ON APPEAL FROM
Mr Justice Garnham
Sitting at Inner London Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LADY JUSTICE WHIPPLE
MR JUSTICE CAVANAGH
and
HHJ MORRIS RECORDER OF WINCHESTER
Between :
REX | |
- and - | |
JAKE DEBONSU |
Nathan Rasiah KC and Jeremy Rosenberg (instructed by Simon Bethell) for the Appellant
William Emlyn Jones KC and Peter Ratliff (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 15 July 2025
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives
(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
.............................
Lady Justice Whipple:
Introduction
This appeal is brought by Jake Debonsu, the appellant, against his conviction on two counts of murder on 26th January 2024 following a trial before Garnham J at Inner London Crown Court. The appeal proceeds with leave granted by the Full Court on a single ground of appeal, which challenges as inadequate the judge’s directions to the jury in relation to certain recordings of telephone calls made by the appellant whilst held in custody on remand. The appellant made some admissions against his own interest in those telephone calls.
The appellant had just turned 18 at the date of sentence. He was sentenced on each count to be detained during His Majesty’s Pleasure with a minimum term of 17 years less 448 days spent on remand, the sentences on each count to be served concurrently. A victim surcharge order was imposed. There is no appeal against sentence.
We heard the appeal on 15 July 2025 and announced at the end of the hearing that the appeal would be dismissed with reasons to follow in writing. These are our reasons.
Facts
Shortly before 5.00pm on 26 November 2022, Charlie Bartolo was riding his motorbike, in convoy with two friends, along Sewell Road in Abbey Wood, South East London. The appellant was one of five young men in a Nissan Qashqai being driven in the opposite direction. Hussain Bah was driving that car, Sammie Shallangwa was in the front seat, Alagie Jobe, Kearne Solanke and the appellant were in the rear. As the car came to pass Bartolo and his friends, Bah swerved across the road and drove into Bartolo, who was thrown into the air and landed on the pavement to the left side of the vehicle. Shallangwa, Jobe and Solanke alighted from the vehicle and attacked Bartolo with large knives.
Bah and the appellant got out of the right hand side of the vehicle. Bah was armed with a knife and moved around the front of the car as if to go and join in the attack. The appellant remained on the right hand side of the vehicle, before getting into the driver’s seat where he kept the footbrake depressed and engine running.
During the course of the attack, Shallangwa mistakenly stabbed Solanke.
Following the attack, Bah, Shallangwa, Jobe and Solanke got back in the car. The appellant drove the car a short distance but stopped because Bartolo’s motorbike was stuck underneath it. The appellant got out of the car and removed the motorbike. Bah then got into the driver’s seat and drove the car away with the other four, including the appellant, still in it.
It soon became apparent that Solanke had been badly injured. The car was driven to a nearby address on Titmuss Avenue, Thamesmead, which belonged to an acquaintance of the group. The group dispersed. The appellant remained with Solanke. He phoned 999 using Bah’s handset, gave a false name and stated, “we don’t need police”.
Emergency services attended the scenes at Sewell Road to attend Bartolo and Titmuss Avenue to attend Solanke.
Bartolo was taken by ambulance to hospital. His injuries were not survivable and his life was pronounced extinct at 18.24 hours. He had suffered eight separate stab wounds, to his back, left arm, left leg, and to the top of his head. The wound to his head was 8 centimetres long on the surface; it had caused a full thickness cut through his skull and had penetrated his brain, causing contusions to the brain and subarachnoid haemorrhage. It was this traumatic brain injury which caused his death.
The London Air Ambulance attended the scene at Titmuss Avenue. Solanke’s life could not be saved, and life was pronounced extinct at 18.15 hours. Solanke suffered a single stab wound. The angle of penetration was downwards from his shoulder into the top of his left lung, causing it to collapse. His subclavian artery was completely severed causing very significant and fatal blood loss.
Trial
It was the prosecution’s case that the appellant, whilst not one of those who stabbed the victims, intentionally participated in a joint enterprise to murder.
The background to the offending lay in a longstanding dispute between a gang from Thamesmead called “T-Block” and another gang from Abbey Wood called “A-Town”. The appellant and his co-defendants were closely associated with or aligned themselves with the Thamesmead gang.
