Neutral Citation Number: [2005] EWCA Crim 1883
Case No: 2002/02377 & 2005/00709
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE TEESSIDE CROWN COURT
HIS HONOUR MR JUSTICE TURNER
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 July 2005
Before :

LORD JUSTICE PILL
MR JUSTICE OUSELEY
and
MR JUSTICE DAVIS
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Between :

	THOMAS PETCH & GEORGE ROMERO COLEMAN	Appellants	
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	THE QUEEN	Respondent	

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Mr T W Bayliss QC & Mr P Woodall for the Appellant Thomas Petch
 Mr A Senior for the Appellant George Romero Coleman 
Mr N C  Campbell QC & Mr I Skelt for the Respondent

Hearing dates : 14 June 2005
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Judgment

Lord Justice Pill: 

The background
1.	On 28 March 2002 in the Crown Court at Teesside before Turner J and a jury, Thomas Petch was convicted of one count alleging the murder of Kalvant Singh (Count 2), one count of causing grievous bodily harm with intent (Count 1) and three counts of wounding with intent (Counts 4, 5 and 6).  He was sentenced to life imprisonment on count 2 with a recommendation that he serve a minimum of twenty years imprisonment before being considered eligible for parole.  No separate penalty was imposed on the other counts.
2.	On the same date, George Romero Coleman was also convicted of murder (Count 2), causing grievous bodily harm with intent (Count 1) and two counts of wounding with intent (Counts 4 and 5).   He was sentenced to life imprisonment on count 2 and no separate penalties were imposed on the other counts.
3.	Petch appeals against conviction for murder by leave of the full court which also granted an extension of time.  Upon grant of leave to Petch, Coleman  applied for an extension of time and leave, relying on the same ground of appeal.  The applications were granted by the court.  
4.	A co-accused Jason Crossling was, at the same trial, acquitted of murder (Count 2) and of causing grievous bodily harm with intent (Count 1).  He was discharged.  Before the trial process had begun, Jason Crossling’s brother Jonathan Crossling and Frank Harrison against whom there were allegations arising out of the same events,  had fled the jurisdiction, Jonathan Crossling to Spain and Harrison to Jamaica.  (Jonathan Crossling has hitherto been referred to as Bam Bam and for consistency and to avoid confusion with his brother, we adopt that description.)  
5.	Because the sole ground of appeal arises out of the subsequent treatment of Bam Bam and Harrison, it is necessary to summarise subsequent events.  The murder was alleged to have been committed on 6 August 2001.  Within weeks, though in Bam Bam’s case after he is alleged to have threatened a witness, Bam Bam and Harrison left the country.  Bam Bam was arrested in Spain in September 2001 but contested his extradition.  He was brought back in December 2002, that is after the trial, and Harrison in April 2004.  A condition of the return of Bam Bam was that he would not be interviewed about the events of 6 August 2001.
6.	Bam Bam was charged with the murder of Kalvant Singh and other offences arising out of events on 6 August.  The case came on for hearing before Grigson J on 9 June 2003.  The prosecution accepted a plea to manslaughter and to the other offences and Bam Bam was sentenced to nine years imprisonment for manslaughter and nine years consecutive for the other offences. On 11 December 2003, in this court, the sentences on the other offences were reduced to five years.  The sentence for manslaughter was upheld so that the resulting total sentence was one of fourteen years imprisonment.
7.	Harrison was also charged with the murder and other offences .  On 4 November 2004, his plea to manslaughter was accepted and he was sentenced to a total of nine years imprisonment, seven years for manslaughter and two years consecutive for the other offences.
The ground of appeal
8.	An alleged disparity of treatment on the murder charge gives rise to the appeal. The ground of appeal is that what has happened since the appellants’ trial has created such unfairness for them as to amount to an abuse of process in relation to them.  The sentences arise out of the same events.  Petch offered to plead guilty to manslaughter, though Coleman did not.  The pleas of guilty to manslaughter by Bam Bam and Harrison were accepted.  In the result, the appellants are left with verdicts of murder and have to serve a minimum of twenty years.  The sentences to be served by Bam Bam, alleged by the prosecution to be the principal offender, and Harrison are very much shorter.  The appropriate remedy, it is submitted, is to quash the appellants’ convictions for murder, substitute convictions for manslaughter and pass commensurate sentences.
The case at the appellants’ trial
9.	At the trial of the appellants, the case was opened on the basis that Bam Bam, Jason Crossling, the appellants and Harrison formed a gang intent on serious violence.  The Crossling brothers were looking for a man called Dalziel and expressed an intention to kill him if they found him. The other gang members were recruited to assist in the violence and were each a party to a joint enterprise to cause at the least very serious bodily harm.  
