Bennett & Ors, R. v

LORD JUSTICE JACKSON: This judgment is in four parts, namely:

This is a group of appeals against conviction and sentence arising out of firearms offences committed in Chingford, East London, during 2012. The principal issue in these appeals is whether the judge erred in preparing and distributing to the jury a written chronology as a hand out to accompany his summing-up. There are also issues concerning length of sentence and whether the judge should have imposed extended sentences on certain defendants.

This appeal has been argued today with great skill by counsel for the four appellants and for the prosecution. Where issues overlapped counsel avoided repetition. That was commendable and it assists the court as well as the defence. There is no benefit in repetition of the same point in different words.

In the course of this judgment we may from time to time use the abbreviation "GSR" for gunshot residue, that being an abbreviation which was used in the trial and appears in some of the documents.

After these introductory remarks we must now turn to the facts.

Between 23rd April and 1st May 2012 there was a series of incidents involving shootings and criminal damage in Chingford, East London. Luckily no one was injured but it might have been otherwise. These incidents began with a burglary at 159 Blue House Road. A young man called Kori Bennett was in residence, but the house belonged to his aunt who was away for a few days. Kori Bennett is the younger brother of Anthony Bennett, who is one of the appellants before this court.

On the night of 24th to 25th April there was a fierce conflict between what appeared to be two rival groups. Just after midnight bricks were thrown through the ground floor windows of 41 Nelson Road. This was the home of Mr Malcolm Paul and his wife, Ramona Paul. They are the parents of Marcus Paul who is another appellant before this court.

The people who threw the bricks through the windows of the house did not stop there. They also smashed the windscreen and front passenger window of a Ford Focus car parked outside. That belonged to Mr Malcolm Paul.

About an hour and half later, at 1.45 am, several shots were fired into the house at 55 Hazel Way, Chingford. This was the home of Mr and Mrs Ibeawuchi. They had a son called Ritchie Ibeawuchi, who will feature later in the narrative. That attack at 55 Hazel Way appears to have been a reprisal for the earlier attack at 41 Nelson Road.

Two and a half hours later, at 4.18 am, shots were fired into the house at 23 Russell Road, Chingford. This was the home of Mr and Mrs Enwerobi. They had a son called Issac Enwerobi. There was much ill feeling between Ritchie Ibeawuchi and Issac Enwerobi. It is now clear that Ritchie Ibeawuchi was responsible for this attack.

Unsurprisingly the householders affected by those various incidents called the police to investigate each of the matters. The police were called during the night of 24th to 25th April and they examined each of the crime scenes. At 55 Hazel Way the police recovered six cartridge cases with type 3 gunshot residue on them.

The police were concerned that the various incidents of violence in Chingford were connected. They therefore progressed their investigations rapidly. On the afternoon of 25th April the police arrested two suspects, namely Marcus Paul and Kori Bennett.

GSR swabs were taken from Marcus Paul's face, hands and hair. Particles of gunshot residue were recovered. Expert analysis indicated that these particles matched the type 3 GSR found at 55 Hazel Way.

The police interviewed Marcus Paul and Kori Bennett. They then released both men on bail.

On 27th April 2012, at 1.15 am, someone fired a shotgun into the front door and front window of 25 Keatley Green, Chingford. This was the home of Mr and Mrs Bennett, the parents of Kori and Anthony Bennett. Fortunately Mr and Mrs Bennett were away at the time. A member of the public alerted the police who duly investigated.

On 30th April a member of the public contacted the police and said that a black male armed with a hammer was smashing up a car parked in Connaught Avenue. Officers hastened to the scene. There they found an Alpha Romeo car with its windows smashed. This car belonged to Ritchie Ibeawuchi.

On 1st May the house at 41 Nelson Way sustained yet more damage. Someone threw a brick through the front window. The assailant then turned his attention to the Ford Focus car parked on the drive. He struck it twice, causing two dents to the body work. The police attended. Unsurprisingly they found that Mr Malcolm Paul was distressed. This was the second time within a week that someone had attacked his house and his car.

The police pursued their investigations with some urgency. Clearly there were armed men within the community, who were intent upon causing serious damage and possibly personal injury.

On 4th May the police were executing a search warrant at a house in Scholars Road, Chingford. There they found Ritchie Ibeawuchi in possession of a loaded gun. They arrested him and seized the gun. Scientific analysis revealed that his gun had been used in the shooting at 23 Russell Road on 25th April. Ibeawuchi was convicted of this shooting in March 2013.

