Neutral Citation Number: [2008] EWCA Crim 2505
 
No: 200700504/1445/1403/B4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 11th June 2008
 
B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE FORBES 
 
MR JUSTICE RODERICK EVANS 
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R E G I N A 

v 

DIAMOND BABAMUBONI
JUDE ODIGIE 
ROBERTO MALASI 
 
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Miss E Hartnett appeared on behalf of the First Applicant
Mr J Ryder QC appeared on behalf of the Second Applicant
Mr J Benson QC appeared on behalf of the Third Applicant
Mr J Rees appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE THOMAS:  On Saturday 25th August 2005 there was a christening party for a six month old baby girl at a community hall in Peckham in south London. A large number of members of the Sierra Leone community in London were present.  There were, as one would expect on such an occasion, many children present. There was singing and dancing.  It was an occasion for celebration and of a deeply moving religious ceremony.
2.	During that ceremony a gang of black males wearing hooded tops and balaclavas stormed into the hall.  One or more shots were fired into the air by one of those who held a sawn‑off shotgun.  Another had a handgun and another a gun.  The gang member holding one of the guns pointed it towards the crowd at head height.  It hit Mrs Kalokoh, 33 a refugee from Sierra Leone and the mother of two children, who was cradling the baby about to be christened.  She died in hospital a short while thereafter.  After she had been hit, more shots were fired while Mrs Kalokoh lay on the floor dying.  The gang told people to lie on the floor, though many had already dived there.  They proceeded systemically to rob them, taking from their handbags and taking other possessions.  They then fled.
3.	On 21st December 2006, after a trial before Gross J and a jury at the Central Criminal Court, the applicant Malasi was convicted of the murder of Mrs Kalokoh, robbery and possession of a firearm.  He had been 16 and a half years at the time of the offence, being born on 8th January 1989.  Diamond Babamuboni was convicted of robbery, possession of a firearm and manslaughter.  He had been born on 27th March 1989 and was also aged 16 and a half.  He was also an applicant before the court but his renewed application has been abandoned.  We need say little more.  The third applicant, now the remaining second applicant, was Odigie.  He was convicted of robbery, possession of a firearm, manslaughter and possession of ammunition.  He was born on 18th March 1990 and was aged 15 and a half.  It is important to note that he was therefore younger by a year or so than the others with whom the court was concerned.
4.	15 days after the murder of Mrs Kalokoh, Malasi murdered Ruth Okechukwu.  On 10th September Malasi had an argument with her or one of her associates.  On the following day he stabbed Ruth six times to the neck, to the torso and a fatal stab wound to the chest, which penetrated the aorta.  The judge accepted that he went out with a knife, the killing was impulsive and there was a degree of non‑technical provocation.  He pleaded guilty to that murder after his conviction of the murder of Mrs Kalokoh.
5.	On 14th February 2007 the applicants were sentenced by Gross J in what we can only describe as a very detailed, thorough and detailed way.  We shall have occasion to refer to what he said in a little detail.  Malasi was ordered to be detained at Her Majesty's Pleasure with a minimum term of 30 years being fixed for both murders, less time on remand.  Concurrent sentences were passed for robbery and the possession of firearms.  Odigie was given, together with Diamond Babamuboni and Timmy Babamuboni, detention for public protection with minimum terms of eight years for manslaughter and concurrent minimum terms for other offences, again less time on remand.
6.	Both Babamubonis, Odigie and Malasi all sought leave to appeal against conviction and sentence.  They were refused.  Timmy Babamuboni did not renew his application, and, as we have already stated, Diamond has withdrawn his.  Malasi has renewed his appeal against conviction and sentence and Odigie has renewed his appeal against sentence only.
7.	We turn to deal with Malasi's appeal against conviction.  It rests on one ground in relation to the judge's decision on how to deal with the circumstances arising from an apparent attempt to influence or intimidate a juror.  The judge discharged one juror. It is now contended, but it is important to note it was never contended before the judge, that he should have discharged all of them.
