Toluwaslase Odunewu & Ors v R

Count 1 concerned a violent disorder in the early hours of 3 May 2023 at the junction of Dagenham Heathway and Reede Road. Jamal Trotman, Ethan Dedman, Michael Tommy-Mbogba and Toluwaslase Odunewu (collectively “the group of four”) were together at a location with a fifth male, Feliciano Mendes and another when a white Toyota Prius stopped close to them. At least one of the occupants of the Prius got out of the car with something shiny in his hands saying, "come on then, come on then". The group of four with Feliciano Mendes and another male all approached the Prius which reversed and drove off before returning and driving past the location. Significant parts of the incident were recorded on CCTV. Jamal Trotman, Michael Tommy-Mbogba and Toluwaslase Odunewu could all be seen holding machete-style large knives.

On 4 May 2023 the group of four went with Feliciano Mendes to Bournemouth to attend Feliciano Mendes' court appearance there. They arrived by coach in Bournemouth at shortly after 3 o'clock in the afternoon of 4 May 2023 having travelled by bus from London Victoria Coach Station. The group of four remained together in Bournemouth where some of their movements were caught on CCTV. All remained in possession of their machetes/knives.

At 7.14 pm on 5 May 2023 the group of four left Bournemouth and travelled back to Victoria Coach Station. They walked into Victoria Underground Station and caught a train shortly after 10 o'clock at night, which arrived at Dagenham Heathway Underground Station at 10.51 pm.

The four spent the next hour in and around Dagenham Heathway before returning to the underground station. By 11.45 pm Jamal Trotman and Ethan Dedman were stood immediately outside the station. Michael Tommy-Mbogba and Toluwaslase Odunewu were close by.

The incident which followed was captured from a number of different angles and locations on CCTV footage taken from nearby shops and council cameras. At 11.45 pm, a blue BMW X4 pulled up outside Dagenham Heathway Underground Station. The driver was Matthew Adekoya, then aged 20. Wazabakana Jordan Kukabu ("Jordan"), aged 18, was sat in the rear passenger seat with a third unidentified male in the front passenger seat. The BMW had headed north up the Dagenham Heathway and stopped outside the underground station close to the Subway sandwich shop. The front seat passenger, the unknown male, got out of the BMW holding what looked to be a phone, and moved towards Jamal Trotman. Ethan Dedman was at that time further back towards the tube station. Jamal Trotman responded by producing his machete-style knife which he held aloft. The unknown male backed away and then ran from the scene. Meanwhile Matthew Adekoya got out of the BMW armed with a small knife. He walked around the front of the car and approached Jamal Trotman from a different direction. Ethan Dedman, Michael Tommy-Mbogba and Toluwaslase Odunewu moved towards Jamal Trotman at the front of the car. By this time, all four had got out and were holding large machete-style knives. Jordan exited the car, walked to the rear of the BMW, then got back into the rear passenger seat. Matthew Adekoya opened the driver's door but closed it again as the group of four surrounded the vehicle. Matthew Adekoya started to run. He was pursued by Jamal Trotman with Ethan Dedman following some distance behind. Michael Tommy-Mbogba remained at the rear passenger door of the BMW where Jordan was seated. Michael Tommy-Mbogba repeatedly stabbed Jordan through the partially opened rear door and window, whilst Toluwaslase Odunewu stood at the opposite rear door side of the vehicle. The fatal stab wound penetrated Jordan's chest and went into his heart. At trial Michael Tommy-Mbogba accepted he had inflicted all the injuries to the deceased, including the fatal injury. Despite being stabbed, Jordan managed to get out of the BMW and run north along the Heathway. He was followed by Michael Tommy-Mbogba and Toluwaslase Odunewu. Meanwhile, Jamal Trotman had caught Matthew Adekoya in the street. Matthew Adekoya had tripped and fallen, upon which Jamal Trotman inflicted two slash/stab wounds to Matthew Adekoya's left leg before stabbing him between his ribs causing a 5 cm long wound puncturing his lung. At the time of the stabbing Ethan Dedman was standing on the pavement on the opposite side of the road. He then crossed to the middle of the road towards Matthew Adekoya. Despite his injuries, Matthew Adekoya managed to run into the road where he was hit by a car, before managing to get back to the BMW. He was pursued by Jamal Trotman and Ethan Dedman but they then turned their attention to Jordan who had by that stage been stabbed and was running away from them. Jordan approached a taxi driver for help at the scene. He told him, "I'm going to die" before falling to the ground. The taxi driver called 999 for help but despite the best efforts of the emergency services, which included an emergency helicopter, Jordan could not be saved. He was pronounced dead shortly after midnight on 6 May 2023.

By the time the police and emergency services arrived the group of four had together left the scene. They travelled first by bus and then by an Uber taxi to Jamal Trotman's home, still carrying their weapons.

Matthew Adekoya made it back to the driver's seat of the BMW and drove off. At 11.51 pm that evening he telephoned the emergency services. He underwent surgery to his abdomen and lower leg, subsequently recovering from his injuries. At trial it was accepted that his three stab wounds had all been inflicted by Jamal Trotman. Jamal Trotman, Michael Tommy-Mbogba and Toluwaslase Odunewu were later traced by police to Cambridge where they were arrested together on 9 May 2023 in a VW Golf. Ethan Dedman was arrested separately. Police found a machete in the boot of the VW which belonged to Toluwaslase Odunewu. It had Ethan Dedman's fingerprint on the blade. Jamal Trotman, Michael Tommy-Mbogba and Toluwaslase Odunewu each pleaded guilty to being in possession of a bladed article. Ethan Dedman was convicted of that offence at trial.

When interviewed, Toluwaslase Odunewu answered all questions. He identified himself on CCTV as being present at the scene. He denied recognising anyone else in the footage. He accepted being in possession of a machete. He said it was pitch black on 5 May and he thought he was going to be attacked. He thought the people in the BMW may even have had a gun. Ethan Dedman produced a short, prepared statement at interview denying involvement in the incident. Jamal Trotman and Michael Tommy-Mbogba answered no comment to all questions asked.

The joinder application was first served on 2 April 2024. The defence notified the prosecution of their objection to joinder the same day. The matter was argued on 26 April 2024 with trial fixed to start on 29 April 2024.