The appellant and his co-defendants, said the prosecution, were on a journey into rival gang territory. They were armed and ready to use the knives they had with them to attack and stab any young person associated with the Abbey Wood gang if the opportunity arose.
At trial, the prosecution relied on the following strands of evidence:
CCTV evidence. The incident was captured on CCTV.
Telephone recordings. There were recordings of telephone calls made by the appellant to friends and family while he was detained in a Young Offenders Institute following charge and awaiting trial. The content of the calls was mixed: the appellant said some things which were consistent with his defence at trial, namely, that he was present but did not participate in the attack; he said other things which were not consistent with his case at trial, for example, that he had a knife and did not join in the attack because the others had already stabbed Bartolo. (We shall return to these “prison calls” later in this judgment. They are the subject of this appeal.)
The appellant’s differing accounts. The appellant provided a number of different accounts as to his involvement including:
999 call.At 01.25 hours on 29 November 2022 police responded to a 999-call made by the appellant’s sister, reporting that the appellant had been subjected to threats in respect of the killings. The appellant told police that he was not involved in the murders in any way but admitted that he had “beef” with “the Abbey Wood boys”.
Prepared statements and “No comment” interviews. The appellant was arrested on suspicion of murder and was interviewed between 29 November and 1 December 2022. He gave two prepared statements in which he stated that he knew nothing of the murders of Bartolo and Solanke and did not know who the people involved were. In his fourth interview he commented on the CCTV footage of the killings in a way which was designed to make it appear that he had not been present at the scene and knew nothing of the murders. To the vast majority of the questions asked of him, he answered “no comment”.
Prison calls.The calls were made by the appellant from prison between 6 December 2022 and 21 January 2023. As we have indicated, in those calls the appellant gave varying accounts of the events of that evening.
Defence case statement. On 17 October 2023 the appellant served a defence statement, in which he accepted presence in the vehicle but denied any knowledge of a plan to attack or involvement in the same.
Evidence at trial. The appellant gave evidence at trial. He described how he had become involved in the Thamesmead gang: he would drive stolen vehicles and would go to rival gang territory and post pictures of himself being there. He said he had issues with others because he was associated with Thamesmead. He said that he would carry knives on occasions for self-protection. He was aware that others within his friendship group carried knives. He gave his explanation of the events of 26November 2022 and said that he had not been aware that anyone was carrying a knife but knew it was a possibility. He had been showing others the stolen vehicle because it was “cool”. He had seen people within the group swap clothes prior to getting into the vehicle, but had not known why they had done that. Those in the vehicle said they wanted to go to Abbey Wood, but he had not understood that what was planned was an attack. He had not been carrying a knife on him. There was a collision and he did not know what was happening. He did not interact with Bah and did not know what was happening on the pavement side of the car. The appellant agreed that his initial plan had been to maintain the account he had given in his prepared statements in interview, namely that he had not been present at the scene of the murders. He had ultimately changed his mind because of the CCTV and prison calls evidence, and served a defence statement in which he accepted presence.
The appellant’s case at trial was that he was present at the scene but played no part in the attack and more importantly, was not a party to a plan to attack anyone. In his defence case statementhe stated this, amongst other things:
“The Defendant accepts presence at the time of the events that resulted in the deaths of Charlie Bartolo and Kearne Solanke. However, he denies intentionally assisting or encouraging the murder of either man.
…
He was not armed with a knife, neither was he aware that others in the vehicle were armed, until the attack on Charlie Bartolo commenced, though in the Defendant’s area and amongst those he knew it was commonplace to carry knives for protection. The Defendant did not intentionally assist or encourage the attack on Charlie Bartolo, which commenced suddenly.
…
In the days following the incident, he was attacked by others involved and was subsequently labelled a “snitch”. The Defendant accepts giving an untrue account in his prepared statement in interview because he was scared.
…”
The jury rejected the appellant’s account and convicted him of both murders by a majority of 10-2.
The Prison Calls
There were transcripts of 29 calls involving the appellant speaking to his mother, Seiysha (his girlfriend) and Alisha (Solanke’s girlfriend). The appellant knew that his calls from detention were being recorded.
In those calls, the appellant said a number of things which were not consistent with his defence at trial. The key statements against interest were as follows (this list taken from the skeleton argument for the appellant, para 10):
That he was prepared to go on a “ride-out” and attack a member of the opposing gang;
The stabbing of Bartolo was the desired outcome for the gang he was part of;
He was armed with a knife that evening; and
The only reason he did not join in the stabbing of Bartolo was that the others had already stabbed him.
