R v Thomas Betteridge

On 1 March 2024 in the Crown Court at Bournemouth before His Honour Judge William Mousley KC, the appellant (who was then aged 18) was convicted of two offences. Under count 4 of the indictment he was convicted of an offence of manslaughter, in respect of which he received an extended sentence of detention in a young offenders' institution of 12 years. On count 2, which was an offence of having an article with a blade or point, upon his conviction he was sentenced to 18 months' detention concurrent.

The appellant had a co-accused, Mr Lennie Hansen, who was acquitted of assisting an offender (count 3). He had previously pleaded guilty to having a bladed article (count 4 in the original indictment) and was sentenced to 13 months' detention in a young offender institution.

Both before the trial judge and before us the appellant was represented by solicitors and counsel, and we have been assisted by Mr Burge KC leading Mr Florida-James. At trial and before us, leading counsel for the prosecution was Mr Price KC. We are grateful to both of them for the high quality of their respective submissions.

On the night of 4 August 2023 Mr Cameron Hamilton went out with friends in Bournemouth town centre. Most of his group had been drinking alcohol and some had taken cocaine and possibly cannabis. Mr Hamilton was drunk and possibly affected by cocaine at the time that he and his friends, Mr Keiron Stride, Mr Harry Sadler and Mr Joan Rey-Periera left a pub called The Dancing Jug and made their way to the town square. They arrived there shortly after 1.15 am. On arrival they came across a group of people which included the appellant and his co-accused Mr Hansen. The appellant had travelled to Bournemouth from the Portsmouth area by train to spend the night with an ex-girlfriend and Mr Hansen. The appellant and Mr Hansen were both aged 18. Before they had arrived in the town the appellant had been drinking and taking cocaine. Mr Hansen had carried a knife with a 12.5 cm blade, contained in a sheath, which he had got before he got on to a train at Cosham.

After drinking in Bournemouth the appellant, Mr Hansen and the appellant's ex-girlfriend walked to the town square and were standing by or sitting on a wall surrounding a raised flowerbed near to a temporary outdoor bar. There was a significant police presence in the town centre. Mr Hansen decided to hide the knife which he had brought and he placed it, with the appellant's knowledge, in the flowerbed, in its sheath, close to where they were both positioned.

The events that followed were captured on various CCTV cameras.

Members of the groups knew each other and had begun to talk. After a few minutes, for unknown reasons, the deceased confronted the appellant and asked some of his friends, including Mr Stride, Mr Sadler and Mr Rey-Periera, whether they "had his back". He then assaulted the appellant. He approached the appellant, grabbed hold of his upper body and pushed him back forcefully from his seated position into the flowerbed behind him. The deceased may have had hold of the appellant's throat at some point. The deceased and the appellant struggled with each other but no blows were struck.

At about the same time Mr Hansen was attacked by Mr Stride, Mr Sadler and Mr Rey-Periera. He was punched to the ground and while on the ground he was kicked in the head by Mr Stride. CCTV footage showed the force of that kick lifted Mr Hansen off the ground. When Mr Hansen tried to get away, he was chased and punched again. Despite the nature of the attack, he was largely uninjured and managed to get away, but he was chased again and a further kick was aimed in his direction.

Whilst that was going on, the deceased and the appellant separated for a short period. But once the attack on Mr Hanson had ended, the deceased again approached the appellant and repeated his previous actions towards him. The deceased was bigger than the appellant. During that second assault, the appellant reached behind him into the flowerbed and picked up the knife that Mr Hansen had put there a few minutes earlier. The struggle between the appellant and the deceased continued, with the appellant holding but not using the knife. They moved away from the wall and Mr Stride, Mr Sadler and Mr Rey-Periera became involved. At least one person saw that the appellant was holding a knife and called out to the others. The struggle ended up with the appellant getting away and both he and Mr Hansen ran to another part of the square. The deceased and his group ran after the appellant. At one point the appellant stopped to turn and face his pursuers. He had the knife in one hand and his other hand was raised to tell the pursuers to stop. They continued to move towards the appellant. The appellant turned and ran a few more paces, before he again turned to face the deceased, who with two of his friends had continued to move towards him. The deceased was at the front and went to grab the appellant and put him in a bear hug. As they went together the deceased trod on the appellant's foot causing one of his trainers to come off. The appellant stabbed the deceased twice in quick succession, to the side and chest. The deceased immediately fell to the ground where after a short moment he was tended to by Mr Rey-Periera. Mr Rey-Periera went to the deceased after an exchange of words with the appellant. The appellant then threw the knife into a nearby flowerbed and ran off, followed by Mr Hansen.