8.	The facts were simply these.  We set them out because of what has happened and the course of conduct we shall invite others to follow.
9.	On Tuesday 14th November 2006 a female juror was travelling home on the underground at the end of the court day when she encountered a youth who sat unnecessarily opposite her and stared at her.  On the following day the juror noticed the same youth in the public gallery of the court.  There appeared to be communication between this youth and another youth in his company and one or more of the defendants in the dock.  The juror communicated her concerns to other members of the jury, and, at the end of the day's proceedings, to the court usher.  The juror did not want to travel home alone.  She was escorted part of the way home by other members of the jury and spent some time wandering around a different area of London before eventually returning home.
10.	The juror's concerns were brought to the attention of the court on Thursday 16th November 2006.  Statements were taken from the juror, the usher, and other members of the jury to establish the factual background.  Submissions were invited from counsel.
11.	It emerged that the juror had associated the youth and his associate with the defendants Diamond and Timmy Babamuboni.  Diamond had recognised two of Timmy's associates in the public gallery on Wednesday and accepted that he might have made an innocent gesture towards them.  For his part Timmy had also recognised two of his friends in the public gallery, but said that he had not communicated with them.  After hearing submissions, Gross J reluctantly discharged the juror in question on the basis she was bound to remain frightened and unsettled for a while, regardless of the measures the judge had proposed to put in place to stop such a thing happening again.  The judge was concerned that the juror would not be able to put the incident completely out of her mind.  The judge then made appropriate arrangements for the security of the jury, but it is also important to note that then and there he directed the jury that they should put the matter out of their minds.  They should not hold any events against any of the defendants and try the case on the evidence.  He repeated those directions in his very careful summing‑up.
12.	We would point out that, as is apparent from what we have said about the course of the trial and the verdicts, that it is self‑evident that the jury must have taken those matters into account, because they acquitted three of the defendants of murder in this case, two of those being those with whom the intimidation had been associated.
13.	The renewed application is brought before this court on the basis that the extremely experienced leading counsel for the applicant had not followed the applicant's instructions, which had been to the effect that he was to argue that the entire jury be discharged.  Those instructions were communicated to us today and counsel who has represented Malasi at the last moment has given us all the possible assistance we could have asked for.  What we say, which follows, must not be taken as any criticism whatsoever of him.
14.	We shall proceed to determine the case on the basis that those instructions were given and were not followed by his counsel.  However, it is very important that we make the following observation because we wish it to be acted upon by those responsible for the proper conduct of the affairs of the Bar of England and Wales.
15.	It is invariably the course that where criticism is made of counsel, particularly eminent and experienced leading counsel, and particularly criticism of the gravity made in this case, namely that counsel did not follow the instructions of someone on trial for murder, that before an appeal is brought on that basis, and certainly before it is renewed before this court, that some steps are taken to ascertain from counsel concerned what he has to say about that matter.  The reasons are obvious.
16.	Unfortunately, in this case, when new solicitors and counsel, whom we shall not name in public, were instructed, although they wrote numerous letters to this court complaining about the refusal of the registrar to grant more legal aid, it appears from what we have been told today, but we know not whether it is correct or not, no one took the elementary step of asking leading counsel what had happened.  It is always difficult for this court when dealing with cases of this kind to trespass into areas of professional privilege, but it is normally the case that where criticism is made privilege is always waived and the most careful steps are taken.  This is not a case where it is alleged that what was done by counsel was merely not in accordance with his proper standards, it is a case where it is alleged that he deliberately disobeyed the instructions of his client.  That is a very grave allegation to make against such a distinguished counsel and on which to pursue an application for appeal.  We do not think, for our part, that it is proper for such an application to be pursued or made without those elementary steps being taken.  We did not want to delay the further conduct of this appeal, because, as we have said and as we shall further explain in a moment, we have proceeded on the basis that counsel deliberately disobeyed the instructions, but it is a matter of concern to us and the professional standing of those involved, not counsel here today, as to how this matter has come to this court in this way when such a grave allegation is made against a member of the Bar and no steps have been taken to see what he has to say about it.