On 7th May the police executed a search warrant at Flat 7, 271 Hall Lane, Chingford. This time they struck lucky. Inside the flat they found a large quantity of guns and ammunition. The guns were first, an Underwood M1 self-loading carbine assault rifle in .30 carbine calibre, with a telescopic optical site attached to the carbine. Secondly, they found one Sig Sauer P226 self-loading pistol in 9 mm Parabellum calibre. Thirdly, they found 1 Browning high power self-loading pistol in 9 mm Parabellum calibre. They found a large number of different forms of ammunition, cartridges bullets and so forth.

The occupier of the flat returned during the police search. She was Miss Jadine Mills, a young woman aged 21. It was fairly clear that she was looking after the armoury on behalf of others who had been involved in the recent shootings.

The police charged Miss Mills with possession of firearms and ammunition. She had no defence to that charge. She pleaded guilty on 1st October 2012.

Meanwhile the hunt for the principal villains continued. The police examined Miss Mills' mobile phones. One of her contacts was Marcus Paul. Marcus Paul had as friends Anthony Bennett, Dylan Addo and Jeffrey Larbi. The items seized from Miss Mills' flat underwent forensic examination. The DNA of Marcus Simpson was found on a rucksack which had contained some of the weapons at the flat. Also Simpson's fingerprints were found on an instruction leaflet for one of the rifles.

On 29th May the police made another breakthrough. They were keeping watch on Jah Mek Ya restaurant in Seven Sisters Road. That was a restaurant belonging to Ryan Groves. They saw two men arrive. One was Ryan Groves, the restaurant owner, the other was Marcus Simpson, to whom we have referred just now. Marcus Simpson was carrying a holdall. Mr Simpson is now an appellant before this court, but only in relation to sentence.

The police saw two men arrive, believed to be Jerome Minott and Ayman Ferag. Those two men in due course departed. The police then moved in to arrest Simpson and Groves.

Simpson was found to be in possession of £10,560 in cash, 25 rounds of .32 ammunition, two oil stained cloths and a pair of latex gloves.

On 30th May the police searched Simpson's home at Corby in Northamptonshire. They discovered that his garage had been converted into an armoury. There they found a large quantity of guns and ammunition. Also in the garage were various tools which would be used for manufacturing guns and ammunition.

As the police arrested suspects they examined all mobile phones which they seized. From this they could see who the suspects had been communicating with. This investigation alerted the police to the wider network of individuals who had been (a) selling firearms and ammunition or (b) purchasing such items and using them in the recent shooting incidents.

One witness of particular importance whom the police traced was Miss Chelsea Deloughery, to whom we shall refer as "Chelsea". Chelsea is the younger sister of Jadine Mills. Chelsea recalled seeing someone bring a bag into Jadine's flat on 4th May. She maintained that that person was Dylan Addo, whom she had known at school. Mr Addo is now one of the appellants before this court.

As the police pursued their investigations, they came to the conclusion that Marcus Simpson was the supplier of all the weapons and ammunition involved in the recent offences. Mr Simpson had purchased many of the items on trips to Serbia. The police found records of those trips. They concluded that Mr Simpson had manufactured some of the items himself and purchased the rest principally in Serbia. The police concluded that Groves and Minott had been acting as Simpson's salesmen. They drew this inference from, amongst other things, messages and texts and so forth recorded on mobile phones.

The police identified a number of individuals as purchasers and users of Simpson's weapons. These included Ritchie Ibeawuchi (who was dealt with separately), Anthony Bennett, Marcus Paul, Dylan Addo and Jeffrey Larbi. They arrested and charged all those individuals with firearms offences. Criminal proceedings followed.

Simpson, Minott, Groves, Ferag, Bennett, Paul, Addo and Larbi were charged with a number of offences on indictment. Count 1 of the indictment charged Minott, Simpson, Groves and Ferag with conspiracy to possess firearms with intent to enable another to endanger life. Count 2 of the indictment charged Minott, Simpson, Groves and Ferag with conspiracy to possess ammunition with intent to enable another to endanger life. Count 3 of the indictment charged Bennett, Paul, Addo and Larbi with conspiracy to possess firearms with intent to endanger life. Count 4, charged Bennett, Paul Addo and Larbi with conspiracy to possess ammunition with intent to endanger life.

