Neutral Citation No [2012] NICA 52	Ref:    	MOR8664	
			
Judgment: approved by the Court for handing down	Delivered:	29/11/2012	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________ 
THE QUEEN 
v
NIGEL JAMES BROWN and GARY RYAN TAYLOR
________
Before: Morgan LCJ, Higgins LJ and Girvan LJ
________ 

MORGAN LCJ (giving the judgment of the court)
[1]	Both applicants renew their applications for leave to appeal against their convictions at Belfast Crown Court on 24 February 2010 of the murder of Thomas Devlin and the attempted murder of Jonathan McKee on 10 August 2005. Taylor also renews his application for leave to appeal against the tariff of 30 years imposed in respect of the murder and the sentence of 20 years imprisonment imposed for the attempted murder. Brown has been given leave to appeal the tariff of 22 years imposed in respect of the murder and the sentence of 15 years imprisonment in respect of the attempted murder. This judgment deals solely with the applications in respect of the convictions.

Background

[2]	On the evening of 10 August 2005 sometime after 11:30 pm Thomas Devlin, aged 15, Jonathan McKee, aged 17 and Fintan Maguire, aged 16 were walking along the Somerton Road, Belfast when they saw two men with a dog walking behind them on the opposite side of the road about 100m away. At first they thought there was nothing unusual about this and walked on but just as they approached the gates of St Patrick's College Jonathan McKee heard Thomas Devlin shout “run” and he saw that the two men were now only 2 or 3 metres from them. Fintan Maguire turned on hearing the sound of quick footsteps and saw the two men running at their group. He saw that one of the men was carrying what looked like a wooden bat in his hand which was between 18 and 24 inches long. There is no dispute about the fact that Brown was the person carrying the baton and the Crown case is that Taylor was the other person and that he was carrying a knife.

[3] 	Fintan Maguire ran off pursued by one of the men. He saw that Jonathan McKee was being repeatedly struck by the man with the baton. Jonathan McKee described his attacker as the smaller of the two men and stated that he was struck on the head, shoulders, arms and upper body by what he described as a piece of wood or baton. He was also punched in the face. Fortunately he did not sustain any significant injury. He believes that his attacker may have stamped on his side and kicked him on the hip as he fell to the ground. The attacker then made off after the dog in the direction of Somerton Park.

[4] 	While this attack was going on Fintan Maguire saw that the other man had chased Thomas Devlin and pulled him down off the wall of St Patrick's School. The attacker then inflicted fatal stab wounds on him. The pathologist found four stab wounds to the left side of the back of the chest. There were further stab wounds on the right side of the front of the abdomen, on the back of the right upper arm, on the outer side of the right upper arm and on the outer side of the front of the hip. There were also superficial incised wounds of the left upper and lower eyelids. It is apparent therefore that the attack on Thomas Devlin involved repeated stab wounds to the chest, abdomen, right upper arm, hip and face. Two of these wounds were deep and brought about the bleeding which was responsible for his rapid death.

[5] 	Jonathan McKee then described how Thomas Devlin's attacker turned his attention to him, striking him several times. Jonathan McKee was carrying Thomas Devlin's backpack which contained a number of aerosol cans of spray paint. The first blow was to his stomach and inflicted a frontal abdominal stab wound. It then appears that further blows with a knife were aimed at Jonathan McKee’s back but fortunately these punctured the cans of paint in the backpack. The attacker then jogged off and joined Brown who was standing some distance away and both men strolled off along Somerton Road.

[6] 	Lawrence Kelly was walking along Somerton Road when he saw someone run across the road and climb over the gates into the grounds of St Patrick's School. This was Fintan Maguire escaping from the attack. Mr Kelly continued to walk down the road and was then overtaken by two youths and a dog running loose coming in the opposite direction. As they passed he heard the taller man say "cover your face" and as they passed him the taller man said to Mr Kelly "we'll do you too". Both men then ran up towards Lansdowne Road. Mr Kelly then went to the aid of the victims and called the emergency services at 11.48. The inference is that the incident occurred at approximately 11.45.