The defence submitted that the violent disorder was of a wholly different nature and unconnected with what occurred on 5 May 2023. On 3 May the occupants of the Prius were stopped by the police minutes later but gave no explanation for the incident. It was submitted that there was insufficient nexus between what occurred on 3 May 2023 and that which had occurred two nights later. The indictment and the events of 3 May principally charged a public order offence, whereas the indictment for 5 May principally related to homicide. The net effect of joinder was to suggest that the defendants regularly engaged in machete wielding street violence. The incident on 3 May was and remained an unexplained public order offence that involved no physical assault on any individual. The incident on 5 May was of a different magnitude and an assault in response to a wholly unexplained group attack on the applicant.

The prosecution argued that the violent disorder took place in similar circumstances and at the same location as the murder on 5 May. In a short extempore ruling the judge held:

The prosecution case was that the group of four were guilty of a violent disorder on 3 May 2023. They were all wearing face coverings or hoods and brandishing large knives or machetes in a public area. CCTV footage showed them hitting the Prius motorcar and a male getting out, shouting "Come on then, come on then". The Prius was also seen trying to drive into the group by a concerned eye witness who called the police.

In relation to the second more serious incident, the prosecution case was that Michael Tommy-Mbogba murdered Jordan Kukabu as the principal and that the others were guilty as secondary parties to that stabbing. Each was brandishing their machetes at the time, taking part in a joint attack on the men in the BMW. Equally, as regards the other victim, Matthew Adekoya, the prosecution case was that in stabbing Adekoya, Jamal Trotman attempted to murder him or to wound him with intent. Jamal Trotman was the principal and the others were guilty as secondary parties on the basis of joint enterprise. As we have indicated, at the close of the prosecution evidence the prosecution indicated that it would no longer seek to maintain the more serious charge of attempted murder against Ethan Dedman, Michael Tommy-Mbogba or Toluwaslase Odunewu as secondary parties and the judge directed the jury to return not guilty verdicts for each of them on count 3. In relation to Ethan Dedman, who had entered a not guilty plea regarding the charge of having a bladed article, the prosecution case was that he had no reasonable excuse for being in possession of the knife which he accepted having with him on 5 May (count 5).

The principal evidence against the defendants on all counts was CCTV footage obtained from cameras in the vicinity. We have watched and considered all of the footage shown to the jury at the trial. The prosecution further relied on the following:

The following evidence was said by the prosecution to rebut the defence of self-defence and the suggestion that Jordan Kukabu had a firearm:

At the close of the prosecution case there were various submissions of no case. All the defendants accepted that there was a case to answer on count 1 (violent disorder) on 3 May 2023. Counsel for Jamal Trotman and Ethan Dedman submitted that there was no case for them to answer on count 2, the murder of Jordan Kukabu on 6 May (it was dated 6 May because he died shortly after midnight).

Counsel for Ethan Dedman, Michael Tommy-Mbogba and Toluwaslase Odunewu submitted that there was no case for them to answer on count 4 (wounding Matthew Adekoya with intent) on 5 May 2023.

We have seen and considered each of the skeleton arguments submitted to the judge on these applications. The arguments for each are directed at the same point. In essence it was said that the prosecution evidence, even if taken at its highest, could not demonstrate encouragement or assistance given by Ethan Dedman or Jamal Trotman to Michael Tommy-Mbogba in the murder of Jordan, or by Michael Tommy-Mbogba, Toluwaslase Odunewu or Ethan Dedman to Jamal Trotman in the wounding of Matthew Adekoya. The stabbings of each were individual acts of the principals which took place whilst other members of the group were not nearby. When Michael Tommy-Mbogba stabbed Jordan, Ethan Dedman and Jamal Trotman were running after Matthew Adekoya and could not have seen what happened. Similarly, when Jamal Trotman stabbed Matthew Adekoya, Ethan Dedman was on the other side of the street and Michael Tommy-Mbogba and Toluwaslase Odunewu were still beside the BMW. It was submitted that this had been an episode of spontaneous violence responding to an attack from the occupants of the BMW and that the evidence could not show that there had been encouragement or assistance given to the principals. It was argued that this was not a case of a group acting together. Rather, what the evidence showed were individual responses to aggressive acts from persons in the BMW.

The judge found that there was a case to answer against all defendants on counts 2 and 4, ruling as follows:

The trial proceeded thereafter. Ethan Dedman and Michael Tommy-Mbogba gave evidence. Jamal Trotman and Toluwaslase Odunewu did not.

The defence was that the group of four were not the aggressors in the incident on 5 May 2023 and that it was the occupants of the BMW who had started to attack Jamal Trotman after which they all responded in self-defence. It was also their case that Jordan Kukabu had a gun which was supported by evidence of a firearm and firearm residue being found at the address where Jordan had been living two-and-a-half years earlier in December 2020. They said further that these were fast-moving events which took place in the dark when they were in fear and that no eyewitness could have had clear view of everything that had taken place.

Moving to each individual, as we have said, Jamal Trotman did not give evidence. The case for Jamal Trotman was that on 5 May he acted at all times in self-defence. He relied on the CCTV footage which showed that the unknown male and Matthew Adekoya had approached him purposefully with hostile intent. He had had no choice but to produce his weapon and defend himself. He did not intend anyone to be killed or to be caused really serious harm and he did not encourage or assist in any unlawful violence.

Ethan Dedman gave evidence with the assistance of an intermediary. We have seen a transcript of that evidence. His case in relation to the violent disorder was that he was present at the scene, but he did not participate. He was buying food with Feliciano Mendes at the time. He did not know what was going on with the occupants of the Prius. He did not see a machete. In relation to 5 May 2023, his case was that he had acted in self-defence of himself and his friends. He did not know any of the occupants of the BMW, but one male was attacking Jamal Trotman. He had had a machete with him for his own protection, which was a good reason, and had no intention to stab anyone or cause anyone serious harm. He was confused. Everything had happened very quickly. He said he ran when he saw Jamal Trotman running as he was curious as to what was happening. He said he did not move towards the BMW at any point. He had chased Jordan Kukabu briefly in self-defence and had no idea that Jordan had been hurt or stabbed at the time. When they got on the bus, Michael Tommy-Mbogba told him that Jordan Kukabu had a gun. He did not answer police questions in interview because he was confused and did not know how to answer them.

Ethan Dedman also relied on the witness statement of his mother, Christina Dedman, as to his diagnosis of ADHD and Autism Spectrum Disorder. She explained his difficulties and the additional support he required. He also relied on his previous good character.

