Neutral Citation Number: [2009] EWCA Crim 2695
Case No: 2008/06219C1
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HH JUDGE CHRISTOPHER MOSS QC
T2007/7463/7466
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/12/2009
Before :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE LANGSTAFF
and
MR JUSTICE WYN WILLIAMS
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Between :

	STARFIELD BADZA	Appellant	
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	R	Respondent	

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Lord Gifford QC and Jemma Levinson appeared for the Appellant
 Mr D Waters QC appeared for the Prosecution

Hearing dates : 10th November 2009
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Judgment

Sir Anthony May President of the Queen’s Bench Division: 
Introduction
1.	Billy Ward, aged 21, was stabbed to death in the early hours of Saturday 8th December 2007 near a bus stop at Gravel Hill in Croydon.  A pathologist subsequently identified ten wounds.  The cause of his death was stab wounds to his chest.  One wound was to the heart and was characteristic of face to face confrontation.  Five of the wounds were penetrating wounds to his back.  They could have been inflicted by a person standing to his side or in front of him.  The wounds were consistent with a single attacker using a single knife.  There were no defensive injuries.
2.	Junior Martinho Lubango and Starfield Badza, each now aged 20, were jointly charged with Billy Ward’s murder.  They were each convicted by a unanimous jury at the Central Criminal Court before HHJ Christopher Moss QC on 21st October 2008.  They were each sentenced to detention for life with a minimum term of 18 years less, in the case of Badza, 367 days during which he had been remanded in custody.  Badza appeals against his conviction on grounds which criticise the sufficiency of the judge’s summing up to the jury.  Leave to appeal was given by the single judge on three only of the six grounds of appeal advanced.  He renews his application for leave to appeal on the other three grounds.  He also has leave to appeal, contingently upon the failure of his conviction appeal, against his sentence saying that the minimum term of 18 years failed adequately to reflect his mitigation, in particular his age and good character, and a distinction which should have been made between him and Lubango.
3.	The fatal stabbing occurred quickly, soon after Ward, Lubango and the appellant had all got off the same late night bus, and in the course of a violent confrontation in which all three of them at some stage participated.  The preponderance of the evidence was that it was Lubango who had the knife and who inflicted the fatal stab wounds.  There was some variance in the eye witness evidence, and Lubango’s case was that there had been a fight between Ward and the appellant which he had tried to break up; that he did not stab Ward; and that he had no idea that Ward had been stabbed until he was later arrested.  Having carefully considered the evidence on this appeal (in which Lubango is nevertheless not represented), we are not surprised that the jury, in convicting Lubango, must have surely rejected his evidence and case.  The case against the appellant was that, if he did not himself do the stabbing, he was guilty of murder nevertheless because he participated in a joint enterprise.
4.	Relevant events of that early Saturday morning extended back from the killing some half an hour or so to an earlier bus stop on the bus’s journey at Dingwall Road.  The evidence was broadly in three parts, that is what happened at the Dingwall Road bus stop, what happened mainly on the top of the bus after an intermediate stop at East Croydon where Ward got onto the bus, and what happened close to the Gravel Hill bus stop where the stabbing occurred.  There were some thirty eye witnesses who each gave evidence of parts of what happened.  Their evidence taken as a whole was reasonably consistent, but not in every detail.  There was also CCTV evidence showing the group waiting at the Dingwall Road bus stop, and from at least four CCTV cameras on the bus.  These provided a pretty clear account of what happened on the top of the bus between East Croydon and Gravel Hill, and of the manner in which Ward, Lubango and the appellant went down the stairs of the bus and got off it.  Their identities at this stage are not in doubt because Ward was wearing a T shirt with recognisable horizontal stripes, Lubango was wearing a puffa jacket and the appellant was wearing a bright red cap.  CCTV images of the confrontation and stabbing at Gravel Hill and of the defendants’ subsequent running escape are sparse, because the stabbing occurred at the mouth of an alley way.  These images do not help much except that Lubango is shown returning hurriedly towards the scene of the stabbing to retrieve the appellant’s red cap.
