Arfan, R. v

On 3 0 ¹¹' January 2012 Trafford Magistrates Court sent Mohamnned Arf'an, together with Ymran Qasar, Stuart Ryan and Travis Holness fbr trial at Minshull Street Crown Court Manchester on a charge of causing Steven McDonald grievous harm with intent contrary to 18 of Offences Against the Persons Act 1861 ^rl'he other three defendants (wha are charged with the same offence) have been arraigned, entered Not Ciuiity pleas and are due to be tried on 3 ^rd September 2012 with a time cstimate of' 3 weeks.

Mohammed Arfan applied Ibr the charge against him to be disnlissed and. on 3 ^rd August 20 1 2, I Il IJ Khokhar acceded to the application.

The prosecution case in outline is as 10110ws. On Friday 30^th Decernbcr 201 1 Steven McDonald and three friends (Mathew Hampson, Christopher Hampson and Daniel Green) were drinking together in various Manchester pubs, At about 2.01 am the following morning (and so now on 3 1 ^q Decennber '201 1) they to the Taste Buds Takeaway in Sale. There is a second branch of Tastc Buds in Altrincham. Both arc owned by lhc father of Qasar and Arfån. Qasar was in the Sale branch when McDonald and his friends went in. A fight took place between Qasar and Mathew Hampson. It broken up by Michelle Bruce. Hampson and his three friends then walked away.

One of' the other customers in Taste Buds, Michael Atkin, describes a Red Smart Car arriving and two males who were 'pumped up' were talking 10 a nyan who had been working in the kitchen, Qasar left the shop as a voice on the CCTV can bc heard saying "No, no. I beg you", Qasar got into the Snuat•t car and drovc off.

At about the time that the fight bctween Qas'ar and Mathew Hmnpson was taking place in Sale, Arfan, Ryan and Ilolness left the Altrincham branch of Taste Buds. They got to the Sale branch (which was about 3 Iniles away) al 2.26am. An employee shouted to them --MO, Springfield, Springfield" and the three of them ran out of the shop. 'l'hey met up with Qasar on Springfield Road.

In interview, Arfan was asked al»ut Ryan. Ile said that he was aware that Ryan was a 'decent' kick boxer. [Iolness has previous convictions for violencc. He was listed in Arfan's mobile phone as 'T Dog'. When asked about this. Arfan said he had listed Holness' number undet a previous friend's nickname. It was a coincidence that 'Dog ^s was a reference 10 gang connections.

Arfhn said in interview that he only' knew his brother had bccn assaulted when he met him on the Springfield Road. He said he went looking for the complainant group to call the police. There are no calls to the police in the data for his mobile phone. He said he, had not made any calls during the incident. However, the call data do show hill) making calls Ihroughout the period of the incident.

Meanwhile two other inen attacked Steve McDonald. Daniel Green says that they were: (a) the Asian male who had previously bccn involved in the argument with Mathew Hampson. He identified Qasar as this person; (b) a white matc in a red top. The only person in thc group who fitted this description was Ryan. The case is that it was Arfan and Holness who chased thc Hampsons.

Daniel Green turned back as Lhe two men were attacking Steven McDonald. One turned to him and said •you better run' and one of the men kicked out at hirn. These mcn then drove OIT, but they returned a short titne later and D,tniel Green, who was trying to help Steven McDonald. was chased a short distance down Brooklands Road. One "'itness said that Qasar shouted "l'ry and jump me now'. Other witnesses described thrcc rncn getting out of the car when it returned, In interview, Arran admitted that he was one of the three but said that he was shocked by the condition of McDonald. took no part in chasing Green but tried to assist the. injured man.