It is not necessary for present purposes to refer to other counts in the indictment. It can be seen that counts 1 and 2 were directed towards the individuals who it is alleged were obtaining, manufacturing or supplying the various firearms and ammunition. Counts 3 and 4 were directed to the individuals who it is said had acquired those items with the intention of using them to endanger life.

The defendant Ferag vanished, so his trial never proceeded. Simpson and Groves pleaded guilty to count 1 and count 2. All other defendants pleaded not guilty to the various counts on which they were charged.

Minott, Bennett, Paul, Addo and Larbi all stood trial at Wood Green Crown count before His Honour Judge Pawlak and a jury in May and June 2013. In relation to counts 1 and 2, the only defendant contesting his guilt was Minott. Minott was convicted on those two counts and is not appealing against conviction. Accordingly, we need not linger on the evidence relating to counts 1 and 2.

Instead, we shall turn to the evidence against Bennett, Addo and Paul on counts 3 and 4. They are the only defendants who are challenging their convictions.

In relation to case against Addo the prosecution relied heavily on the identification evidence given by Chelsea. The prosecution case was that as the police investigation escalated, those who had been using weapons needed to move them to a safe house. Jadine Mills' flat was selected as that safe house. Addo took a collection of guns and ammunition to that address on 4th May.

In relation to Marcus Paul, an important part of the prosecution evidence was the gunshot residue found on him on 25th April. According to the prosecution expert, Miss Chana, this matched GSR found at 55 Hazel Way, after the shooting at that address. The gun used at that shooting was a Sig Sauer self-loading pistol such as that recovered from Miss Mills' flat during the police search on 7th May.

In relation to all defendants on all counts cell site analysis and examination of the text messages formed an important part of the prosecution case. In general terms this analysis showed direct or indirect contact between all defendants named in the indictment. It is also showed that that they or at least their mobile phones came into the same cell site areas at a number of important points in the story.

The expert witness who gave evidence concerning cell site analysis was Mr David Sexton.

Examination of the mobile phones of Groves and Minott revealed that they were acting as salesmen for Simpson. It also became clear that Anthony Bennett was in contact with both Minott and Groves on a number of dates between November 2011 and May 2012.

On 3rd January 2012 Simpson travelled down from Corby (where his home was) to London. There were phone conversations between Simpson and Groves and between Groves and Bennett. That afternoon all three phones were using cell sites in the Chingford area. Thereafter, Simpson returned to Northampton. Groves and Bennett's phones remained in contact. They were in the area of Seven Sisters Road where Groves owned a restaurant. The prosecution contended that this cell site evidence supported the proposition that there was a meeting between Simpson, Groves and Bennett on 3rd January, no doubt related to the acquisition of firearms which originated with Simpson and which were ultimately being used by Bennett and his confederates.

On the evening of 3rd January Bennett's and Paul's phones remained in contact with each other.

On 17th April Simpson attempted to send a text to Groves with information concerning a gun called an “Iver Johnson Enforcer”. On the next day there was telephone contact between Simpson and Groves, then between Groves and Bennett, then between Bennett and Paul. One of the guns recovered from Jadine Mills' flat was of a kind which is sometimes described as an Iver Johnson Enforcer.

The prosecution relied on this cell site evidence and much similar evidence in order to show links between Bennett, Addo, Paul and Larbi and the suppliers of the weapons.

The defendants Minott, Paul and Addo all elected to give evidence. They denied any involvements with guns and ammunition. Minott said that his various phone calls related to the purchase of cannabis. Paul said that he knew about animosity between Enwerobi and Ibeawuchi but he was not involved in that matter. He did not take part in any of the tit for tat attacks between 23rd April and 1st May. Addo denied that he was the person who brought a bag to Miss Mills' flat on 4th May 2012. He denied having any involvement with any of the firearms.

The defendant, Bennett, did not give evidence. He had also given "no comment" answers in interview. Therefore, unlike his co-defendants, Bennett never put forward any positive case for the jury to consider.

The judge took the view that, having regard to the complexity of the evidence and the facts of this case, it would assist the jury if he prepared and distributed a chronology listing significant events and giving cross references to page numbers in the various bundles and schedules. The judge produced a first draft and circulated this to counsel at a late stage during closing speeches. The prosecution said it would be an unusual course for the judge to take and not one which they would invite him to follow. Defence counsel strongly opposed the judge's proposal to put such a document before the jury.

