R v Mikail Jones

This is an appeal against conviction brought by leave of the Single Judge. The grounds of appeal are: ( 1) that the trial judge was wrong to refuse the submission that there was no case to answer on the main issue, which is one of identification and (2) that the judge should have acceded to a defence application to stay the indictment as an abuse of process. Since the second ground logically arises first, we will address them in that order.

On 19 June 2025, the appellant (then aged 19) was convicted after trial of robbery, which was the sole count on the indictment. On 19 September 2025, by which time he had turned 20, he was sentenced to 20 months' detention in a young offender institution, suspended for 2 years with a rehabilitation activity requirement of 30 days, 180 hours of unpaid work and supervision for 2 years. His co-accused, Amaan Khan, who was the same age, was also convicted of robbery and given an identical sentence. Both were of previous good character.

The robbery with which the appellant and Khan were charged was committed in the early hours of the morning on 2 October 2022, when they were both 17 years old. They were not charged until 20 December 2023, by which time they were aged 18. Therefore they were sent from the Magistrates' Court to the Crown Court for trial. A third defendant, Humza Ashraf (then aged 17), pleaded guilty to the robbery in the Youth Court and subsequently pleaded guilty to a charge of s.20 wounding in circumstances which have a bearing on the abuse of process argument and will be described in more detail later in this judgment.

The complainant, Sharjeel Ahmad, who was also aged 17, and living in care, knew all three defendants because they had attended the same secondary school. He was in the same year as the appellant, who left during Year 10, but they did not attend the same classes, and there were 360 pupils in that year alone. He had known Amaan Khan much longer. They had been friends from their early school days. At one time they lived in the same road. They attended the same classes at secondary school.

Ahmad's account of the robbery was that Amaan Khan contacted him on the afternoon of Saturday 1 October 2022 and rang him again in the early hours of the morning on 2 October. On that occasion Khan said that he had been kicked out of his home by his mother and he had nowhere to stay. He asked if they could meet outside a shop which was a few minutes' walk from Ahmad's home. Ahmad went to the meeting carrying a designer bag containing £80 in cash, two mobile phones, a designer wallet and a bank card. Within a very short time after he met up with Khan, two young males wearing blue surgical masks covering the bottom half of their faces rushed towards him, pushed him against a wall, and produced machetes. One of the masked youths cut him on the back of his head. One used the machete to cut the strap to his bag which they grabbed and then both the attackers ran off with Khan. The incident was fast moving and lasted around 3 to 4 minutes.

Ahmad returned home and his carer made a 999 call to the police. He was treated in hospital for the head wound. Photographs were taken of his injuries, which included multiple bruising to the face. Later that morning (2 October 2022) he provided the police with the first of two witness statements, in which he claimed that three Asian males he had never seen before ran towards him and Aaman Khan, and robbed him using machetes and a knife. Two were wearing blue surgical masks, the third had facial hair. Nothing was said at any time and all four, including Khan, then ran off. The witness statement contained a statement of truth, and was signed by Ahmad on all pages.

In his second witness statement, made on the following day (3 October 2022) Ahmad said he had been incorrect in his first witness statement. He named the appellant and Humza Ashraf as the masked attackers. He said that it was Humza who had caused the cut to his head, although both had knives. He believed that Amaan Khan had set him up, although he did not know why he would do so.

Humza Ashraf was arrested shortly afterwards. Some of the items alleged to have been stolen, including the bag, were found at his home address. He was charged and first appeared before the Youth Court on 4 October 2022. He pleaded guilty to robbery, and not guilty to charges of possessing a knife or sharply pointed article and to causing grievous bodily harm with intent. The basis of plea to the robbery was recorded as follows:

It was submitted by the prosecution that this was not really a basis of plea at all because it did not go to the commission of the robbery but was simply a dispute as to the value of items taken. The record indicates that the District Judge agreed.

A trial was set for 9 December 2022. This was listed for one day, to accommodate the co-defendants if they were arrested and charged. In the event, the appellant and Khan were arrested in November 2022. Each was interviewed under caution, with an appropriate adult and a solicitor present. They gave "no comment" interviews. They were not charged at that stage but granted conditional bail whilst further inquiries were made.

