreliable or unsafe. He and the jury were viewing moving and still images. Mr Francis was showing to the jury the images in which he saw features of gait and either those features could be seen by the jury or they could not. The jury was directed that they could act on the presence of features only if they could observe the features for themselves. Mr Francis was saying that he had taken account of the imperfection in the image before declaring his identification of a feature. He showed the jury the image on which he relied to make the identification. He was not saying that, although the feature might not be seen by the jury, he, relying on his expertise, was sure it was present. In any instance in which it was argued that the quality of the image was insufficient to be sure that the feature was present the jury had the means to make the assessment for themselves with the assistance of the evidence of Mr Blake and the cross-examination of Mr Francis by Mr Birnbaum QC. The judge was in a good position to assess the safety of the evidence since he saw exactly what the jury saw. It is our view that, with appropriate directions from the judge, the jury could follow the evidence, evaluate its cogency, and make their own decision whether the features demonstrated were present in each of the recordings. In reaching this conclusion we have taken account of the fact that at the close of the prosecution case there had not yet been an acceptance that Suspect 2 in the benchmark material was one and the same person. Finally, we do not agree that Mr Francis should not have been permitted to refer to the frequency with which the features or abnormalities he found in the recordings occurred in the course of his clinical practice. It was for the jury to evaluate Mr Francis’ evidence in the light of the criticisms levelled at him.

75. For these reasons we reject the submission that the judge should have withdrawn the case from the jury at the close of the prosecution case. We accept that Mr Birnbaum QC had in the course of cross-examination raised important issues for the jury’s consideration as to whether the features Mr Francis had identified were clearly demonstrated. The jury had been provided with the tools with which to make that assessment: in the case of each image on which Mr Francis relied they had their attention drawn to the factors relevant to it, in particular to the quality of the images and the time lapse by which they were recorded. Mr Francis was closely cross-examined on each feature and each significant image. We agree with the trial judge that the evidence was fit to be left to the jury.

76. We have already made extensive reference to the judge’s treatment of the evidence in his summing up. The judge took care to ensure that the jury was engaged in the task of judging for themselves whether the distinguishing features of gait were present in the images and did not just take Mr Francis’ word for it. The judge also ensured that the jury did not make unwarranted assumptions about the probative value of Mr Francis’ evidence. We do not agree that Mr Francis’ references to his own experience should have been withdrawn from the jury’s consideration. The judge’s responsibility was to ensure that the jury did not misuse that evidence and the judge gave them the appropriate directions. At the conclusion of his summing up he returned to the evaluation of the evidence and reminded the jury of the submissions made by Mr Birnbaum, including that Mr Francis’ references to the frequency of features of gait applied not to the population in general but to those whom Mr Francis had examined in the course of his clinical career.

77. Comparison evidence founded upon the science and expertise of podiatry is, we recognise, a technique still in its infancy. The articles to which Mr Birnbaum has helpfully drawn our attention show that research conducted with a view to establishing nationally accepted standards continues to take place. It remains, in our view, a technique that requires careful scrutiny before expert evidence is admitted and, if admitted, rigorous examination of the quality of the images and the opinion expressed by the expert. In the present case HHJ Wide QC ensured that, once admitted, the evidence was subjected to the scrutiny required. We reject the submission that the evidence was so flawed that the jury should not have been permitted to act upon it. The jury was entitled to conclude that the prosecution had proved that Suspect 2 was the appellant Hashi.

Conclusion

Appeal against sentence (McSween)

79. The judge identified serious aggravating features of the offences. There was careful planning and premeditation. The attack was made by a group of young men on two people. The group had equipped themselves with knives and sought out their victims. The attack occurred in a crowded public place causing distress to onlookers, including children. The starting point for the minimum term for such offences by an adult was, under schedule 21 paragraph 5A to the Criminal Justice Act 2003, 25 years. The judge expressed the view that had it not been for the young ages of the defendants the aggravating factors would have resulted in starting points of even greater length. By paragraph 7, in the case of a defendant who was under the age of 18 at the time of the murder, the starting point, subject to aggravating and mitigating factors, is one of 12 years. Mr Grunwald QC argued that a minimum term of 19 years (by comparison with that of 22 years imposed on the other three offenders) was manifestly excessive in itself and, furthermore, failed to give sufficient recognition of the young age of the appellant McSween.

80. We do not know to what extent the judge reduced the minimum term to reflect the comparatively young ages of Hutton, Ferdinand and Hashi but in their cases the minimum term was set at just over three quarters of the statutory starting point. The question we have to consider is whether an increase of seven years over the 12 year statutory starting point in McSween’s case was excessive. In our view it is. McSween was 18 months – 2 years younger than his co-accused at the time of the offences. A difference of this magnitude in the case of teenagers is, in our view, significant. In our judgment, the proportionate minimum term in McSween’s case, when compared with the other offenders, was one of 17 years. We shall grant leave, quash the minimum term upon count 1 and substitute a minimum term of 17 years.