The judge decided that he would nevertheless provide his chronology document to the jury. He heard submissions from all counsel as to content. The judge amended his chronology in the light of those submissions, by and large (as we understand it) but not entirely accepting the proposed amendments put to him by counsel. The judge distributed his chronology to the jury at an early stage of the summing-up.

When handing the document out the judge said this to the jury:

The judge then proceeded to sum up the narrative of events with frequent reference to the chronology. He also, of course, directed the jury as to the law and summarised the defence evidence. In due course the jury returned verdicts of guilty. They convicted Minott on counts 1 and 2. They convicted Bennett, Paul, Addo and Larbi on counts 3 and 4.

The judge imposed the following sentences. In relation to counts 1 and 2 he imposed on Simpson an extended sentence of 16 years with a 4 year extended licence period, making a total extended sentence of 20 years. In the case of Minott he imposed a determinate sentence of 12 years imprisonment. In the case of Groves he imposed an extended sentence of 16 years, comprising a custodial term of 12 years and an extension term of 4 years.

Turning to counts 3 and 4, he imposed on Paul an extended sentence of 16 years, comprising a custodial term of 12 years and an extension period of 4 years. In the case of Bennett he imposed an extended sentence of 18 years imprisonment, comprising a custodial term of 14 years and an extension period of 4 years. In the case of Addo, he imposed a sentence of 12 years detention in a young offender institution. In the case off Larbi he imposed a sentence of 10 years detention in a young offender institution.

Simpson is dismayed by the severity of his sentence. He appeals against sentence. Bennett, Paul and Addo are aggrieved by their convictions. They appeal to this court against conviction. Bennett and Paul also renew their applications for leave to appeal against sentence. We must now turn to those appeals.

Bennett, Paul and Addo appeal against conviction with the leave of the single judge on one ground only. This is that the judge erred in placing his own chronology before the jury. Miss Goodall for Bennett, Mr Baki, for Paul, and Miss Panagiotopoulou for Addo all submit that it is wrong in principle for a judge to put this sort of document before the jury. It is selective in the facts which are included. It thereby encourages the jury to give particular weight to facts or events which are included. It downplays matters which are left out. This chronology includes both uncontroversial dates and also summaries of some of the oral evidence given.

Miss Goodall, who spoke first and to some extent for all the appellants, cited the decision of this court in R v McCredie [2000] BCC 617. In that case two company directors were on trial for a number of offences under the Insolvency Act 1986 following the liquidation of their company. The assistant recorder provided an 11 page chronology to the jury. The Court of Appeal expressed some disapproval. Henry LJ said this at page 4 of the transcript:

We are bound to say that we see force in the general points made by counsel. A judge should not normally put such a document of his own creation before the jury. Obviously, it is normal and good practice for the judge to provide written directions of law and also written routes to verdict. But if the judge feels the need to place any written exposition of the facts before the jury, he should agree that document with counsel and let counsel see it before closing speeches. In this case, the judge produced his first draft chronology after most of the closing speeches had been made.

All defence counsel opposed the judge's proposed course of action and the prosecution discouraged it. The judge decided nevertheless to adhere to that course, although he made a number of amendments to his draft in the light of submissions made as to the contents.

The judge was obviously conscientiously doing his best to assist the jury in what he regarded as a complex case. We cannot, however, commend the course which he took.

The question which we must consider is whether the judge's deployment of this chronology renders the jury's verdict unsafe. We began the hearing today by examining with counsel whether the chronology contained any errors. Our conclusion is that it did not contain any significant errors or misstatement.

Miss Goodall submits that the chronology does not identify the shortcomings and limitations of the cell site evidence, which were elicited in cross-examination. We disagree. The judge's chronology was very much an abbreviated summary, but he dealt with the concessions, which counsel elicited from Mr Sexton in cross-examination, in the following passage on page 2 of the chronology:

The judge in his summing-up dealt with this matter more fully in passages on pages 50, 51 and page 59 of the summing-up which in the interests of brevity we will not read out. The judge did justice to those matters which defence counsel had elicited in cross-examination.