The defence initially objected to the prison calls going before the jury on the basis that they were inadmissible “confessions” obtained as a consequence of things said and done which were likely, in the circumstances existing at the time, to render any such evidence unreliable pursuant to section 76(2) of the Police and Criminal Evidence Act 1984, having previously identified it as an issue of law or admissibility within the defence statement. However, that position was not maintained and the defence agreed that all but two of the prison call transcripts were admissible as evidence in the trial, once certain passages had been redacted or summarised. The two remaining in dispute were prison call numbers 12 and 19 which the defence argued were irrelevant. The judge ruled both of those calls relevant and admissible. In his ruling, the judge stated:
“In my judgment, the matters discussed in these two calls do have direct probative value to an issue in the case. In fact, they have direct probative value to the issue in the case, namely whether what has been suggested to be the defence of this defendant is a true defence or is a confection designed to mislead the jury.
In my judgment, the jury would be entitled to conclude on the basis of this material that the defendant recognises his culpability and is actively contemplating different methods of avoiding it by putting forward a false case.
In my judgment, the prosecution are right when they say this is not prejudicial material but instead, is probative of a central issue in the case, namely whether what is being put forward is or is not a true defence.”
It is not now suggested that the prison calls were not relevant. There is no challenge to the judge’s ruling in relation to calls 12 and 19.
At the close of evidence the judge circulated draft directions. It was at this point that counsel for the appellant first submitted, in writing followed by oral submissions, that a direction was required in relation to the prison calls to the effect that if the jury concluded that parts of what the appellant said were or may have been obtained as a result of things said or done which were likely to render such statements unreliable, the jury should disregard them. The judge’s attention was invited to paragraphs 16-2 and 16-5 of the Crown Court Compendium. The prosecution objected to that direction. In the event, the judge rejected the defence application. He gave this direction, which was in line with the prosecution’s submission:
“You will recall that you had read to you transcripts of the relevant parts of telephone conversations between Jake Debonsu and various of his friends and family from prison. Those transcripts are at tab 13 in your bundle. They record what Jake said about himself and about the activities of the other three defendants.
The transcripts of those calls are now in evidence in the case and their reliability and truthfulness are a matter for you. You should consider their significance as against Jake and as against the other three defendants.
As against Jake, they are his own words and you will consider them alongside all the other evidence in the case. He suggested in evidence that what he said in the calls was influenced by his desire to protect his “street credibility” and to avoid his being labelled a “snitch” or a “pussy”. You will need to consider those explanations and decide, first, whether they lead you to regard what he said as unreliable. Second, if it was reliable whether what he said in the calls was true.”
Grounds of Appeal
The appellant, by Mr Rasiah KC and Mr Rosenberg, his counsel at trial and in this Court, advances a single ground of appeal that the judge failed to direct the jury adequately regarding their approach to confession evidence in the prison calls. That ground is supported by a skeleton argument dated 25 May 2025 (lodged since the grant of leave by the Full Court) in which it is submitted that the direction was deficient in three material respects:
That it failed to identify the correct test for the jury to apply. The issue was not whether what was said was reliable and true, but whether the statements were obtained in consequence of anything said or done which was likely to render such admissions unreliable.
That it failed to identify the appropriate burden and standard of proof: the jury should have been directed to consider whether the admissions were or may have been so obtained.
That it failed to direct the jury that if they found the admissions may have been so obtained (that is, in consequence of anything said or done which was likely to render them unreliable) the jury should give them no weight and disregard them entirely.
The Crown, by Mr Emlyn Jones KC and Mr Ratliff, who prosecuted below and appear in this Court, resist this appeal. They have lodged a Respondent’s Notice and a more recent skeleton argument dated 9 June 2025. They argue that the judge correctly and sufficiently directed the jury; and that in any event this conviction is safe.
We are grateful to all counsel for the assistance they have given the Court.
Legal Framework
Section 76(2)(b) PACE
Section 76 of the Police and Criminal Evidence Act 1984 provides so far as relevant as follows:
“76.— Confessions.