The evidence
5.	The following is a summary of the evidence as given by Lord Gifford QC, for the appellant, in his written submissions to this court.  It is of course compiled with an eye to the appellant’s case in this appeal and reference to other evidence could result in a somewhat different account in detail.  But Lord Gifford’s summary represents, in our view, a reasonable compilation of  evidence which the judge summarised at greater length at his summing up.  
Events at the bus stop
6.	There was evidence that, while waiting for the bus to arrive, both defendants were misbehaving.  Bianca Matthias said that Lubango was bragging about carrying a knife, and she saw the handle of a knife in his waistband.  Loretta Doyley said that both men were talking about slicing a man’s throat, and that the appellant showed them a knife.  Lamont Bryan said that the appellant had spoken about threatening to kill someone, and that Lubango showed him a knife with a dark handle.  Ian Fischer said that the appellant talked about stabbing or killing someone, and Lubango demonstrated that he had a knife.  Lee Ronchetti said that Lubango was talking about shanking a man, while John Shyte said that the appellant said “rob him, stab him” in relation to something that had happened earlier.
7.	The clearest of these witnesses, Matthias and Bryan, said that the knife which they saw was in the possession of Lubango.  This is confirmed by the later evidence that Lubango produced the knife to kill the deceased, and that the appellant in the bus said to Lubango “give me the shank”.  The evidence suggested that the appellant, while not in possession of a knife, was aware of Lubango’s possession of a knife and was talking about using one.  [We add to this that Bryan said that he had heard the appellant saying that he had slit someone’s throat in Kingston and saw him draw his finger across his throat.  Lord Gifford told us that there was no evidence or information to support the commission of such an offence in Kingston.]
8.	At this stage Billy Ward, the victim, had not come on the scene.  He got on the bus at a later stop.
Events on the bus
9.	The evidence of the many witnesses on the bus was broadly consistent, and was consistent too with the CCTV footage which was exhibited.  The appellant stood at the top of the stairs and told people not to smoke.  When Ward came up the stairs he took exception to the appellant’s words and an argument ensued.  Both men were behaving aggressively.  They sat down opposite each other and continued to argue.  There was evidence that the appellant slapped Ward in the face.  They were parted and Ward went to the front of the top deck.  All was then quiet.  There was an incident with a sleeping man; the defendants and Bryan were taking his possessions out of his pockets, to the amusement of them and others.
10.	At the Gravel Hill bus stop trouble flared again.  The appellant as he came to the front of the bus slapped or attempted to slap Ward.  Ward reacted aggressively and rose to his feet.  There was a tussle on the top deck of the bus in which the two men tried to fight and others restrained them.  Lubango pushed the appellant down the stairs and off the bus.  Ward jumped over the railing around the stairs and ran down the stairs and off the bus in pursuit of the appellant.  Both men were aggressive.
11.	As mentioned above, Bryan said that the appellant at some point on the bus said “I’m going to stab him” and said to Lubango “give me the shank”.  He (Bryan) was trying to calm everyone down.
12.	Significantly, the witnesses were united in saying that it was the appellant and not Lubango who was showing aggression on the bus to Ward.  Bryan said that Lubango was trying to calm the appellant down.  Claire Rose said that the other one seemed to want to get off the bus and wanted no trouble.  Aileen Smith said that the one without the cap said “just leave it” but the other said no and shouted upstairs.  The CCTV footage confirmed this picture; photograph 65 in the album of stills shows a particularly clear picture of Lubango ushering the appellant away from Ward at the top of the stairs.
Events on the pavement
13.	The CCTV footage, which is timed, shows that about 30 seconds elapsed between the time when Ward stepped off the bus in pursuit of the appellant and the time when the defendants began to leave the scene after the stabbing.