Michael Tommy-Mbogba gave evidence. He said that on 3 May 2023 he had been in the area to buy some expensive designer trainers at a cost of £1,000 and he thought the occupant of the Prius which pulled up was the seller. The occupant took his money but did not give him the trainers and the Michael Tommy-Mbogba then took out his knife in self-defence as he felt he had been robbed.

In relation to 5 May 2023, Michael Tommy-Mbogba's case was that he stabbed the deceased in self-defence of himself or others. His evidence was that the BMW arrived an hour after they got to Dagenham Heathway. He heard shouting and saw someone run up to Jamal Trotman carrying a knife. Others then got out of the BMW quite aggressively. Michael Tommy-Mbogba produced his knife and ran over to assist Jamal Trotman. When he got to the car, Jordan Kukabu was reaching for something and Michael Tommy-Mbogba tried to disarm him. He saw Jordan reaching for a gun in his waistband inside the car. He dodged the attack and stabbed Jordan trying to disarm him. After that, Jordan dropped the gun in the car and ran, whereupon Michael Tommy-Mbogba said he chased him not realising that Jordan had been stabbed and injured. He stopped chasing him when he realised he was not a threat anymore. It was self-defence and he had feared for his life. He saw the situation with Matthew Adekoya when he was running down the road, but he was not aware of what happened and did not encourage or participate in that incident. He had given a no comment interview on the advice of his solicitor.

Toluwaslase Odunewu's case was that he did not intend to hurt or injure anyone. He saw his friends under attack and he went to assist them in self-defence. He only produced his weapon to scare the attackers. He did not give evidence but did answer some questions in police interview.

The issues for the jury on the violent disorder were whether they could be sure that each applicant/appellant was present and had participated in the violence and whether their actions were unlawful. The issue on count 2 (murder) was whether they could be sure that the principal, Michael Tommy-Mbogba was guilty of murder or of the alternative of manslaughter and was not acting in lawful self-defence. If they were not sure they were directed to acquit all the appellants of the same charge. In relation to counts 3 and 4, attempted murder/wounding with intent, the jury also had to be sure that Jamal Trotman was guilty of attempted murder or wounding with intent and not acting in lawful self-defence. If they were not sure then they were directed to acquit all the applicants/appellants of the same charge.

In relation to joint enterprise, to convict on that basis the jury had to be sure that the defendant they were considering assisted or encouraged the offence with the necessary intent and was also not acting in lawful self-defence.

In relation to Ethan Dedman, they had to be sure he had no reasonable lawful excuse for being in possession of a bladed article.

Mr Kazakos on behalf of Jamal Trotman renews the application for leave to appeal on the ground that the judge erred in allowing the prosecution application to join the 3 May 2023 incident and 5 May 2023 incident.

Section 4 of the Indictments Act 1915 provides that charges for more than one misdemeanour may be joined on the same indictment. Rule 3.29(4) Criminal Procedure Rules 2020 provides that where the same indictment charges more than one offence, the court may exercise its power to order separate trials of those offences (a) when a defendant may otherwise be prejudiced or embarrassed in his or her defence, for example where the offence is to be tried together and neither founded on the same facts, nor form or are part of a series of offences of the same or similar character; (b) for any other reason it is desirable that the defendant should be tried separately for any one or more of those offences.

The question whether particular charges form or are part of a series of offences of the same or similar character was considered in Kray (1969) 53 Cr.App.R 569 where it was held that a sufficient nexus must exist between the relevant offences. In Ludlow v Metropolitan Police Commissioner [1971] AC 29, the House of Lords held (a) that two offences can constitute a series and (b) that both the law and the facts should be taken into account when deciding whether offences are similar or dissimilar in character. For there to be a series of offences there must be some features of similarity which in all the circumstances of the case enables the offences to be described as a series.

We are in no doubt that the judge was right to order joinder of the charge of violent disorder on 3 May 2023 with the charges of murder, attempted murder/wounding with intent and associated offences arising from events on 5 May 2023. The events giving rise to the charges were close in time, they involved the same group of four who had remained together over the three-day period carrying the same knives. The incidents were also geographically close, appearing within streets of each other. Both were late at night and involved threatened or actual violence between the group of four and another group who had driven up in a car. There was a more than sufficient nexus existing between the offences.

Jamal Trotman and Ethan Dedman each renew their application for leave to appeal their conviction for murder on the grounds that the judge erred in refusing a submission of no case to answer on count 2.

On behalf of Jamal Trotman, it is submitted that the only evidence against him was CCTV footage showing him outside Dagenham Heathway Underground Station having been sat near a shop on the telephone to a young woman. At the time the BMW pulled up he was on his own. All three males exited the BMW intent on contact of some kind. Jamal Trotman initially ran from the unknown man and in doing so produced from his waist a long machete. The co-defendants, without any anything being said, saw what was happening and came to his aid. The whole incident was over in less than a minute. In that time Michael Tommy-Mbogba attacked the deceased causing the fatal injury. At the time Michael Tommy-Mbogba stabbed Jordan, Jamal Trotman was on the opposite side of the street with his back to the car. There was no evidence from any of the witnesses present that words of encouragement were shouted. In short, it was submitted Jamal Trotman could neither see nor know that Michael Tommy-Mbogba had stabbed anyone, still less have encouraged him to do so.

It was argued that Jamal Trotman said and did nothing hostile towards Jordan Kukabu. He was alone when the BMW arrived. There was no time to formulate a plan, only time to react to an immediate and unexpected attack. There was no evidence of any pre-existing grievance between Jamal Trotman or his co-defendants and the deceased and his associates. Jamal Trotman took no part in the pursuit of Jordan Kukabu. The judge erred in placing too much emphasis on the possession of a bladed article.

It is argued on behalf of Ethan Dedman that the submission of no case should have succeeded because the evidence showed he was outside the underground station facing the entrance speaking to two individuals who appeared to be drunk at the moment the BMW pulled up further down. Ethan Dedman had walked away from Jamal Trotman by that stage. Ethan Dedman only turned around at the point the occupants of the BMW were confronting Jamal Trotman. Ethan Dedman took out his machete and stood for a second or two before running off. He had no interaction with either his co-defendants or the occupants of the BMW before running along the pavement. He had left the scene by the time Jordan was fatally stabbed and had done nothing to encourage him.