17.	We proceed, as we have said, to consider the matter on the basis that counsel deliberately disobeyed his client's instructions on a charge of murder on a matter so central to the trial of the case, namely whether the jury that was to try him should be discharged.
18.	We will assume that that argument, therefore, should have been put to the judge and the judge would, therefore, have properly considered it.  We have no doubt in our mind, first of all, that the judge would have rejected such an argument and, secondly, there can be no possible doubt that this conviction is an entirely safe one.  We say that for two reasons.  First of all, it is very much within the discretion of the trial judge as to the way in which he handles a difficult matter of this kind.  It is all too easy these days for people to seek to intimidate an individual member of the jury.  It must be for the judge to decide whether it is, in all the circumstances, right to continue with the trial in respect of all or part of the jury concerned, and, secondly, what warnings to give.  In most cases it is the experience of each and every member of this court that when a jury is told that it must put a matter out its mind, it is true to its oath, as we would expect from an institution so central to the image and discharge of our system of justice.  In this case it is clear that the judge felt that the jury could continue and that they would, in accordance with the directions he immediately gave, be true to their oaths.
19.	Secondly, we are satisfied on the totality of the evidence before us that this was an entirely safe conviction and that the jury approached the matter in a careful way.  That is underlined, as we have already pointed out, by the fact that the jury acquitted three of the defendants in the case and the other applicant before us today of the charge of murder.
20.	Thus, on its assumption, which is one we have been compelled to make, that leading counsel at trial deliberately disobeyed his instructions, we, nonetheless, consider that this ground of appeal is unarguable and dismiss the renewed application.
21.	We turn, therefore, to the issue of appeal against sentence.
22.	The learned trial judge faced in the case of Malasi a very difficult sentencing exercise.  He stood to be sentenced for two murders and he was under the age of 18.  The position is governed by section 269 of the Criminal Justice Act and Schedule 21.  Two approaches were urged on the judge.  It was urged by the Crown that the judge should look at each of the murders, decide on the appropriate term, add them together and then look at totality to arrive at that what was a proper minimum overall term and pass that for both murders.  It was urged for the defence that the judge should consider first the murder with the lower minimum term and then look at the one with the higher minimum term and increase that higher minimum term to reflect both.
23.	It appears that it was a common approach that one minimum term, which was the same for both murders, ought to be fixed and there should be no consecutive minimum terms following the views of this court in relation to imprisonment for public protection in O'Brien [2006] EWCA Crim 1741, and that the sentence should reflect the fact that there were in fact two murders.
24.	The judge, against that background, set out his approach in a very clear way: 
"For my part, I propose to proceed as follows.  (1) I take section 269(3) of the 2003 Act as my starting point.  That subsection reads as follows: 
'The part of his sentence is to be such as the court considers appropriate taking into account ‑‑ 
 (a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and 
 (b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.' 
 (2) By way of section 305 of the 2003 Act the meaning of an 'associated offence' is to be found in section 161(1)(a) of the Powers of Criminal Courts (Sentencing) Act 2000.  That subsection reads as follows:
'(1) for the purposes of this Act, an offence is associated with another if ‑‑
 (a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence.'
 (3) It follows that the two murders here are associated offences.  I am therefore both entitled and bound by section 269(3) of the Act to take the fact of there being two murders into account when fixing the minimum terms.  
 (4) In accordance with section 269(5) of the Act, I must also have regard to the general principles set out in the schedule 21 to the Act.
 (5) In accordance with paragraph 7 of schedule 21, I shall take 12 years as the starting point when determining the minimum term.  I shall say a little more presently as to the meaning of 'starting point'.
Pausing there, for my part, I prefer, whether or not I am strictly bound to do so, to keep to the 12 year starting point but to take the fact of there being two murders into account as an aggravating factor when I come to fix the minimum term.  That preference is reinforced by the decision of the Court of Appeal Criminal Division in R v H [2007] EWCA Crim 53.
