Neutral Citation Number: [2009] EWCA Crim 2157
Case No: 20084715 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 6 October 2009
 
B e f o r e:

LORD JUSTICE RIX 

MR JUSTICE MCCOMBE 
 
MR JUSTICE BURNETT 
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R E G I N A 

v 

ABUL HAI
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Mr L.J McNulty and Miss N.E.J Shannon appeared on behalf of the Applicant 
Mr B Finucan QC appeared on behalf of the Crown 
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J U D G M E N T

1.	LORD JUSTICE RIX:  This is an application to extend time for the purposes of applying for leave to appeal against conviction.  
2.	The applicant, Mohammed Abdul Hai, was convicted on 12 September 2005 at the Central Criminal Court before HHJ Roberts QC and a jury on a single count of murder by a majority of 10 to 1 and was subsequently sentenced to life imprisonment with a minimum term of 16 years.  He needs an extension of time of about two and a half years in which to seek leave to appeal.  
3.	His first and primary ground for seeking leave to appeal (ground 1) depends upon fresh evidence.  We are not concerned in this judgment with that ground 1, which remains for disposal.  We are concerned with ground 2, which involves the submission that the judge failed to leave an alternative verdict or verdicts to murder for the consideration of the jury, and that on that ground the conviction should be quashed.  That submission and ground is based upon the decision of the House of Lords in the case of Coutts [2006] UKHL 39; [2007] 1 Cr App R 6.  
4.	For the purposes of this ground 2, it will suffice to set the factual scene in relatively brief terms.  The deceased was a young man Ashley Hedger, who was attacked by a group of Asian youths at 1.15 in the afternoon on 16 January 2004, chased into the doorway of a shop in Plashet Road, London E7, and there was punched and kicked and suffered four stab wounds in the neck, temple and in his torso.  He was 16 years old.  
5.	The judge in his summing‑up described the results of the post‑mortem examination as follows, and indeed this had been made subject of formal agreed facts:  
"In summary, Ashley had sustained four stab wounds, a large number of bruises and grazes consistent with having been kicked and punched." 
6.	He then went on to describe the four stab wounds.  Those to the neck and to the right temple had not caused any serious damage and would not have been fatal.  It was the two stab wounds to the torso, to the left side of Ashley's body, that either singularly or cumulatively were fatal.  One pierced his heart and the other pierced his left lung.  
7.	This attack and its consequent death occurred in broad daylight.  There were many participants and there were many witnesses.  The essence of it, however, was that, following an attempted robbery by the deceased and two friends upon some Asian youths, one or more of the latter ran to a mosque which was in the near vicinity to raise the alarm, and a number of young men within a few minutes exited from the mosque and chased the attempted robbers, who were pointed out to them by one of their attempted victims.  Two of those attempted robbers ran one way, as it happens into the arms of the police, but the third, Ashley Hedger, ran the other way and was caught and killed.  
8.	One of the men who exited from the mosque described as being older than the others, who were mainly youths, described as being in his 20s or early 30s and having a beard, was identified by certain witnesses, even if some of them turned hostile at trial and were cross‑examined by the Crown, as the applicant, Mr Hai.  The essential issue at trial was whether the applicant had been present and had participated.  His essential offence was that he was not present at all.  
9.	If, contrary to that defence, he was present and had participated, there was also an issue as to whether he was the knifeman who wielded the knife which caused the fatal injuries, or whether if he was not the knifeman, he participated with knowledge of a knife being present with one of the others in the attack or, on the contrary, did not know of the knife.  
10.	The judge began his summing‑up with a careful direction concerning the ingredients of murder and the necessary elements of joint enterprise.  He made it clear to the jury that it was only if the applicant either wielded a knife himself or knew that he was participating in an attack in which someone else was carrying a knife which he might use that they could convict the applicant of murder as charged.  There was no consideration given in the judge's careful directions to what might have been the position if the applicant had been charged in the alternative under section 18 of the Offences Against the Person Act 1861 on the basis that, even though he had not been a participant to a joint enterprise with a knife, nevertheless he had intended to commit grievous bodily harm by punching or kicking, and had succeeded in doing so.  Indeed, it is clear from the judge's careful directions that such a separate issue which would necessarily have had to concentrate upon injuries other than the four stab wounds, was simply not within the purview of the trial.  