Complaint is made that there was no analysis in the judge's ruling of the evidence to establish a conditional intent to inflict really serious harm or of Ethan Dedman's actions.

The respondent submits that there was a conditional intent among the defendants that should the need arise one or more of them would use unlawful violence upon another or others intending to cause that other or others at least really serious harm. Furthermore, the actions of the group of four each intentionally assisted and encouraged Michael Tommy-Mbogba in the stabbing of the deceased. They acted together as a team, separating and attacking the occupants of the BMW. The prosecution relied on the CCTV footage, accounts from people at the scene, the knives and the applicants' actions in the days before and after the incident.

The principles to be applied in making a submission of no case are well-known, being found in Galbraith (1981) 73 Cr.App.R 124:

The prosecution case was put on the basis that the co-defendants were secondary parties to Michael Tommy-Mbogba who was the fatal stabber.

The Supreme Court in Jogee [2016] UKSC 8 considered the position where there is a spontaneous outbreak of violence. At paragraph 95 the court held:

In our view the judge was right to let the case proceed. The fact that Ethan Dedman and Jamal Trotman were not by the BMW at the time Michael Tommy-Mbogba stabbed Jordan was evidence for the jury to consider but no more than that. The whole of the evidence before the jury, including all the activities of the group of four in the three days leading up to the evening of 5 May 2023 was amply sufficient for them to be able to find that the four were acting as a group in responding to aggression from the occupants of the BMW and that each played different parts in that response: Jamal Trotman and Ethan Dedman pursuing Matthew Adekoya whilst Michael Tommy-Mbogba and Toluwaslase Odunewu remained by the BMW with Michael Tommy-Mbogba meting out violence to Jordan Kukabu inside. It was open to the jury to find that both Ethan Dedman and Jamal Trotman were part of a group which was "out to cause serious injury" and that each "intended that that should happen if necessary". In cases such as this, where an armed group has gathered and are together when violence breaks out, resulting in injury or death, the parts played by individual members of that group will usually be a matter for the jury to consider on all of the evidence. When each member of the group has stayed and become involved in some way in the violence, it will be for the jury to determine whether the evidence has established against each of the secondary parties, i.e. those who did not actually injure or kill the victim, that they assisted or encouraged the actions of the principal directly responsible for causing that injury or death and, if so, with what intention they assisted or encouraged. Separating and analysing the evidence, looking at what each member of the group did or did not do or where they were at a particular moment in time of a fast-moving incident like this one is a task for the jury at the end of the case, not for the judge on a half-time submission. There may be cases where the evidence clearly shows a member of the group leaving or taking no part at all, but absent such obvious indication we would suggest that a half-time submission is unlikely to succeed.

The case of Childs and Price [2015] EWCA Crim 665 referred to by Mr Kazakos concerned a very particular causation issue. The deceased died after suffering an unusual brain bleed caused by a punch. He had been punched initially by Childs, only after that did the co-defendant Price see, approach and join in. The medical evidence could not say whether it was the first punch or one of the later ones which had caused the unusual bleed. Davies LJ, giving the judgment of the court, drew attention to the unusual circumstances. As he put it (at [37]), the inference of any plan "has to come from the speed with which Price came to the scene once Childs had administered the first punch." Since it could not be ruled out that it was the first punch which had caused the injury, it was necessary to examine the evidence closely to determine at what point it could properly be said what Price had noticed and joined in. The present case is very different.

At the close of the prosecution case, counsel submitted that there was no case to answer for Ethan Dedman, Michael Tommy-Mbogba and Toluwaslase Odunewu on count 4. Each seeks to renew the application for leave to appeal their conviction on the ground that the judge erred in refusing submissions of no case.

At almost exactly the same moment that Michael Tommy-Mbogba fatally stabbed Jordan Kukabu through the rear off-side door of the BMW, Jamal Trotman repeatedly stabbed Matthew Adekoya. The prosecution case was that the other members of the group assisted or encouraged Jamal Trotman intending that Matthew Adekoya should be caused at least really serious harm and were accordingly liable as secondary parties. It was submitted that given the geography at the scene and the fact that he was engaged in a separate incident with Jordan Kukabu, Michael Tommy-Mbogba could not have been aware of what Jamal Trotman was doing. It was argued that there was no evidence that Michael Tommy-Mbogba actively assisted or encouraged Jamal Trotman as principal. It is argued on behalf of Toluwaslase Odunewu that there was insufficient evidence in his case because he had had no dealings with Matthew Adekoya. On behalf of Ethan Dedman, it was argued that the submission of no case should have succeeded for him for the same reasons as on count 2. Additionally, Ethan Dedman is shown on CCTV running in the middle of the road never getting near enough to participate in what is taking place between Jamal Trotman and Matthew Adekoya or for either of them to be aware of him. It is also said that there was no evidence that Ethan Dedman assisted or encouraged Jamal Trotman to attack Matthew Adekoya and that the judge had not sufficiently analysed the evidence.

The prosecution submitted that participation and intention could be inferred from the whole body of evidence including that the four appellants were out in public, armed and ready to participate in lethal violence should the opportunity arise, as demonstrated two days earlier in almost exactly the same location. Each had performed different roles within the joint enterprise. The extent of their roles and the intent of each fell to be judged by reference to their own different deeds on 3 May and 5 May. These were matters to be determined by a jury, properly directed in law, after hearing all of the evidence in the case.

We are satisfied that the judge did not err for essentially the same reasons as we have given above. There was ample evidence in this case from which the jury could be sure that the defendants acted as a group taking different roles, intending that one or more of the occupants of the BMW would be caused at least really serious injury.

Ethan Dedman and Toluwaslase Odunewu each apply to renew their applications for leave on the ground that the judge's summary of the evidence in his case was gravely unbalanced. Toluwaslase Odunewu argues that having reminded the jury of the prosecution case that the defendants were acting together, the judge should have balanced this by referring to the defence case that there had not been time for the defendants to have a joint approach to a sudden and unexpected event. Mr Clark says that the judge should have reminded the jury of these points made in his closing:

Mr Clark also criticises the judge for omitting to summarise Toluwaslase Odunewu's police interview. Citing the case of Akhtar [2000] 1 Archbold News 2 he says that as Toluwaslase Odunewu had not given or called evidence but had given a full account in interview, the judge should at least have summarised the main points made by Toluwaslase Odunewu in that interview.