[7] 	Although Brown accepted that he was the person who used the piece of wood at the scene the case against Taylor establishing his presence was circumstantial. In support of that case the Crown relied on a number of pieces of evidence:–

(i)	Taylor admitted that he and Brown spent the earlier part of the day together drinking and smoking cannabis;

(ii) 	Both lived at Ross House which is a multi-storey flat complex;

(iii) 	Shortly before 11:30 pm on the night of the attack Brown can be seen on CCTV travelling from the 10th floor to Taylor’s flat on the 12th floor in the lift;

(iv) 	They left Ross House together at approximately 11:30 pm bringing with them Brown’s dog;

(v) 	The place where the attack was carried out is approximately 10 minutes’ walk from Ross House and the attack was carried out at approximately 11:45 pm;

(vi) 	There is a significant difference in height between Taylor and Brown with Taylor being the taller and there was evidence from a number of witnesses that the height of the attackers corresponded to the heights of Taylor and Brown;

(vii)	Taylor returned to Ross House at midnight. He entered the building backwards plainly trying to shield his identity and hiding the state of his clothing. He did not take the lift which clearly was working but walked the 12 floors to his flat. The Crown invited the jury to consider that this was an extraordinary performance designed to prevent the CCTV capturing Taylor’s true state after the attack;

(viii)	The learned trial judge admitted evidence of the conviction of Brown and Taylor for affray and assault occasioning actual bodily harm arising out of a riot on 16 March 2003.

[8] 	In support of the joint enterprise case against Brown the Crown relied on a number of factors:–

(i)	Brown had armed himself with a stick and according to Brown Taylor was carrying a knife which he had taken from Brown's home;

(ii) 	The attacks on the victims began together;

(iii) 	The attacks took place without warning;

(iv) 	Given that Brown had armed himself and that this was a coordinated attack upon this group of boys the jury were entitled to regard as fanciful the suggestion that Brown did not know that Taylor had a weapon;

(v) 	The Crown case was that neither attacker made off until the attack on both victims had been carried out. It is common case that Brown desisted from his attack on McKee and that he moved in the direction of his dog;

(vi) 	There was evidence that Brown called out to the dog at that time. The Crown case is that Brown desisted in order to control the dog;

(vii) 	Brown and Taylor were together after the attack and were seen by Laurence Kennedy walking past the second set of gates into St Patrick's College which was approximately 100 yards from the scene of the attack. The Crown case is that it was only then that they split up;

(viii) 	After the attack Brown walked in a loop to the bottom of Somerton Road where he was seen by police around midnight and thereby hoped to have himself excluded as a potential assailant.

[9] 	David Crozier was the partner of Brown's mother. His brother was a police officer called Norman Crozier. David Crozier contacted his brother and arranged to meet him on 18 September 2005. He told him that he was concerned for the safety of Brown and he recounted an account given to him by Brown of his involvement in this incident. David Crozier declined to co-operate with police enquiries. On the Crown’s application the learned trial judge admitted the following evidence from Norman Crozier.

“… David related that Nigel Brown was upset and crying and that he said he (Nigel) had been involved. David explained that Nigel and Gary Taylor had gone to 10C Ross House to collect the dog and go for a walk. They had a knife from Brown’s flat with them. Brown was not aware that Taylor had the knife as it had been removed without his knowledge by Gary Taylor at some point. David explained that Nigel Brown told him that they, Nigel Brown and Gary Taylor, made their way to the Somerton Road where they had a verbal confrontation with a number of other young people. David related Brown’s account that both Gary Taylor and himself got physically involved with the other youths. By Nigel Brown’s admission, he had personally punched several of the other young people and saw Taylor in a frenzy stabbing one of the other youths. Nigel Brown related that he was shocked to see Taylor with the knife and as it was totally unexpected he took to his heels and ran, with the dog also running off. David Crozier went on to say that he believed Nigel Brown had somehow changed himself before returning to the scene before he was stopped by police. David outlined to me that Nigel Brown was upset and remorseful. This was evident by Nigel speaking with David Crozier who was then asked by Nigel Brown what he should do. He replied to the effect that it was a decision he would have to make for himself. My brother David had spoken to me about these matters in order that the information could be used by the police investigation, but without it being disclosed as to where it had come from. I explained to David that due to the seriousness of the offence that this was not possible. I later took steps to have this information made available to the inquiry which I know has been achieved.”