(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”
Two preliminary points must be made. First, section 76 concerns the admissibility of confessions. This appeal does not concern issues of admissibility because the transcripts of the prison calls were admitted, mostly by agreement (with some agreed redactions and summaries); two transcripts were admitted following the judge’s dismissal of an unsuccessful defence challenge to admissibility on grounds of relevance. This appeal concerns the judge’s directions to the jury in consequence of the admission of that evidence. That is not a matter to which s 76(2) applies directly. Secondly, no issue of oppression within section 76(2)(a) arises. Rather, the appeal turns on whether, on the facts of this case, anything was said or done which was likely to render the appellant’s confessions in consequence of what was said and done unreliable. This is to focus on section 76(2)(b). The formulation in section 76(2)(b) is sometimes referred to as “improper means” as a shorthand (see, for example, Mushtaq [2005] UKHL 25 at para 30; we will return to that case shortly).
This Court considered the meaning of section 76(2)(b) in R v Goldenberg (1989) 88 Cr App R 285. That case involved a heroin addict arrested for drug offences; five days after his arrest he requested an interview with police in which he made admissions against his own interest. It was submitted at trial that his admissions were motivated by his desire to secure bail or credit for assisting the police and that the confession should be excluded under s 76(2)(b). The trial judge rejected that submission and this Court dismissed the appeal in the following terms (per Neill LJ at p 290):
“It was submitted on behalf of the appellant that in a case to which section 76(2)(b) of the 1984 Act applies, the Court was concerned with the objective reliability of the confession and not merely with the conduct of any police officer or other person to whom the confession was made. Accordingly the Court might have to look at what was said or done by the person making the confession, because the confession might have been made ‘in consequence’ of what he himself had said or done and his words or actions might indicate that this confession was or might be unreliable.
In our judgement the words ‘said or done’ in section 76(2)(b) of the 1984 Act do not extend so as to include anything said or done by the person making the confession. It is clear from the wording of the section and the use of the words ‘in consequence’ that a causal link must be shown between what was said or done and the subsequent confession.
In our view it necessarily follows that ‘anything said or done’ is limited to something external to the person making the confession and to something which is likely to have some influence on him.”
It is therefore established that in order to come within s 76(2)(b), the improper means must be the cause of the confession, must be something external to the person making the confession, and must be something which is likely to have some influence on him.
R v Mushtaq
In Mushtaq [2005] UKHL 25, the House of Lords considered what directions were necessary when confession evidence was put before the jury in circumstances where the defendant argued that the confession was obtained by oppression or improper means. In that case the appellant had confessed in a police interview. An application was made to exclude the confession from the trial on grounds that it was obtained by oppression under s 76(2)(a). The circumstances were that the appellant’s wife was critically ill in hospital and the appellant would visit her twice a day to feed her, because she could not feed herself and did not trust the hospital to provide food which complied with religious requirements. As a consequence of his arrest, the appellant had missed the first visit of that day and did not want his wife to be told of the reason for his absence in case it aggravated her condition. He said that he had confessed because the police had threatened to refuse bail and to exaggerate his involvement in the crime if he did not make full confessions in the absence of his solicitor. On a voir dire, the trial judge rejected the appellant’s account and ruled the confession admissible. The defendant did not give evidence at trial but prosecution witnesses were examined about the circumstances in which the appellant had confessed and the appellant’s case that the confession was obtained through oppression was put to them. The judge directed the jury that they should consider whether the confession was reliable and if the jury were not sure that the confession was true, they should disregard it. The question for the House of Lords was whether the judge should have gone further and directed the jury to disregard the confession if they thought that it was or may have been obtained by oppression, even if they thought it was true.
Lord Hutton was in the minority in the result, but he set out the background to section 76(2) in terms that cannot be disputed. He identified the principle reasons underlying the rule that a confession obtained by oppression should not be admitted in evidence (para 7):
“One reason, which has long been stated by the judges, is that where a confession is made as a result of oppression it may well be unreliable, because the confession may have been given, not with the intention of telling the truth, but from a desire to escape the oppression imposed on, or the harm threatened to, the suspect. A further reason, stated in more recent years, is that in a civilised society a person should not be compelled to incriminate himself, and a person in custody should not be subjected by the police to ill treatment or improper pressure in order to extract a confession: see Wong Kam-Ming v R. (1979) 69 Cr.App.R. 47 at 55, [1980] A.C. 247 at 261 and Lam Chi-Ming v R. (1991) 93 Cr.App.R. 358 at 363, [1991] 2 A.C. 212 at 220.”
