Neutral Citation Number: [2011] EWCA Crim 407
Case No: 201000496 B4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NOTTINGHAM CROWN COURT
HHJ MILMO QC
T20087301
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/03/2011
Before :

LORD JUSTICE JACKSON
MR JUSTICE WYN WILLIAMS
and
THE COMMON SERJEANT HHJ BARKER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Between :

	Regina	Respondent	
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	Josh Michael CLARKE	Appellant	

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Mr P Mann QC (instructed by CPS) for the Respondent
Mr O Pownall QC(instructed by Stephen Burdon Solicitors) for the Appellant

Hearing date: Thursday 3rd February 2011
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Judgment

Lord Justice Jackson : 
1.	This judgment is in eight parts, namely: 
Part 1. Introduction, 
Part 2. The Facts, 
Part 3. The Criminal Proceedings, 
Part 4. The Appeal to the Court of Appeal, 
Part 5. The Law, 
Part 6. The Principal Ground of Appeal: Prosecution Impugning their Own Witnesses, 
Part 7. The Two Subsidiary Grounds of Appeal, 
Part 8. Conclusion. 
Part 1. Introduction
2.	This is an appeal against a murder conviction on the grounds of an accumulation of errors during the trial, principally involving an attack by the prosecution upon the credibility of its own witnesses.
3.	The appellant accepts that he killed the deceased but contends that he is only guilty of the lesser offence of manslaughter. 
4.	After these brief introductory comments to set the scene, we must now turn to the facts. 
Part 2. The Facts
5.	The deceased, Anthony Collins, otherwise known as “Merv”, was aged 36. On the evening of 5th June 2008 he went drinking with friends at various public houses in Ilkeston. Eventually he went on his own to a restaurant called “Pizza Amigos”, where he met up with three teenage girls – Adele Pounder, Lucy Norman and Sally Cox. Both Anthony Collins and the girls had consumed large amounts of alcohol and were suffering the effects of intoxication. 
6.	Shortly afterwards Aaron Jackson and Natalie Lenton arrived at the restaurant. The girls started to taunt Natalie, because she had formerly been the girlfriend of Adele’s brother. The three girls and Anthony Collins then left the restaurant. 
7.	Aaron Jackson telephoned a friend, Charlotte Hill, and asked her to come and sort out the problem with the three girls. Charlotte Hill duly arrived by taxi, together with the appellant who had been in her company that night. The appellant and Charlotte Hill had been drinking together. 
8.	Ms Hill and the appellant got out of the taxi and went towards Natalie Lenton and Aaron Jackson. Jackson pointed towards the three girls. The appellant threw a bottle of lager in their direction, which smashed in the road. 
9.	Anthony Collins walked across the road and asked who had thrown the bottle. There were exchanges between Anthony Collins and the appellant. Both groups then made their way down the hill towards an Aldi supermarket.
10.	The crucial events happened in the vicinity of the Aldi supermarket. Unsurprisingly, the accounts given by various witnesses differ. It is, however, clear that the incident began with an altercation between Ms Hill and Anthony Collins. The appellant came to the aid of Ms Hill and attacked Collins. A fight ensued between the two men. The appellant, more than once, knocked Collins to the ground. The appellant delivered a number of blows and kicks to Collins during the fight. When Collins finally fell to the ground, the appellant kicked Collins’ head either once or more than once, that being a matter of controversy. 
11.	It was then realised that Anthony Collins was seriously injured. An ambulance was summoned. Anthony Collins was taken to Queens Medical Centre in Nottingham, where he died as a result of a brain haemorrhage. 
12.	In due course the appellant was arrested and charged with murder. He accepted that he was guilty of manslaughter, but he denied that he was guilty of murder. The appellant contended that he did not have the requisite intent for the offence of murder. This, therefore, was the main issue to be resolved in the criminal proceedings. 
Part 3. The Criminal Proceedings
13.	The appellant stood trial for murder at Nottingham Crown Court before HHJ Wide QC in January and February 2009. The jury were unable to agree and a re-trial was ordered. 