Miss Goodall also criticises the summary of Mr Sexton's evidence at page 12 of the chronology. That passage includes a reference to telephones being in the same vicinity and a little later on to telephones co-locating in Lawrence Road Works, being a cell site in Tottenham.

It seems to us that there is nothing wrong with that passage. The jury fully understood the extent of cell sites and the possibility that phones in the same cell site area might nevertheless be some considerable distance away from each other. We think that, with the greatest respect to counsel, the points which she makes about the wording in that paragraph are of a pedantic nature. We think the gist of the evidence that the judge was summarising was clear.

Mr Baki, for Paul, criticises page 8 of the chronology. On that page there is a brief summary of the documents relating to the shooting at 55 Hazel Way Chingford, the home of Ibeawuchi's parents; there is a reference to the Sig Sauer pistol found later at Hall Lane having been used for the shooting at 55 Hazel Way according to the ballistic evidence.

Mr Baki submits that this passage does not point out that there is no forensic evidence to link the Sig Sauer pistol with Paul. That observation is true. The chronology does not contain such a statement. On the other hand, that statement is in paragraphs 118 and 119 of the written admissions before the jury. We do not think that the chronology is at fault for failing to duplicate that which is in the written submissions.

Mr Baki also complains that in the list of relevant phone calls there is no reference to the phone call which is No 1132 in the schedule of telephone calls. It appears that no one at the time asked the judge to add that particular reference to page 8 of his chronology. We imagine that if asked to do so the judge would have willingly included that particular reference. We can see that that was a relevant phone call, but we do not think that the jury would have disregarded it merely because it was not included in this list of references. This is a point to which we shall return.

Mr Baki next refers to page 10 of the chronology. That contains reference to the GSR swabs taken from Paul but it does not refer to the GSR recovered from Ibeawuchi. Prosecution counsel make the point that swabs were taken from Paul a matter of hours after the shooting incident, whereas Ibeawuchi's arrest came several days after the relevant shooting incident. Prosecution counsel also observes that this a point which cuts both ways because if Ibeawuchi had been shooting at Paul, as Mr Paul asserts, that might have provided a motive for the shooting by Paul at the home of Ibeawuchi's parents.

Having said all that, we do agree with Mr Baki that it would have been better, if the judge had included the reference to GSR on Ibeawuchi, if that is what the defence wished to have included. We do not, however, regard this omission as being unduly serious.

Miss Panagiotopoulou for Addo draws attention to page 14 of the chronology. That contains a reference to Mr Addo's phone being within the vicinity of 271 Hall Lane or 23 Russell Road between 19.26 and 19.32 on 4th May. That, says Miss Panagiotopoulou, is the time when Addo is said to have visited Jadine Mills' flat and the cell site evidence is perfectly consistent with Addo being some way away.

The chronology does actually do justice to that point. It does not just say that Addo's phone was in the vicinity of 271 Hall Lane, it also adds "or 23 Russell Road." It seems to us that this passage in the chronology, as the Recorder of Stafford pointed out in argument, is rather more helpful to the defence than the corresponding passage in the summing-up. We are not persuaded by this particular point.

Mr Hawkins, for the prosecution, accepts that he counselled the judge against putting such a chronology before the jury. He says that he did so partly with an eye to the Court of Appeal, mindful that this is the kind of point which might generate an appeal. How right he was. Nevertheless, Mr Hawkins submits that the chronology was a useful tool, or at least it did no harm.

We do not accept that the chronology was a useful tool. In our view the judge would have done better to sum up by reference to the various schedules and other documents which were already before the jury and with which they had become familiar during a six week trial. These documents included the telephone schedule, the cell site maps, chronological list of the seven incidents of violence, the written admissions and so forth.

Nevertheless we have come to the conclusion that the use of this chronology does not render the conviction unsafe. As Mr Hawkins rightly says, there was very little challenge to the accuracy of the contents of the telephone schedule. The jury were very familiar with all of the underlying documents. The telephone schedule had quite a spacious column on the right-hand side for the jury to make their own notes on during the trial and the jury were using that column and making notes on it. The jury knew their way around the bundles, as was inevitable after living with them and hearing cross-examination about them over a 6 week period.

The truth is that when we examine the individual criticisms of the chronology, there is very little force in the specific points which are put. The general criticism that such a document ought not to be used is a fair one, but we do not consider that, in the circumstances of this case and having regard to the particular contents of the chronology, it affected the safety of the conviction.