11.	It is in these circumstances that new counsel, not counsel at the trial, Mr McNulty, who was first instructed in August 2008, formulated his second ground of appeal.  As formulated, as part of the applicant's application for leave to appeal formally in writing, this second ground of appeal complains that the judge had failed to leave to the jury an alternative count of manslaughter, which it was submitted he should have done on two separate bases: (1) on the basis that the applicant might have been outside what we might describe as the knife joint enterprise and thus not guilty of murder but, it was submitted, guilty of manslaughter; or (2) on the basis that the earlier attempted robbery had amounted to provocation.  That was the alternative basis upon which ground 2 came before the court, having been referred to this court still as an application by the single judge.  
12.	In a very recent skeleton argument of Mr McNulty, which we received within the last few days, the alternative formulation of ground 2, namely that the judge should have directed the jury on the alternative possibility of manslaughter based upon provocation, was not pursued, but the submission that the judge should nevertheless have directed the jury on an alternative verdict of manslaughter was maintained, namely on the basis of an unlawful killing short of murder.  However, in his oral submissions today, Mr McNulty has reformulated his second ground of appeal further.  In his opening remarks, he reminded the court accurately and candidly that if the applicant was neither the principal knifeman himself nor party to a knife joint enterprise then he would not be guilty of manslaughter, but, in the absence of some further alternative, guilty of nothing.  Mr McNulty drew our attention to the leading case for that proposition, the case of R v Powell and English [1991] AC 1, noted and helpfully and concisely explained in Archbold 2009 at paragraph 19‑24.  Therefore, in his oral submissions this morning, Mr McNulty reformulated his second ground for the first time by saying that the judge's error, which brought this case within the principle of Coutts, was that he had failed to leave to the jury and direct them on an alternative verdict of section 18.  
13.	In the course of his submissions, we had occasion to consider the evidence before the Crown Court as to the injuries caused to the deceased, and that showed, in our judgment, that apart from the four stabbings there was no evidence, certainly no obvious evidence, of any grievous bodily harm having been caused to the deceased.  The evidence is all in terms of cuts and bruises.  There were very many of them, but there is no evidence that any of them could be described as grievous bodily harm.  That led to a further reformulation by Mr McNulty, this time in his reply, to the effect that the alternative verdict, which the judge should have and failed to leave to the jury, was an alternative verdict of an attempt to commit grievous bodily harm.  In this respect, Mr McNulty drew to our attention the terms of section 6(2) of the Criminal Law Act 1967, which reads: 
"(2) On an indictment for murder a person found not guilty of murder may be found guilty—
 (a) of manslaughter, or of causing grievous bodily harm with intent to do so; or
 (b) of any offence of which he may be found guilty under an enactment specifically so providing, or under section 4(2) of this Act; or
 (c) of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty; 
but may not be found guilty of any offence not included above."  
14.	Mr McNulty submitted that an attempt to commit a section 18 offence was "an attempt to commit any other offence of which he might be found guilty" within the words of sub‑section (2)(c).  We accept that that is so.  
15.	Alternatively, Mr McNulty submitted in his opening submissions this morning, albeit for the first time ‑‑ alternatively, that is to say, to a verdict on section 18 or an attempt to commit a section 18 offence ‑‑ that the judge should have directed the indictment to be amended to include an offence such as causing actual bodily harm or, alternatively, a public order offence such as violent disorder.  Mr McNulty submitted that all these alternatives (section 18, an attempt to commit section 18, ABH or violent disorder) were within the ratio decidendi of the decision in Coutts.  