14.	The re-trial took place at Nottingham Crown Court before HHJ Milmo QC in December 2009. At the re-trial, as at the trial, the main issue before the jury was whether the appellant intended to cause grievous bodily harm to the deceased. 
15.	The eye witnesses whom the prosecution called at the original trial were Aaron Jackson, Charlotte Hill, Adele Pounder and Sally Cox. The same witnesses gave oral evidence at the re-trial, except for Sally Cox who had just had a baby. Sally Cox’s evidence at the re-trial took the form of counsel reading out the transcript of her evidence given at the original trial. 
16.	A number of other witnesses, of course, were called by the prosecution, who had not been present at the scene of the incident. One of the most important of these witnesses was Dr Turk, the pathologist who carried out a post mortem examination of the deceased’s body. 
17.	Let us focus now upon the aspects of the evidence which are central to the present appeal. The appellant’s case was that he only kicked Collins’ head once in the final stage of the incident. Two prosecution witnesses supported that version of events, namely Hill and Jackson. Ms Hill said that she saw the appellant kick the side of Collins’ head just once. Jackson in his initial statement to the police said that he saw several kicks. In his second statement, however, he corrected that and said that he only saw one kick. 
18.	Two other prosecution witnesses gave a different account of events. Adele Pounder and Sally Cox said that they saw someone repeatedly kicking towards a person on the ground. 
19.	Dr Turk, the pathologist, noted a number of injuries to the head, which collectively had caused the fatal brain haemorrhage. In Dr Turk’s view, each of these injuries could have been caused either by a kick or by Collins hitting his head when falling. In a supplementary report, commenting on the defence case statement, Dr Turk said this:
“1. Regarding the defendant’s statement, his foot made contact with Mr Collin’s head only once. This was when Mr Collins fell to the floor after being swung round by the defendant. According to the defendant’s account, he kicked out at Mr Collins as he fell. When he fell, Mr Collins hit his head on the ground and possibly also on a wall. 
2. It is my opinion that the patterned injury to the right side of the forehead was inflicted by a forced contact between the sole of a shoe and Mr Collins’ face, such as a kick or a stamp. In my opinion, a moderate to severe force (on a subjective scale of mild to moderate to severe) is required to inflict this injury. It is not possible based on the injury pattern to comment on the position Mr Collins was in at the time of the infliction of the injury. Thus, it cannot be excluded that the injury was inflicted while Mr Collins was falling. 
3. The injuries to the back of Mr Collins’ head (injuries 29 and 30) can be the result of an impact onto a rough surface such as a wall or the ground. 
4. Based on the injury pattern, the account of the defendant cannot be excluded.”
20.	In the course of her oral evidence Dr Turk identified a number of defensive injuries to the deceased’s arms. She said that these injuries might have been sustained in an attempt to ward off blows from the face. 
21.	The prosecution case at trial was that during the last stage of the incident the appellant intended to cause really serious injury to Collins. Thus he had the mens rea for murder. In support of this contention the prosecution suggested that the appellant kicked Collins’ head more than once. This proposition was not essential for securing a conviction for murder, because the jury might have inferred the requisite intent from the delivery of a single kick. However, the proposition was an important plank in the prosecution case. In the course of summing up the judge observed that the number of kicks may be “crucial”. 
22.	At the end of closing speeches defence counsel submitted that the prosecution had gone too far in relation to the number of kicks. Prosecuting counsel had invited the jury to disbelieve the evidence of two prosecution witnesses, namely Hill and Jackson, in relation to that issue. The judge decided to deal with this matter by directing the jury to avoid speculation. 
23.	The judge delivered his summing up on the morning of 23rd December 2009. As previously indicated in his discussion with counsel, he included a direction that the jury should avoid speculation. 
24.	On the afternoon of 23rd December the jury delivered their verdict. They found the appellant guilty of murder by a majority of 10:2. 
25.	The appellant is aggrieved by his conviction for murder, maintaining that he is only guilty of manslaughter. Accordingly, he appeals against conviction to the Court of Appeal. 
Part 4. The Appeal to the Court of Appeal
26.	The appellant appeals against conviction on one principal ground and two subsidiary grounds. 
27.	The principal ground of appeal is that the prosecution ought not to have invited the jury to reject Hill’s and Jackson’s evidence that there was only one kick by the appellant to the deceased’s head. 