10.	On the weekend of 4/5 August 2001, Claire Burgess was at an address in Middlesbrough used for prostitution and drug taking.  Bam Bam and his brother Jonathan arrived there looking for Dalziel.  On the night of 5/6 August, Burgess met Kalvant Singh for the purposes of prostitution.  At 3:30am they were observed on CCTV in Linthorpe Road.  Burgess also spoke to the appellant Coleman who was asking about the whereabouts of Dalziel.  She bought crack cocaine from him. She told him that she was taking her client to 45 Erroll Street and Coleman asked her to leave the door unlocked, which she did. Harrison got into the car with Coleman and it was driven off.  
11.	At 45 Erroll Street, Burgess smoked the crack cocaine and she and Singh went to the bedroom and fell asleep.  No sexual act had taken place. At about 6:45am a neighbour saw a car draw up outside the premises.  Coleman, the driver, remained in the vehicle while Bam Bam and others walked into the house.  Burgess was awakened by the sound of someone running up the stairs and voices shouting “where is he? where the fuck is he?”  Her evidence was that the Crossling brothers then ran into the bedroom and told Burgess to get out before she got hurt.  They wanted to know where Dalziel was and who Singh was.  She heard Petch calling from downstairs “he’s not here”.  She said that both men had something concealed in their sleeves.  Singh was attacked, punched and kicked and pushed backwards through a window by Bam Bam.  He received fatal head injuries from his fall.  
12.	When Burgess was leaving the property she saw that the occupier, Moody, who had remained downstairs, was being seriously assaulted (Count 1).  Petch rammed his head into a fish tank.  Harrison was standing nearby.  Moody suffered multiple fractures to his face.  At some stage, Coleman entered the house but then retired to the street.
13.	Burgess claimed to have recognised four or five men.  Petch’s palm print made by a hand wet with blood was found on  a banister leading to the first floor at 45.  The blood matched Moody’s DNA.  Petch was also linked to the fish tank by a glass fragment found at an address he subsequently attended.  The Crown relied on the palm print on the banister to suggest that Petch had been upstairs. 
14.	Coleman then drove the other men to 60 Southfield Road.  It is alleged that Coleman, Petch, Bam Bam and Harrison broke into a number of bed-sits and assaulted Ward and Jessop while demanding drugs.  Both men were threatened with sword or knife and punched.  A number of occupants recognised the assailants (Counts 4 and 5).  Petch was subsequently picked out on an identification parade.  He asked Bam Bam’s girlfriend to dispose of some blood stained clothing.  
15.	On 7 August 2001, Petch and Bam Bam went to 4 Fallows Court.  They attacked Paul Thompson punching and kicking him in the head (Count 6).  The attack continued outside the house and the police were called.
16.	At interview on 13 August, Coleman first denied taking anyone anywhere but subsequently accepted that he visited 45 Erroll Street with Harrison.  He denied being with the others.  As he was leaving, other men entered the premises. He had visited Southfield Road but denied being a party to any violence there.
17.	Petch was interviewed on 23 August 2001 but declined to answer questions.  When confronted with evidence of his palm print, he lied to the police. 
18.	Jason Crossling denied being present at 45 Erroll Street and gave an alibi.  
19.	The prosecution case was that Bam Bam, who was not of course present at the trial, had pushed Singh out of the window.  Coleman accepted, in evidence, taking Petch, Bam Bam and Harrison to 45 Erroll Street but only because they were on their way to buy drugs for which he needed money.  He denied knowing that any arms were carried and said that he was not a party to violence.  He had no knowledge that any assaults would be committed at 60 Southfield Road.
20.	Petch also said that he visited 45 Erroll Street with Coleman and Bam Bam.  He was unaware that weapons were carried and thought he was going into a crack house.  Bam Bam attacked Moody and he had attempted stop the assault.  Bam Bam broke the fish tank and also cut Petch’s leg.  Petch followed Bam Bam upstairs and saw two men struggling near the bed.  He tried unsuccessfully to pull Bam Bam out of the room.  Bam Bam told him to leave and he joined Coleman and Harrison in the car.  He heard the sound of breaking glass but did not know what had happened.  Bam Bam then ran out of the house.  He claimed that Bam Bam had scratched him with the sword.  He had attempted to prevent violence at both locations.  He denied that the reason he was trying to blame Bam Bam for everything was because he was not present at the trial.  