The deceased suffered two wounds. One was to his flank to a depth of 2 cm, with no serious internal damage. The second was to his chest, which penetrated the skin between two ribs, the tip of his heart, through the diaphragm and into the liver. The total depth of the fatal wound was 5 cm. It caused catastrophic bleeding in the left ventricular chamber and led to death at the scene.

The appellant and Mr Hansen left the scene. The appellant saw someone he knew and swapped his hoodie for that person's jacket. He also swapped his one training shoe with Mr Hansen. They were soon stopped by police officers. They lied to the officers about where they had been. The appellant was arrested and interviewed in the presence of an appropriate adult. The appellant said that after he had picked up the knife the deceased had tried to disarm him. He said that one of the deceased's friends had been holding a small knife during the incident and had, at the point where the appellant first turned to face those chasing him, threatened to stab him. The appellant said the deceased had punched him in the earlier struggle and immediately before he stabbed the deceased. He also said that the deceased had kicked Mr Hansen.

Mr Stride and Mr Sadler were arrested at the scene on suspicion of murder and were interviewed under caution. They were then de-arrested. Shortly after, they were notified that they would not be charged and instead were treated as prosecution witnesses. Mr Rey-Periera was not arrested, whether at the scene or at all.

The knife used to stab the deceased (Exhibit AJB/2) was found where the appellant had thrown it. Police search teams also found a second knife (Exhibit RAP/2) which was found a short distance from the scene of the stabbing, discarded in undergrowth. RAP/2 was tested for DNA and a mixed DNA profile was recovered from the handle.

The prosecution case was that the appellant deliberately and unlawfully stabbed the deceased intending to kill him or to cause him really serious harm (counts 1 and 2). At the close of both defence cases, the prosecution applied to add an alternative count of manslaughter to the indictment (count 4).

The prosecution called a substantial body of evidence. The basic facts as we have outlined them were not significantly in dispute. Nor could they be as the central events were captured on CCTV. What was in dispute was whether the appellant had acted in lawful self-defence and what his intention was when he stabbed Mr Hamilton. The prosecution case was that the stabbing was unlawful and that the appellant had intended to kill Mr Hamilton or at least to cause him really serious harm. He was therefore guilty of murder. By acquitting him on count 1 and by convicting him of manslaughter by a majority of 10 to 2, the jury found that the appellant had not been acting in lawful self-defence but that he had intended to cause Mr Hamilton less than really serious bodily harm. Beyond that, it is not safe to speculate about the jury's reasoning that led to their returning the verdicts they did.

One of the main factual issues at trial, if not the main factual issue at trial, which was extensively covered in examination of the prosecution's witnesses, was whether the appellant was right to assert that one of the deceased's friends had a knife and either that friend or another had said words to the effect that they should stab the appellant. Regrettably, despite enhancement and very close scrutiny, the CCTV did not demonstrate that one of the deceased's friends had or brandished a knife. Needless to say, none of the members of the deceased's party admitted to having had a knife or to having said that the appellant should be stabbed. It needs no elaboration from us to understand that this issue went to the heart of the appellant's defence of lawful self-defence. His credibility, or lack of it, in making the allegation was an important factor (to put it at its lowest) for the jury to consider when addressing whether a second knife was produced and whether the appellant was telling the truth when he said that he heard one of the opposing group say he should be stabbed.

At this stage we need only add that the appellant did not give evidence, which was the subject of a standard direction in the summing-up.

During the trial the jury sent twenty notes to the judge. We are directly concerned with Notes 4, 5 and 6, which we shall set out in full detail below. Ground 1 is founded on the fact that although the three notes were sent to and received by the judge on 1 February 2024 while Mr Rey-Periera was giving his evidence, they were not shown to counsel until early on 12 February 2024. The period of delay in showing them to counsel included 2-6 February 2024, when the court did not sit.