28.	The two subsidiary grounds of appeal are:
i)	The judge failed in the summing up to direct the jury to treat the transcript of Sally Cox’s evidence with appropriate caution, as they had not seen her in the witness box or heard her cross-examined. 
ii)	Prosecution counsel in his closing speech improperly asserted that the appellant had shown no remorse for causing Anthony Collins’ death. 
29.	Before we tackle the grounds of appeal, it is first necessary to review the relevant law. 
Part 5. The Law
30.	The entitlement of the prosecution or defence, if the leave of the court is obtained, to treat a witness as hostile has long been recognised at common law. See the first edition of “Pleading and Evidence in Criminal Cases” by John Frederick Archbold (1822) at page 109. The rules in this regard were codified by section 3 of the Criminal procedure Act 1865 (Denman’s Act) which provides: 
“A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony…”
31.	It frequently happens that the party calling and relying upon a witness is bound to accept, or possibly even assert, that some parts of the witness’s evidence are incorrect. If the party calls several eye witnesses to a fast moving event, there are likely to be inconsistencies between their accounts, so that they cannot all be right in every detail. However, such errors in a witness’s evidence seldom call for the drastic step of treating him or her as hostile. 
32.	Stephen’s “Digest of the Law of Evidence” (MacMillan & Co, 12th edition, 1936) summarises the law as follows at article 147, on pages 169-170:
“Unfavourable and Hostile Witnesses: If a witness called by a party to prove a particular fact in issue or relevant to the issue fails to prove such fact or proves an opposite fact the party calling him may contradict him by calling other evidence, and is not thereby precluded from relying on those parts of such witness’s evidence as he does not contradict. 
If a witness appears to the judge to be hostile to the party calling him, that is to say, not desirous of telling the truth to the Court at the instance of the party calling him, the judge may in his discretion permit his examination by such party to be conducted in the manner of a cross-examination to the extent to which the judge considers necessary for the purpose of doing justice.”
The Court of Appeal in Prefas and Pryce (1988) 86 Crim App R 111 at 114 cited that passage as a correct statement of the common law rules. 
33.	The common law and statutory rules of evidence define the parameters within which both prosecution and defence must present their cases. The prosecution’s discretion, however, is further circumscribed by its obligation to promote a fair trial. Thus the prosecution ought normally to call or tender all available witnesses who can give direct and credible evidence of the primary facts in issue. On the other hand, the prosecution is under no duty to call witnesses whom it reasonably regards as unworthy of belief. See the judgment of the Court of Appeal in Kenneth Russell-Jones [1995] 1 Crim App R 538 at 544 to 545, where these principles are set out at greater length in the form of seven propositions with accompanying commentary. In Cairns [2002] EWCA Crim 2838; [2003] 1 Crim App R 38 the three appellants were charged with conspiracy to supply class A drugs. The first appellant’s husband, Mr Barry Cairns, was a prosecution witness. Mr Cairns had pleaded guilty to being involved in the conspiracy at an early stage. At the trial Mr Cairns gave evidence which tended to exculpate his wife, but incriminate the other defendants, Zaidi and Chaudhary. The prosecution relied on Mr Cairns’ evidence concerning Zaidi and Chaudhary, but not on the evidence which Mr Cairns gave concerning his wife. 
34.	Zaidi and Chuddar appealed on a number of grounds, one of which was that the prosecution cannot adopt an inconsistent approach to its witnesses. The prosecution must either accept the credit of its own witnesses or apply to treat them as hostile. The prosecution was not entitled to rely only upon those parts of Mr Cairns’ evidence which incriminated Zaidi and Chaudhary. 
35.	The Court of Appeal rejected that argument. The court noted that the prosecution has a discretion as to the witnesses which it actually calls at trial. However, that discretion must be exercised in the interests of justice. The court then specifically addressed the problem posed by witnesses, whose evidence appears to be in part correct and in part incorrect. Keene LJ, delivering the judgment of the court, said:
“35. But it is not uncommon for there to be witnesses whose evidence is regarded by the prosecution as largely, or in part, worthy of belief and reliable but not wholly reliable. There may be good reason for the prosecution arriving at such a judgment. It is a normal human experience that people sometimes tell the truth about certain matters but may not be reliable about others, as the verdicts of juries from time to time suggest. There is no reason why a jury should not regard part of a witness’s evidence as true but take the position that they cannot rely upon the whole of that evidence. That not infrequently happens and it seems to have happened in the present case. 