21.	Jason Crossling gave evidence.  His case was that he had not been present at 45 Erroll Road and had been mistakenly identified there by Burgess.   He was not charged with the offences at 60 Southfield Road and the prosecution did not claim that he was present there.  
22.	No criticism is, or could be, made of the judge’s direction to the jury on joint enterprise.  The trial was in all respects fair. Evidence of the presence of Bam Bam, which came from the appellants, as well as from Burgess, was clearly accepted by the jury.  It is highly likely that the jury accepted that it was Bam Bam who threw Singh out of the window. The jury did not accept the evidence of Burgess, unsupported in this respect by other evidence, that Jason Crossling was present at 45 Erroll Street.  Her evidence was that both brothers were present in the bedroom when Singh was attacked and that Bam Bam had pushed Singh through the window.  
23.	Referring to the evidence of Burgess, the judge stated that, without her presence in the bedroom, “the case has no centrepiece” to it.  She conceded that she had not seen either of the brothers “for a few years before this night”.  The judge directed the jury:
“if the only evidence which the prosecution rely on to prove that Jason Crossling was present as part of the joint enterprise was that of Clare Burgess, I should have stopped the case against him at the time, because, as Mr Muller [leading counsel for Jason Crossling] has been at some pains to point out, there are a number of weaknesses and inconsistencies in her evidence.”
The judge went on to refer to other evidence against Jason Crossling.
24.	The judge also stated:
“One of the matters you will have to consider in this case is whether there has been a concerted attempt by some to endeavour to exculpate BJ [Jason Crossling], while putting as much of the blame for this whole matter on Bam Bam as possible”.

The second trial
25.	A few months before his trial, Bam Bam submitted a Defence Statement denying presence at 45 Erroll Street and at 60 Southfield Road.  He gave details of an alibi.  The only prosecution evidence of Bam Bam’s presence was that of Burgess.  It is not suggested that evidence from the appellants as to his presence would have been available to the prosecution at his trial.
26.	As already stated, Bam Bam pleaded guilty to manslaughter shortly before the trial and the plea was accepted by the prosecution.  On 10 June 2003, the case against Bam Bam was opened on the same basis as the case had been opened before Turner J at the trial of the appellants in March 2002.  Referring to the evidence of Burgess, leading counsel stated: “She then describes Bam Bam as throwing Kalvant Singh through the window”.  Reference was made to the fact that the gang, less Jason Crossling, then headed for 60 Southfield Road and Bam Bam’s presence at those premises was alleged.  Reference was made to an approach by Bam Bam to Burgess on 17 August demanding money.  She was terrified and obtained £40 from a friend to pay him.  She had not at that stage named Bam Bam as one of those involved at 45 Erroll Street.
27.	Leading counsel told the judge: 
“Your Lordship is aware of certain difficulties surrounding some of these witnesses, and it is essentially within that framework that the Prosecution has decided, on what can only be regarded as a pragmatic basis, that the plea to the lesser offence of manslaughter is an acceptable one, and therefore we would not be seeking a trial of that matter.”
28.	The judge replied:
“Yes, if you accept the alternative then there is nothing more to be said.”
29.	In his speech in mitigation, Mr Gray QC, leading Mr Bayliss, submitted that the initial violence at 45 Erroll Street had come from the appellant Petch.  Clare Burgess was “really getting hold of the wrong end of the stick” when alleging that Bam Bam had pushed Singh through the window.  It was not Bam Bam who did that. Reference was made by counsel to the alleged violent propensities of Petch.  Bam Bam’s recollection of what happened was not, he accepted, the sharpest and was by no means reliable.  When confronted by the judge with the evidence of Burgess, Mr Gray stated:
“In our respectful submission there is no need for that [a Newton hearing] because what we have done on behalf of [Bam Bam], and he on his own behalf, is to concede that he was there involved in violence, ready, willing and able to assist, not that one might think Petch needed much assistance, but if he did he was there, and in the excitement and mayhem at the time he was joining in”.
Nobody at the trial of Bam Bam of course carried a brief for Petch.
The submissions
30.	For the appellant Petch, Mr Bayliss QC did not challenge the good faith with which the prosecution accepted Bam Bam’s plea of guilty to manslaughter.  Even though done with the best of motives it was, he submitted, a perverse decision because it led to a large and unfair disparity in sentence between Bam Bam, Harrison and the appellants, with those who fled the jurisdiction getting the lesser sentences. The prosecution must act consistently, it was submitted.  Having declined to accept Petch’s plea to manslaughter, and with the intention of opening the case against Bam Bam on the same basis as it had been opened against Petch and Coleman, the plea to manslaughter should not have been accepted in Bam Bam’s case.  Petch’s conviction for murder depended on an intention in Bam Bam, the alleged principal offender, to kill or to cause grievous bodily harm.  Once the prosecution accepted, by accepting Bam Bam’s plea to manslaughter, that he did not have that intent, the only fair way to deal with Petch is on the same basis and the court should provide a remedy. 