The three notes that formed the basis of Ground 1 all related to the evidence of Mr Rey-Periera.

We are told that the question of showing notes to counsel had been raised with the judge on an occasion before 12 February but we do not have the date or a transcript of what was said.

On 12 February Mr Burge KC raised the issue again, submitting that, ordinarily, counsel were entitled to see notes before a witness was asked further questions and that the delay while the judge had the notes but counsel did not meant that counsel were conducting the case "in a total kind of knowledge vacuum as to what the issue is". He repeated the plea that "unless a note from a juror specifically concerns matters of their voting intention, everyone at the Bar get given the note at the time that it is handed up so that we can deal with it, if necessary". On being asked by the judge whether he meant that every time a note was received the jury and any witness should go out, the judge and counsel should have a discussion and then have everyone back in rather than leaving it to the judge to deal with it, Mr Burge responded "potentially, yes, Your Honour, because we don't know what it is that Your Honour is about to embark on in terms of questioning the witness. We don't know anything about what the juror wants to know and, ordinarily, we are entitled to know ..."

The judge made no formal ruling but from then on notes were passed to counsel promptly. So far as we are aware, and as confirmed by Mr Burge today, no application was made to recall Mr Rey-Periera.

The appellant now submits that by (1) withholding from counsel for many days relevant and important jury notes which concerned the evidence of a crucial prosecution witness and (2) questioning other witnesses following the receipt of jury notes without first sharing them with counsel and seeking their views, the judge's approach constituted a material irregularity in the trial of the appellant. That material irregularity resulted in the jury's concerns about the actions and motivations of Mr Rey-Periera both immediately before and after the stabbing being left unaddressed. Putting the same case in slightly different terms, the appellant submits that the judge deprived his counsel of the opportunity of (1) knowing what concerns the jury had about the evidence of Mr Rey-Periera and (2) asking Mr Rey-Periera further questions that would have explored those concerns on an issue that went to the essence of the appellant's case on self-defence. It is submitted that in doing so the judge elevated the material irregularity with the judge's notes into one that positively undermined the jury's ability fairly to assess the appellant's claim to have acted in self-defence. It is further submitted that by completely ignoring the jury's questions in Notes 4-6, the judge may wrongly have left the jury with the impression that their concerns about Mr Rey-Periera's evidence were misplaced, irrelevant or both.

The principles that apply where notes are received from the jury are well established. Leaving on one side additional procedural steps where notes are received after the jury has retired, the principles can be traced back toR v Gorman (1987) 85 Cr App R 121 at 126, where Lord Lane LCJ said:

These principles have been repeatedly and consistently endorsed: see, for example, R v APJ[2023] 1 Cr App R 24 at [33]. Failure to inform counsel about a note from the jury does not automatically amount to an irregularity or a material irregularity so as to render the verdict unsafe or unsatisfactory: see R v O'Connor (The Times, June 26, 1985) and see R v Andramampandry [2003] EWCA Crim 1974 at [25], where a failure to read out the whole of notes from the jury was treated as an irregularity but as being "minor, indeed trivial". We note and endorse the approach of the court in that case, which was for the court to read the notes and to ask themselves whether those notes that were not read out in full or in open court nor seen by defence counsel could reasonably have led to a significant line of evidence or argument of which the appellant was otherwise deprived. On the court concluding that it could not, the irregularities which took place in that case did not begin to undermine the safety of the conviction: see [27]. Where a contrary conclusion is reached, the failure by a judge to disclose the contents of the note is likely to be regarded as a material irregularity which, depending upon the facts of the case, may render a conviction unsafe: see, for example, APJ at [34]-[46].

The principles we have outlined are not hard-edged rules and a judge having conduct of a trial has a measure of discretion about whether and when a note should be shared with counsel. That said, in exercising that discretion the judge should always be guided by the twin principles of (a) the need to avoid the appearance or reality of private communications between judge and jury on matters of relevance to the parties where there is no compelling reason to withhold the note or parts of it from counsel and (b) the importance of providing notes to counsel promptly so that material lines of inquiry are not omitted. In applying those principles it is important to have close regard to the background facts, the terms of the notes, the context in which they were received and whether the failure to inform counsel of the notes promptly renders the appellant's conviction unsafe, either because (as alleged by the appellant in this case) it deprived the appellant of a line of evidence or argument of which the defendant might not otherwise be aware, or otherwise.

