Case No: 2001/1089/X4; 2001/1090/X4; 2001/1091/X4
Neutral Citation No: [2003] EWCA Crim 3713
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18th December 2003

Before :

LORD JUSTICE AULD
MR JUSTICE AIKENS
and 
MR JUSTICE GRIGSON
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Between :

	-R-		

	- and -		
	Basharath MIAH
Avinash AUBEELACK
And
Bodrul MIAH		

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 William Boyce QC and Steven John represented the Crown
Joel Bennathan represented Bodrul MIAH
Matthew Ryder represented Basharath MIAH
Ian Bourne and James Buchanan represented Avinash AUBEELACK

Hearing dates : 3rd and 17th October
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Judgment

Mr Justice Aikens  : 

1.	These appeals arise out of violent clashes between two groups of young men that took place on 13 September 1999 near Southgate College, North London.  During the violence Abdul Osman was fatally stabbed in the chest.   His brother, Mustafa Osman, was stabbed in the back and the upper arm.  So also was their cousin, Mohammed Abdullahi.   Two days later, Bodrul Miah, who was one of those involved in the incident, left the UK for Bangladesh.   Basharath Miah, Bodrul’s father, had organised the ticket and passport for Bodrul’s journey.  Bodrul Miah returned to the UK in March 2000.
2.	Subsequently five young men were charged with various offences arising out of the violence.  They stood trial on a single Indictment at the Central Criminal Court before HHJ Forrester and a jury from 31 October 2000 until 23 January 2001.   On the Indictment Bodrul Miah and Ryan Reid were charged with the murder of Abdul Osman (Count 1).   Bodrul Miah and Avinash Aubeelack were charged with the attempted wounding with intent of Mustafa Osman (Count 2).    Bodrul Miah, Ryan Reid, Mohammed Basil Mollany, Marcus Oranu and Avinash Aubeeleck were charged with violent disorder (Count 3).   The same five men were charged, in the alternative, with affray (Count 4).  Basharath Miah stood trial at the same time and was charged on the same Indictment with doing acts tending and intended to pervert the course of public justice (Count 5).   The allegation against Basharath Miah was that he had procured a passport and airline ticket in order to enable his son Bodrul to flee the country on 15 September 1999.   This last Count had been joined to the Indictment upon the application of the Crown on 20 October 1999, despite opposition from Basharath’s counsel.    Two applications to sever the trial of Basharath were rejected by the judge during the course of the trial itself.
3.	The trial before HHJ Forrester took 49 days in all.  The summing up took six days to deliver.   Although the summing up has been criticised in certain respects by counsel in this court, we wish to pay tribute to the sustained and careful treatment that the judge gave to both the law and the facts of this complex case.    
4.	On 23 January 2001 the jury convicted Bodrul Miah on Count 1, but acquitted Ryan Reid.   The jury convicted both Bodrul Miah and Avinash Aubeelack on Count 2, that is the attempted wounding with intent of Mustafa Osman.     On Count 3 (violent disorder) Avinash Aubeelack was convicted, as was Ryan Reid.   Basil Mollany and Marcus Oranu had changed their plea to guilty during the trial.   Basharath Miah was found guilty on Count 5.
5.	The judge passed sentence on 16 February 2001.    Bodrul Miah was sentenced to life imprisonment on Count 1 and 10 years imprisonment on Count 2.   Avinash Aubeelack was sentenced to 10 years imprisonment on Count 2 and 5 years (concurrent) on Count 3.   Basharath Miah was sentenced to 3 years imprisonment on Count 5.
6.	Each of the appellants Bodrul Miah (“Bodrul”), Avinash Aubeelack (“Aubeelack”), and Basharath Miah (“Basharath”) lodged appeals against both conviction and sentence.   All their applications were refused by the single judge.     The applications for leave to appeal against conviction were renewed before us on Friday 3 October 2003.   All save Aubeelack, abandoned their applications on their sentences.   We heard oral argument from Mr Joel Bennathan on behalf of Bodrul and Mr Matthew Ryder on behalf of Basharath.   We had the benefit of a very clear and full written Outline Argument from Mr Ian Bourne on behalf of Aubeelack and we did not need to call on him at that hearing.
7.	As a result of the written and oral submissions made, on 3 October 2003 we granted leave to appeal on conviction to all three applicants. We directed that the appeals would be heard by the same constitution of the court, in order to save time and effort.   It was agreed that in those circumstances the appellants would need to say little further to open their appeals.   Counsel for the appellants agreed to ensure that counsel for the Crown was fully informed of the content of the argument before us on 3 October, as well as the orders that we had made.
8.	We heard oral argument on the substantive appeal on Friday 17 October 2003.  Mr William Boyce QC made submissions for the Crown and we heard further oral argument from each of the appellants’ counsel.  At the conclusion of argument we reserved our judgment, which we give now.
9.	The Facts
The participants in the violent incident on 13 September 1999 were all students at Southgate College.   On 9 September 1999 there had been some argument just outside the college between two students.   One of them was Mohammed Abdullahi, who was part of a group of students at the college who were of Somalian origin.  The other man was an Indian youth, said by the Crown to have been Aubeelack.    
10.	13 September 1999 was the first day of the new term at Southgate College.   During that morning there was an initial meeting between the two groups near the college.   Aubeelack was not present at that meeting.   Some time later, at around lunchtime, the two groups met in Crown Lane.  There a fight took place between the two groups, which we shall call “the Somalian group” and the “Asian group”.
11.	  One of the Asian group boys, who at the trial was referred to as the “the Indian boy from the week before” or “the new Asian/Indian” and who the Crown alleged was Aubeelack, challenged Mohammed Abdullahi, of the Somalian group, to a fight.   “The new Asian/Indian boy” was encouraged by others in his group, which included Bodrul Miah.   Mustafa Osman (of the Somalian group) tried to intervene.   Bodrul then stabbed Mustafa Osman with a knife which was said by the Crown to have been passed by Ryan Reid, although Reid was acquitted of murder by the jury.   At some stage, in response to the attack upon his brother, Abdul Osman punched Bodrul and sprayed some CS gas on Bodrul.  He retaliated by punching and stabbing Abdul.    The “new Asian/Indian boy” (who the Crown said was Aubeelack) was alleged to have been brandishing a knife at that stage, although there were no independent witnesses,  (ie. those not involved in the fighting), who saw Aubeelack in possession of a knife on that day. 
12.	Abdul Osman, who had by now been fatally wounded by the stab from Bodrul, ran off down an alleyway adjoining Crown Lane.   At the far end of that alleyway is the Rising Sun public house.  Abdul Osman ran past that building and then to the left along Chase Side towards a Police Station.  There he collapsed.  Abdul Osman was followed by Abdullahi and Hassan.
13.	The events which followed this first encounter gave rise to the allegation of attempted wounding with intent of Mustafa Osman, which formed Count 2 on the Indictment.  Mohammed Abdullahi returned to Crown Lane, going down the alleyway to do so.  Abdullahi said at the trial that he had seen two Indian boys (said to be Bodrul and Aubeelack) attacking his cousin, Mustafa Osman, with knives.   So, according to Abdullahi, he had jumped on one of the boys and taken possession of the knife.   Abdullahi further claimed that he had been able to achieve this because during the struggle for the knife “the Indian boy” had stabbed himself in the stomach or arm.  Abdullahi ran off in search of the others in the Somalian group.    Abdullahi encountered the same Indian boy again.  During the course of a further confrontation Abdullahi sustained what Dr Patel (of the North Middlesex Hospital) later described as “a 1 cm superficial cut to the wrist”.  Abdullahi said that he surrendered the knife to the Indian boy.  Abdullahi claimed to have had the knife for about one minute and never wiped it on a post or put it in his white sock.   No other witness supported his account or saw Abdullahi jump on the Indian boy, take a knife from him or later return the weapon.  However, twelve independent witnesses, none of them Somalian, stated that they had seen Abdullahi with a knife. 