He noted that the wording of section 76(2) was based on the 11th report of the Criminal Law Revision Committee (1972) (Cmnd 4991) which had recommended a provision to exclude a confession which “was or may have been made in consequence of oppressive treatment of the accused or in consequence of any threat or inducement” (para 12).
Lord Rodger of Earlsferry (in the majority) noted that there was no evidence in this case that the appellant had given the confession as a result of oppression (para 36). He also noted that the requested direction was unlikely to make a difference in most cases because the judge would only have allowed a confession to be admitted in evidence if he was sure that it had not been obtained by oppression, and in most cases the jury were likely to reach the same view (para 42). He too identified the “importance that attaches in a civilised society to proper behaviour by the police towards those in their custody” (at para 45, citing Lord Griffiths in Lam Chi-Ming v R [1991] AC 212). He held that the jury were the ultimate arbiters of fact (para 46) and that:
“47. …the logic of section 76(2) of PACE really requires that the jury should be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it. In giving effect to the policy of Parliament in this way, your Lordships are merely reverting to the approach laid down by the Court of Criminal Appeal (Lord Goddard CJ, Byrne and Parker JJ) in R v. Blass [1953] 1 QB 680. Giving the judgment of the Court, Byrne J quoted the well-known words of Lord Sumner in Ibrahim v. R [1914] AC 599, 609:
‘It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.’”
He held that the judge had misdirected the jury when he told them that they could rely on the confession if they were sure that it was true, even if it was or might have been made as a result of oppression or other improper circumstances (para 54). However, there was no evidence of oppression before the jury (paras 56-7) so that the direction sought was, on the facts, “unnecessary and unduly favourable to the appellant” (para 58) and the appeal was dismissed (para 59).
This, then, is the Mushtaq direction which is what the appellant argues should have been given by Garnham J in this case. By that direction, the jury are directed to disregard the confession if they conclude that it was or might have been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render it unreliable; it ceases in those circumstances to be a matter of weight and the jury is instead invited to disregard it entirely. (The direction is explained in Chapter 16, paras 8, 9 and 13(4), of the Crown Court Compendium, updated April 2025).
Mushtaq concerned improper means deployed by the police. But the direction can be required even in circumstances where the oppression or improper means are not the responsibility of the police but of some other authority figure. An example is provided by R v Roberts [2011] EWCA Crim 2974: in that case an appellant admitted stealing an I-pod from his employer in circumstances where the employer had said the matter would be sorted out internally and the police would not be called; the employer admitted that he had always intended to call the police. This Court (per Goldring LJ) held that “in consequence of such a plain inducement to confess, any confession was likely to be rendered unreliable” (para 18).
R v Al-Jaryan [2020] EWCA Crim 440 involved a combination of circumstances known to the police (including the accused’s mental health condition, the fact that he had not taken his medication that day, and that he was interviewed without an appropriate adult being present) and in that case, this Court (per Simler LJ) decided that a Mushtaq direction was warranted.
There are cases where confessions have been admitted, in circumstances where the appellant alleges some form of pressure or official misconduct, but this Court has held that a Mushtaq direction was not required. These include:
R v Nudds [2008] EWCA Crim 148: in that case, the appellant had shared a cell with H, another prisoner to whom he made confessions and to whom he gave notes about the murder. H became a police informant. The applicant challenged the admissibility of confessions obtained after H became a police informant. The appellant’s case was that H was not telling the truth and the appellant had made no confessions. The trial judge ruled the confessions were admissible on the basis that they were voluntary and not obtained by any improper pressure and were for the jury to consider. He did not give a Mushtaq direction to the jury. This Court (Hallett LJ) agreed and dismissed the application for leave to appeal (see para 41):
“This was not a Mushtaq type situation at all. It ran totally contrary to this applicant’s defence to suggest that he might have been improperly induced to confess either by [H’s] questioning or by any budding relationship to him…Section 76…was never in truth relevant on the facts of this case…”
R v Minu Pham [2008] EWCA Crim 3182: the appellant’s case was that he had lied in interview because police had threatened to involve him in a separate murder investigation and charge him for other offences. The judge did not give a Mushtaq direction but instead focussed the jury’s attention on whether the confession was true. This Court (per Scott Baker LJ) dismissed the appeal holding that on the facts of the case, there was no difference between the confessions being made under oppression on the one hand, and the confessions not being true on the other and the judge’s direction was adequate to focus the jury’s minds on the real issue.