Ethan Dedman's grounds also criticise the judge's summing-up as fundamentally unbalanced in his case, although it is fair to say that Mr Johnson did not advance his case orally on this at the hearing. In counsel's written advice accompanying the grounds of appeal, it is said that the judge's factual summing-up had failed to reflect the cardinal lines of Ethan Dedman's defence and that she had not given an impartial recap of that evidence.

In response, Mr Orchard pointed out that no complaint had been made about the judge's summing-up at the time, despite all counsel having been given the opportunity to do so. The judge had provided a fair and balanced summing-up to the jury. All of the issues were clearly identified and Ethan Dedman's evidence had been appropriately summarised.

We agree with Mr Orchard. The summing-up was not unfair. As can be seen from the transcript, on every occasion when there was a break for any reason the judge asked counsel if there was anything they wished her to say, any omission which they would wish her to correct. She reminded the jury of where in the bundle they could find Toluwaslase Odunewu's evidence and what his answers had been in interview. With the exception of Mr Clark's short objection made to her of her use of the word "chase" instead of "follow", culminating in his invitation to her to say nothing more about it, no counsel sought to advance any correction at the time.

Finally, the Registrar drew the attention of the parties to the decision of this court presided over by the Lady Chief Justice in R v Cunningham and others [2025] EWCA Crim 662. Counsel relied on it to criticise the directions given by the judge to the jury as regards self-defence, alternatively defence of another. The judge here did direct the jury that they had to be sure in the case of each principal offender that that offender was not acting in lawful self-defence or defence of another and that if they were not sure of that in respect of the principal offender, then all the defendants were to be acquitted in respect of that particular allegation. In the route to verdicts document which was provided to the jury, the judge set out questions which accorded with this approach but at no point did she say when considering the guilt or otherwise of a secondary party that the jury had to be sure that the secondary party was not assisting or encouraging the principal party to do so something which the secondary party may have believed was necessary and reasonable for defensive purposes, independently of the position of the principal offender. It is now argued by reference to Cunningham that the judge should have given such a direction.

No counsel asked the judge to give any such direction at the trial. We are satisfied that that was because there was no need for it in this particular case. The judge did direct the jury that before they could convict a defendant as a secondary party of either murder or the section 18 offence, they had to be sure that the secondary party intentionally assisted or encouraged the principal to stab the victim, intending that the victim should be caused at least really serious harm. This aspect was dealt with in the route to verdicts document but not the further direction for secondary parties which is now contended for. However, no defendant alleged to be a secondary party said, either in evidence or in interview, that they thought it was necessary for the principal to inflict really serious harm by stabbing for defensive purposes, or that it would have been reasonable to have done so. We are satisfied on the facts here that these questions simply did not arise given the way the respective cases had been advanced by the parties. If joint participation was proved in the way set out by the judge, no one had sought to say that there was any room for argument about the unlawfulness here of such assistance or encouragement. It inevitably followed. There is nothing in this ground of appeal.

The defence for Ethan Dedman have applied to add a new ground of appeal based on fresh psychiatric evidence in the form of reports from Dr Reeves dated 15 September 2025 and 4 November 2025 and Dr Harvey dated 28 January 2026, both instructed by solicitors acting for Ethan Dedman. It is said that this evidence, unavailable at the trial, shows that at the time of the incident Ethan Dedman was suffering from an undiagnosed psychotic illness, namely paranoid schizophrenia giving rise to the possible partial defence of diminished responsibility.

We heard the medical evidence de bene esse before reaching a decision as to (1) whether to admit it pursuant to section 23 of the Criminal Appeals Act, (2) to permit Ethan Dedman to amend his grounds, and (3) whether to give leave and allow the appeal on this ground. Plainly these decisions are all linked.

We have seen and considered the written reports from the two psychiatrists mentioned above, together with a third from Dr Church dated 23 March 2026 instructed by the CPS. The experts were able to meet together immediately before the hearing, producing a short, agreed statement. Their statement relevantly records:

Having received and considered the joint statement, we proceeded to hear oral evidence from Dr Harvey and Dr Church. Since Dr Reeves had indicated at paragraph 12 of the joint statement above that she was not in a position to comment on medico-legal matters such as diminished responsibility and since all the experts held the same opinion concerning Ethan Dedman's current diagnosis of paranoid schizophrenia, counsel agreed that it was unnecessary to hear further from her.

In their evidence Dr Harvey and Dr Church essentially confirmed their opinions reflected in the joint statement recorded above. Dr Harvey agreed that his opinion at the time he considered Ethan Dedman's case in October 2023 and subsequently in 2024 was that Ethan Dedman's reports of hearing voices and having thoughts that his friends and his parents were against him were likely to be aspects of his ASD and complex PTSD, rather than symptoms of a full-blown psychotic disorder. However, since Ethan Dedman's extended stay and assessment at the Gardener Unit under the care of Dr Reeves, he now considered that his earlier opinion had been wrong and that the voices and experiences which Ethan Dedman was reporting were more likely to be manifestations of a mental illness, paranoid schizophrenia, from which Ethan Dedman had been suffering or the last four to five years, well before the offending with which this appeal is concerned. Dr Harvey now believes that at the time of the incident and the evening of 5 May, Ethan Dedman was suffering an acute psychotic episode, voices telling him that he could not trust his friends or parents, along with delusional beliefs that they were trying to harm him. He said that the nature of schizophrenia is such that it can impact on a person's understanding of what is going on around them and their reaction to it. As he believed Ethan Dedman to be suffering from paranoid schizophrenia at the time, it suggested to him that his mental state was significantly disturbed. His opinion that Ethan Dedman would have been unable to exercise a rational judgment was based on the nature of the illness from which he now believes Ethan Dedman was suffering at the time and upon what Ethan Dedman had told him of what he was experiencing over that period: auditory hallucinations, delusional beliefs about people plotting against him and references to a war.

In cross-examination, Dr Harvey agreed that drug use is a risk factor for developing a full-blown illness and that Ethan Dedman had been taking drugs both at the time of the incident and subsequently in custodial settings. It was put to him that in order to make a diagnose under ICD 11 the symptoms associated with schizophrenia had to have been present all or most of the time for at least a month and that at the time in May 2023 such an illness could not have been diagnosed. Dr Harvey responded that it might have been able to, had a more comprehensive assessment (such as the one undertaken later in the Gardener Unit) been undertaken again. Dr Harvey confirmed that he had now seen the CCTV of the incident, having not done so at the time of preparing his written report but said there was nothing which he had seen that supported his view about Ethan Dedman's illness at the time, or contradicted it. He said he had not been shown and thus had not read the transcript of Ethan Dedman's evidence at trial.