36. We know of no principle of law or justice which requires the prosecution to regard the whole of a witness’s evidence to be reliable before he can be called as a prosecution witness. If it is open to the prosecutor to form the view that part of a witness’s evidence is capable of belief, even though the prosecutor does not rely on another part of his evidence, then the prosecutor is entitled to exercise its discretion so as to call that witness. That must be so, since part of the witness’s evidence could be of assistance to the jury in performing its task, and it would therefore be contrary to the interests of justice to deprive them of that assistance. The prosecution in such circumstances is not to be prevented from calling such a witness.”
36.	After referring to the cases of Pacey (The Times, March 3, 1994) and Prefas and Pryce [1988] 86 Crim App R 111, the court concluded as follows: 
“39. So it is clear, in our view, that the prosecution may properly call a witness when they rely on one part of his evidence but not on another part. Whether they choose to call such a witness is a matter for their discretion, to be exercised on the principles which we have already set out. But that does not amount to an attack on their own witness’s credit. 
40. In the present case the prosecution identified a rational explanation for not relying on part of Barry Cairns’ evidence, namely his relationship with his wife and with his friend Hussain. That explanation did not cast doubt on his evidence about Chaudhary and Zaidi.”
37.	The court added one important qualification to these principles. When discussing the Court of Appeal’s decision in Pacey, the court noted that in that case a prosecution witness changed her evidence on a crucial point and had been criticised in the prosecution’s closing speech. The court observed: 
“When prosecution counsel in his final speech started to cast doubt upon the credit of his own witness, he was stopped by the judge on the normal principle that a party is not entitled to attack the credit of its own witness unless it seeks, and is permitted, to treat that witness as hostile. That is a principle which received statutory recognition in the Criminal Procedure Act 1865 (Denman’s Act), s. 3.”
38.	From this review of authority, we derive the following principles which are relevant to the present appeal:
i)	The prosecution may call a witness to give relevant evidence on some issues in the case, even if his or her evidence on other issues appears to be incorrect. 
ii)	If the prosecution witnesses give inconsistent evidence on particular issues, the prosecution may suggest to the jury which evidence on those issues should be preferred. 
iii)	However, the prosecution may not explicitly attack the credit of its own witness, or suggest that the witness is deliberately lying in parts of his or her evidence, unless the prosecution has obtained the court’s permission to treat the witness as hostile. 
39.	In some cases the operation of these principles may create a somewhat artificial result. However, the principles have a firm statutory and common law foundation. They can be applied in practice without undue difficulty. 
40.	Fortified by this review of the authorities, we must now turn to the principal ground of appeal. 
Part 6. The Principal Ground of Appeal: The Prosecution Impugning their own Witnesses
41.	In his opening speech to the jury prosecuting counsel, Mr Paul Mann QC, said this in relation to the anticipated evidence of Jackson and Hill; 
“The nearest witnesses to this part of the attack were Aaron Jackson and Charlotte Hill. Each of them say they saw at least one hard kick to the head. It will be a matter for you to judge whether they were witnessing the same kick or different kicks because they were standing at different points looking at different times, different angles. You will have to judge whether in fact they may have seen more than they’re telling.”
42.	The first three sentences in that passage are unexceptionable. The fourth sentence, however, suggests that Jackson and Hill may be deliberately withholding relevant evidence. One can understand why that suggestion was made. Jackson and Hill were friends of the appellant. The appellant had come to the aid of Hill in her altercation with the deceased. Nevertheless, it was not open to prosecuting counsel to impugn his own witnesses in this way without obtaining the permission of the court to treat those witnesses as hostile. 