Discussion
Adequacy of the Judge’s direction
The appellant submits that a Mushtaq direction was required in this case and that the jury should have been directed that those parts of the prison calls which amounted to admissions against the appellant’s interest should be disregarded if the jury thought that they were or might have been the consequence of anything said or done which was likely to render them unreliable. This would have meant that if the jury found such circumstances did or might exist, they would have been required to disregard the admissions against interest entirely even if the jury were sure they were true.
We make two preliminary observations. The first goes to the source of the oppressive or improper conduct which is said to have caused this appellant to make his confessions. The cases in the Mushtaq line involve something said or done by the police or, at the limits, some figure in authority in relation to the appellant. So, in Mushtaq it was the police who were preventing the appellant from visiting his sick wife. In Roberts, the employer – an authority figure - had offered an incentive to the appellant to confess. In Al-Jaryan, it was argued that the police had failed to ensure an appropriate adult was present or to act on their knowledge of the accused’s mental health difficulties. By contrast this case involves no suggestion of police or any other authority figure bringing pressure to bear on the appellant. The appellant’s case is that he made the admissions in response to what two friends of his, Seiysha and Alisha, were saying to him. We doubt that an extension of Mushtaq to encompass confessions in these circumstances is justified. The public policy underpinning section 76(2), as explained in Mushtaq, is to provide a safeguard for an accused against oppression or improper means by a “person in authority” (noting the language in Ibrahim, cited in Mushtaq), typically the police. We are not persuaded that the definition of “confession” contained at section 82 of the 1984 Act, relied on by Mr Rasiah in his response to this point, assists him. That definition includes statements adverse to a person’s interest whether “made to a person in authority or not”, but it says nothing about the reasons why the person has confessed which is what section 76(2) and Mushtaq are concerned with.
The second observation is to note the striking feature of this case, which is the late entry of the request for a Mushtaq direction. The appellant had, by his legal team, agreed to the admission of the confessions contained in the police calls (albeit with some editing which his legal team considered beneficial to his case). We were shown no other case where an appellant had agreed the confessions were admissible and had then sought a Mushtaq direction. We are not at all sure that was a course properly open to the appellant in this case, particularly given that Mr Emlyn-Jones KC, so he informed us, did not know that the defence were intending to ask the judge for a Mushtaq direction until the late point in the trial, after the evidence was closed, when the defence applied for one. We take it that the judge did not know the defence’s intentions before that point either. However, Mr Emlyn-Jones did not suggest that the prosecution were prejudiced by the late arrival of the point and he very properly accepted that in another case there might be a good reason for raising the point late in the day (for example, if the accused had given unexpected evidence at trial about having been pressured by the police to give a confession). Having indicated our concern, we therefore simply move on to consider the merits of the appeal.
The appellant’s case is that statements he made against his own interest in the prison calls were untrue and were made to counter the suggestions, communicated to him by Seiysha and Alisha, that gang members thought that he was a “snitch” or a “pussy” because he had not joined in the attack on Bartolo. We agree with Mr Emlyn-Jones that the evidence simply does not support that case. That, in the end, is the simple answer to this appeal and is our reason for dismissing it.
The passages in the evidence where the appellant makes admissions against his interest are to be set in the context of lengthy evidence, much of which was consistent with his defence case. When asked in chief about how the things that Seiysha and Alisha had said to him made him feel, he said that those things made him feel annoyed, frustrated and angry; he said that the things he said to Seiysha and Alisha (inferentially, the admissions against interest) were in part because he wanted to “keep, like, my image”. When the most damaging parts of the prison calls were put to him in cross-examination, he said that they were lies but when asked why he had lied (this in the context of his admission that he was carrying a knife) he said: “…I was being called a pussy and things like that, and I was trying to up my credibility, and things like that.” In re-examination on the same passage he said he wanted to make his involvement seem more than it was, “to make myself not seem like a pussy”.
At least so far as the suggestion that he was a pussy was concerned, the appellant made a very clear case that he exaggerated his role (and lied in the various ways now highlighted) because he wanted to retain his street credibility. That is how the judge summed up his case to the jury and that was a fair reflection of the evidence the appellant gave. But to lie for that reason is not to lie due to oppression or in consequence of any form of improper treatment, which is what a Mushtaq direction is concerned with. Further, to lie for that reason is to lie by choice, as a matter of free will, and not for reasons which are external (see Goldenberg).