Dr Church's view was that whilst Ethan Dedman was at risk of developing a psychotic condition in May 2023 by reason of the conditions which everyone then knew about, namely his ASD and complex PTSD, he would not then have been given the diagnosis that he has since been given. He emphasised that as Dr Harvey had pointed out in his report from October 2023, it is not uncommon for young people with ASD and complex PTSD to manifest pseudo-psychotic symptoms at times of heightened stress. In Ethan Dedman's case, substance misuse was another layer over the top of that. Dr Church said that he had seen nothing in the evidence to suggest that Ethan Dedman was experiencing a psychotic episode at the time of the incident and alongside that no evidence of any substantial impairment on his ability to form a rational judgment before, during or after the offence. There was nothing about Ethan Dedman's behaviour during his travel there, his interaction with others or his travel away afterwards, all of which was captured on CCTV, to suggest any substantial impairment to his ability to form a rational judgment or his ability to exercise self-control. Dr Church accepted that there was a limit to what CCTV could show but pointed out that it was possible to observe and assess behaviour for any evidence of psychotic symptoms. He gave head shaking, pacing, disorganised behaviour and sudden movements as examples of what evidence there might be, saying that he had seen no indication of that.

As to Ethan Dedman's evidence at trial, Dr Church's view was that it indicated a good understanding and a good performance under very difficult conditions for any young person but especially one with Autism Spectrum Disorder. Ethan Dedman appeared to understand, answer appropriately, offer a degree of detail and show an element of assertiveness in cross-examination. The account Ethan Dedman gave to him of the incident on 5 May 2023 was the same as the one he gave at trial: that there were lots of people fighting each other, he thought he was going to be attached so he got his knife out to defend himself. Dr Church said that he did not consider this to be an irrational account of events.

Mr Johnson submitted that Dr Harvey was a witness capable of belief and that if the jury believed him then his opinion would afford Ethan Dedman a defence. To the extent that reliance may be placed on Ethan Dedman's evidence at trial, that had been a year on from the incident and was given in very different circumstances. He suggested that Drs Reeves and Harvey had spent far more time with Ethan Dedman and stressed that they were both of the view that he had been suffering from schizophrenia at the time.

Mr Orchard argued that the evidence was simply not compelling enough to be capable a supporting a partial defence. Ethan Dedman would not be in a position to prove on the balance of probabilities that he was suffering from any abnormality of mind, still less one that substantially impaired his ability to form a rational judgment or to exercise self-control at the time of the offending. Dr Harvey had been instructed on a number of occasions in the months between the incident and the trial, specifically to address the possible relevance to Ethan Dedman's offending of any aspect of his mental health. He had not provided any comment or opinion at that time which might have triggered a defence. There was nothing in the evidence to support a diagnosis of paranoid schizophrenia at the time of the offending. Ethan Dedman gave a full account at trial of his understanding of what had happened and his reasons for acting as he had. There was nothing in what he said in his evidence or in his manner of giving it which suggested any disturbance in his thinking at the time of the incident.

Section 2 of the Homicide Act 1957, as amended by section 52 of the Coroners and Justice Act 2009, relevantly provides:

The burden of establishing diminished responsibility is on the defendant. The defence must be demonstrated to the civil standard of proof, i.e. on the balance of probabilities. It is not necessary for a defendant to admit the actus reus or mens rea of murder before relying on a defence of diminished responsibility, however as the Court of Appeal noted in R v Curran [2021] EWCA Crim 1999 at [39]:

The admission of fresh evidence in appellate proceedings is governed by section 23 of the Criminal Appeal Act 1968 which provides:

The general approach to the admission of fresh evidence on appeal was expressed by this court in Foy [2020] EWCA Crim 270 at [50] as follows:

In CCRC ex parte Pearson [2000] 1 Cr.App.R 141 the Divisional Court, having reviewed relevant case law, noted that the exercise of the discretion to admit new evidence pursuant to section 23 would necessary be considered on a case-by-case basis. As to the exercise of that discretion, the court observed at page 164 as follows:

With the above in mind we have considered whether the fresh psychiatric evidence seen in the context of all the evidence at trial would afford Ethan Dedman a defence of diminished responsibility such as to render his conviction for murder unsafe. We have concluded that there would be no prospect of Ethan Dedman making out the defence of diminished responsibility on the balance of probabilities. The first requirement for the defence of diminished responsibility is that the defendant must be shown to be suffering from an abnormality of mental functioning which arose from a recognised medical condition. Although it was recognised that Ethan Dedman suffered from a number of mental health conditions at the time - ASD, complex PTSD, disorder due to use of cannabis - no one suggested that these gave rise to a relevant abnormality of mental functioning. Dr Harvey's report from October 2023 recorded Ethan Dedman telling him this about his mental state at the time of the offending:

Dr Harvey's conclusion regarding whether Ethan Dedman was suffering from mental disorders other than those know about at the time was unequivocal:

Dr Harvey's contemporary report is consistent with Dr Church's view that there is nothing in the evidence relating to Ethan Dedman's behaviour in the days leading up to the incident or immediately afterwards which would suggest or support a diagnosis of paranoid schizophrenia at that time.

But even if one were to accept that Ethan Dedman could have been given a diagnosis of paranoid schizophrenia at the time, the partial defence would further require him to show to the civil standard that he was significantly impaired in one or more of the aspects covered by (1)(a) of section 2 of the 1957 Act: understanding the nature of his conduct, forming a rational judgment or exercising self-control. The experts agreed that Ethan Dedman's ability to understand the nature of his conduct was not affected: see paragraph 14 of the joint statement. As to Ethan Dedman's ability at the time to form a rational judgment or to exercise self-control, we see no prospect on the evidence of his being able to demonstrate substantial impairment in either of those aspects as (i) there was nothing irrational in Ethan Dedman's account given to Dr Harvey above about his reasons for joining the attack and (ii) Ethan Dedman has never said that he lost control.