43.	Mr Orlando Pownall QC, who represented the appellant at his trial as well as in this court, did not object to this part of prosecuting counsel’s opening speech.  By that we mean that he did not interrupt prosecuting counsel's speech and raise an objection with the judge; further, he did not raise the matter with the judge at the end of counsel's opening.  With the benefit of hindsight we can well see that had he done so later problems may not have occurred.  However, we accept that it was a matter of judgment for Mr Pownall as to whether to raise the issue and at this early stage, of course, no one could be sure about the evidence which would be given by Jackson and Hill.
44.	The trial proceeded. Hill and Jackson both gave evidence.  There was no application to treat either of them as hostile witnesses. When Jackson gave evidence, he was unable to remember the details of what had occurred. He was therefore invited to refresh his memory from his first statement. This caused him to testify that there was more than one kick. It was only during cross-examination that Jackson was shown his second statement and then corrected his evidence to say that there was a single kick. 
45.	When the pathologist gave evidence, she described a number of defensive injuries to the deceased’s arms. In his closing speech prosecuting counsel relied upon these injuries as circumstantial evidence to show that Collins was warding off more than one kick. Although Mr Pownall criticises this aspect of the prosecution case, we reject those criticisms. The evidence of defensive injuries was perfectly properly elicited from the pathologist. By the end of the case there was before the jury conflicting evidence as to whether the appellant delivered one kick or more than one kick to Collins’ head. The prosecution was fully entitled to suggest to the jury which strand of the evidence should be preferred. In support of that suggestion the prosecution was entitled to rely on Dr Turk’s evidence in respect of defensive injuries. 
46.	We turn now from the prosecution evidence to the defence evidence. The appellant accepted that his conduct had gone beyond self defence, but denied that he had delivered more than one kick when Collins finally fell to the ground. The cross-examination of the appellant began with the suggestion that he knew from the outset that there would be a confrontation in Bath Street (the road leading to Aldi supermarket). It was suggested that the appellant had decided to accompany Hill on her taxi journey in that knowledge. Mr Pownall now criticises those questions as being contradictory to the evidence previously given by Hill.
47.	Strictly speaking Mr Pownall may be right.  If he had risen to object to this line of cross-examination (on the basis that no foundation existed for it) it is at least possible the judge would have stopped it.  However, in our judgment, there is no realistic prospect that the jury would have treated this line of cross-examination as an inferential attack upon the credit of Hill.  Even if they had, however, the issue was entirely peripheral since no one was suggesting that the appellant had formed the necessary intent for murder at this stage.
48.	The next point which Mr Pownall takes is that prosecuting counsel did not put to the defendant in cross-examination that he delivered more than one kick to Mr Collins in the final stage of the incident. Therefore it was unfair for the prosecution to make any such suggestion in its closing speech. We have studied the transcript of the appellant’s cross-examination and we do not accept that criticism of prosecuting counsel. In the final section of the cross-examination Mr Mann clearly put it to the appellant that he had kicked Collins’ head more than once. 
49.	We turn next to the prosecution closing speech. At this stage of the case prosecuting counsel was drawing the threads together and identifying the key pieces of evidence for the assistance of the jury. By that stage there was conflicting evidence concerning the number of kicks to Collins’ head. Counsel was quite entitled to refer to, and place reliance on, the evidence of Pounder, Cox and the pathologist. He was quite entitled to invite the jury to prefer that evidence and to conclude that the appellant must have kicked Collins’ head more than once. Unfortunately the prosecution closing speech went much further than that. There came a point in his speech when counsel suggested that Jackson and Hill were deliberately lying in parts of their evidence and that, therefore, the jury should reject Jackson and Hill’s evidence that there was only one kick. Counsel should not in his closing speech assert that a witness is deliberately lying, unless he has put that suggestion to the witness. In the case of one’s own witness, this involves obtaining the permission of the court to treat the witness as hostile.
50.	Mr Pownall did not interrupt Mr Mann’s closing speech although that course was open to him.  We recognise that Mr Pownall was in a difficult position.  Presumably he had no idea what Mr Mann was intending to say in closing.  Interrupting an opponent’s speech in a criminal trial can be counter productive.  It is not always easy to know when, if at all, to interrupt.  In any event, as Mr Pownall submits, the situation which had arisen was not of his making.  