14.	Aubeelack was arrested and interviewed on 20 October 1999.  He denied he was present at the first violent encounter on 13 September.   But he admitted that he was present at the second encounter.   He said that had taken no part in that violence.  
15.	Various identity parades were held in relation to different defendants.   At the parade in which Aubeelack was present on 27 October 1999, he was not identified by Abdullahi or Mustafa Osman or by another youth in the Somalian group, Abdi Hassan. 
16.	The Crown’s case.
On Count 1, the Crown alleged that Bodrul, acting jointly with Reid, was responsible for Abdul Osman’s death.    The Crown alleged that the knife used to inflict the fatal blow had been passed by Reid to Bodrul.   On Count 2 the Crown alleged that Bodrul and Aubeelack had acted jointly in attempting to wound Mustafa Osman with intent.   The Crown accepted that it was not clear on the evidence whether Bodrul or Aubeelack had stabbed Mustafa.  But it contended that they had been involved in a joint enterprise.   That is why they were both charged with attempted wounding with intent.  On Count 5 the Crown alleged that Basharath had procured the counter signature on Bodrul’s passport application form and had procured his airline ticket with the intent of removing Bodrul from the jurisdiction when he (Basharath) knew that there was an investigation concerning the events of 13 September and that Bodrul was implicated.
17.	The Defence Cases  
None of the three appellants gave evidence at the trial.  The case advanced on behalf of Bodrul was that he did not stab either Abdul or Mustafa Osman.    Consistently with this case, in interview Bodrul had said that he had not stabbed Abdul Osman in self – defence, nor had he done so whilst provoked.   That stance was maintained during the body of the trial.  However, in her closing address Bodrul’s leading counsel, Miss Vera Barid QC, relied on both self – defence and provocation as alternatives to his principal case.   Aubeelack’s case was that he was not involved at all in either the stabbing of Abdul Osman or the attempted wounding of Mustafa Osman.   Basharath’s case was that he knew nothing of his son’s involvement in the violent events of 13 September 1999.
18.	Applications before or during the trial and discussions before the Summing Up
There were four applications that are relevant to the current appeals.   First, on 20 October 2000 and before the trial started, the Crown had applied to join Count 5, against Basharath, to the principal Indictment.  That application was opposed, but the judge permitted it.    Secondly, counsel for Basharath then applied to sever the trial of Basharath.   The basis for this application was that Bodrul had said in interview that he had not told his father anything about the incident on 13 September and his father did not know of it; moreover, at that stage in the trial it seemed unlikely that Bodrul would give evidence and he could not be compelled to give evidence at a joint trial with his father.   Therefore justice required that Basharath should have a separate trial so that he would have the opportunity to call his son, Bodrul, to give evidence to the same effect as his statement in interview.  The judge rejected that application to sever in the same ruling in which he dealt with joinder.      The third relevant application was a renewed submission by counsel for Basharath, made on 12 December at the conclusion of the Crown’s case, to sever the trial of Basharath.  That application was made after Bodrul’s counsel had announced that his client would not give evidence.  The renewed application to sever was rejected.   Fourthly, counsel for Aubeelack submitted at the close of the prosecution case that there was no case to go to the jury against Aubeelack on Count 2.  The judge rejected that submission.
19.	At the conclusion of the evidence and before counsel’s speeches there were discussions on the law and the issues to be dealt with in the judge’s summing up.  These discussions took three days, so the points were clearly considered with great care.  It was agreed that, in the case of Bodrul, the jury should be directed to consider both self – defence and provocation, notwithstanding his account in interview and the basis on which his case had been run during the evidence.   In the course of the discussion on provocation, counsel for Bodrul suggested that the relevant personal “characteristics” of Bodrul that the jury should consider were his age, sex and his size.   (Bodrul is a young man of Asian appearance and between 5ft and 5ft 2 inches tall).   The judge prepared a set of written directions for the jury and these were considered by counsel before being given to the jury at the start of the judge’s summing – up.
20.	The Summing – up
The structure of the judge’s summing up in relation the case against Bodrul on Count 1 and so far as it affects Bodrul’s appeal is as follows:  first the judge explained to the jury the elements of the offence of murder:  vol I pages 8G to 12A.   Secondly he dealt with self – defence:  vol I pages 12B to 13E; 16F to 20A; vol II pages 2E to 3B.  Next he dealt with intent to kill or cause serious injury and the consequence of the jury not being sure that there was the requisite intent to kill or cause serious injury: vol II pages 3F to 5E.   The judge then gave directions on provocation: vol II pages 5F to 11B.    The judge had told counsel before he started his summing – up that if they wished to raise any issues concerning his directions, then he would consider those at a convenient break in the summing up.   Various aspects of his directions on provocation were raised by leading counsel for Bodrul and were considered by the judge at vol II pages 47C to 50C.   The judge gave directions on the effect of lies by Bodrul in interview at vol III page 17D to 20D.   There was discussion on the judge’s direction on the effect of lies in relation to whether and if so how they could be relevant to the issue of provocation:  vol III page 26 E-G.  The judge gave a short further direction on how the jury must be careful to decide whether a lie had been stated in relation to a particular offence before the jury could consider whether it could be used against a defendant or not: vol III page 30B – D.   The judge reminded the jury of Bodrul’s answers in interview and in particular his account of what happened immediately before Abdul Osman was stabbed: vol V pages 116 to 121 and pages 129 to 130.   As the judge reminded the jury, in interview Bodrul denied that he was acting in self – defence and he said that he was not acting under provocation.   There was further discussion between the judge and Mr Bennathan on whether a further direction should be given to the jury on the effect of Bodrul’s denial in interview that he acted in self – defence or that he was provoked to stab Abdul Osman, because Bodrul stated throughout interview that he had not stabbed Abdul Osman at all.  The judge declined to give any further direction:  Vol V page 148H to 151 A.  
21.	(I)  Bodrul Miah:  the grounds of appeal
Originally Bodrul’s Grounds of Appeal raised a large number of issues.   Having considered Mr Bennathan’s submissions on 3 October, we gave leave to appeal on three issues only.  These all involve criticisms of the judge’s summing up.  The points are:   (1) that the judge failed to explain his directions on the law of provocation by reference to the particular facts of this case;   (2) that, in giving directions on the law relating to provocation, the judge did not give a proper direction on how to consider the “characteristics” of Bodrul when considering whether he lost his self control and stabbed Abdul Osman, or whether his action in stabbing Abdul Osman was reasonable in the circumstances; and (3) the judge did not give a proper direction on the effect of lies made by Bodrul to the police, at the stage when the jury had to consider the issue of provocation,  as opposed to a prior stage when the jury would have been considering whether Bodrul had committed the unlawful act of stabbing Abdul.   
22.	Bodrul:  Ground (1):  failure to deal with the facts of the case in relation to the directions on the law of provocation? 
The law on provocation, which is often described as “a concession to human frailty”, is governed by section 3 of the Homicide Act 1957.   That provides:
“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