Further, Ethan Dedman gave a full explanation for his behaviour on oath at the Old Bailey during his trial which was entirely rational, betraying no thought disorder or loss of control as the events unfolded. There are many examples to be found in the transcript of his evidence, including these:

And then later on:

And then later:

These accounts provided by Ethan Dedman at trial show him thinking clearly, making rational observations about what was taking place and adjusting his responses accordingly. It is of note that Dr Harvey had not seen this transcript when giving his opinion on aspects of the partial defence of diminished responsibility. It is evident that Ethan Dedman was well and carefully represented by his solicitors in preparation of the trial. They repeatedly sought opinions on Ethan Dedman's mental health and whether it might afford him a defence, yet none was able to be advanced at trial. One of the circumstances given in Pearson (above) as an example of a case where fresh evidence would be refused was this: "evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence". The fresh evidence sought to be advanced on behalf of Ethan Dedman appears to us to be just such an example. It is for these reasons that we refuse the application to admit further evidence under section 23 and the application to amend the grounds. Ethan Dedman's conviction is not unsafe.

For the reasons we have given, each of the renewed applications for leave to appeal conviction are refused.

We turn now to the appeals against sentence. We have already recorded that Jamal Trotman and Ethan Dedman have leave to appeal their sentences. Michael Tommy-Mbogba seeks to renew his application for leave. Toluwaslase Odunewu has not sought to appeal his sentence.

We begin by acknowledging that no sentence can put right what the appellants have done. We have read moving statements which describe the pain that has been caused by Jordan Kukabu's murder.

It is convenient to deal with Michael Tommy-Mbogba first. It is agreed that the judge took the correct starting point when setting his minimum term for murder, namely 25 years, because he took his machete to the scene of the murder intending to have it available to use as a weapon and did in fact use it to commit the murder of Jordan.

The judge had then to consider the aggravating and mitigating factors. This was not an attack by one person who had brought a weapon to the scene. As the judge observed, this was a group attack by four people all carrying machete-style knives in front of members of the public. Being part of an armed group increases the seriousness of each individual's offence of murder, regardless of whether or not the consequences are more extensive than if an offender had been acting on their own. The culpability is greater because of the element of co-ordination and confederacy. The judge also pointed out that Michael Tommy-Mbogba's offence was aggravated by the fact that he was on bail for possession of a bladed article and for two offences of possessing class A drugs with intent to supply them on 15 April 2023.

The judge made reference to Michael Tommy-Mbogba's age when dealing with his personal mitigation. He was 20 years and four months old at the time of the offences. She said that he had not been convicted of any offences when he committed the present offences although he had been on bail for the 15 April offences. The judge said that he told the probation officer that he had supplied drugs since March 2023 and regularly carried a knife for protection. She noted that the probation officer said he presented as a mature young man whilst querying his level of psychosocial maturity. The pre-sentence report described a very unsettled childhood. However, reference was made to a positive relationship with his mother which provides valuable support for him. The psychiatric report found no underlying mental health disorder but put him in the low average range of intellectual functioning. The judge said that it was a significant mitigating factor that the offenders were not the first to threaten violence, the occupants of the car were clearly intent on using or threatening violence against them. However, in our judgment that has to be tempered by the fact that the judge also said that none of them had explained why they were together and so heavily armed outside the underground station on the night of the murder and she said she was sure that each of them was prepared for a violent altercation that evening. The fact that the judge said she could not be sure that Jordan's murder was planned or premeditated has to be seen in this context. She also said she was sure that he had not had a gun, as had been claimed.

The judge did not find as a mitigating factor that Michael Tommy-Mbogba had only intended to cause really serious harm. She said she was sure that he intended to kill his victim. She had the advantage of having heard the evidence in the case which included the fact that the victim died as a result of a single stab wound to the heart, although Michael Tommy-Mbogba had made at least five stabbing motions towards him. The wound was approximately 10 cm deep and had punctured the sternum and broken bone. The pathologist said that the force used had been severe or approaching severe. The victim was trapped in the vehicle at the time. We are satisfied that the judge's conclusion was open to her in the light of the nature of the weapon, the location of the injury and the force used.

Michael Tommy-Mbogba had told the author of his pre-sentence report that he had acted in self-defence when he stabbed Jordan. The jury rejected that by their verdict. The judge said that Michael Tommy-Mbogba's comment to the probation officer meant that he had not shown any genuine remorse. For our part we note that he had expressed his remorse in a letter to the judge and that the author of the pre-sentence report, to whom Michael Tommy-Mbogba had actually spoken, thought that his expression of remorse was genuine. He had also expressed a desire to change the way he thought and behaved. We would not dismiss what the appellant said, although only time will tell where his sentence reflected in his future progress.

Importantly, the judge also had to reflect Michael Tommy-Mbogba's further offences in the minimum term so that there was effective punishment for them, whilst at the same time ensuring that the overall term was just and proportionate. The offence of wounding with intent committed at the same time as the murder was agreed to be a category A2 offence in the applicable sentencing guidelines, with a starting point of seven years' custody and a range extending up to 10 years. The judge passed a sentence of six years' imprisonment for this offence in respect of the second victim on 5 May 2023.

The offence of violent disorder committed on 3 May 2023 was in our judgment a serious offence of its kind. The judge said she was sure that the four offenders and two others had approached the Toyota vehicle in Dagenham with hostile intent. Michael Tommy-Mbogba, Jamal Trotman and Toluwaslase Odunewu were all carrying and brandishing machetes. Six people surrounded the vehicle, two others had knives. Jamal Trotman banged his machete on the bonnet. One of the others tried to open one of the doors before the car drove off. It seems to us that the offenders must have been prepared for an armed confrontation on this occasion. Indeed, by approaching the vehicle they appear to have sought it out. The offence was certainly intended to result in serious fear or distress to anyone in the car, although how the occupants in fact took what happened is not known. The guideline makes explicit reference to harm that was caused or was intended to be caused, so this would be category 2 harm. But for the fact that the vehicle drove off, there was every chance that serious acts of violence would have occurred whilst five weapons were carried, which might suggest that culpability was in the order of category B. A B2 offence has a starting point of two years' custody.

Michael Tommy-Mbogba gave an account of having been coerced into supplying class A drugs. One category 3 lesser role offence has a starting point of three years' custody. He said he had been supplying drugs since March 2023. He pleaded guilty three days before the trial listing. He also pleaded guilty to possessing a bladed article. A category A2 offence has a starting point of six months' custody. A knife was possessed for protection whilst dealing in drugs.