The context in which the notes were received was that Mr Rey-Periera was the second prosecution witness called in the trial in which the appellant's case was that he stabbed the deceased when acting in lawful self-defence. As part of that defence he asserted that he had seen that one of those attacking him (but not the deceased) had a knife. Also Mr Rey-Periera was the closest of the protagonists to the appellant and the deceased at the time of the fatal stabbing. In this context we shall deal with each note in turn. We adopt as our touchstone whether the failure to disclose the notes to counsel promptly may have had the effect of depriving the appellant of a material line of inquiry or argument.

Note 4 included three questions. The first was why Mr Rey-Periera took a taxi and left the scene of the crime with his girlfriend. The first thing to note is that the question relates to what happened after the fatal stabbing, by which time the appellant and Mr Hansen had made off. Mr Rey-Periera gave an account in evidence-in-chief which included that when the police started taping off the area, he went to find his girlfriend. What Mr Rey-Periera did after the fatal stabbing was explored in cross-examination of the witness that covered where he went - first following the appellant, then returning to the deceased, then going to where the taxis were after the scene was shut down by the police. It was not suggested that there was any particular reason why he left the scene or why he left in a taxi, nor can it sensibly be said that failure to disclose the note to counsel deprived the appellant of a material line of evidence or argument in relation to the first question.

The second question in Note 4 was, “How soon after the incident did the police arrive/contact him?” That was the subject of cross-examination, where he said that his only contact with the police at the scene had been that a police officer had told him to calm down. Thereafter Agreed Fact No 33 (0198) was that he was first contacted by the police to arrange for him to attend for a video-recorded interview on 10 August 2023. The second question was therefore fully answered and it cannot sensibly be said that failure to disclose the note to counsel deprived the appellant of a material line of evidence or argument in relation to the second question.

The third question in Note 4 was, "Did JRP have something to hide or otherwise why would he leave the scene?" His evidence was that others were arrested but he was not and so he was free to leave. It was not suggested to Mr Rey-Periera that he had something to hide which caused him to leave the scene. It could have been, had anyone thought it to be relevant, but the mere fact that the third question was phrased as it was does not, in our judgment, suggest or prove that the appellant was deprived of a material line of evidence or argument. As it was, the cross-examination of Mr Rey-Periera by both Mr Burge and Mr Gibney (who was acting for Mr Hansen) concentrated on his movements before the stabbing, which was self-evidently a period of primary relevance given that the appellant's case was one of lawful self-defence and was entirely dependent upon his state of mind before the stabbing. In addition, it is plain that the defence had in mind the question of how the second knife came to be in the flowerbed near to where Mr Rey-Periera and his girlfriend had caught the taxi. This is clear from the following passage of cross-examination:

Note 5 included one question, as set out above. When the appellant took up the knife was, for obvious reasons, an important issue in the trial. Unsurprisingly, it was fully explored with Mr Rey-Periera both by Mr Burge and by Mr Gibney who, between them, left no stone unturned. The answers given by Mr Rey-Periera included him identifying by reference to the timing of images on the CCTV precisely where and when he said he had seen the knife (see Y281/page 63 of the transcript of his evidence). In our judgment nothing at all was lost by counsel not being provided with Note 5 promptly.

The first question in Note 6 asked why Mr Rey-Periera went to Mr Stride and Mr Sadler during the initial incident and did not stay with the deceased when Mr Stride and Mr Sadler were already two on one in their assault of Mr Hansen. Mr Rey-Periera's movements and motivation were the subject of intense cross-examination by both Mr Burge and Mr Gibney, which we have read. His initial stance, which was shown to be untenable, was that he had no recollection of joining in the attack on Mr Hansen by kicking and punching him. The CCTV evidence was clear that he did, as he had to accept. He was specifically asked by Mr Burge whether he had any reason to want to beat up either the appellant or Mr Hansen, to which his only answer was that he was helping his friends (Y239/page 21 of the transcript). Later, when cross-examined by Mr Gibney, he accepted that he assaulted Mr Hansen and said that he did not remember the reason for doing so. Thus the first question in Note 6 was fully covered.