 (6) I shall then assess each of the murders individually, indicating the likely minimum term had each murder stood alone.  This procedure has the benefit that, in the event of any appeal, the Court of Appeal is informed of the judge's provisional view in this regard. 
 (7) Having formed a provisional view as to the minimum term in the case of each murder standing alone, I accept that it would be inappropriate to pass consecutive minimum sentences following R v O'Brien [2006] EWCA Crim 1741, albeit that that authority was dealing with sentences of imprisonment for public protection rather than minimum terms for murder. 
 (8) That said, by reducing the aggregate of the two minimum terms to make such allowance as is appropriate for totality, I can arrive at a single minimum term to be served concurrently in respect of both offences of murder.  As it seems to me, it is preferrable to have a single minimum term rather than two different minimum terms, even if they are made concurrent.
 (9) The appropriate allowance for totality will of course depend on the facts of the given case.
 (10) Finally, I reflect the time on remand by way of a single deduction from the single minimum term reflecting the longer period on remand in case there is a difference between the time on remand for the two offences.
 (11) The advantages of the approach which I follow seemed to me to be these: the starting point remains at 12 years; the aggravation of there being associated offences is taken into account by approaching the two, considered separately, consecutively, but double counting for that aggravating factor is avoided; totality is taken into account; and a single minimum term is arrived at. 
 (12) Insofar as this approach is closer to that commended by the Crown than that urged by Sir John Nutting for Malasi, I am fortified by the reflection that any difference in approach is likely to be more theoretical than practical.  On Sir John's approach, while I would never aggregate the two individual terms considered in isolation, I would need to enhance but provide for an increase in the minimum term reflecting the murder carrying the higher individual minimum term.  In carrying out that enhancing or aggravating exercise, I would necessarily take into account the same factors, namely the existence of an associated offence, the need to avoid double counting and the requirements of totality.  The murder of Zainab Kalokoh: the first step as laid down by Parliament is to decide on a starting point.  As already indicated, because you were less than 18 at the time of this murder, the only starting point as laid down by Parliament is one of 12 years' detention.  A starting point again means what it says.  It is where the sentencer starts; it does not in any way mean that is where the sentencer finishes.  Where I finish depends on the sentence which is appropriate to do justice in the individual case, having regard to the seriousness of the offence and any associated offences and any other relevant considerations; see R v H."   
25.	He fixed the minimum term for the first of the murders of Mrs Kalokoh at 24 years and the minimum term for Ruth in respect of her to 12 years.  He then considered that the term reached by adding them together, which was 36 years, was too long and reduced the overall term to 30 years.
26.	It seems to us that the Act was designed and drafted in such a way that one should arrive at one overall minimum term.  It is clearly necessary for a judge to identify the factors in respect of each murder and it may be helpful, in either approach, to have the view of the judge as to what sentence might have passed if only one of the murders had been before him in respect of each murder.  But what it is clear the Act requires is the fixing of a single overall term and as long as a judge takes into account all the factors in relation to each of the murders before him, what the court must do is to consider whether that overall term is the correct one.
27.	The judge took as his starting point as required by statute, because of the age of the Malasi, the term of 12 years.  He set out very clearly the aggravating factors.  First, in the murder of Mrs Kalokoh that there was firearm used, that the gang went equipped, that the murder was committed in furtherance of a robbery, that it had been a well‑planned and executed murder and robbery and that the way in which they had behaved during the murder had been appalling.  We would add a further aggravating factor.  We have already said that this was the invasion of an important religious ceremony, a christening, and that can only be considered a very serious and further aggravating factor.
28.	The mitigation was, in respect of that and the other murder, his youth.  He was 16 and a half.  Secondly, he was of previous good character.  Thirdly, it is clear that he had had a very sad and terrible upbringing, seeing awful crimes committed in Africa prior to his first coming to this country in 1995, and thereafter and shortly before the murder being found abandoned, sleeping rough and homeless.  There was finally, as the judge pointed out, the important considerations to the potential for change.