There is no evidence to support the proposition that the appellant lied out of fear for his own safety consequent on the allegation that he was a snitch. Whether he was or was not a snitch, in fact, is not the issue (even though Mr Emlyn-Jones submitted he was a snitch and could not complain about being called one); the central issue is whether he lied because of that accusation regardless of whether it was true. The appellant said in the prison calls that he had heard that there was a plan to attack him because he was a snitch. He was questioned about that in his evidence. In response he did not say that he had told lies because he was worried about an attack. He just said that this affected the way he communicated with Seiysha and Alisha. Mr Rasiah accepts that there is no evidence to support this aspect of his case but suggested that the jury could legitimately have drawn the inference that the appellant was scared that he would be targeted as a snitch and might have lied out of fear for that reason. He notes that the most damaging admissions were made towards the end of the period of these calls which he said supported the inference that the appellant’s fear and his response to it evolved over the period. We are unable to accept Mr Rasiah’s submissions on this point. If it was the appellant’s case that he had lied because he was in fear of violence as a result of being labelled a snitch, he needed to say that. He was not asked about that and he did not volunteer that. There is no evidence on which to base that submission.
We are not satisfied that there was evidence of anything said or done, which was external to the appellant, which was even arguably likely to render unreliable any confession made by him in consequence of it. The circumstances when a Mushtaq direction might have been required were not present.
The judge reminded the jury of the appellant’s explanations for the confessions made in the prison calls, summarising his case that those statements were made to protect his street credibility and to avoid being labelled a snitch or a pussy. He directed the jury to consider those explanations and decide whether they led the jury to regard what the appellant said as unreliable. If the jury concluded these statements were reliable, they should then consider whether they were true. The jury had already been directed on the burden and standard of proof and were well aware that they could only convict if they were sure that the appellant was guilty.
This was, in our judgment, a perfectly acceptable and adequate direction in relation to these passages in the prison calls.
Safety of Conviction
In case we are wrong in the conclusion we have reached, we have considered whether the conviction is nonetheless safe. It is important to recall that this confession evidence was obtained while the appellant was being held on remand after his arrest and was not a contributing reason to his arrest. The police already had a case against him which they considered strong enough to justify arrest and charge.
The main evidence against the appellant was in the form of CCTV evidence. The vehicle in which the appellant was travelling could be seen to ram Bartolo’s motorbike and send Bartolo flying into the air. The appellant and Bah were in that car on the right hand side and furthest from the collision. They both got out and the appellant can be seen having an exchange with Bah who could be seen with a knife. The appellant then got into the driver’s seat with the engine on and the foot brake engaged until the others got in and he drove away.
He admitted having stolen the car and wanting to show it off to his friends. He admitted having a “beef” the Abbey Wood gang. He admitted a history of knife possession. These are all factors which tend to corroborate the prosecution’s case.
In addition, the appellant gave a number of varying accounts of himself that evening (leaving the confessions in the prison calls out of that equation for the moment). The credibility of his account was clearly in issue from the outset.
The most important inconsistencies between what was said in the prison calls and his defence at trial were (i) his admission that he had a knife with him that night; and (ii) his admission that he saw that Bartolo had already been “drilled” (stabbed) when he stepped out of the vehicle (which the prosecution suggested was the reason why he did not join in – because his co-defendants had already done the violent act they set out to do that evening). The prosecution case was that the knife could be seen on the CCTV being passed from the appellant to Bah (something the appellant denied). The appellant could be seen on CCTV on the right hand side of the car as the knife attack was ongoing on the left hand side. These inconsistencies in the prison calls were not therefore pivotal aspects of the case against the appellant because the points he confessed to were already before the jury in the form of the CCTV evidence, and the arguments based on it.
We conclude that the outcome would have been no different if the jury had, on the judge’s direction, concluded that the confessions were or might have been made in consequence of something said or done which was likely to render them unreliable with the result that they had to be disregarded.
We conclude that the appellant’s conviction for both murders is safe.
Conclusion
We thank all counsel and their respective legal teams for the assistance they have given the Court. We dismiss this appeal.