31.	A proposal by Bam Bam to plead guilty to manslaughter involved an admission of presence and nullified the force of his alibi notice, it was submitted.  The prosecution had in the event been manipulated by Bam Bam’s ability to remain out of jurisdiction during the trial of the appellants and the court should not tolerate the consequences of that.
32.	In relation to the perceived unreliability as a witness of Burgess, it was submitted that other witnesses were in a position to give evidence as to Bam Bam’s presence at 60 Southfield Road and a jury could readily infer that, if Bam Bam was present at 60, he was also present, shortly before, at 45 Erroll Street. 
33.	Mr Bayliss referred  to the current code for Crown prosecutors.  They must first be satisfied that there is enough evidence to provide a “realistic prospect of conviction” and then consider whether a prosecution is in the public interest.  There is a public interest in consistency of approach, it was submitted.  
34.	For Coleman, Mr Senior associated himself with the submissions of Mr Bayliss.  While accepting that Coleman had not offered to plead guilty to manslaughter, he submitted that an iniquitous situation has been created for his client.  
35.	For the prosecution, Mr Campbell QC submitted that any decision whether to prosecute, and what pleas to accept, depends on the circumstances existing at the time of the decision.  The decision to proceed against the appellants for murder cannot be criticised  on the basis of the evidence then available to the prosecution.  The circumstances were very different when Bam Bam’s plea to manslaughter was accepted.  His presence at 45 Erroll Street was denied.  It was supported only by the evidence of Burgess, which had not been accepted at the first trial in relation to Jason Crossling’s presence there. Her reliability as a witness was in question.  
36.	While there was potential evidence of Bam Bam’s presence at 60 Southfield Road, the reliability of the witnesses was questionable in a trial at which Bam Bam was present.  Nobody at the trial of the appellants carried a brief for Bam Bam. Burgess and others had been  prepared to give evidence against him in his absence; there were, it was submitted, legitimate doubts about the evidence which would be given in his presence.  
37.	Bam Bam’s offer to plead guilty to manslaughter, which implied presence, was made between counsel and not in circumstances in which reference could have been made to it if a case of murder had come to be opened against him.  Mr Campbell stated that, had presence been admitted rather than denied, the charge of murder would have been pursued against Bam Bam.
38.	The prosecution could not properly be tied to adopting the same approach in successive cases, it was submitted, even when they arise out of the same events and especially when circumstances have changed.  There would have been a greater anomaly had Bam Bam been tried for murder and been acquitted. The same situation could arise if in an important witness died between trials or could not otherwise be brought to court.
39.	The acceptance of a plea to manslaughter was also justified in the case of Harrison.  On any view, he was less involved then the rest of the gang.  To have treated him differently from Bam Bam would have added to the anomaly. 
40.	Mr Campbell submitted that in the present circumstances, the prosecution cannot be called upon to justify a decision not to prosecute Bam Bam for murder.  If, contrary to that, an explanation is required, the explanation given is a satisfactory one.  The law does not recognise a retrospective abuse, that is conduct not an abuse when the first trial occurred becoming an abuse by reason of subsequent conduct at the second trial. Even if Bam Bam had obtained an advantage by escaping the jurisdiction for a time, that advantage to him should not provide a similar advantage for parties who had been fairly tried and convicted.
Hui Chi-ming
41.	The court has been referred to R v Hui Chi-ming [1992] 1 AC 34, an appeal from Hong Kong to the Privy Council.  The parties invited the court to treat it as if it were a decision of the House of Lords.  A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died.  No witness saw the defendant hit the man, who was an innocent victim, or play any particular part in the assault.  A was charged with murder, with three of the group.  Two pleaded guilty to manslaughter and other was acquitted.  The jury acquitted A of murder but convicted him of manslaughter.
42.	The defendant was later indicted for murder with another youth whose plea of guilty to manslaughter was accepted.  The defendant refused an offer by the prosecution to accept a plea of guilty to manslaughter.  He was prosecuted for murder as a party to a joint enterprise in which A had murdered the victim.  The judge did not admit evidence of A’s acquittal of murder and conviction of manslaughter only.  The defendant was convicted of murder and sentenced to death. The Privy Council upheld the judge’s ruling as to the admissibility of A’s acquittal for murder. 