An arnbulance arrived at 2.40aN1. Steven McDonald was taken to hospital, He was found to have suffered subdural haelnatoma and fractures to his skull as well as a number of cuts and abrasions to his head and other parts of his body. A consultant has said that the injuries are consistent with kick or stamp to the head,

The Crown puts its case against Arfan in two ways:

The Crown has provided me with a two pagc document entitled •Findings of IIHJ Khokhar'. In their response to this application {Or leave to prcfcr a voluntary' bill, counsel for Arfan comrncnted that I ought to have a transcript of his decision. I agreed that this would be preferable. I loweve.rs in vic»,•• of the shortage of time before the trial of thc other three defendants was due to start. I directed that this should be obtained only if it was "reasonably practicable". As an alternative. I directed thal I should bc provided with an agreed note of the Judge's decision. In the event, it seems that a transcript could not be obtained and no agreed note was Ibrthcorning. I Inust therefore make do. as best I can, with the notc provided by the Crown. I observe that the dcfie.nce has not suggested that this contained any specific inaccuracy.

The Crou^rn had referred to the case of R v A OJ FWCA Crim 1622 for the proposition that a defendant who set out with others 10 cornrnit crirnc A would be guilty of crime B so long as hc foresaw that his co-accused might commit thal oflizncc. 'lhis was the legal foundation for the allernalivc way in which it put its case against Arfan. Judge Khokhar rcjccted this in these terms. v A was not of assistance to delerlmining this application, because the clcfendant group split up the two who actually physically assaulted Steven McDonald were on a •frolic of their own"'

In support of the present application, the Crown has, in efTéct, repeated the submissions which they rnadc to Judge Khokhar.

"I'he Del&ncc tnade submissions in writing on 21 "t August 2012. I gave the Crown the opportunity to respond in writing. but nothing further was received. This was not a casc where I considered it necessary or desirable to invite oral subno issions.

'(he Administration of Justice (Miscellaneous Provisions) Act 193.3 s.2(6) authorises the making of rules of procedure for voluntary bills ol' inclictlncnt and these are contained in Rules 6-10 ol' the Indictment (Procedure) Rules 1971. In this casc the C'rown has complied with Lhesc forma] requirernents,

Howcvcr. the Practice Direction (Criminal Proceedings: Consolida/ion) [2002] I WLR 2870 para says ''The preferment of a voluntaty bill is an exceptional procedure. Consent should only be granted uhere good reason to depart from the nonmal procedure is clearly shown and only where the intcrcsts of justice, rather than considerations of administrative convenience. require it."

Where the 'normal procedure' has involved a successful application to dismiss a case sent t.o the Crown Court, the authorities underline thc caution which should be exercised before a High Court Judge grants leave to prefer a voluntary bill - R Christine Davenport Ors [2005] EWIIC 2828 (QB) Pitchers J, at [21] [23] and R v McGuiness [20071 EWHC' 1772 (QB) Griffith Williarns J. at 161. Witliout atLcrnpling 10 give an exhaustive list, there may be circumstances which would justify the granting of leave if the Judge who had dismissed the charge had taken the decision without regard 10 a relevant statutory provision or judicial authority, or had otherwise erred in law, or if the C',rown had ncw evidence which made a significant dif'(érence to its case, or if the decision to dismiss lacked a rational foundation.

The test for dismissal of a charge is set out in paragraph 2(2) of Schedule 3 of the Crime and Disorder Act 998 I he judge shall dismiss a charge if il appears to him that the evidence against the applicant would not be sufficient for hirrl to be properly convicted." In el'l'ecl the Judge must apply the same test as on a submission of "No case to answer' see R v Thompson und Hanson 120071 1 Cr App R 15.

Contrary to the suggestion of the defenee, it is no abuse of thc process for the Crown 10 apply Ibr a voluntary bill of indictment when that procedure is authorised by the 1998 Act, However, the are correct to say that thc application will only succeed if the Crown can show that the circumstances are exceptional. In this case, the Crown has not suggestcd that Judge Khokhar applied the wrong test, ignored relevant legislation or authority, reached a dccision which was irrational or otherwise erred in law. 'Ihc Crown has not suggested any other reason why the case is exceptional.

Count 2 of the draft indicLmenL would charge AriUn with violent disorder. The Crown has provided no explanation as to why this was not included in the original indictrnent or why, exceptionally, he should nou bc proscculed on that charge by the voluntary bill of indictment procedure.