Ahmad failed to attend on the date of Humza's trial, making the excuse that his dog was about to give birth. This excuse did not impress the District Judge. The prosecution did not seek an adjournment, a live link or a witness summons. The court record indicates that, as a result of the displeasure articulated by the District Judge at the witness’s non-attendance, the prosecutor considered that "it appears at this juncture highly unlikely that a live link will be granted and we cannot prove those charges without our witness." It was against this background that the prosecution agreed to accept Humza's offer of a plea to the lesser offence of s.20 wounding in return for offering no evidence in respect of possession of the bladed article and the s.18 offence. Humza pleaded guilty to s.20 wounding on a basis (which the prosecution accepted) that: "no machete/knife was used in the offence." That could only be a reference to the offence in respect to which the guilty plea was offered, i.e. the s.20 offence.

The hearing record sheet records that at the sentencing hearing which took place in January 2023, the prosecution read out the basis of plea. The record states:

In the Crown Court, the robbery was charged as a joint enterprise in which two machetes or knives were produced and used. The prosecution relied on evidence of association, Agreed Facts which included the photographs of the injuries, CCTV evidence (which is rightly accepted to be poor) and, most importantly, the evidence of the complainant. In his evidence at trial, Ahmad said that he recognised the two attackers wearing the surgical masks and carrying machetes as the appellant and Humza Ashraf. However, contrary to his 3 October witness statement, he now identified the person who wounded him as the appellant. He accepted that he had lied to the police in his initial witness statement. He said he had recognised the appellant's voice, due to the tone and manner in which he was speaking. His mask was pulled down below his nose. He did not mention the appellant's name on the first occasion because he was frightened that something might happen to him in the future, even though there was no bad blood between them at that time. He also accepted in re-examination that he had lied to one of the police officers who answered the 999 call when he told her in his very first account of the incident recorded on her body worn camera footage that the reason Khan had called him was because Khan had got into a fight.

The issue for the jury was identification, and thereafter whether force was used to steal.

In the light of the disclosure of the hearing record sheet, containing the details of the proceedings against Humza Ashraf, the appellant's counsel, Mx Benn, applied for the indictment to be stayed as an abuse of process on the second basis recognised in R v Horseferry Magistrates' Court ex parte Bennett [1994] 1 AC 42 and R v Maxwell [2010] UKSC 48; [2011] 1 WLR 103, namely, that it would offend the court's sense of justice and propriety to try the defendant in the circumstances of the case. Mx Benn submitted that, absent fresh evidence or a change of circumstances, it was offensive to the court's sense of justice and propriety to permit the prosecution to circumvent a basis of plea agreed by it in one court by proceeding on a directly contradictory basis against other defendants in another court. Mx Benn relied by analogy on the case of CPS v Mattu [2009] EWCA Crim 1483; [2009] 4 ALL R 183.

Mx Benn also relied on the Attorney General’s Guidelines in respect of the acceptance of pleas and the CPS code for Crown prosecutors. They submitted that these had been breached by the Crown in proceeding against the defendants after accepting a basis of plea by Humza Ashraf that they described as both illogical and inconsistent with its own case. This, they argued, was in violation of the requirement that in cases involving multiple defendants the bases of plea for each defendant must be factually consistent with each other, with the requirement that the Crown should not agree on a misleading or untrue set of facts, nor fail to take proper account of the complainant's interests and with the requirement not to accept an illogical and insupportable base of plea. There had been no fresh evidence and no change of circumstances, as the complainant’s statements were available at all material times.

In oral submissions before us, on the question of whether there had been a material change of circumstance, Mx Benn submitted that whilst the fact that the complainant did not turn up at the trial of Humza and did turn up at the second trial constituted a change, it was not a relevant change of circumstances and certainly not one such as would justify the change of course taken by the prosecution.

In his written response to those submissions Mr Scott, who, like Mx Benn, was trial counsel, described the decision to accept the basis of plea in the Youth Court in relation to Humza Ashraf as "a short-sighted blunder". In his oral submissions to us today, Mr Scott rowed back a little from that description but submitted that it did not really matter whether the decision was a bad decision or a justified decision, the issue really was whether or not it would affront the public's sense of propriety that the defendant should be prosecuted in circumstances such as this. Mr Scott distinguished Mattu on the basis that in that case the Crown had accepted a very detailed basis of plea and then sought to go behind it in different proceedings against the same defendant for money laundering arising from the same events, a charge which could have been brought against that defendant at the time of the original trial. Mr Scott submitted that the integrity of the system would be undermined if a bad decision in the Youth Court were to be compounded by the Crown Prosecution Service being unable to properly exercise their prosecutorial discretion because of that decision.