16.	So far as an alternative verdict for section 18 is concerned, in our judgment the short and simple answer to that is that there was no evidence of section 18 being committed outside a knife joint enterprise, the absence of which is of course the premise of the whole of these submissions.  In any event, it is necessary to pause for a moment to consider what the jury would have had to consider for the purposes of a section 18 offence, and indeed what the parties to the trial would have had to consider putting before the jury for meeting the purposes of a section 18 offence.  
17.	The first question would be whether the necessary intent to cause grievous bodily harm, absent any participation in a knife joint enterprise, could be shown.  Secondly ‑‑ the point that we have already dealt with on the evidence ‑‑ it would be necessary to show that grievous bodily harm had in fact been caused.  But thirdly, it would be necessary to show that that grievous bodily harm had neither caused nor contributed to death.  It may be that incidentally the second and third elements, whether grievous bodily harm had been caused and what any injuries outside the stab wounds had to do with causation of death, were covered by the evidence of the post‑mortem presented to the jury.  If so, they excluded the possibility of a section 18 offence, for there was no grievous bodily harm outside the use of the knife.  But the question of an intent to cause grievous bodily harm outside a knife conspiracy would have been an intriguing question, particularly in circumstances where no grievous bodily harm was in fact caused, despite the number of people said to be involved in the attack.  
18.	The necessary intent would therefore have to be proved for the purposes of an alternative verdict based upon an attempt to commit the section 18 offence.  In fact, however, the whole trial was conducted on the basis that the applicant (at trial, of course, the defendant) was either the knifeman, or at least was aware of the knife in the hands of another participant to the attack.  The trial was simply not conducted on an alternative basis of seeking to raise the question or meet the issue of whether there was some separate intent to cause grievous bodily harm outside the ramifications of any knife joint enterprise.  
19.	In our judgment, no consideration of what alternative verdicts might be left to the jury ‑ in fact we are told by Crown counsel, Mr Finucane QC, who appeared at the trial and does so again on this appeal for the Crown, that there was no discussion between counsel and the judge about alternative verdicts ‑ but no consideration of alternative verdicts, if there had been any, towards the end of trial some safe time before final submissions so as to prevent any unfairness to any party, could have made up for a trial which was wholly conducted upon some other basis, concentrating not unnaturally on the question of who was responsible or had participated in the responsibility for the knife wounds, which were the only serious injuries caused to the deceased and two of which alone had caused his death. 
20.	In our judgment, therefore, any attempt on the part of the judge to direct the jury on alternative bases concerned with section 18 in those circumstances would have been unfair to both Crown and defendant, and would have disregarded and been in conflict with the basis on which the trial had been conducted.  
21.	Nevertheless, Mr McNulty has relied for the purposes of his reformulated second ground on Coutts, and in addition on part, but part only, of the decision of this court in R v Foster [2007] EWCA Crim 2869; [2008] 1 Cr App R 38.  His submission based upon those cases is that, save in exceptional cases, alternative verdicts must be left in a murder trial; that murder is a special case dating back to the time when it was a capital offence, quite unlike any other cases; and that the rationale of the decision of Coutts, which was concerned of course with the alternative verdict of manslaughter rather than any other offence as an alternative to murder, applied across the board, not only to any offence under section 6 of the 1967 Act, but even to any other offence, such as actual bodily harm or violent disorder, which would have required an amendment to the indictment to have enabled such an offence to be properly put before a jury for their alternative consideration.  
22.	In our judgment, we need not consider, in the light of Coutts and Foster together, those submissions of Mr McNulty, for two reasons.  Primarily because we are quite satisfied that this case is not within the Coutts principle, or to put it another way, it is within the alternative rule in Coutts as to when alternative verdicts are not required.  But we would also observe, so far as those alternatives such as ABH and violent disorder which would have required amendment to the indictment are concerned, section 6(2) of the 1967 Act to which we have referred ends by saying "but may not be found guilty of any offence not included above".  Similarly, section 6(3) of the 1967 Act excludes a trial for an offence of murder.  Mr McNulty has not sought to persuade us that counts of ABH and violent disorder come within section 6(2).  