The appeal of Taylor

[10] 	The principal argument advanced on behalf of this applicant is that the learned trial judge erred in admitting the evidence of Norman Crozier and that the applicant consequently suffered severe and irreparable prejudice. The learned trial judge noted that if the evidence had been given by David Crozier it would have been admissible as a potential confession against Brown but in light of the fact that the evidence was given by Norman Crozier the prosecution application was to admit it as multiple hearsay.

[11] 	The prosecution’s application was supported by Brown but opposed by Taylor. It is accepted that it was, therefore, for the prosecution to establish that it was in the interests of justice to admit the statement. In addressing that test the learned trial judge examined each of the matters set out in Article 18(2) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 (the 2004 Order). He concluded that the statement had potentially highly significant probative value in determining the nature and extent of the role of Brown, his intentions and what he knew of the conduct of the second man at the scene. It was also relevant to what he knew of the attack on the deceased, whether he dissented from what was happening or tried to intervene to prevent it happening and therefore was relevant to the issue of joint enterprise. No other evidence of this could be given because of the failure of David Crozier to co-operate and the evidence was central to the role of Brown.

[12] 	The judge noted that Brown spoke to David Crozier on 8 or 9 September 2005. This was a deeply meaningful conversation in a family context while Brown was apparently wrestling with his conscience. Even though parts of the statement may be judged exculpatory the learned trial judge was entitled to find that the essential core of the statement was the admission by Brown which had relevant features indicating its reliability. The circumstances of the discussion with David Crozier indicated that a high degree of reliability should be given to those passages implicating Brown by his attendance at the scene. The statement was then relayed to Norman Crozier, a police officer, to help the investigation some ten days later. The circumstances of the conversation and its content would have made a deep impression on David Crozier so it is highly likely that the statement was accurately recounted to his brother and accurately noted by him. Brown wanted the statement admitted so he was not prejudiced by its admission but Taylor contended that he could not challenge the statement as the maker, Brown, did not give evidence and was prejudiced by its admission.

[13] 	At the admissibility hearing and indeed throughout the trial it was common case between the parties that the evidence of Norman Crozier was only admissible against Brown and not against Taylor. The learned trial judge concluded that he could deal with any potential prejudice to Taylor by warning the jury in sufficiently strong terms and accordingly found the evidence satisfied the requirements of Article 18 of the 2004 Order. As this was multiple hearsay, however, the prosecution had to satisfy the test in Article 25(1)(c) of the 2004 Order.

“25.-(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless -

(a)	either of the statements is admissible under Article 21, 23 or 24,
(b) 	all parties to the proceedings so agree, or
(c) 	the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.”

The learned trial judge noted the provenance of the evidence which has been set out at paragraph 12 above on the issue of reliability and found it self-evident that the value of the evidence was so high that the interests of justice required it to be admitted.

[14] 	In his charge the learned trial judge told the jury that the evidence of Norman Crozier was not evidence against Taylor. He had no means of challenging it and it was not to be taken into account by the jury against him. It was, however, clearly relevant evidence against Brown and the jury needed to examine in particular those portions that might be judged self-exculpatory.

[15] 	The learned trial judge did not have his attention drawn to the decision of the English Court of Appeal in R v Y [2008] EWCA Crim 10. That was a case in which the confession of X to his girlfriend which implicated Y was admitted under the legislative equivalent of Article 18(1)(d) of the 2004 Order. X had been separately tried. The Court of Appeal concluded that the evidence of the confession was admissible and once admitted under the relevant legislation was evidence against Y. All parties now agree that the statement of Norman Crozier was evidence against Taylor by reason of being admitted under Article 18(1)(d) of the 2004 Order. 

[16] 	The prosecution case is that it did not seek to use the evidence against Taylor. It is perhaps anomalous that if the evidence had been given by David Crozier and admitted as a pure confession it would not have been admissible against Taylor. The principal ground of objection by Taylor remained that the reliability of the statement in relation to him was suspect but in addition he contended that the learned trial judge should have considered that the statement could be evidence against Taylor which he could not rebut and that it was not therefore in the interests of justice to admit it under Article 18(1)(d).

[17]	We can deal briefly with the challenge in relation to reliability. The learned trial judge carefully considered the factors to which he is obliged to have regard in Article 18(2) of the 2004 Order.