The second question in Note 6 went to the heart of the appellant's case on self-defence, but in our judgment it would be quite impossible and more than mildly insulting to the extreme competence to the defendants' representatives at trial to suggest that not disclosing the note to counsel promptly could have had a material effect on the proceedings or deprived the appellant of a material line of evidence or argument.

The third question in Note 6 went to a potentially material issue in the case, namely when the deceased indicated to Mr Rey-Periera that he was going to hit the appellant. It was also an issue that was extensively canvassed with Mr Rey-Periera specifically by reference to the deceased's comment, "Have you got my back?" which, according to his evidence, Mr Rey-Periera understood instantly to mean that there was going to be a fight (page 16G-17B of the transcript of Mr Rey-Periera's evidence). There is no sound basis for a suggestion that failure to provide the note to counsel promptly has deprived the appellant of a material line of evidence or argument.

The conclusion we reach therefore is that it was an irregularity for the judge not to have provided the notes to counsel promptly. However we do not accept that the failure to provide them promptly had any actual effect on the conduct of the trial since all of the matters raised were in fact covered appropriately and competently in any event. We reject any suggestion that failure to provide the notes promptly deprived the appellant of any material line of evidence or argument and we reject any suggestion that the failure to provide the notes promptly renders the appellant's conviction unsafe. We also reject the appellant's suggestion that the jury may have been left with the impression that their concerns were irrelevant. Much more probable, in our judgment, is that they felt that their questions had been dealt with satisfactorily for the reasons we have given above. Ground 1 therefore fails.

The prosecution served two streamlined forensic reports from a forensic scientist, Emma Hardey, about DNA on the second knife (referred to as RAP/2) which was found quite close to the scene of the stabbing. In those reports Ms Hardey reported that DNA testing of the knife provided a mixed profile from three people at least one of whom was male. According to those streamlined forensic reports, Mr Stride's DNA profile was "well represented" in that mixed profile, while it was not possible to determine whether or not Mr Rey-Periera's DNA contributed to the result. The prosecution subsequently served a streamlined forensic report from a Mr Andrew McDonald, who reported that, following statistical evaluation of the low level incomplete mixed DNA result obtained from the handle on RAP/2, the findings "neither support the view that Kieron Stride contributed some of the DNA to it, nor support the view that he did not contribute DNA to it. The findings should therefore be considered neutral with respect to a potential contribution of DNA from him." Ms Hardey subsequently provided an expert's report which incorporated Mr McDonald's findings.

On 20 February 2024, after the close of evidence, the appellant submitted to the judge that he should give a hearsay direction to the jury about Mr McDonald's evidence and limitations to the use they could make of it. It was accepted that the defence had agreed to the admission of the evidence in Ms Hardey's report. It was said that before service of Ms Hardey's report, the prosecution had been directed to provide Mr McDonald's workings and had failed to do so. It was submitted that the evidence was untested hearsay and there should be a direction about the limitations to its proper usefulness.

In response to the judge's observation that the normal approach to streamlined forensic reports where an issue is identified is for the witness then to make a witness statement and to be treated as any other witness, the defendants submitted that they had done what they could. It emerged, however, that they had not requested that Mr McDonald attend for cross-examination.

Prosecuting counsel stated, and we accept, that he had made clear that he would make available for pre-trial conferences and in the witness box anybody who was required to consider a point in issue and that had he been asked to do so he would have made Mr McDonald available for cross-examination, but he was not asked. He even offered, if permitted to reopen the Crown's case, to call Mr McDonald at that late stage for cross-examination. He submitted that having agreed to the admission of the evidence including the statistical evidence relating to Mr Stride, there had been no subsequent challenge to it by the defence and the evidence had not been contradicted. There was therefore no basis for the jury to do other than to accept the evidence of Ms Hardey as set out in her expert's report. As a more general observation he submitted - correctly, in our combined experience - that it is routine for the reporting scientist to be the person who would normally be required to come to court and that it was routine for a reporting scientist to rely upon the work of their colleagues as Ms Hardey had done. That does not preclude the attendance or calling of a contributor either instead of or in addition to the reporting scientist.