29.	As to the issue which is important in cases of this as to whether there was an intention to kill, the judge found that in firing in the way in which Malasi did it was all too likely that death would result.  In the respect of the murder of Ruth, he found as aggravating circumstances that he gone equipped with a with a knife, but accepted, as we have already set out, the killing was impulsive and that there was an element of provocation.  In respect of that he also gave significant credit, in addition to the youth, for the plea of guilty and the remorse.
30.	In very cogent submissions put before us today on behalf of Malasi it has been said that the sentence of 30 years is too long.  It insufficiently reflected his youth, it insufficiently reflected his ability to change and it was disproportionate to the sentences that had been passed in respect of those sentenced to imprisonment for public protection.  It was also important in the case of looking at someone who was to change that we should take into account something that was not available to the learned trial judge, namely the report from the penal institution at which he is now serving his sentence, the improvement that has come upon him.
31.	We have very carefully considered all of those submissions to consider whether we should grant leave to appeal in this case.  However, we have come to the view that the murder of Mrs Kalokoh was a shocking crime and deserving of a sentence of a very significant length.  The judge's approach to the sentence for these murders was careful.  The way in which he approached the matter can only be deserving of the highest praise and commendation.  It was a model of clarity as to what he said and the approach he took.  There can be no criticism of the fact that he took into account all the relevant factors and it was clear that he had to pass a sentence that was of a very significant length despite the youth.  We have been told on numerous occasions that we are dealing with a child.  We were dealing with someone who was a year and a half younger than the age of 18, and in the judgment of this court, had he been 18, the sentence in a bracket of between 35 and 40 years may well have been appropriate.  Such a view we put to counsel and it was not seriously disputed.
32.	We think it is important that when dealing with a person of that age and looking at the relative difference in age between 16 and a half and 18 and looking at all the other features of this case, it could not possibly be argued that a term of 30 years was in any way wrong in principle or manifestly excessive.  People must realise that anyone who goes out with a gun or a knife to rob, and kills in the process, can only expect a sentence of the utmost severity despite the fact that they are under the age of 18.  We therefore refuse the renewed application. 
33.	As to the appeal against sentence in respect of Odigie, the remaining applicant, the learned judge in his sentencing remarks approached the case on the basis that they had been convicted of manslaughter on the grounds that the jury could not be sure that they realised that a firearm might be used to kill or cause really serious bodily harm, but did realise that firearms might be used to cause some injury.  It was undoubtedly, for the reasons we have given, a most shocking case.  This was a planned robbery, loaded firearm, were taken, and all the other aggravating features to which we have referred.  The judge concluded that there was little remorse.  That each of these persons was more concerned for their own safety than anything else, and that they had carried on robbing while someone lay dying, during a christening ceremony.   There can be no doubt, and it has not been argued before us, that the judge was in any way wrong in passing a sentence of detention for public protection.  This was plainly, if ever there was a case, a case for that.  But what is said, and has been ably said, is that the term of the minimum term fixed at eight years was too long.  It is said that insufficiently took account of his youth, his previous good character and the evidence before the court as to his participation.  It was admitted he had a gun and had fired it, but he had not shown other violence to people and had behaved differently from the others.
34.	As we have indicated, the notional determinate period that the judge would have passed was one of 16 years.  He made it clear that, had these been adults, a term of 20 years or more would have been appropriate.  We underline that we agree with that view.
35.	We consider that a term of eight years might be considered by many as a merciful sentence.  There can be no distinction at all between the defendants and this applicant.  They were each involved in a carefully planned robbery, involving loaded firearms, invading a religious ceremony.  Sentences of the utmost severity were called for and in our judgment no distinction should be drawn between any of them, dispute the youth of Odigie.  We consider that there is no way that any possible argument could succeed that the term of eight years passed was in any way wrong in principle or was manifestly excessive.  We therefore refuse the renewed application.
36.	We will direct that the registrar sends a copy of this judgment to the Bar Council and the Bar Standards Board, whichever is the appropriate body, so that the way in which this appeal was brought ‑‑ and as we emphasised it is no criticism of anyone here present, and we wish to make that absolutely clear ‑‑ does not happen again.