“(2)	In deciding whether a statement not made in oral evidence should be admitted under paragraph (1)(d), the court must have regard to the following factors (and to any others it considers relevant)-

(a)	how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) 	what other evidence has been, or can be, given on the matter or evidence mentioned in sub-paragraph (a);

(c) 	how important the matter or evidence mentioned in sub-paragraph (a) is in the context of the case as a whole;

(d) 	the circumstances in which the statement was made;

(e) 	how reliable the maker of the statement appears to be;

(f) 	how reliable the evidence of the making of the statement appears to be;

(g) 	whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) 	the amount of difficulty involved in challenging the statement;

(i) 	the extent to which that difficulty would be likely to prejudice the party facing it.”

[18] 	In particular he considered the issue of reliability as set out in paragraph 12 above. A judge is not required to come to a firm conclusion on reliability but we accept that reliability is an important factor to be considered in determining whether the case is one that would permit the introduction of evidence that could not be challenged. This issue was recently considered by Hart J in R v Crilly [2011] NICC 3 and we agree with the analysis of the caselaw there set out by him. The admissions made by Brown to David Crozier were voluntary and accompanied by expressions of remorse. The learned trial judge recognized that such an admission against interest was an indicator of reliability. The task for the judge under Article 18(2) was to assess the impact of these factors in the round. The court will only interfere if the assessment is plainly wrong (see R v Richards [2007] EWCA Crim 709). In this case the learned trial judge carefully examined the background to the admission by Brown and the indicators to be derived from that of its likely reliability. He took into account that provenance when considering whether the enhanced test under Article 25(1)(c) was met. This was evidence which he properly assessed as being of very great importance.

[19] 	The second issue on the admissibility of this evidence relates to the relevance of the decision in R v Y. Although this evidence was admissible against Taylor the prosecution did not rely on it for that purpose. The weight of the admission that Brown was at the scene and participated in the attack to some extent was enhanced by the fact that Brown was not challenging that at the trial. Indeed he was anxious to have it admitted. If it had been sought to use this evidence against Taylor it would have been for the trial judge to determine how to direct the jury as to the use that they could make of it against him. In our view it was open to the learned trial judge to conclude that the jury should not use this evidence against Taylor as he had no opportunity to test it. In effect that is what he did. The learned trial judge did consider whether the evidence could have been admitted without identifying Taylor but for the reasons given by him we accept that it would have been impossible for the jury to comprehend the evidence if such a course had been followed.

[20] 	If it had been suggested to the court that the admissibility of this evidence under Article 18(1)(d) of the 2004 Order gave rise to difficulty in respect of Taylor it would then have been open to the court to invite the prosecution and Brown to admit the evidence by way of formal admission pursuant to section 2 of the Criminal Justice (Miscellaneous Provisions) Act (NI) 1968. In those circumstances the evidence would only have been admissible against Brown and the judge would have directed the jury exactly as he did. It was suggested by the prosecution that in any event the learned trial judge would clearly have admitted the evidence even if it was capable of being used against Taylor but we do not need to consider that possibility as we are satisfied that the issue would have been resolved by either of the two methods just set out.

[21] 	In our view none of these complaints give rise to any concern about the safety of the conviction. This was a case in which the learned trial judge properly admitted the admission against Brown and directed the jury that the evidence was not to be used by them against Taylor. He properly warned the jury in order to protect Taylor from any prejudice. His approach was consistent with R v Hayter [2005] UKHL 6 and R v Lake (1976) 64 Cr App R 172.

[22] 	In the course of his police interviews Taylor told the police that he was in Loughshore with friends smoking cannabis at the time of the murder. No notice of alibi was served and no evidence was called to support this account. Taylor did not himself give evidence. The learned trial judge concluded that he should give a Lucas direction and in the case of Taylor indicated to the jury that they would have to take a view about whether he was telling lies about the alibi. We agree that the decision to give the direction in these circumstances was a matter of discretion. This case had not been actively advanced at the trial. It was, however, potentially in aid of the applicant lest the jury should draw an adverse inference inappropriately. The judge did not expressly warn the jury that they must be satisfied beyond reasonable doubt that Taylor told a lie although he had reminded them at the start of the charge that the onus of proof was always on the prosecution and that the standard was beyond reasonable doubt. We agree that it would have been preferable to expressly remind the jury that any lie had to be proved beyond reasonable doubt but in the context of this case the absence of such a direction did not affect the safety of the conviction. The absence of a notice of alibi, the fact that Taylor chose not to support the allegation in evidence and the absence of any evidence to support it are themselves strong indicators of the lie. 