The judge declined to give any form of direction based on Mr McDonald's evidence being hearsay. In due course he summed up the expert evidence, putting it in context suitably and fairly (pages 28 and 114-117 of the summing-up). We need only add that it is plain that Ms Hardey was suitably questioned having been tendered for cross-examination, though she maintained her position that she was not competent to deal with Mr McDonald's evidence.

The appellant now submits that the judge should have explained to the jury that Mr McDonald's contribution to Ms Hardey's expert's report and evidence was untested hearsay evidence, the reliability and accuracy of which was not accepted by the appellant and that it was for them to assess the extent to which they found the evidence to be reliable and of assistance, taking into account the other evidence before them on the question whether one or more of the deceased's friends pulled a knife on the appellant.

The prosecution response was that there was no good reason for such a direction to be given - specifically:

In our judgment there is no merit in this ground of appeal. The approach of incorporating the work of others in an expert's report is conventional and unobjectionable. If an issue arises as to the admissibility of evidence it can and should be raised with the judge who will rule on any objection. That does not arise here because the defence agreed to the admission of Ms Hardey's report and evidence. If Mr McDonald's contribution to Ms Hardey's report was contentious, the steps open to the defence were:

The appellant was aged 18 when he killed the deceased and he was still 18 when he was convicted on 1 March 2024. He had by then an unenviable criminal record. Between November 2019 and 2022 he had accumulated 11 convictions for 28 offences including offences of criminal damage, possession of a bladed article when he was aged 13, battery, assault on emergency workers, assault occasioning actual bodily harm, burglary with intent to commit criminal damage and possession of cannabis. Apart from the conviction for possession of a bladed article, none of the offences approached the seriousness of the offences that are the subject of these proceedings.

At the close of the prosecution's evidence on 14 February 2024 the Crown applied under sections 101(1)(g) and 106 of the Criminal Justice Act 2003 to admit the appellant's previous convictions other than the conviction for possession of a bladed article. The Crown submitted that by cross-examining the Crown's witnesses on the basis that one of them had a knife and had threatened to stab the appellant, the appellant had attacked their characters. In answer to the judge Mr Price expressly confirmed that the convictions had no relevance to the question of propensity. They were said to be relevant to credibility.

The judge was evidently worried about the prospect of the convictions being used by the jury erroneously as a means of establishing a propensity to behave in a certain kind of way. Mr Price sought to allay those fears and in the course of doing so said (at Y321):

In his submissions opposing the admission of the convictions Mr Burge alluded to the difficulty that the jury would have in distinguishing between using the convictions to reinforce the case on propensity and using them to undermine the appellant's credibility.

Having given his decision that all the convictions bar that for possession of the bladed article were to be admitted, the judge gave his reasons a few days later on 19 February 2024. In doing so he outlined the competing submissions that had been made including that the issue was one of importance in the case, which he said made it the more important that "the prosecution should be able to call evidence which will, which may bear upon the reliability of the source of that evidence". The kernel of his reasoning was (page 9 of the transcript, Y370):

It is therefore plain beyond argument that the distinction between establishing propensity and undermining credibility was clearly recognised by all parties. Equally it is plain beyond argument that the prosecution and the judge at this stage recognised the risk that a jury might wrongly confuse the two and the need for suitable directions to guard against that risk.

When he came to sum up, the judge directed the jury on what he called the appellant's background character:

The appellant accepts that the challenge to the prosecution witnesses on the basis that one of them was armed with a knife amounts to an attack on their character within the definition at section 106(2) of the Criminal Justice Act 2003. The appellant now submits that:

In support of this ground of appeal the appellant submits that there was no issue about who was the initial aggressor. It was accepted by the prosecution that the appellant and Mr Hansen had been subjected to two unprovoked attacks and that the appellant was trying to run away from the aggressor group and to retreat immediately before the deceased was fatally stabbed. It is said that in contrast to the evidence of the deceased's group, who had lied in their ABE interviews, the appellant's account was the most consistent with the CCTV and therefore the most credible. Mr Burge goes on to submit that the CCTV shows Mr Rey-Periera's hand moving to the rear waistband of his trousers and "the possible appearance of something in his left hand" immediately afterwards at a moment which coincides with the moment at which the appellant says that someone had produced a knife and threatened to "stab him up".