As Mr Hawkins rightly said, the chronology did not shut out any material from the jury’s consideration. It is fanciful to imagine that if phone call 1132 became relevant to the jury's deliberations anyone would have said: “we must not look at that, that is not on the judge's chronology.” The judge gave a very clear and firm health warning about the limited utility of this chronology in the passage of his summing-up which we have read out in Part 3 of this judgment. The judge gave a clear direction that all questions of fact were for the jury. He warned the jury that they should disregard anything in the chronology which they did not regard as helpful. They should take into account anything which was relevant but not in the chronology and we consider that those directions substantially cured any problems which might otherwise have arisen. In the result therefore, although we see some force in the criticisms made of the judge's approach on this issue, we do not regard the verdict as unsafe and we dismiss the appeal against conviction.

We turn now to the appeals against sentence. The first appellant is Marcus Simpson. He received an extended sentence of 20 years' imprisonment comprising a custodial term of 16 years and an extension period of 4 years. That was after giving credit of one-third for the plea of guilty. Simpson was a 33 year old man at trial, with no previous convictions. Miss Cook submits on his behalf that an extended sentence was unnecessary. Dangerousness is not established simply by the facts of this offence, grave though the appellant's conduct and offending was. We have carefully deliberated about this issue and we have come to the conclusion that Miss Cook is correct. Dangerousness has not been established in the case of Simpson.

Turning to length, Miss Cook submits that a starting point of 24 years before giving credit for the plea is simply too long. She refers us to the case of R Wilkinson [2010] 1 Cr App R(S) 628. We have taken that authority into account. However, we shall not extend this already lengthy judgment by a recitation of the facts of Wilkinson. We accept that the appellant Simpson's conduct although serious is not as grave as the conduct in Wilkinson.

In our view, the judge did take too high a starting point. The proper starting point was about 20 years. After giving credit for the plea of guilty, the sentence should be reduced to 13 years and 6 months. In the result therefore, we allow Simpson's appeal against sentence. We quash the extended sentence totalling 20 years and we substitute a determinate sentence of 13 years and 6 months.

We turn now to the case of Bennett. Bennett makes a renewed application for leave to appeal against sentence. Miss Goodall challenges the finding of dangerousness in respect of Bennett. We reject that submission. Bennett has a previous conviction for a firearms offence in 2005, for which he was sentenced to 5 years' imprisonment. In our view, against that background, the judge's finding of dangerousness was entirely correct. Therefore, we agree with the judge that this merited an extended sentence. The judge imposed a custodial term of 14 years and an extension period of 4 years. The 14 year custodial term imposed on Bennett is 6 years less than the starting point for Simpson if he had been convicted after a trial. In our view, that is a proper differentiation between Bennett and Simpson. In our view, the custodial term imposed on Bennett of 14 years was correct. Miss Goodall argues that there is an element of double counting and that the affect of Bennett's previous offending has been taken into account twice.

We do not agree. First of all, the previous firearm offence is highly relevant to the question of dangerousness and it justifies the judge's decision to impose an extended sentence. Secondly, the earlier conviction for firearms offences carrying a substantial prison sentence is an aggravating feature of the present offences. Here Bennett is once more becoming involved in firearm offences and acting as an important link between the suppliers, on the one hand, and his co-defendants on the other hand. We therefore dismiss Bennett's appeal against sentence.

We turn now to Paul. Mr Baki realistically does not criticise the length of sentence imposed on Paul. Nevertheless, he submits that that sentence should not be an extended sentence. We see force in that. Paul was aged 19 on the date of the offence. He was a young man with no previous convictions. We have come to the conclusion that he ought to have been treated in the same way as Addo. In the result, therefore, we quash the extended sentence and we substitute in the case of Paul a determinate sentence of 12 years.

Finally, Addo very wisely does not appeal against sentence.

In the result, therefore, the appeals by all appellants against conviction are dismissed. The appeals against sentence are allowed by Simpson and Paul to the extent that we have earlier indicated.

LORD JUSTICE JACKSON: After we had delivered that judgment it was pointed out by the court and by counsel that there are two other matters to which Mr Simpson had pleaded guilty which were nevertheless simply ordered to lie on the file. Both prosecution and defence counsel submit that we need say nothing about those matters. We agree. We say nothing about them.