[23] 	The second criticism of the charge in respect of lies related to the manner in which the learned trial judge suggested the jury could use the lie if they found it established. The learned trial judge reminded the jury that people tell lies for all sorts of reasons. Someone might lie to convince the police that he was innocent or because he thought he needed to bolster a weak case. He warned the jury that telling a lie did not mean that the accused was guilty. That would not be a logical inference. He told them not to take the approach that lies equal guilt. He reminded the jury of Taylor’s counsel’s speech on this issue. The criticism is that he did not expressly tell the jury that it was only if they were satisfied beyond reasonable doubt that the accused did not lie for an innocent reason that they could use the lie to support the prosecution case. We agree that the direction should have been framed in these or similar terms but having reviewed the direction on this issue as a whole we do not consider that it adversely affected the accused or that there was any risk that the jury may have relied on the lie unless satisfied beyond reasonable doubt that there was no innocent explanation for it.

[24] 	The third issue raised on behalf of this applicant was the approach of the learned trial judge to the evidence of identification and in particular the evidence supporting the prosecution case that there was a significant height difference between the two assailants. The difference in height was material because Taylor is taller than Brown by about three inches. A height difference therefore supports the prosecution case that Taylor was the second man with Brown. 

[25] 	It is submitted by Taylor that the judge did not properly review the essential features of the evidence on this point. We do not agree. The judge reminded the jury of the evidence given in particular by Jonathon McKee, Fintan Maguire and Laurence Kelly.  Fintan Maguire had given an account to police about 5 am on the morning after the murder shortly after he learnt of Thomas Devlin’s death. In that account he said that the two attackers were about the same height. He then attended the police station later that afternoon and made a written statement in which he said that there was a difference in height. The learned trial judge expressly reminded the jury of this evidence. There was some criticism of the fact that he also reminded the jury of the fact that Fintan Maguire had not slept and had just heard of his friend’s murder when he was talking to the policeman in the early hours of the morning. In our view that background evidence was necessary in order to enable the jury to evaluate the significance of his varying accounts.

[26] 	The second criticism related to the manner in which the learned trial judge dealt with the evidence that Jonathon McKee, Fintan Maguire and Laurence Kelly had not been able to identify either assailant despite the fact that Taylor was present on at least one occasion. The judge also reminded the jury of the evidence that Fintan Maguire and Laurence Kelly had toured the area with police shortly after the attack and failed to identify the assailants despite the fact that it is now accepted that Brown was among one of the groups of people that they viewed. In addition Mr Kelly made a mistaken positive identification.

[27] 	It is submitted on behalf of Taylor that the failure to identify him is an important element of his case which should have been highlighted to the jury. We consider that the learned trial judge correctly reminded the jury of the difficult circumstances surrounding any identification. Fintan Maguire had a view from over his shoulder when he was about to run away and a side view from inside the school grounds. Laurence Kelly would have relied on his view as the two assailants passed at which stage they spoke to him. Jonathon McKee was subject to a beating from the assailants. In each case the circumstances of the identification were very difficult and it would have been wrong to suggest that the jury should place any significant weight on a failure to identify Taylor.

Appeal of Brown

[28] 	The case made by the prosecution against Brown was that he was part of a joint enterprise with Taylor in respect of the murder and attempted murder. The direction to the jury had been the subject of discussion with counsel in advance and was agreed. It was delivered by the learned trial judge early in his charge which he began on the afternoon of 22 February 2010. No complaint is made in respect of the substance of that charge. The learned trial judge addressed the question again on the morning of 23 February 2010 in the following terms.

"If Brown realised that the second man in the enterprise might kill or intentionally cause Thomas Devlin a really serious injury, that is GBH, but nevertheless continued with the second man to carry out their plan, then when Thomas was attacked and killed by the second man Brown becomes liable as a secondary party for the murder of Thomas. Now that is the general rule. He has to realise that the second person might kill or intentionally cause Thomas Devlin a really serious injury. With that realisation he nevertheless continues with the second person to carry on with their plan to carry out their plan; so that when Thomas is attacked and killed by the second person Brown becomes liable for the murder of Thomas unless (and this is the unless, the exception) if the use of the knife by the second man was the use of a weapon, and an action on the part of the second man which Brown did not foresee as a possibility, for example, because it was more lethal than any weapon he had contemplated that the second man was carrying or might use, then Brown should be found not guilty of murder because, in those circumstances, that would be an unforeseen use of the knife as a lethal weapon and would take it outside the joint enterprise."