In R v Smith (Morgan) [2001] 1 AC 146 the House of Lords had to consider the proper construction of section 3.   We shall have to analyse that decision in some detail in relation to Ground (2).    On Ground (1)), we accept Mr Bennathan’s first submission that in a case where the judge must, as a matter of law, leave an issue of provocation to the jury, he must indicate to it, unless it is obvious, what evidence might support the conclusion that the defendant had lost his self control as a result of things done or said.  This is because if this guidance is not given, the jury will find it difficult to answer the two questions that it has to consider, that is:  did the defendant lose his self – control as a result of things done or said and, more particularly, whether (in the words of section 3) a “reasonable man” would have been so provoked by those things: See eg:  R v Stewart [1995] 4 All ER 999 at 1006 per Stuart – Smith LJ.   We also accept Mr Bennathan’s second submission that it is particularly important for the judge to set out the evidence that is possibly relevant to his directions on the law of provocation when the case is complex and other defences,  (such as self – defence), have been raised on behalf of the defendant and they also have to be considered by the jury.  
23.	Mr Bennathan next submitted that the judge failed to indicate to the jury the relevant evidence in the context of the defence of provocation.    He submitted that there were four particular aspects of the evidence which should have been emphasised to the jury. These were:   (i) that CS gas had been used on Bodrul by Abdul Osman;  (ii) that there had been abuse of a mildly obscene nature;  (iii) that the Somalian group had been targeting the “small Indian boy” – said to be Bodrul; and, most importantly,  (iv) that Bodrul had been punched and (on Bodrul’s account) stabbed by Abdul Osman or another in the course of the first violent encounter.
24.	In directing the jury on provocation, the judge started by giving a direction on the first issue that the jury had to consider.   Having told the jury that it was for the Crown to disprove provocation, he said (vol II page 7 B) that the first question the jury had to ask was whether Bodrul did, or may have delivered the fatal stab wound whilst he had lost his self control.     His summing - up then continued (Vol II page 7D):
“The point I am making now is that for provocation to exist it requires the defendant whose case you are considering to have lost his self control at the time he acted in the way I have just mentioned, at the time he participated.
Of course, these issues are entirely matters for the Jury.  It must be that something must have caused him to lose his self-control.  That is something done, or something said, or a combination of both by the deceased, or indeed anyone else prior to the killing in the case of Bodrul Miah or the handing over of the knife in the case of Ryan Reid.  In their separate and different cases there are different times to consider in the events as they happened.  The spraying of C.S. gas is an obvious possible example.  I take that simply as an example, as would, of course, be the use of force, or even threatened force.  I am not going to go through it all, as I have said and I summarize it, something done or said, or both by the deceased or anyone else, but just on this point of the C.S. gas, for instance, that would seem not to apply in the case of Ryan Reid in any event, because of the evidence the gas was sprayed after the knife was handed over, if handed over it was.  Abuse would be another example.  I have said things [were] said:  “Back off pussy holes” by Mr. Osman, for instance.  I simply take that as another possible example of something said on the evidence in the presence of both defendants or, as I say, of blows struck, so long, of course as the events, the something done or said preceded the use of the knife in Bodrul Miah’s case, or the handing over of the knife in Ryan Reid’s case.  Do not think what I have just said is in any sense an exhaustive list.  It is entirely a matter for the Jury.  It is not a matter for the judge”.

25.	Mr Bennathan’s criticism is that when the judge was telling the jury about the facts in the context of his directions on the first question that the jury had to consider in relation to provocation, the judge failed to remind the jury that Bodrul’s assertion was that he had been stabbed in the first encounter and before the fatal wound to Abdul Osman.   (It was accepted by the Crown that Bodrul had attended Southgate Hospital after the incident and he had a two cm deep laceration to the right buttock).    Mr Bennathan’s submission was that the judge’s failure to mention the stabbing of Bodrul in the context of provocation could have led the jury to ignore a key point when deciding whether Bodrul did or may have stabbed Abdul Osman whilst he (Bodrul) had lost his self control.   Mr Bennathan also submitted that without being reminded about the assertion of stabbing, the jury would be unable properly to consider whether the actions of Bodrul (in stabbing Abdul Osman) were reasonable in all the circumstances.
26.	We are quite satisfied that this criticism is ill – founded.    The judge made it clear that the jury had to consider the facts of this case when deciding whether Bodrul did, or might have delivered the fatal stab wound whilst he had lost his self - control.   The judge referred specifically to CS gas as one of the things done that might have caused Bodrul to lose his self control.   The judge also identified force or threatened force and blows being struck.  He emphasised to the jury that the things said and done that he had identified in relation to this first question on provocation were not exhaustive.   He said this in the context of having just finished giving directions on self – defence, where he had reminded the jury that when it was considering self – defence, it would have to consider all the circumstances as the defendants (ie.  Bodrul and Reid) believed them to be before Bodrul delivered the blow:  vol II page 2F to G.   At that point in his summing – up, delivered only a short while before he addressed the jury on provocation, the judge had specifically reminded the jury that the two defendants had asserted (in interview) that there had been use of CS gas, punching, kicking or the use of a knife against each of them.   Furthermore, the judge also referred to Bodrul’s assertion that he had been stabbed when, at a much later stage in his summing – up, he was reminding the jury of what Bodrul had said (and failed to say) in interview:  vol V page 120.  
27.	In these circumstances we are confident that the jury would have had the evidence about stabbing well in mind when they came to consider the issues involved in provocation.    Accordingly we conclude that the summing – up cannot be criticised on this first ground.

28.	Bodrul:  Ground (2): direction on the law of provocation:  “characteristics” of Bodrul

As we have stated, the law of provocation is governed by section 3 of he Homicide Act 1957.    The proper construction of that section was considered by the House of Lords in Smith (Morgan) [2001] 1AC 146.   The House of Lords decided (by a majority) that, on the proper construction of section 3, when a jury is left to consider a defence of provocation, it has to consider two issues.   First the jury must decide whether, on the facts it finds, the defendant was provoked by things either said or done to lose his self – control and so to commit homicide.    In considering whether the words or conduct concerned caused the defendant to lose his (or her) self control, the jury has to bear in mind all the characteristics of the defendant that might be relevant to whether he (or she) lost self – control.   These characteristics will include not only age and sex, but also any other aspects of the physical or mental make – up of the defendant, whether permanent or temporary.   
29.	Secondly the jury has to decide, on the facts it finds, whether the provoking words or conduct (as found by the jury) would have made, (in the words of section 3), “a reasonable man” act as the defendant did.   In considering this aspect, the jury has to consider whether, objectively speaking, the reaction of the defendant to the provoking words or conduct, (as found by the jury), was justified.    In deciding that issue, the jury must apply the standards of behaviour and of self - control that they, as citizens, would expect of people in society today.  The jury must take into account “everything said and done”, in the words of the section.   The House of Lords held that the jury is also entitled to consider, if it thinks it appropriate, any physical and mental characteristics of the defendant, whether temporary or permanent, which affect the degree of control that society could reasonably expect of the defendant (ie. a person having those characteristics) and which the jury decides it would be unjust not to take into account. 
30.	In giving the leading speech of the majority, Lord Hoffmann offered guidance to judges who have the difficult task of giving directions to juries on the issue of provocation:  see paragraphs 10 and 11 of his speech at pages 171 – 4 of the report.   He pointed out the problem, given the language of section 3 that is inherent in trying to explain to juries what they had to decide and the tests they had to use.    A judge must explain that the jury has to decide, using an objective standard, whether the reaction of the defendant was justified when he committed the homicide, having lost his control as a result of things done or said.  Yet at the same time the judge must explain to a jury that it is also entitled to take into account (in relation to both the issues it must consider) the “characteristics” that are particular to the defendant.  In Lord Hoffmann’s view, since the House of Lord’s decision in Camplin [1978] AC 705 it was “…impossible to avoid giving the jury a misleading, not to say, unintelligible account of the law when particular characteristics, sometimes highly unusual and even repulsive, are welded onto the concept of the reasonable man”: see page 173.  
31.	Lord Hoffmann stated that, in his opinion, “judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics”.   Instead judges should set out “in simple language the principles of the doctrine of provocation”.    In appropriate cases a jury should be told that:
“there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account.  If the jury take this view, they are at liberty to give effect to it”.  (Page 173 – 4).