51.	At the end of the prosecution’s speech, defence counsel did raise an objection, as we have noted in Part 3 above. We are told that there was a discussion about how the judge should sum up. At this stage there was a consensus that the judge should direct the jury not to speculate, without any specific reference being made by the judge to prosecuting Counsel's attack on the credibility of Jackson and Hill. In his skeleton argument for the appeal Mr Pownall submitted that the judge’s decision simply to direct the jury not to speculate was insufficient. The judge ought to have directed the jury to reject the suggestion that Jackson and Hill had lied. In his oral submissions, however, Mr Pownall retreated from this criticism of the trial judge. Instead he submitted that the harm caused by the prosecution speech was incurable and the judge was left in a difficult position. In these circumstances a simple direction about not speculating, without further elaboration, could not be criticised. 
52.	Whether Mr Pownall was correct in his original criticism of the summing up or, alternatively, correct in his withdrawal of that criticism may not be material. Either the prejudice caused by the prosecution closing speech was incurable or, alternatively, it was not in fact cured. When the jury retired to consider their verdict, they would have had in mind the prosecution’s suggestion that Jackson and Hill were lying in relation to the number of kicks delivered. 
53.	Let us now draw the threads together. For the reasons set out above, we consider that the appellant succeeds on his principal ground of appeal. There still remains the question whether that renders the appellant’s conviction unsafe. We shall address that question after we have considered the two subsidiary grounds of appeal. 
Part 7. The Two Subsidiary Grounds of Appeal
54.	The first of these two grounds is that the judge failed in the summing up to direct the jury to treat the transcript of Sally Cox’s evidence with appropriate caution, as they had not seen her in the witness box or heard her cross-examined. 
55.	Undoubtedly such a direction should have been given in the summing up. Its omission must have been due to an oversight on the part of the judge. It was also due to an oversight on the part of counsel. When the proposed directions of law were under discussion between counsel and the court, neither prosecution nor defence pointed out to the judge that such a direction would be required. 
56.	Having said that, we do not believe that any great harm was caused by this error. Counsel are agreed that the judge must have given appropriate directions to the jury at the time when Cox’s transcript was read out. In those circumstances, the omission to repeat such a direction in the summing up was not fatal. 
57.	We turn now to the second subsidiary ground of appeal. This is that prosecuting counsel in his closing speech improperly asserted that the appellant had shown no remorse for causing Anthony Collins’ death. The passage complained of in the prosecution closing speech reads as follows: 
“He may have said to you that he wished he hadn’t done it; he said to his solicitor that he was devastated. Has this man, as he has given his evidence to you, really shown any remorse? ”
58.	Mr Pownall submits that this comment should never have been made. There was no evidential basis for such an observation. It was not suggested to the appellant in cross-examination. 
59.	Mr Mann now accepts that he ought not to have made that comment in his closing speech, adding candidly “mea culpa”. He also points out, however, that this comment provided ammunition for the defence closing speech and Mr Pownall made full use of that ammunition. 
60.	In our view, the subsidiary grounds of appeal would not, in themselves, warrant quashing the appellant’s conviction. However, these two matters must be put into the scales. They add some weight to the principal attack on the conviction.
61.	Having examined the individual grounds of appeal, we must now stand back and reach our overall conclusion. 
Part 8. Conclusion
62.	Section 2(1) of the Criminal Appeal Act 1968 provides that the Court of Appeal shall allow an appeal against conviction if they think that the conviction is unsafe. 
63.	In relation to the application of that test our attention has been drawn to the Court of Appeal’s decision in Cooper [1969] 1 QB 267. At page 271 Widgery LJ said: 
“That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.”
64.	In the end we have stood back and looked at this case in the round, asking ourselves the question formulated by the Court of Appeal in Cooper. We cannot be sure that the appellant would have been convicted of murder, if prosecuting Counsel had not sought to undermine the very important evidence of Hill and Jackson as to the number of kicks delivered by the appellant to the head of the deceased.
65.	Accordingly, in the result, we do not regard the appellant’s conviction as safe. This appeal against conviction is allowed. We now invite submissions from counsel as to the form of order which should be made.