Again there is no criticism of that formulation.

[29] 	On the morning of 24 February 2010 the jury asked for clarification of what was meant by joint venture. The learned trial judge told them that he wasn't entirely sure what it was they did not fully understand and he repeated the direction that he had given two days earlier. He told the jury that if they required further clarification or he had not understood the point they were free to ask again. The jury did not raise any further issue about clarification and we accept that there is no reason to think that they did not then understand the issues.

[30] 	The defence case was essentially that made in the evidence given by Norman Crozier. It was submitted that Brown was not aware of the fact that Taylor had the knife, that he had desisted from his attack on Jonathan McKee at the point when McKee was at his most vulnerable and that he had then disassociated himself from Taylor when he saw Taylor's frenzied attack upon the deceased. It was submitted that the manner in which the learned trial judge approach the review of the evidence was such as to prevent the jury appreciating the significance of the evidence in relation to joint enterprise on each count. In particular it was submitted that the learned trial judge had failed to integrate the evidence of Norman Crozier with the legal analysis in a way which enabled the jury to assess the applicant’s case.

[31]	We do not accept that submission. Shortly after delivering the direction set out at paragraph 28 above the learned trial judge then went on to review in particular the evidence of Mr Crozier. He introduced the evidence by indicating that if there was a reasonable possibility that the use of the knife by the second man was the use of a weapon and an action which Brown did not foresee as a possibility then he should be acquitted. He reminded the jury that Brown told David Crozier that he did not know that Taylor had the knife in advance. He explained how the knife could have been concealed by Taylor. The learned trial judge stated that if what Brown told Mr Crozier was right he had desisted from his attack on McKee because he saw that Taylor was engaged in an attack which was not part of their common purpose or joint enterprise. He also reminded the jury, however, that Brown had admitted that his purpose was to inflict really serious injury on McKee and that he was himself using a weapon for that purpose.

[32] 	Mr Harvey QC also laid some emphasis on the fact that the disclosures by Brown to David Crozier were made in circumstances where there was no finger of suspicion pointing at Brown and that this was an indicator, therefore, of remorse for his involvement in the incident. It was submitted on behalf of the applicant that such remorse was an important factor suggesting that his account to David Crozier had credibility and that he was not a party to any enterprise involving the use of a knife. The learned trial judge reminded the jury that remorse was generally the consequence of having done something wrong. The question for the jury was whether Brown's remorse was consequent upon the fact that he regretted having been involved in the enterprise with Taylor. The learned trial judge reviewed his lack of cooperation with police at an earlier stage. He was entitled to do so. The issue was plainly one for the jury to determine having regard to all the facts.

[33] 	The learned trial judge also warned the jury that the circumstances in respect of the attempted murder charge were different. It was necessary for the prosecution to prove an intent to kill. According to his account to David Crozier the applicant had seen Taylor using the knife on the deceased before Taylor launched an attack upon Jonathan McKee. The learned trial judge reminded the jury that his account to David Crozier was that this was a shock to him and was what caused him to desist from his own attack on McKee. The prosecution case was that Brown had come armed with a stick and would have known that Taylor was also armed with a knife. The two of them were back together by the time they were seen by Mr Kelly within 100 yards of the attacks and by that stage Brown had recovered his dog. The inference which the prosecution asked the jury to draw was that Brown had at all material times been a willing participant in the enterprise with Taylor. They left Ross House together. They were both armed with weapons. They initiated the attack together without warning. They both intended to do harm. There was some evidence which suggested that Brown desisted from his attack on McKee to recover the dog. In our view all of these issues were plainly and properly placed before the jury. The jury had to determine whether Brown knew about the knife in which case the murder charge was compelling and whether he had continued to participate in the enterprise when Taylor turned his attack to McKee. We do not consider that the presentation by the judge of the defence case raised any question about the safety of the convictions.