32.	Lord Hoffmann then went on to emphasise that he was not laying down a prescriptive formula for the directions that a judge should give a jury.  Provided that the judge made it clear that, ultimately, the matter was one for the jury, then the guidance which the judge gave must be a matter for his judgment on the facts of the case.   Lord Slynn of Hadley and Lord Clyde agreed with the speech of Lord Hoffmann, although they also gave speeches of their own.  Lord Millet and Lord Hobhouse gave dissenting speeches.
33.	The judge summed up this case just five months after the House of Lords had delivered its speeches in Smith.   The judge was plainly conscious of the impact of Smith and of Lord Hoffmann’s guidance.   
34.	Mr Bennathan’s submission is that in this case the judge did not impress upon the jury sufficiently that it was for them to consider all the characteristics of Bodrul, if they thought it appropriate, on both aspects of provocation.  That is, on reaching a decision on whether Bodrul did lose his self – control and so killed Adbul Osman and also on whether, using objective standards, he was justified in doing so.  
35.	The relevant parts of the judge’s summing – up on these aspects of provocation are at Vol II page 7F to 8C and 9B to 10A.   At 7F to 8C he dealt with the first aspect that the jury has to consider.  He said: 
“[Provocation] has a special meaning in law and the meaning can be divided up into two parts.  The first part is this:  it requires that the defendant whose case you are considering acted whilst he had lost his self-control, but acted – I mean in the case of Bodrul Miah – at the time he delivered the blow.  Did he, or may he have delivered that blow and, thereby, killed Abdul Osman whilst he had lost his self control?  In the case of Ryan Reid the allegation is that he participated in the killing by handing the knife to Bodrul Miah and more of that later, of course, but on this question of provocation the question in Ryan Reid’s case is: had he, or may he have, lost his self control at the time he did the act, if you decide that he did, namely handing over the knife to Bodrul Miah, if that is what he did?    The point I am making now is that for provocation to exist it requires the defendant whose case you are considering to have lost his self control at the time he acted in the way I have just mentioned, at the time he participated.

Of course, these issues are entirely matters for the Jury.  It must be that something must have caused him to lose his self-control.  That is something done, or something said, or a combination of both by the deceased, or indeed anyone else prior to the killing in the case of Bodrul Miah or the handing over of the knife in the case of Ryan Reid”.

36.	At pages 9B to 10D he dealt with the second aspect that the jury has to consider.  He said:
“If the answer to that[ie. that he had lost his self – control] is yes, you move on and consider the next question….

If you say, yes, well he did or may have lost his self-control, then you have to consider the next point and that is this: the mere fact that something caused the defendant to lose his self control… is not enough; the obvious and sensible reason for that is, because the law expects people to exercise control over their emotions; a violent disposition is a defect in character and not an excuse.  It is for you the Jury to decide whether the circumstances were such as to make the loss of self-control – if that is so – sufficiently excusable – and this is for you – to reduce the gravity of the offence from the more serious offence of murder to the less serious offence of manslaughter.  In deciding the point – in other words, what should count as a sufficient excuse – you have to have to apply what you the Jury consider to be the appropriate standards of society.  On the one hand, there may be allowance for human behaviour and the power of emotions, but, on the other hand, not allowing someone to rely upon his own violent disposition, because in applying these standards of behaviour you the Jury represent the community.  You decide what degree of self-control everyone is entitled to expect his fellow citizens to exercise in society today.  Do you follow?  In this case your fellow citizens the two men on trial in this regard, are young men, but the same standards of behaviour are expected of everyone irrespective of his or her psychological make up.  There it is.   Provocation only applies to count 1 and so in the case of each defendant charged; if you are considering this question of provocation and you decide that the defendant may have acted whilst he had lost his self-control, the next question is whether the circumstances were such to make the loss of self-control sufficiently excusable, in your judgment, to reduce the gravity of the offence from murder to manslaughter applying what you consider to be the appropriate standards of behaviour within society”.

37.	Mr Bennathan submits on this ground of appeal that there are two errors in the way the judge gave his direction on provocation to the jury.  The first is a point of general principle.   The second concerns a particular “characteristic” of the defendant Bodrul.   
38.	On the point of general principle, Mr Bennathan submits that it is clear from the House of Lords’ decision in Smith that the judge should identify all the possible “characteristics” of the defendant, whether they are physical or mental, permanent or temporary, that a jury might wish to take into account when considering the two aspects of provocation that we have identified.   He submits that it is also clear from Smith that a judge must tell the jury that it is for them to decide what particular “characteristics” of a defendant are relevant to the issue of whether, in fact, the defendant lost his self – control and so committed homicide and whether, objectively speaking, his loss of self – control and actions were justified.   Mr Bennathan submits that in the case of Bodrul there are three characteristics that are, possibly, relevant.  They are that Bodrul was young; a man and that he was short (only 5 feet or 5 feet 2 inches).
39.	Mr Bennathan’s submits that the effect of the judge’s direction, particularly that at Vol II, page 9A-B, is that the judge withdrew from the jury the very characteristics that the judge should have told it that it could take into account when deciding whether Bodrul did lose his self – control and whether that was justified (objectively speaking).    He relies in particular on the following passage of the summing – up:
“In this case your fellow citizens the two men on trial in this regard, are young men, but the same standards of behaviour are expected of everyone irrespective of his or her psychological make up.  There it is”.
	