The trial judge delivered a written ruling in which in essence he accepted the prosecution's arguments. He said that the basis of plea was not comprehensive, detailed or carefully drafted as it was in Mattu, and the decision to accept it was “undoubtedly very poor”. But that very poor decision should not be allowed to prevent the Crown proceeding further against these two defendants. The basis of plea was accepted against the background that the complainant had not turned up for a trial in the Youth Court, providing a very lame excuse, and the District Judge would have been unlikely to agree to an adjournment or a witness summons. However, by the time that the matter came to trial in the Crown Court, the complainant did give evidence and that was a justifiable change in circumstances.

Mx Benn submits that the judge erred in his approach to the exercise of his discretion to refuse a stay. They complain about the fact that the delay in charging the appellant and Mr Khan led to the two young men being tried in the Crown Court instead of the Youth Court. Moreover, the decision was taken to proceed against them despite the fact that their co-accused had been sentenced on an agreed basis of contradictory facts. The combination of the unjustifiable delay and accepted basis of plea deprived their client of the treatment afforded to Humza Ashraf. Mx Benn characterised the decision to proceed against the appellant as an attempt to avoid the consequences of the numerous breaches of the applicable guidelines when accepting the basis of plea in Humza Ashraf's case. Whilst they accepted there may be a justifiable concern about the prosecution fettering its discretion in the future, due to its own bad decision making, they submitted that there is also a pressing interest that the prosecution should make decisions that it then respects, and does not seek to evade, especially without a compelling justification.

In its Respondent’s Notice and in Mr Scott's oral submissions the Crown submitted that public interest required that the appellant be prosecuted for an offence of robbery of which he was reasonably suspected. It was not offensive to give effect to that public interest in this case. Whether or not a poor decision was taken in respect of the basis of plea offered by Humza, it should not create "path dependency" in the Crown Court on what were serious allegations.

In the written submissions reliance was placed on the case of R v Burke [2016] EWCA Crim 1954, which was said to be authority for the proposition that there is nothing inherently unfair in prosecuting defendants when co-defendants have provided bases of plea limiting their own culpability.

Burke was a case in which the defendant faced two counts of conspiracy to supply different Class A drugs. She was alleged to have played a leading role in converting currency for use in the purchase of the drugs abroad, in facilitating the sale of the drugs in the UK, and in money laundering the proceeds of the enterprise through legitimate businesses. The defence was one of innocent association. Four co-accused entered guilty pleas on the same indictment and submitted bases of plea which were not contested. The jury were told of the guilty pleas which established the existence of the conspiracies. However, the bases of plea were not disclosed to the defendant's defence team. In her appeal it was submitted that the prosecution presented the case against her in a manner which was inconsistent with those accepted bases of plea, by relying on contact between the defendant and those four co-defendants at times when according to their bases of plea they were not involved in the conspiracies.

The Court of Appeal held that the jury should have been told of the limited nature of the guilty pleas and the fact that the prosecution did not proceed against one of the co-defendants on the second drugs conspiracy. The failure to do so gave a misleading impression by suggesting that adverse inferences could be drawn from the contact between the defendant and those other individuals at times when they were accepted by the Crown not to have been involved. The defendant was denied the opportunity of using this information in support of her defence of innocent association. However, the court decided that there was ample other evidence to support the conviction notwithstanding these failings.

In order for an abuse of process argument to succeed on the second limb of Bennett and Maxwell, it must be established that in all the circumstances a trial will "undermine public confidence in the criminal justice system and bring it into disrepute" per Steyn LJ in R v Latif [1996] 1 WLR 104 at 112F, cited with approval in the judgment of Lord Dyson in Maxwell.

However, the second limb does not require it to be shown that there would be unfairness to the defendant. In his judgment in Warren & Ors v Attorney General for Jersey [2012] 1 AC 22, in which he elaborated on what he said in Maxwell, Lord Dyson made this clear at [35]:

This Court has examined the circumstances in which judicial interference in a decision to prosecute would be justified on a number of occasions since Maxwell and Warren. In one such case, R v BKR [2023] EWCA Crim 903; [2023] 2 Cr App R 20, Edis LJ, delivering the judgment of the Court said at [34]:

He then quoted the summary of the relevant legal principles by Lord Thomas of Cwmgiedd in R v Norman [2016] EWCA Crim 1564 at [21] – [23]. In that passage Lord Thomas indicated that the authorities required a two-stage approach to be taken:

As Edis LJ observed, four decisions of the House of Lords, Privy Council or Supreme Court were cited as authority for those propositions. He said the then Lord Chief Justice was not seeking to develop the law, he was stating it. Edis LJ went on to examine examples of cases involving the type of misconduct by the executive which might fall within the second limb of abuse of process as defined by the House of Lords in Ex parte Bennett. At paragraph [52] he said that the Courts must exercise care and restraint in the use of the power to stay a prosecution as an abuse of process, particularly where the issue is a decision to prosecute a case to trial which has been entrusted by Parliament to the CPS. On the facts of that case there was no suggestion of bad faith or deliberate abuse of power but simply a decision taken after consideration of the Code for Prosecutors with which the trial judge had disagreed.