[34] 	The prosecution applied to introduce a number of previous convictions in respect of both applicants. The only conviction admitted in respect of Brown was for assault occasioning actual bodily harm and affray committed on 16 March 2003. The circumstances of the convictions were agreed and put before the jury in the following terms:

“The offences were committed on the evening of 16 March 2003 as part of an incident of large-scale public disorder between two factions on the Whitwell Road at Arthur Bridge. Police video recordings of the event showed members of both factions taunting each other. Nigel Brown is seen raising his arms and taunting the rival faction. He was then seen standing with and talking to Gary Taylor amongst other people. Gary Taylor also walked onto Arthur Bridge taunting the rival faction. A member of the rival faction was then dragged into the road and attacked by five males. Gary Taylor punched the victim six times and kicked him five times. Nigel Brown then joined in the attack and punched the victim at least 10 times and kicked the man, who was standing at the time, in the face. Subsequently Nigel Brown pulled a scarf up over his face, and Gary Taylor pulled his tracksuit top up over his face. During this incident Gary Taylor, who normally wore glasses, was not wearing them."

The convictions were admitted in evidence on the basis that they were relevant to an important matter in issue between the defendant and the prosecution being whether Brown was engaged in a joint enterprise with Taylor and also demonstrated a propensity on Brown's part to commit offences of the kind with which he was charged, one of which he had admitted being the attempt to cause GBH to Jonathan McKee.

[35] 	The applicant contends that his admission of the attempt to cause GBH to Jonathan McKee demonstrates that there was no issue about his presence at the scene or his intention to cause harm by the use of violence. In those circumstances he relies on R v Bullen [2008] EWCA Crim 4. That was a case in which the appellant was charged with murder. He had a number of assault convictions. The prosecution anticipated that he would rely on self defence. They successfully applied to introduce seven basic intent assault convictions to rebut that defence. The appellant then pleaded guilty to manslaughter and the only issue in the trial was that of intent having regard to the amount of alcohol which the appellant had consumed. The Court of Appeal held that in those circumstances the convictions in relation to assaults of basic intent were of no assistance in determining whether the appellant had the specific intent necessary for conviction of murder. The appeal was allowed.

[36] 	In our view this case is plainly distinguishable. The central issue in this case is whether Brown was engaged in a joint enterprise with Taylor. The conviction arising from the events of 16 March 2003 demonstrates that Brown and Taylor were jointly engaged in the infliction of violence in the public street on a vulnerable victim. Unlike Bullen Brown admitted that he had formed a relevant intent by virtue of his plea to the attempt to inflict GBH on McKee. Bullen was distinguished in R v Swellings [2009] EWCA Crim 3249. The victim was killed as a result of an assault by a group of people. The appellant pleaded guilty to manslaughter. The judge admitted evidence of basic intent assaults carried out earlier with members of the group. The appellant appealed on the basis that the assaults were of no assistance in relation to the intent required for murder. The Court of Appeal rejected that submission on the basis that the evidence was relevant to the issue of joint enterprise which was an important matter in issue in that case. In our view the bad character evidence relating to the events of 16 March 2003 was properly admissible on the same basis in this case. The learned trial judge invited the jury to consider these convictions in the context of the two accused acting in concert. He was also careful to point out that the earlier convictions did not assist in proving the intent to use lethal force.

[37] 	The final point in relation to this appellant concerned the direction in relation to the applicant's failure to give evidence. Evidence was given in the course of the trial by Chief Superintendent Hanley that threats had been received by police from anonymous sources indicating that physical harm could result to the applicant's mother if he were to give evidence. Although that was no evidence of an approach of any sort to the applicant it was common case that the area in which he lived was one in which there was a substantial UVF presence. The learned trial judge described the backdrop of threats and indicated that that was a perfectly good explanation as to why Mr Brown did not give evidence. He recognised that these concerns were expressed right from the time when Norman Crozier was dealing with the family and explained why Brown had not been more forthcoming to police. We accept as Mr Harvey has pointed out that there were occasions when the judge referred to the fact that Mr Brown had not given evidence but the terms of his direction on Mr Brown’s silence were absolutely clear and the terms of it were such that the jury were invited not to hold Mr Brown’s silence against him.

Conclusion

[38] 	For the reasons given we do not consider that the verdicts were unsafe and the appeals against conviction are dismissed.