23.	Be that as it may, however, and returning to Coutts, we note that the following paragraphs contain the essence of the decision in that case.  Thus, Lord Bingham of Cornhill said this: 
"23.  The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support ...  I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial ... 
24.  It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing‑up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant ... 
26.  Nor, with respect, is it an objection that the jury's task would have been more complicated had a manslaughter direction been given. Compared with many directions given to juries, a manslaughter direction in this case would not have been complicated. But even if it would, that cannot be relied on as a reason for not leaving to the jury a verdict which they should on the facts have considered. If juries are to continue to command the respect of the public, they must be trusted to understand the issues raised even by a case of some complexity. For reasons already given, the wishes of counsel cannot override the judge's duty."
24.	Lord Hutton at paragraph 62 said this: 
"62 In conclusion I refer briefly to one further matter. The authorities make it clear that an alternative verdict should only be left if it is one to which "a jury could reasonably come" (per Lord Clyde in  Von Starck v The Queen  [2000] 1 WLR 1270, 1275f; see also per Mustill LJ in  R v Fairbanks  [1986] 1 WLR 1202, p 1205: "unless the alternatives really arise on the issues as presented at the trial"). Therefore I am in full agreement with the test proposed by Lord Bingham in para 23 of his speech that the alternative or alternatives "should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial"." 
25.	Lord Mance said this at paragraph 100: 
"100.  Accordingly, in my view, where, as Lord Bingham has said, an obvious alternative verdict presents itself in respect of some more than trifling offence and can without injustice be left for the jury to consider, the judge should in fairness ensure that this is done, even if the alternative only arises on the defence case in circumstances where as a matter of law there should apart from that alternative be a complete acquittal."
26.	In our judgment, the alternatives submitted by Mr McNulty simply do not come within those statements of principle.  Quite apart from the absence of any evidence of grievous bodily harm outside the knife attack, it seems to us that the alternative verdicts suggested by Mr McNulty are not obvious and do not arise on the evidence at trial, or on any case at trial.  On the contrary, they are the result of careful consideration by fresh counsel brought into the case many years later.  They do not even represent that fresh counsel's first formulation of the point.  They only arise as a fall‑back submission, informally, and for the first time at the hearing of this application, and so far as attempt is concerned, only in his reply submissions.
27.	It is, in our judgment, clear from the judge's directions, and indeed from his summing‑up as a whole, that the alternatives suggested by Mr McNulty were in no one's mind and certainly not in the mind of a judge whose careful summing‑up must be commended, and whom we would certainly regard as more than filling the role of an ordinarily knowledgeable and alert criminal judge.  
28.	It is therefore unnecessary for us to consider how far the Coutts principle extends beyond the obvious case of the alternative verdict of manslaughter on a charge of murder in the light of this court's consideration of the width of the Coutts principle in Foster.  We would observe, however, that in Foster this court said that, in its essence, in regard to what was said about murder and manslaughter in Coutts, Coutts was restating well‑known law.  It is worth reminding ourselves that Coutts was a clear and obvious case for the application of that law.  It concerned a death by strangulation in circumstances where the defendant's whole case at trial was that it was an accident which had occurred in the course of consensual asphyxial sex.  
29.	In those circumstances, we do not go further into the submission that in the special case of murder the Coutts principle survives some of the limitations which this court in Foster suggests remain the law in the context of alternative verdicts under section 6 of the 1967 Act.  