Mr. Bennathan submits that when the judge stated that the same standards of behavior are expected of everyone in society, he was effectively directing the jury that the particular “characteristics” of Bodrul – that he was a young man (and, although not stated, short also) were irrelevant to the jury’s consideration of the issue of provocation.
40.	The second point that Mr Bennathan makes is that the judge did not refer at all to the fact that Bodrul is a particularly short man.  He submits that this particular characteristic of Bodrul should have been put to the jury as a possible factor that it could take into account when considering the two aspects of provocation that we have identified above.
41.	After the judge had given his directions on provocation, Miss Baird QC, who was then leading counsel for Bodrul, raised both points twice with the judge:  vol II page 28A-G;   page 48 C –G and 49 D-G.  The judge decided that he would not add anything further to his directions.
42.	 As the judge reminded the jury (Vol II page 10D), it was not Bodrul’s case that he acted whilst provoked.    Nevertheless, the judge was obliged, as a matter of law, to direct the jury to consider provocation because there was evidence on which that defence could be based.    It is clear from the speech of Lord Hoffmann in Smith that the principal duty of a judge who has to give a jury directions on provocation is to emphasise that it is for the jury to decide, on all the facts, whether the defendant lost his self – control and whether that was, objectively, justified.   In our view the judge gave an adequate direction to that effect.     We accept that the judge did not direct the jury that it should specifically take into account particular characteristics of Bodrul in considering whether he lost his self – control and whether that was, objectively, justified.  But it is clear from Smith, in particular at page 174 of Lord Hoffmann’s speech, that provided a judge states that these are matters for the jury to decide then it is for a judge to consider precisely how he puts the matter to the jury.   The jury were aware of the sex, age and size of Bodrul, to which the judge referred at several points in his exhaustive summing – up:   (see, in addition to the passages quoted:  Vol III page 3; 12 and 36; Vol IV page 6; Vol V page 116).    We are not convinced that the jury could have understood from the judge’s directions that they should disregard those characteristics when considering the issues of (i) whether Bodrul did lose his self – control and so killed Abdul Osman and  (ii) whether, objectively speaking,  Bodrul was justified in so acting.   
43.	Accordingly we have concluded that the summing – up on this aspect was adequate.   The safety of the conviction of Bodrul cannot be impugned on this Ground of Appeal. 
44.	Bodrul:  Ground (3):  summing – up on relevance of lies of Bodrul to the issue of disproving provocation
It is well established, since the Court of Appeal decision in R v Richens [1994] 98 Cr App R 43, that if the issue of provocation is left to the jury, then the judge will, if relevant, have to give a direction on the possible effect of any lies stated by the defendant to the police in relation to the issue of provocation.   In that case a young man had killed another man who had allegedly raped his girlfriend.  There was no issue as to who had committed the homicide. The sole issue was whether the act had been carried out under provocation.  The defendant had told lies in relation to the killing.  The trial judge had not directed the jury as to how they should, as a matter of law, regard the lies he admitted he had told about his movements and involvement.  In effect the trial judge had invited the jury to consider those lies as potentially probative of the Crown’s case that this was murder rather than manslaughter by reason of provocation.   
45.	Lord Taylor CJ, in giving the judgment of the court in that case, pointed out that it was “incontestable” that a man who has killed by reason of loss of self control and who therefore faces arrest, trial and possible lengthy imprisonment, must have almost as strong reasons for attempting to conceal his deed and lie about his involvement as the man who killed deliberately.     Lord Taylor CJ continued:
“The point is that the jury should be alerted to the fact that, before they can treat lies as tending towards the proof of guilt of the offence charged, they must be sure that there is not some possible explanation for the lies which destroys their potentially probative effect.  Applying that concept to the present case, could the jury be sure that attempts to conceal the killing and lies were inconsistent with the appellant’s case that he had killed as a result of provocation and pointed to murder…..”

46.	In a murder case when there are issues on whether the defendant killed the victim and also on provocation, then it seems to us that lies could be relevant at two stages.  First the Crown may rely on lies to support its case that the defendant committed the homicide at all.   Secondly the Crown may rely on lies in support of its case that it can disprove provocation – the burden of doing so always being on the Crown.    It is possible that the same lies will be relied on by the Crown for both purposes; but it is also possible that certain lies could be more useful to the Crown in relation to provocation, eg. to show that either the defendant did not kill as a result of having lost his self control or to show that what he did was not justifiable – using the tests and factors that were identified in Smith.
47.	We think that in a murder case where both the issue of homicide and provocation are contested and the Crown relies on lies to prove its case, then it is advisable that the Crown should state clearly in advance of speeches whether it relies on lies for one or both of the purposes we have set out above.    This will assist a judge in fashioning the direction that he gives on the effect of lies.  If, in such a case, the Crown relies on certain lies in support only of its case that the defendant committed homicide, then the judge should give a Lucas direction.  At the same time he must warn the jury that even if it is satisfied that (a) the lie was stated and was deliberate;  (b) it relates to a material matter and (c) there is no innocent explanation for it, then it must not regard that lie as of any assistance in demonstrating murder as opposed to manslaughter.  That is, we understand, the effect of the decision in this court in R v Woodward [2001] EWCA Crim 2051 at paragraph 37, per Kennedy LJ.   
48.	If, however, the Crown relies on the lies as support of proof of homicide and also as support for disproving provocation (in respect of either of the aspects set out by the House of Lords in Smith), then it seems to us that the judge should identify clearly for the jury the respects in which the Crown relies on the alleged lies.   Otherwise the jury will be left in doubt, as this court held in the case of R v DT [2002] EWCA Crim 2958 at paragraph 25 per Kennedy LJ. Once the judge has identified for the jury the respects in which the Crown relies on the alleged lies, he should then tell the jury that it must consider first whether the lie was stated and whether it was deliberate.  If the jury is so satisfied, then it must decide whether the lie was told in relation to (a) the issue of whether the defendant committed the homicide or not or (b) the issue of whether he did so having lost his self control or (c) the issue of whether his actions were, objectively, justified.    The judge should then direct the jury that, whatever issue it thinks the lie may be relevant to, it can only take the lie into account if the jury is satisfied that there is no innocent explanation for it in relation to the issue the jury has decided that the lie is relevant.
49.	If the Crown only relies on the lies to disprove provocation, then, once again, we think that the judge must say so clearly to the jury.   He must tell the jury that the lie is of no use to it in deciding the question of whether (if it is in issue) the defendant committed the homicide.
50.	In many cases, such as the present, a defendant will not be relying on provocation at all at the time of police interviews or, even, during the trial.  In those cases it seems to us that it is even more important that the Crown must identify, in advance of the summing – up, what lies are relied on and for what purpose, so that the judge can fashion his direction on lies as necessary.
51.	In the present case the Crown relied upon three particular alleged lies of Bodrul, all said to have been given in interview.  The first (identified at vol III page 17E of the summing – up) was that Bodrul stated that he had no mobile telephone and that in particular the mobile with the number “7345” was not his.   The second alleged lie (identified at vol III page 18E of the summing up) was that Bodrul produced to the police a lighter coloured top, pretending that it was the top that he wore on 13 September 1999, when he must have known that it was not. The third alleged lie (identified at vol III page 18 G to 19E) was that when Bodrul went to the Middlesex Hospital at about 4pm on the afternoon of 13 September 1999, he told the staff that he had received the cut on his backside within the last hour, whereas in interview he said that he had received it during the violent incident.  The Crown said that the latter statement was a lie. 
52.	The judge gave his direction on the possible effect of these lies at vol III page 19F to 25 F.    The direction was (with no disrespect intended to the judge) on standard Lucas lines.   Mr Boyce QC in this court accepted that this direction does not deal with the problem identified in the case of Richens, to which we have referred above.   
53.	Having given this direction, there was then a break for the jury and Miss O’Neill QC, appearing for Ryan Reid, raised an issue with the judge.  She pointed out that Reid faced both the murder charge (Count 1) and also the charge on Count 3 (violent disorder).   She asked the judge to point out to the jury that Reid’s alleged lies, if proved, may only be relevant to his denial of participation in the violence, rather than the issue of whether he had passed the knife to Bodrul in relation to Count 1.  Mr Bennathan then added, on behalf of Bodrul (vol III page 26 E – F): 
“I had not spotted that point but I will adopt it. I think it must apply to…there [are] also dangers if one wanted to be over technical about when considering murder as against manslaughter that one deploys them there.  But I think that will probably be subsumed within the sort of direction my learned friend, Miss O’Neill, has raised”.

54.	The judge accepted Miss O’Neill’s point and when the jury came back he gave them the following additional direction on the effect of lies (vol III page 30 A – D):
“….in relation to the direction I gave you about lies, remember when you are considering lies if you are holding a lie against somebody, remember that the defendants are all charged with more than one offence and for a lie to support the Crown’s case in relation to a particular offence as opposed to any other, you will need to be satisfied that the lie was told in relation to that offence.   Do you follow?   So I needed to say that to you as well”. 