43.	Giving the judgment of the Privy Council, Lord Lowry accepted that “a serious anomaly” had occurred but the prosecution of the defendant for murder rather than manslaughter was not so unfair or wrong as to constitute an abuse of process.  There was ample evidence to support the defendant’s conviction.  While accepting, by reference to R v Humphrys [1997] AC 1, that every court has a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court, Lord Lowry stated, at page 57D:
“Provided the case was conducted with propriety, it is difficult to see how the judge could properly have intervened to prevent counsel from seeking or the jury from returning a verdict which was justified by the evidence. The other answer is that, if it was not an abuse to indict and prosecute for murder, it could scarcely be an abuse to seek a verdict which was justified by the evidence.
That a serious anomaly occurred cannot be denied, but 
‘As long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another: R v Andrews-Weatherfoil Ltd. [1972] 1 W.L.R. 118, 125, per Eveleigh J.’ ”
44.	In a passage beginning at page 56E, Lord Lowry dealt with specific points raised by the defence.  Lord Lowry stated that the Crown had acted consistently by accepting pleas of manslaughter from all the secondary parties and were willing to accept such a plea from the defendant.  The fact that the prosecution were prepared to accept a plea of guilty to manslaughter did not mean that it was an abuse of process to indict and prosecute him for murder.  On the evidence, the charge of murder could not be called an overcharge.  The defendant was not unfairly put at risk of a conviction for murder, since there was ample evidence to support that conviction and since the acquittal of A for murder was perverse.  The sentence on the primary party was due to his good fortune. 
45.	Mr Bayliss sought to distinguish the present case on the ground that, unlike in Hui Chi-ming, the prosecution have not acted consistently.  In that case, pleas of guilty to manslaughter by the secondary parties were accepted, where tendered. The consistency of the prosecution was a major factor in the decision that there was not an abuse, it was submitted.  In the present case, the pleas of Bam Bam and Harrison were accepted, that of the appellant was not.  Mr Campbell submitted  that the process complained of by Hui Chi-ming was that in his own trial, the principal offender having been convicted only of manslaughter at the earlier trial.  The defendant’s complaint in that case was stronger than that of the present appellants, the verdicts on whom were reached at the properly conducted earlier trial.
Conclusions
46.	At the trial of the appellants, the verdicts of murder were properly reached and the judge was required to impose a life sentence (Murder (Abolition of Death Penalty) Act 1965, s1(1)).  For relief to be provided in this court, by way of substituting a conviction for manslaughter for one of murder, and imposing a determinate sentence, the verdicts would have to be quashed and that can only be done if they were unsafe (Section 2(1) Criminal Appeal Act 1968).  The disparity of sentences imposed at the subsequent trial arising out of the same events does not affect the safety of the convictions of the appellants.  Neither, in our judgment, does the conduct of the prosecution at the later trial, even if the prosecutions arose out of the same events.  The prosecution took pragmatic decisions to accept pleas to manslaughter at the later trials, for reasons they have given.  The acceptance of Bam Bam’s plea to manslaughter on the basis that they were not confident that in June 2003 a jury would reach a  verdict of guilty of murder does not cast doubt upon the verdicts upon the appellants on the evidence at their trial in March 2002.
47.	The approach in Hui Chi-ming plainly supports that conclusion in our judgment, including the citing with approval of Eveleigh J’s statement in Andrews-Weatherfoil.  The charge of murder against the present appellants could not be called an overcharge and there was ample evidence to support the convictions.  The prosecution’s alleged lack of consistency, resulting from pragmatic considerations, which has resulted in an anomaly different from, but in its way as striking as, that in Hui Chi-ming, does not open the door to a finding that the verdicts upon the appellants were unsafe.  The law does not permit the court to take an overall view of the situation retrospectively and, in the interest of even-handedness, to declare the convictions of the appellants unsafe.
48.	The mandatory sentence required upon a conviction for murder of course aggravates the problem.  However, even had the sentences upon the appellants been for a term of years, and a substantial disparity had, because different offences were involved, emerged at the second trial, we are doubtful whether this court could have reduced the sentences upon the appellants, on the basis argued, to one appropriate for manslaughter,. That question does not, however, arise for decision.
49.	Subsequent developments in the law may, with respect, encourage a review of the approach in Hui Chi-ming to how prosecutions in second trials based upon the same events as earlier trials are to be conducted.  The prosecution were consistent in that case but to proceed against a secondary party for murder when the principal offender has already been convicted only of manslaughter creates a particular sense of grievance absent in the present situation. 
50.	No remedy in this court is in our judgment available to the appellants in present circumstances.  The appeals are dismissed.