Somewhat optimistically the appellant also relies upon the evidence of two independent witnesses who said that a man dressed in black clothing with red logos on it had produced a knife and stabbed the deceased with it. The problem with this last evidence is that the appellant is the only person who stabbed the deceased and he was not wearing black clothing with red logos, so their evidence is clearly and fundamentally wrong.

That said, the appellant submits that there was "an abundance of independent and cogent evidence" from which it was open to the jury to decide that the appellant was or might have been telling the truth about one of the deceased's friends being in possession of a knife and threatening him with it. He goes on to submit that the appellant's previous convictions therefore add nothing to the jury's ability to assess the truth of his allegation. His previous convictions have no probative value regarding the truth of his allegation. In oral submissions the balance of this submission shifted somewhat so that the main point taken was that these convictions, acquired when aged 14-16, were not capable of being probative in relation to credibility when the appellant was 18.

The submission that his previous convictions had no probative value in relation to credibility because of the existence of other evidence is unsustainable. We have summarised the evidence to which the appellant refers above. It is plain beyond argument to the contrary that the other evidence was inconclusive, so that the credibility of the appellant when asserting that he had been threatened with a knife was at least potentially a real and important matter for the jury to consider.

We have considered whether it may properly be said, as submitted orally by Mr Burge today, that the appellant's convictions were irrelevant to credibility having been accumulated at such an age. We conclude that the decision that they had some relevance was one that was open to the judge.

We have also considered whether it is open to us to hold that it was a wrong exercise of the judge's discretion not to exclude the evidence on the basis of section 101(1)(g). In our judgment the decision is close to the line but was one which the judge was entitled to make, bearing in mind, as he did, the clear need for a suitable direction to be given to the jury.

Next, we have considered whether the direction given by the judge was sufficient to ameliorate any prejudice caused by the risk of wrongful reliance on the convictions as evidence of propensity. Once again, though the decision is not straightforward because of the number of the convictions and their potential to be extremely damaging to the appellant's case, we conclude that the direction, which was in conventional terms, was sufficient and was not a material misdirection.

It follows that Ground 3 fails as a free-standing ground of appeal. However it sets the context for our consideration of Ground 4. As we have made plain, we consider that the risk of prejudice to the appellant was real and that the direction given by the judge was apt to cover the jury's consideration of the admitted convictions and no more. With that by way of context we turn to Ground 4.

During the trial the prosecution served a compilation of the images captured by the body worn cameras operated by the police involved in the appellant's arrest and subsequent booking and sampling at the police station. The compilation lasted just over 23 minutes and (as with the other images provided to us) we have viewed it with care.

The body worn footage compilation lasts 12 minutes longer than the compilation of CCTV showing the lead-up to and happening of the fatal stabbing and the appellant's and Mr Hansen's movements thereafter up to the time of their identification and arrest. In addition to seeing the compilation, the jury were provided with a transcript of what was said on the compilation. In outline summary the compilation and transcript included:

The appellant applied to exclude the compilation and transcript on the grounds that they would have such an adverse effect on the fairness of the proceedings that the court should exclude them. It was submitted that any relevant evidential features (eg, the appellant's lying denial to the police that he had done anything wrong) could and should be dealt with by way of agreed facts or, failing that, further editing. In oral submissions as recorded by the judge, the appellant submitted that to admit the evidence would drive a coach and horses through the ruling that he had just made on the bad character application relating to the appellant's previous convictions. The prosecution responded that the compilation "shows that both defendants told significant lies, in effect falsely denying that they had been present at/involved in the incident in the square". On that basis it was submitted to be "highly probative". It was said not to be evidence of bad character because it was "evidence of misconduct in connection with the investigation of the offence": see section 98(b) of the Criminal Justice Act 2003. It was also submitted that as the jury were now to hear of his previous convictions, the probative value of the body worn footage remained but with no counterbalancing prejudicial effect.