55.	The judge therefore did not specifically deal with the point that Mr Bennathan had raised, ie.  that a lie that might be relevant to the issue of whether Bodrul had committed the homicide or not is not automatically also relevant to the issue of whether the Crown had disproved provocation.   However the judge did come back to this point when he was analysing for the jury the police interviews of Bodrul.   The judge said (at vol V page 129D to 130G): 
“At page 590, some important questions you may think.  He was saying, as you appreciate, that he did not strike out.  Officer Osborn:  “Let’s be absolutely clear then, what you are saying is that you acted in self defence?  I want to be absolutely clear while we are interviewing you, you’re not saying that you acted in self – defence?”  “I got attacked”.  Officer:  I know what you said, and I agree with you that gas was produced by the Somalian boys and sprayed in your direction, I accept that.  What I am saying to you is would you confirm for me – from what you have told me that you did not strike out any blow…”  (inaudible)  “I did not strike out no blows, I did not have no knife, I didn’t have time to protect myself”.  And then, as it were, on this question of provocation, the officer says: So you didn’t lose control, you didn’t take a knife from somebody, you didn’t take out a knife out on the street, didn’t stab anybody”.  “No all I was – I thought I was going to die on the floor.  I never chased anybody”.

At page 592, Officer:  you haven’t been provoked and you weren’t acting under provocation”?  “No”.  I reminded you that it is not a case where the defendant is saying that he was acting in self – defence nor is he saying he was provoked.  But nonetheless, as I say, the Crown must prove that he was not acting in self – defence and they must disprove provocation.  The burden does not shift although, as I said, you may take into account the fact that the defendant is not saying he acted in self – defence nor is he saying he was provoked.  You consider all the relevant circumstances.  Then various other questions, which I do not need to take up time now with; it is all there for your consideration.  I have said that a number of times.  I just have to try and be selective – well I am selective – and I try to put it to you in the round.  But you know what his defence his, you know what he is saying.  And I suppose one could refer finally to page 617, at the very bottom:  “I did not stab no one, I didn’t know about no argument with happened with Avi on Thursday, and Dad did not know nothing about the attack I had on me”  

56.	At this stage the judge had nearly concluded his summing – up.   When the jury went out for a break, Mr Bennathan returned to the issue of lies and provocation in the following exchange with the judge (vol V pages 149A to 150H): 
“MR BENNATHAN: 	Your Lordship, in dealing with the end of Mr. Miah’s interview since lunch described questions from Mr. Osborn to Mr. Miah and Mr. Miah’s replies about self – defence and provocation as important questions.  My Lord, can I simply ask your Lordship to consider whether in fact whether those questions are important or if the jury on the contrary, should be cautioned against placing much reliance on them for this reason.

JUDGE FORRESTER:	Well, yes –

MR BENNATHAN:		Sorry I interrupted you, my Lord.

JUDGE FORRESTER:	No, no, you continue, I do not want to interrupt you.

MR BENNATHAN:		I hope I can do it in two sentences.  If the jury thought Mr. Miah was being truthful in those answers, which really amount to little more than it cannot be provocation or self – defence (inaudible) well then of course if they thought that even might be true, of course, they would acquit him outright of Count 1, on which I focus.  If to the contrary the jury thought that assertion in that interview – in my respectful submission it amounts to little more than continuing to deny stabbing anyone – was not true and he had stabbed someone, well then my Lord one is then in the position of attempting to use lies to decide between murder and manslaughter, which in my respectful submission is so perilous it ought not really to be embarked upon.  That is my submission.

JUDGE FORRESTER:	I understand.  I made it abundantly clear firstly, the burden remains on the Crown and I said the mere fact that he denies it is a factor that can take into account amongst all the others.  That was intended to summarise the position, I hope accurately.  Your point is so far so good, but I should not have described it as important.

MR BENNATHAN:		I think my Lord my point could be taken slightly – I am sorry to raise a knotty problem at this stage.  It is almost a matter they should be put to one side.  Because if they accept the answers, he is not guilty altogether and if they do not accept the answers well then it is using lies by a man charged with murder to decide if he is guilty of murder or manslaughter.

JUDGE FORRESTER:	I must say I had not looked at it that way.

MR BENNATHAN:		Those are my submissions, my Lord.  They are shortly made.  I do not know whether –

JUDGE FORRESTER:	Shall I see what Mr. Boyce thinks.

MR BOYCE:			It is the Crown’s submission my Lord’s direction was unobjectionable.  It is part of the picture the jury can take into account.  The reality is at no stage during his accounts with the police has the defendant ever relied upon self – defence or provocation and then it is a matter for the jury.

JUDGE FORRESTER:	Quite.  That is certainly what I was intending to convey.  I do not intend to return to the point”.      