30.	For these reasons, we consider that this second ground of Mr Hay's application lacks arguable merit.  If upon our consideration we had considered that it had arguable merit, we would, as in the usual way, have extended time for the bringing of this application.  Having considered the matter in full, however, and having concluded that the ground lacks merit, we consider that it would be wrong in principle to extend time for an appeal.  In truth, this is a submission which is founded on law which goes back before Coutts, as Foster has emphasised, and to the extent that it is founded on Coutts, goes back to July 2006.  We consider that, for the purposes of bringing this ground at any rate, there is no good explanation for the delay.  It is simply a point which has occurred to new counsel, freshly instructed for other reasons, for reasons of fresh evidence, and we consider that those separate matters raise no good reasons why, in the light of our view on the lack of merit of the second ground of appeal, time should be extended for it.  Therefore this remains an application for an extension of time which is refused.
31.	MR MCNULTY:  My Lord, thank you.  My Lord, that leaves the outstanding ground.  My Lord, in light of the difficulties my learned friend raised early this morning concerning the assembly of the necessary evidence, we would submit that this case might benefit from a pre‑hearing determination for directions in order to ascertain whether the matter is ready.
32.	LORD JUSTICE RIX:  We are here to give the directions now.
33.	MR MCNULTY:  My Lord, then I am not in a position to address you on the precise difficulty of my learned friend, so I will leave that to my learned friend.
34.	LORD JUSTICE RIX:  We have discussed this, and what we have in mind is that a fresh date should be fixed.  I do not think that any time should be lost about that.  Clearly you will want to have your witnesses there.  They should be there.  They are directed to be there.  The date is not one that can simply be fixed as a matter of convenience.  In light of the fact that the uncle knew that his presence was required for today, we think that if we had gone ahead to hear ground 1 today, you would simply have had to do without the uncle.  He knew he had to be here today and it was your job to make sure that he was here today.  At any rate, we direct that a fresh date be fixed for the hearing of the application on ground 1, that the three witnesses be directed to attend on that day, and, Mr Finucane, you want to be at liberty to call in rebuttal your own witnesses? 
35.	MR FINUCANE:  I do, my Lord, because I can see that it will be necessary, I think, for the court to hear from the police officers to answer the allegations, even if they have now been made for the first time some years later about the circumstances ‑‑ 
36.	LORD JUSTICE RIX:  If you need leave, you have leave to call such witnesses as you want, provided that you give notice to Mr McNulty of those whom you propose to call.
37.	MR FINUCANE:  I will do so, my Lord.  He has the statements at the moment of all of them who I might call so he is ready for that.  My concern is the time.  This case was listed for one day today to deal with both grounds.
38.	LORD JUSTICE RIX:  Perhaps if we had dealt with ground 1, then ground 2 would not have taken so long.
39.	MR FINUCANE:  I am concerned that the court does not find itself in a part‑heard situation on the next occasion.  It would be wiser, in my respectful submission, to leave a period of one and a half days, and nothing less than that, because by the time three witnesses, and possibly two or three police officers have given evidence and there have been submissions, then the court has to give judgment, that is one and a half days, in my respectful submission, and so maybe in a sense fortuitously this has occurred today because otherwise we would have been in difficulties reconstituting the court, although I was going to say that ‑‑ I know the chances of reconstituting the same court are very difficult indeed because your Lordships seldom reconstitute for one hearing although that does happen.  I am only thinking of the duplication of whichever of their Lordships replace your Lordships in dealing with ground 1 and having to read all the material again and equate themselves with the facts of the case, which is always a wasted effort.
40.	LORD JUSTICE RIX:  We are sitting as a constitution only until the end of next week.
41.	MR FINUCANE:  It would not be possible to do that, no.
42.	LORD JUSTICE RIX:  The likelihood of putting us three together again, I suspect, would be difficult.
43.	MR FINUCANE:  May I have leave to explore it without inconveniencing any of your Lordships' other diaries with the office simply to see whether it might be possible, because your Lordships have read the papers, and it makes it easier for the whole court, including your Lordships were your Lordships to hear it again, not to have to begin from the beginning.  May I explore that?  If it is not possible then of course so be it.  I am just thinking of saving time. 
44.	LORD JUSTICE RIX:  Yes.  I might just ask your opponents, since this is a hearing which has gone wrong in a sense, it is always difficult for this court or the single judge who first, as it were, receives an application for fresh evidence to know quite how to set things out.