The judge's reasons and the extent of his ruling were rather opaque:

In the event, as we have said, the "edited" version included the matters to which we have referred above. The transcript ran to some 34 pages.

When summing up, the judge referred extensively to the transcript of the body-worn compilation, including excerpts relating to the appellant saying that he was always harassed by the police whenever he went to Bournemouth (101C), saying he was recording the incident on his phone as protection and for his safety (102B) and that "this is shit that happens to me every day" (103H). The judge did not give any direction to the jury about the purported relevance of the transcript and video footage or as to the use to which it could properly be put. In particular the jury was given no direction or warning to protect against the risk which the judge had expressly recognised in his ruling that they might wrongly rely upon the evidence as a whole as probative of propensity or that the appellant had committed the offences with which he was charged. When he gave the jury a standard direction on lies (at page 13H of the transcript) he identified only that at the time of the defendants' arrests they lied about what they had been doing and where they had just been. The judge directed that these lies "could be evidence which supports the prosecution case against a defendant, but only if you are sure he had not lied for another reason" and followed that with a conventional direction which is not criticised as such. It is right to observe however that the judge did not identify what issue the lies were said to go to.

Ground 4 is founded on the submission that the passages identified above went well beyond the scope of the judge's ruling on bad character relating to previous convictions, were highly prejudicial and, with the possible exception of his lying denial that he had been involved in any incident, not probative of any issue in the case.

The prosecution's response is concisely set out in the Respondent's Notice:

In addition, Mr Price submitted that the true nature of the appellant's defence should have been one of accident. We need only say that whatever the prosecution's view about the defence that the appellant should have been running, it is overwhelmingly clear, and the judge evidently appreciated, that for better or worse the defence that was actually being run was one of self-defence and the judge summed up on that basis.

In our judgment the admission of the body worn footage, together with its 34-page transcript, without any further direction as to the use to which it could be put, constituted a serious error and the decision to admit it as happened was a wrong exercise of the court's discretion. We accept the general proposition that there could be some probative value in the fact that the appellant denied having been involved in any incident when first accosted by the police and arrested. The obvious and most economical way to deal with that would have been to be by way of agreed facts, as proposed by the defendant. Had the footage and transcript been edited to deal with that point alone, such a course would not have been objectionable. As we have noted however, it is not clear what aspect of the prosecution's case the appellant's lies were said to support. In his oral submissions Mr Price appeared to submit that they were relevant to a defence of accident that the appellant was not running. By the end of the trial there was no dispute about where the appellant had been or what he had done. He did not disclose what later became his defence at trial when he was first arrested and cautioned, but that is a different matter. In theory the footage of the appellant's demeanour while lying through his teeth could have some probative value over and above the fact of his lies. However, having viewed the footage repeatedly and with anxious scrutiny, we are not able to identify anyrelevant additional probative value attributable to the appellant's demeanour in this case. We accept without hesitation that the inclusion of all or virtually all of the rest of the footage and transcript served no useful or probative purpose but was highly prejudicial. Specifically and by no means exhaustively, the passages (a) demonstrating or asserting that he had had repeated interactions with the officers, (b) recording his abuse directed to officers when he was restrained, arrested and loaded into the cage at the back of police van, and (c) showing the taking of his clothes and of bodily samples did not have any relevant probative value. In saying this we make no criticism at all of the police who attended the scene and were responsible for the appellant after his arrest. To our eyes they acted firmly but with moderation throughout. For these reasons we consider that the body worn footage should have been excluded other than making provision for the fact that the appellant lied when asked about his involvement.

We have then considered whether, in the light of our conclusions thus far, it would be open to us to apply the proviso on the basis the appellant's conviction was safe. We are unable to do so. The credibility of the appellant was, as counsel recognised this morning, the central most important factual dispute in the trial. We cannot be sure that had the case been handled differently the outcome would have been the same.

While recognising that this outcome will be a bitter and traumatic disappointment for those who have been bereaved by the death of Mr Hamilton, we have come to the conclusion that the appellant's conviction for manslaughter must be set aside. Mr Price rightly conceded that if the manslaughter conviction is set aside so too must the conviction for the possession of the bladed article. That concludes this judgment.