57.	Mr Bennathan’s submission to this court is that the Crown only relied on the lies identified as support of its case that Bodrul had committed the homicide of Abdul Osman; it did not rely on those same lies in support of its case to disprove provocation.  Therefore the judge ought to have made it clear to the jury that even if it concluded that one or more of those statements were lies and supported the Crown’s case on homicide, the jury should thereafter disregard those statements; they were irrelevant to the issue of whether the Crown had disproved provocation.   Mr Bennathan submits that the judge never made that point plain to the jury at any stage of his summing – up.   He goes further and submits that, at vol V pages 129 – 130, the judge was directing the jury that if it was satisfied that the statements were deliberate lies and there was no innocent explanation for them, then the jury could take them into account when considering whether the Crown had disproved provocation.
58.	Mr Boyce QC accepts that the lies alleged by the Crown were only put forward as support for its case that Bodrul committed the homicide of Abdul Osman; they were not put forward in order to help disprove provocation.    However Mr Boyce submits that the judge’s directions, taken all together, were sufficient to warn the jury that, even if it found that one or more of the statements passed the “Lucas tests”, then it did not follow that the lie assisted the Crown in disproving provocation.  
59.	Conclusion on Ground (3) of Bodrul’s appeal
The judge had a very difficult task in directing the jury in this case because of the huge number of issues, legal and factual, involved in the case.   In our view it would have been better if the direction in relation to lies and provocation had been more directly dealt with.   However there is no doubt that (i) the judge gave a very clear warning about the need for caution about drawing adverse conclusions from any of the alleged lies of Bodrul and they were clearly identified (vol III pages 16 to 20);   (ii) the judge gave an unambiguous direction that the jury must be satisfied that the alleged lie was told in relation to the particular offence that the jury was considering (vol III page 30);   (iii) in this case the Crown was not relying specifically on any of the alleged lies to disprove provocation;  and (iv) the judge emphasised to the jury that Bodrul’s case (in interview and at the trial) was that he did not stab Abdul Osman at all, rather than he stabbed him in self defence or because provoked (vol V pages 129 – 130).  
60.	In these circumstances we are satisfied that the directions to the jury on the issue of lies in relation to provocation was sufficient.    In our view, given the nature of the lies identified by the Crown, the jury could not have thought that they might relate to the issue of whether the Crown had disproved provocation.    Further, as to the point made by Mr Bennathan in his submission to the judge at vol V page 149 – 150, the lie there was the denial by Bodrul in interview that he had stabbed someone at all.  That was the central issue in the case against Bodrul.  It was not a collateral issue.   Therefore, strictly speaking, there was no need for a Lucas direction on that particular statement by Bodrul, whether or not modified to take account of the provocation point.  
61.	Therefore, even if the direction on lies and provocation could have been more felicitous, we are quite satisfied that the summing – up was adequate on this point and the conviction of Bodrul was safe.   The appeal must be dismissed.
62.	(II)  Avinash Aubeelack:  the ground of appeal
The single ground of appeal of Aubeelack is that the judge was wrong to reject the submission of no case to answer on Count 2 that was made at the end of the Crown’s case.   Accordingly, it is submitted, it was wrong to leave the case against Aubeelack on Count 2 to the jury and so his conviction on that Count is unsafe.
63.	The case of Aubeelack before the judge
Aubeelack accepted in interview that he was present at the second stage of the incident during which the activities against Mustafa Osman took place.  But his case was that he did not participate at all and that he had left before the activities took place.  Before the judge it was also accepted that Aubeelack was present at the time of the second stage of the incident; it was also accepted that there was a prima facie case of violent disorder against him.   However it was submitted to the judge that there were two important facts that meant that the case against Aubeelack on Count 2 should be withdrawn from the jury.  First, that three of the Somalian group had failed to identify Aubeelack in identification parades as being a person involved in the actions against Mustafa Osman.  Secondly, that witnesses from the Somalian group had provided descriptions of the “new Asian/Indian boy” (alleged by the Crown to be Aubeelack) as wearing a distinctive red jacket.   In fact it was clear from photographs taken of Aubeelack that he was wearing a dark blue jacket on both 13 September and also when there had been the argument with Abdullahi on the previous Thursday, ie. 9 September.   
64.	The judge’s ruling
The judge gave his ruling on the submission of no case on 8 December 2000.  He said that if the defence had been one of whether Aubeelack was present at all at the scene of the violent incident involving Count 2, then “without more, I very much doubt that this case would have been left to the jury”.   However, that was not Aubeelack’s case and there was more, in the judge’s view.   
65.	The judge identified what he described as three important points:   (i) that it was Aubeelack who had been involved in the minor incident with Abdullahi on 9 September;  (ii) that Aubeelack had not been present at the start of the second part of the violent incident, but joined up with the rest of the Asian group afterwards;   (iii) therefore, it was important that Aubeelack was described by the Somalian witnesses by reference to the incident on 9 September and the Asian who had newly arrived on the scene.   In his ruling the judge analysed the identification evidence of four of the Somalian witnesses in relation to the person supposed to have attacked Mustafa Osman.  He also reminded himself of the fact that the “Mediterranean witnesses” gave evidence about the circumstances in which Abdullahi had a knife.   Their evidence was contradictory to that of Abdullahi’s own evidence on this point.   
66.	Ultimately the judge concluded that the key point was that there were only three possible candidates for the stabbing of Mustafa Osman which took place.   Aubeelack had admitted in interview that there were five youths in the “Asian group”.  Of the five, in fact only three were of Asian origin; the other two were of Afro – Caribbean origin.  Of the three,  Bodrul was distinctive because of his small stature; and Mollany could not be a “new Asian” because he had been present earlier and he had not been involved in the incident on 9 September.   (Aubeelack had admitted in his interview that he had been involved in the incident with Abdullahi on 9 September).   Therefore, the judge concluded, there was evidence fit to go before the jury that pointed to the assailant being Aubeelack, despite the contradictory evidence that the assailant was wearing a red jacket.
67.	Submissions on behalf of Aubeelack in this court
On behalf of Aubeelack, Mr Bourne put forward similar arguments to those advanced before the judge.   He emphasised:  (i) that Aubeelack’s case was, in effect, that he had left the scene at the time when Mustafa was stabbed, so his case was one of alibi;  (ii) the evidence of the witnesses in the Somalian group was contradictory and, with the exception of Hassan, it was admitted that each of them had lied to the police about significant events on 13 September; (iii) Abdullahi’s evidence of how he jumped on one of the “Indian boys” and took possession of a knife he had and then returned it to him,  was not supported by any other witnesses;  however 12 other witnesses, none Somalian,  saw Abdullahi with a knife;   (iv)  the Somalian witnesses were sure that the “new Asian/Indian boy” involved in the attack on Mustafa was wearing a red jacket, as it was said he had been doing the previous Thursday (ie. 9 September);  but in fact Aubeelack was wearing a blue jacket on both occasions;   (v)  Aubeelack was not identified by three Somalians at identification parades.    Mr Bourne submitted that, taken overall, the identification evidence relating to Aubeelack was poor and contradictory, so that, following R v Galbraith 73 Cr App R 124, and R v Turnbull [1977] QB 224, the judge should have withdrawn Count 2 (as against Aubeelack) from the jury at the close of the prosecution case.
68.	Submissions of the Crown in this court
For the Crown, Mr Boyce QC submitted that the judge’s approach and analysis in his ruling were correct.  He submitted that the judge had properly directed himself on the law relating to a submission of no case to answer.  Mr Boyce submitted that the judge correctly analysed the evidence and did not miss out any relevant aspects, nor give undue weight to any matter in reaching his decision to allow the case to go to the jury.
69.	Conclusions on the case of Aubeelack
In our view neither the approach nor the analysis of the judge can be faulted.   He specifically referred to both Galbraith and Turnbull.    He was conscious that the key issue in relation to Aubeelack was whether there was sufficient cogent identification evidence marking him as one of the attackers of Mustafa Osman for the matter to go to the jury.    
70.	The judge identified three matters that pointed to Aubeelack as one of the attackers of Mustafa Osman.   In our view he was entitled to do so.   First was the fact, as Aubeelack had admitted in interview, he had been involved in the incident with Abdullahi on Thursday 9 September.    That incident led to the violence on 13 September.  It also tied in with the fact that Abdullahi referred to the person involved in the violence against Mustafa Osman as “the Indian boy from last week”.   Abdullahi’s evidence was that he had seen “the Indian boy from last week” stabbing Mustafa Osman in the left arm during the second violent incident.
71.	We accept, of course, that Abdullahi’s evidence was not entirely satisfactory and was inconsistent with that of other witnesses.  But the judge was in a far better position than us to decide whether the evidence of Abdullahi was so totally compromised as to be worthless.  He decided it was not and there is nothing that Mr Bourne has said that permits us to come to a contrary conclusion.