45.	MR FINUCANE:  Indeed.
46.	LORD JUSTICE RIX:  Sometimes fresh evidence is dismissed out of hand; sometimes it is heard de bene esse.  It is usually heard de bene esse before any decision is made as to whether to admit it or not.  The question arises whether there should be a separate application hearing, which should go on to deal with the appeal if it gets through that hoop, or whether you have a separate application hearing and an appeal at a later date if necessary, and then you should have in addition a directions hearing.
47.	MR FINUCANE:  Yes, I think one of the lessons of today is that I think Cresswell J did his best in his directions as I know them to be to encompass all those possibilities, and that was a sensible thing to do.  The fact that it fell between two stools in terms of information is not the fault of Cresswell J and nor the fault of anybody.  I think it is just unfortunate.  But in terms of process, I think it is very difficult for the court to devise any formal protocol because of course it depends on assessment of your Lordship's reading of the papers.  If you look at the fresh evidence, and let us take, for example, the Birmingham Six case, Dr Skuse's evidence, it is obvious that the court is going to hear that, or in the case of Ishtaq Ahmed(?) which is another of the cases I referred to in my skeleton argument, it is obvious the court will hear that because there are recorded telephone conversations.  They are bound to consider that.  But on the other hand, the court might look at the papers and think this is ridiculous and we are not going to tolerate this, unless we are persuaded otherwise, of course.  So it is a very difficult to have a formula that can be applicable to all cases because it depends much on the nature of each individual type of new or fresh evidence, and I think Cresswell J did his best, and unfortunately one can only cover all possibilities.  So I suggest for next time, as your Lordship has already directed, that the witnesses be here but enough time is left.  Court time may be wasted, it could all go short on the next occasion and the court may decide they do not want to hear it.  But your Lordships, or your Lordships' brothers who sit on the case, will have plenty to do, I am sure, when they leave court, so no time is ever actually wasted in that respect.
48.	LORD JUSTICE RIX:  I suspect that what Cresswell J did is what I think single judges are advised to do in a case such as this.  They set the matter up.  They put the new witnesses or the witnesses for new evidence on notice that their presence is required, but they leave it to the court to make the final directions.  The court may say the witnesses should not attend on that occasion and the matter will simply be dealt with on paper, but that is a decision that you can only make case by case.
49.	MR FINUCANE:  Exactly, and I thought it was being dealt with on paper today.  That is what I thought was happening. 
50.	MR JUSTICE MCCOMBE:  Speaking for myself, dealing with an application on a completely different case, one sometimes gets cases where there is fresh evidence which one thinks is possibly likely to be incredible, but then one considers ‑‑ it is not quite the function of a first instance judge on his own to make that decision, and I have in the past referred it to a Lord Justice to see whether that is agreed, and if not, then to set up a hearing so that the credibility can be assessed. 
51.	MR FINUCANE:  That is why I say it would be helpful if we were able to reconstitute the same court in the not too distant future, subject to your Lordships' diaries, because your Lordships may have already formed some preliminary feelings about it one way or the other or may be completely neutral about it, but certainly all I would urge is that a day and a half is left.  
52.	LORD JUSTICE RIX:  Any other directions needed?
53.	MR FINUCANE:  I would not seek any.  As I say, if the second day turns out not to be needed, I am sure the list office will find some sentences, I am afraid, to occupy your Lordships.
54.	MR MCNULTY:  My Lord, I understand I have statements of those that may be used.  I am sure with consultation with my learned friend I can give a more precise indication, and certainly if we perceive any amendment to the time provision needs to be made, we can thereafter contact the court, but I agree with my learned friend a day and a half seems sensible in the current circumstances.
55.	LORD JUSTICE RIX:  Probably no new skeleton arguments are needed, but if anyone is going to serve any further skeleton, seven days before the hearing.
56.	MR FINUCANE:  Thank you, my Lord.