Applying the two-stage approach here, the first question is: what is the alleged misconduct by the executive? Complaint is made about the delay in charging the appellant and Khan but that delay in of itself was not egregious as to amount to an abuse of process. Humza Ashraf was found in possession of some of the stolen items within a very short time after the robbery was committed. He decided to plead guilty to the robbery. By contrast, there was nothing to link the appellant and Khan to the incident other than the varying accounts given by the complainant, and they had made no comment in interview. The CPS wish to explore whether it was possible to find more evidence. That was not unreasonable. It so happened that both young men turned 18 before the decision to charge them was taken but the fact that this led to their being tried in the Crown Court instead of the Youth Court is not something which gives rise to a justifiable complaint about the conduct of the police or CPS, either in isolation or in conjunction with the submissions about going behind the basis of plea offered by Humza to a related offence with which they were never charged.

That means the misconduct complained of must either be the decision to accept the basis of plea from Humza which Mx Benn claims was taken in breach of various provisions of the Attorney General's guidance and the Code for Prosecutors, or the decision to prosecute the appellant on a factual basis that was in one respect different from the one accepted in the Youth Court.

We are not persuaded that there were any breaches of the guidance or the Code. This was not a case of an inconsistent basis of plea being accepted in respect of the same charge. Humza pleaded guilty to the robbery without putting forward any factual basis contradicting the Crown's case, apart from the inference to be drawn from his denial in response to the other charges that he faced that he was carrying a bladed article at the time. The basis of plea was offered to a lesser charge in respect of an offence of wounding with intent under s.18 with which the appellant was never charged, whether on a joint enterprise basis or at all.

Humza denied being in possession of a bladed article but admitted unlawful wounding in the course of the robbery to which he had already pleaded guilty. No knife was visible on the CCTV footage which, as we have said, was poor, and the key witness did not turn up at trial. It was obvious therefore that if the trial had gone ahead on the s.18 count the prosecution could not have proved that there was a knife used by Humza Ashraf or by anyone else on the victim. The photograph of the wound to his head was not supported by any medical evidence as to its cause. Had the offer to plead to s.20 wounding not been accepted, it is possible that Humza would have been acquitted of all charges other than the offence of robbery to which he had already pleaded guilty.

In those circumstances, it was plainly in the complainant's interests that the person who (at that time) he said had caused his injury should not escape punishment if that person was willing to accept responsibility for causing it, even if he denied using a bladed weapon to do so. The prosecutor appreciated that without the complainant's evidence, they could not prove that a bladed article was used to cause the open wound that was photographed. In fact, without the complainant, they could probably not prove that it was Humza who caused the wound. Viewed from that perspective, the decision to accept the basis of plea to the count of wounding was neither illogical nor insupportable. In those circumstances, the alleged breaches of the guidelines concerning the acceptance of pleas are not established.

However, even if they had been, the only person who can be said to have benefited was Humza Ashraf. The fact that a co-defendant may have been fortunate to receive the sentence that they did will not usually justify a complaint about a sentence that is otherwise in keeping with the criminality of the offence and an appellant's culpability for it. Still less is it a justification for arguing that the appellant should not have been prosecuted for the part he played in an offence, which the co-defendant has previously admitted and which would have been committed irrespective of whether weapons were used to threaten or commit the violence inflicted on the complainant. The decision to prosecute was taken on the basis that there was sufficient evidence that the appellant was one of the robbers.

The only complaint that could be laid at the door of the prosecution is that they decided to prosecute the appellant on a factual basis which differed in one respect from the basis of plea which was accepted in Humza's case and which, if established on the evidence adduced at trial, would increase the seriousness of the offence. The difference was that in Humza's case it was accepted by the Crown that he (Humza) did not carry a bladed weapon, whereas the appellant and Khan were prosecuted on the basis that he did. Whatever the prosecutor may have thought at the time, it was not part of the basis of plea that the other masked youth who was involved in the robbery did not carry a machete or other bladed article.