72.	The second matter the judge identified was that Aubeelack was described by Mustafa Osman, Mohammed and Hassan as “the extra person” or “the new boy”.  These expressions were capable of meaning that this person had not been present earlier in the confrontation outside the Woolwich Bank when there was an exchange of words but no violence.    In this regard, as the judge noted, it is important that there were only five in the “Asian/Indian group”.     Mollany could not be the “Asian from last week” and also he had been present at the Woolwich Bank.   Both Alexander and Oranu were described as Afro – Caribbean, so would not fit the description of “Asian/Indian” boy.   Bodrul was much shorter than Aubeelack and so had to be differentiated, as he was by the description of “short, chubby Asian”.  Therefore the description of “the extra person” or “the new boy” was one that, on this analysis, could only fit Aubeelack.
73.	Thirdly, this combination of describing the person who attacked Mustafa Osman as “the Asian from last week” and the “new Asian” could only fit Aubeelack, if that evidence was accepted by the jury.  The judge appreciated that the evidence of some witnesses that the second assailant was a person wearing a red jacket was inconsistent with that conclusion.   But none of the defendants had referred to a red jacket in interview.   The jury was entitled to reject the evidence about a red coloured jacket.
74.	Ultimately in a case of this type, the decision of the judge to let the case go to the jury can only be attacked if it can be shown that he failed to direct himself correctly on the legal principles or he left out some important factor or failed to take account of an important factor.   Mr Bourne has not demonstrated that any of those three circumstances apply here.   Accordingly the appeal of Aubeelack must be dismissed.
75.	(III)   The appeal of Basharath Miah:  severance of the trial of Basharath Miah
As we have already noted, after hearing argument we gave leave to appeal on the single ground that the judge erred in refusing to sever the trial of Basharath from the trial of the other defendants.
76.	The Submission on behalf of Basharath Miah
On behalf of Basharath, Mr Matthew Ryder accepts that on both occasions that the judge considered the question of severance of the trial of Basharath, the judge correctly identified section 5(3) of the Indictments Act 1915 as the source of his power to order a separate trial of Basharath.     Mr Ryder also accepts that the judge had in mind the general principles laid down by the English law cases as to the exercise of the discretion to order a separate trial, in particular the decision of the House of Lords in Ludlow v Metropolitan Police Commissioner [1971] AC 29, especially the statement of Lord Pearson at page 41.    There Lord Pearson emphasised that a judge has no duty to direct separate trials under section 5(3)  “…unless in his opinion there is some special feature of the case that would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice”.
77.	Mr Ryder also accepts that the judge had in mind the principles in Article 6 of the European Convention of Human Rights as incorporated into English law by the Human Rights Act 1998 and also the European case – law on this topic.  In any case that is clear from his ruling that he gave on the second application.
78.	Mr Ryder submits that the judge erred because he misapplied the principle set out by Lord Pearson in Ludlow’s case.    Mr Ryder says that in this case the interests of justice obviously demanded that the trial of Basharath should be severed from that of his son, Bodrul, for the following reasons:  (i) Bodrul had stated in interview that he had told his father nothing about the events of 13 September. By the time that the second application was made, leading counsel for Basharath (Mr Adrian Fulford QC as he then was) had a proof of evidence from Bodrul, which supported counsel’s view that he would wish to call Bodrul as a defence witness in Basharath’s trial;  (ii) however, Bodrul was not compellable as a witness by his father when the two were being tried together;   (iii) this meant that if Bodrul and Basharath were to be tried together, then Basharath would be deprived of the most powerful evidence that would support Basharath’s case that he obtained the airline ticket and passport in ignorance of the events of 13 September;   (iv) there were no countervailing reasons for having a joint trial of father and son other than the general principle of trying all matters said to be founded on the same facts. (The judge’s conclusion to that effect in his ruling on the joinder of the Count against Basharath has not been challenged).    But that general principle should give way to the particular interests of justice in this case.
79.	Mr Ryder also submitted that, in reaching his decision not to sever the trial of Basharath, the judge had taken into account extraneous factors which he ought to have excluded and had also not given any weight to the points set out above.   In particular, he said:  (i) the judge had wrongly justified his decision by speculating that if there had been severance of Basharath’s trial and Bodrul had been convicted of murder in his trial, counsel for Basharath may well have concluded that it was not worth calling Bodrul to give evidence;   (ii) the judge appeared to accept the submission of Mr Boyce that it was correct to have a joint trial because, although there was not a joint charge against Basharath and Bodrul of intending to pervert the course of public justice, nonetheless there could have been one;   and (iii)   the judge gave too much weight to the fact that,  once properly directed,  the jury would take account of the fact that Basharath had not been able to call Bodrul as a witness on his behalf at this joint trial.    
80.	The submissions of the Crown
Mr Boyce accepted that nowadays, bearing in mind the European case law, the Court of Appeal has to approach the exercise of a judicial discretion on the basis that it is necessary to subject it to “close and rigorous scrutiny”:  R v Hoey [2002] EWCA Crim 2644 at paragraph 21 per Rose LJ.    But he also submitted that this did not mean that the discretion could be overturned any more easily.  Mr Boyce accepted, of course, that if Bodrul did not wish to give evidence in his father’s defence at the trial in which Bodrul was also a defendant, he could not be compelled to do so. 
81.	Mr Boyce submitted that the judge came to the correct conclusion for the right reasons and that he did not take into account extraneous factors nor leave out any relevant ones.
82.	Basharath appeal:  conclusions
We have subjected the judge’s exercise of discretion not to sever the trials to “close and rigorous scrutiny”.   Having done so, we agree with the submissions of Mr Boyce.  In our view the judge was quite correct to conclude that the trial of Basharath should not be severed.   We say so for the following reasons:   (i)  the charges against the son and the father do have the same foundation of fact, that is the events of 13 September 1999.  The rule is that such charges should normally be tried together, unless there is some reason why justice requires separate trials.  (ii)  In this case there were particular actions and statements of father and son that the Crown claimed were relevant to the cases against each, such as Bodrul shaving his head, moustache and beard; Basharath procuring a signature for the passport application; Basharath procuring an airline ticket and the departure of Basharath to see off his son at Heathrow.  Mr. Ryder submitted that these points could have been dealt with adequately in separate trials if there had been severance.  That is no answer, in our view.  There was a positive advantage in having a joint trial.  It enabled the jury to see the whole picture, whereas separate trials might have produced a partial and possibly misleading picture at each trial.   (iii)   It is commonplace that where two co – accused are tried together, evidence from one accused might be of help to another, but that accused cannot be compelled to give evidence on behalf of the other.   That, by itself, will rarely be a reason to have separate trials in view of the general policy to have joint trials of alleged offences said to arise out of the same foundation of facts.  This is particularly so when, as here, the jury would not get the full picture if there had been separate trials.  (iv) Although the jury in the joint trial would not hear Bodrul’s evidence in favour of his father (in view of his decision to remain silent at the trial), the jury would still know that Bodrul’s interview account was in his father’s favour.  It could be (and was) directed by the judge that Bodrul could not be forced to give evidence in Basharath’s defence and that should count in Basharath’s favour.  That would (and did) reduce any prejudice to him in not being able to call his son in the joint trial. (v)   In all these circumstances there was no compelling reason why, in the interests of justice, there should be separate trials of the son and the father.   Indeed we think that it would have been contrary to the interests of justice to have held separate trials, because of the factors referred to at (ii) above.
83.	We did not grant leave to appeal to Basarath in relation to the judge’s summing-up on his case.  However, in response to Mr. Boyce QC’s submissions, Mr. Ryder did criticise the judge’s summing-up on one issue relating to Basharath and his inability to call his son to give evidence on his behalf.  The judge dealt with this at vol II pages 76 – 78.  The judge correctly directed the jury that the interview evidence of Bodrul could not be evidence against his father.  He also stated, in favour of Basharath, that the jury could consider what Bodrul had said in interview (ie. That he had not told his father about the incident on 13 September), in determining the prejudice that the father had suffered in not being able to call his son to give evidence.  Although Mr. Ryder criticised that direction as unorthodox, we see nothing wrong with the statement in the context of this case.  Mr. Ryder heavily criticised the next passage in the judge’s direction, at vol II page 78 A – B.  There the judge correctly stated that the jury would consider Count 5 (against Basharath) after they had decided Bodrul’s case.  He also said that the jury could therefore determine whether any evidence that Bodrul might have given would have been credible.  Mr. Ryder submitted that this was an impermissible comment because it invited the jury to speculate on the credibility of evidence that the son did not give.
84.	What the judge said in his summing-up cannot affect the correctness of his decision not to sever the trial of Basharath.  Indeed Mr. Ryder urged us to examine that issue at the point when the decision to sever or not was made by the judge.  We have done so.  Nor, in our view, was Basharath prejudiced in any way by the remark made by the judge, which Mr. Ryder has criticised.  The comment was apt in the context in which it was made.  In the circumstances we must dismiss the appeal of Basharath.
85.	Each of the appeals is, therefore, dismissed.