In our judgment, the principal question as the judge had to decide was what allowance to make for Michael Tommy-Mbogba's age on the sentence for murder and how much of an increase was to be made for all the additional offences. She would have been mindful of the starting point in schedule 21, where the minimum term for an 18-year-old who takes a knife to the scene of a murder is 23 years' custody. We cannot see that the judge could have taken a lower figure in this particular case. We have no doubt that had they been committed in isolation the sentences that the judge imposed for the remaining offences would have been amply justified, indeed the sentence for violent disorder could have been significantly longer, they were all serious offences. But in this case, those sentences had to be considered as part of the overall sentence upon a young man who had committed murder at the age of 20 for which he was going to receive a very long sentence. The extent of further punishment for further offences had to take account of that. We are persuaded that insufficient allowance was made for this. Set against the requirement that the overall sentence should be just and proportionate for the totality of the offending, we have concluded that the minimum term of 29 years was manifestly excessive and that the appropriate minimum term before deduction for days spent on remand should have been one of 27 years' imprisonment.

We deal next with Jamal Trotman. He had faced particular challenges at a young age, including the death of his father when he was aged 13. He had spent time in care after his mother had been sent to prison. His education had been seriously disrupted. He was described as vulnerable to exploitation by others. The psychiatric report concluded that he had suffered from post-traumatic stress disorder since the death of his father. There are reports of bad behaviour whilst in custody but there have also been some improvements, including good engagement with his prison key worker, which is a positive development.

Jamal Trotman was 16 years and four months old at the time of the offences. In his case because a weapon had been taken to the scene the starting point for the minimum term was 17 years. The judge said that in the case of each offender aged was catered for "to a certain extent" by the starting points. As in the case of Michael Tommy-Mbogba, the judge said that the offence was aggravated by the fact that Jamal Trotman was one of four-armed offenders and by the fact that he pleaded guilty on 3 May 2023 to possessing a bladed article and to possessing cannabis. The judge made the same points about the offender's group not being the first to threaten violence and that Jordan's murder was not planned or premeditated, although they had all been prepared for a violent altercation. She said she could not be sure that Jamal Trotman had intended to kill Jordan. We think that is of limited weight in the context of an attack by four people armed with machetes where the risk of death was obviously very high and where the jury found that Jamal Trotman did intend to murder Matthew Adekoya during the same incident.

In our judgment, the central questions for us relate to the impact of Jamal Trotman's age and the uplift for the additional offences. The appropriate starting point for someone of Jamal Trotman's age is determined by schedule 21. The fact of his age would also be relevant when considering the appropriate sentences for the additional offences and when determining how much of them should be factored in by way of an increase to the minimum term. The judge passed a sentence of 13 years' detention for the offence of attempted murder. It was agreed that for an adult the offence would have fallen into category B3 of the applicable sentencing guidelines with a starting point of 20 years' custody. The adult guideline did not of course apply to someone of the appellant's age and the judge would ordinarily have taken something between one-half and two-thirds of the adult sentence. She said that she approached the sentence for this offence in accordance with the guidelines for sentencing children and young persons, but she did not say what the sentence for an adult would have been or what proportion of it she was taking. She said that because this offence was all part of the same incident as the murder, she did not need to say anything more about the aggravating and mitigating features of it. She concluded that it was appropriate to pass no separate penalty in respect of the offence of violent disorder. Having given the matter careful consideration, if the offence of murder had stood alone we think that the balance of mitigation would have called for a term below the starting point of 17 years. However, the offence of violent disorder on 3 May was sufficiently serious, relevant and proximate to events on 5 May to mean that it justified some increase in the minimum term and all the more so for the offence of attempted murder. But to ensure that the total sentence was just and proportionate, the increases have to be judged against the background of a minimum term which was already very significant for someone who was only 16 years old at the time of the offence.

We are persuaded that the uplift applied in Jamal Trotman's case was too long and that before deduction of days on remand the minimum term should have been one of 20 years rather than 23.

We deal finally with Ethan Dedman. He was 15 years and five months old at the time of the offences. He had not previously been convicted of any offence. He had been exploited by others who involved him in dealing drugs. He had been robbed at knife point in October 2022 and then arrested whilst drug dealing in November 2022. His exploitation was reported to social services. He was subsequently the subject of a Conclusive Grounds Decision that he had been the subject of trafficking.

As already referred to, the judge had a number of reports from psychiatrists diagnosing at the time, amongst other things, ASD and complex PTSD. It is clear now that Ethan Dedman suffers with paranoid schizophrenia. He was transferred from custody to hospital but has presently been returned to custody. He has supportive parents who have been extremely concerned about the very evident vulnerabilities and challenging behaviours he has presented with. During the preparation of his pre-sentence report it is said that he expressed some remorse for what happened. It is nonetheless clear that his childhood has been extremely troubled and that there is a lot of progress which needs to be made.

The starting point in his case for the minimum term for murder under schedule 21 is also 17 years. The judge took account of the same aggravating and mitigating features that we have already mentioned. She noted that although he produced his machete, Ethan Dedman had not used it to injure anyone. The minimum term had also to take account of the offences of violent disorder and wounding with intent.

We can take matters shortly in his case. We have concluded that in light of the nature of his childhood, the way he had been exploited and the fact that it is now clear that his mental health difficulties were in part the precursor to the subsequent diagnosis of schizophrenia, some reduction is required to his minimum term. It is clear that his mental health issues will make the sentence harder for him to serve. In our judgment, the minimum term should be one of 14 years rather than 16 years before deduction of days spent on remand in custody. The other sentences will all remain unaltered.

In conclusion therefore, in the case of Michael Tommy-Mbogba, we grant leave and allow the appeal to this extent: the sentence of 27 years and 208 days is quashed and replaced with a minimum term of 25 years 208 days.

The appeals of Jamal Trotman and Ethan Dedman are allowed. Jamal Trotman's minimum term of 21 years and 235 days is quashed and replaced with a minimum term of 18 years and 235 days. In the case of Ethan Dedman, the minimum term of 14 years and 207 days is quashed and replaced with a minimum term of 12 years and 207 days. As we have said, all other sentences remain unaltered.

MISS DEMPSTER: Would it be appropriate to ask for a representation order on behalf of Michael Tommy-Mbogba, particularly for my junior?

LADY JUSTICE MAY: In relation to the appeal against sentence, yes, of course, for both counsel.

MISS DEMPSTER: Thank you very much indeed.