Humza had not been charged with the section 18 offence on a joint enterprise basis. It cannot be established that in accepting Humza's basis of plea to s.20 wounding the Crown unequivocally accepted that no bladed weapon was used in the robbery, though the Recorder assumed that they had. But even if it could be argued that this was a necessary implication, the decision to prosecute the appellant and Khan for robbery on the inconsistent basis that Humza and the appellant were armed with machetes, in line with the complainant's account, had no impact on the appellant's defence, which was that he was not present and that this was a case of mistaken identification.

Turning to the second question: does it undermine public confidence in the justice system that the appellant was prosecuted for the robbery in those circumstances? There was plainly enough evidence to charge the appellant with robbery. Robbery is a serious offence - marked by the fact that substantial sentences are regularly meted out for street robberies of this nature, even when committed by young people. This offence was preplanned to an extent, and committed by three youths of a similar age to and known to the complainant, one of whom was said to have lured him to the scene on a pretext whilst the others were wearing inept disguises. It took place in the early hours of the morning. On Ahmad's account two bladed weapons were produced and violence was not only threatened but used, resulting in an injury to his head which required hospital treatment.

The public interest in prosecution was strong. It would take some truly egregious conduct on the part of the Crown to counterbalance the public interest in prosecuting the alleged perpetrators in circumstances such as these. There is and can be no accusation of bad faith on the part of the prosecuting authorities, and there was no abuse of power involved. There was no violation of the appellant's rights. The Crown could not have prosecuted on the basis that no weapons were used, as that would have contradicted the complainant's account of what happened. They adhered to the account given by the complainant that the person who caused the injury to his head was Humza Ashraf. That account only changed when he gave his oral evidence. Moreover, as the Recorder recognised, unlike the situation which the Crown faced at Humza's trial on the s.18 count, the complainant turned up at trial to give that evidence. If ever there were a material change of circumstance justifying a change of stance, were it needed, this is it.

If anything, it would have undermined public confidence in the justice system if the appellant had not been prosecuted for the robbery, simply because a co-defendant who admitted his participation in that offence denied that he (the co-defendant) was carrying a machete at the time, and the Crown accepted at the time of that co-defendant's trial that it could not prove that he did carry one because the complainant did not turn up. The Recorder was plainly entitled to exercise his discretion to refuse to stay the proceedings as an abuse of process.

Ground 1 can be disposed of in shorter order. The case against the appellant essentially turned on the reliability of the identification evidence of the complainant which was quintessentially a matter for the jury to determine. Mx Benn submitted that Ahmad's evidence identifying the appellant was of such a tenuous nature and so internally inconsistent that, taken at its highest, no jury properly directed could have accepted it.

The Recorder was entitled to reject that submission. He had the advantage of seeing and hearing Ahmad give the evidence in question and evaluating how he withstood cross-examination. As he pointed out, Ahmad correctly identified Humza Ashraf as one of the perpetrators despite the fact that he was wearing a face mask. He was also in a good position to identify Khan, a childhood friend who was not disguised when he went to meet him. The appellant was known to him from school, albeit not so well and he said he recognised him by his voice and his manner of speaking.

This was not one of those rare cases in which the trial judge was able to form the view that the key witness was plainly untruthful (his impression was to the contrary), or that his evidence was so plainly unreliable that no reasonable jury properly directed could accept it. In those circumstances, he was right to leave the matter to them.

The summing-up on the question of identification is exemplary. The Recorder not only gave a classic Turnbull direction but specifically warned the jury of the additional need for further caution, where the identification was based on the tone and manner of speaking of the person concerned. He gave them a list of the relevant matters they should consider, including audibility, the period over which the speech was heard, any environmental factors affecting the hearing, the number of voices heard, whether the speech was heard directly, whether there was any distinctiveness or accent and the victim's degree of familiarity with the speaker. He also expressly warned the jury that it did not follow from the fact that the complainant had correctly identified Humza Ashraf as one of his assailants that he had also correctly identified the appellant.

He then went on to remind the jury of a number of matters on which the defence relied, including the fast moving nature of the incident and the absence of any corroborative forensic medical or mobile telephone evidence, and other matters affecting the reliability of the complainant as a witness, including his varied and inconsistent accounts of the robbery.

In short, every possible safeguard was put in place to ensure that the jury were properly directed and reached their decision fairly. They accepted the complainant's evidence as they were entitled to. We are satisfied that this conviction is safe. For those reasons, despite the very eloquent and robust way which Mx Benn advanced the submissions both in writing and orally before us today, this appeal is dismissed on both grounds.