14.	There is a high degree of consistency as to how the fight developed.
15.	First, Ward went for the appellant and threw a punch at him.  See Ruben Alibaj, Tyrone Logan, Karen Fling, Emma Jones.
16.	Then a fist fight developed between the appellant and Ward.  The witnesses spoke of punches thrown, and of the two grappling with each other like boxers in a clinch.  The descriptions given of this were graphic.  Bryan said “Billy and Starfield had each other in a headlock”.  Paul Brooks said “they were kind of hugging each other”.  Aron Rogers said “it was more a grapple than a hold”; he agreed that they were “like boxers in a (clinch)”.  Ryan Rogers said “it was like Billy and the red cap had hold of each other round each other’s shoulders”.  Daniel Simpson agreed that “at times there was a clinch between the two”.  Alibaj, who had got out ahead of them and had a good view from the pavement, said “Billy and Starfield started hugging and trying to punch each other”.
17.	Lubango was not involved in any aggressive role at the start of the fight between the appellant and Ward.  Emma Jones, who had a bird’s eye view from the upper deck window of the bus, said that the man who was clearly Lubango was “looking like he was trying to separate them”.
18.	There was no evidence that the appellant solicited help from Lubango while he was engaged in the fight with Ward.
19.	Lubango then changed his role from being the restrainer to being an aggressor with his knife.  Emma Jones, while she did not see the knife, saw the change in roles: she said “within seconds the second guy … got involved as well, and started throwing punches at Billy”.  She said “there was a sudden change.  The skinny man appeared just to be trying to stop the fight.  But then it changed and he got involved.  Lamont Bryan who had a closer view on the pavement, said “Junior hadn’t done anything against Billy until then, and it come as a surprise to me.  I hadn’t expected that.  Starfield was still holding Billy.  Starfield couldn’t see what Junior was doing.  Junior was covered in blood.”
20.	The evidence was clear as to what Lubango did when he intervened.  Bryan said “then I saw Junior go in and looked like to me as if he was stabbing him.  It was more than a punch.  Eight times.  They were quick blows.  It was to his rib area on the left side of his torso.”
21.	Paul Brooks said: “They were kind of hugging each other.  It was Starfield, not Junior.  As I was going towards them I remember seeing a stabbing motion from the side of Billy.  It was Junior doing the stabbing motion.  Starfield still had hold of Billy.  Billy was lower down than Starfield.  I saw five or six stabbing motions ….. Stabbing downwards like that, directed to his side, his left side.”  He then got to Billy and felt a wet patch.
22.	Ruben Alibaj after describing how Ward and the appellant were hugging, said “I next saw Junior coming from behind Billy, and he went down his groin and pulled something out and started stabbing in the back … the stabbing movements were up and down to the left … during the stabbing Starfield was trying to fight with Billy, and then Billy put his hands up and they ran off.”  In cross-examination he described how he went up and down on his back, moving to his left”.
23.	The evidence of all these witnesses is consistent with the pathology.  Doctor Chapman described ten wounds, indicating nine stabs to the back and left side, consistent with the assailant standing to the left of the victim, striking with his right hand, more or less horizontal to the body.
24.	There was further scientific evidence from Dr Arney who examined Lubango’s clothing and shoes.  He found staining, some of it heavy, on the right sleeve and upper right front of the jacket; drips on the trousers; bloodstains in the pockets of the trousers, and droplets of blood on the right trainer.
25.	Lord Gifford says that the prosecution submitted in closing that Lubango was the stabber and Lord Gifford says that the evidence here was overwhelming.  Mr Waters QC, for the prosecution, does not disagree to any great extent with Lord Gifford’s analysis of the evidence and he accepts that he submitted to the jury that the preponderance of the evidence pointed to Lubango being the stabber.  However, Lubango, who gave evidence, denied that he was the stabber, and there was evidence from which the jury could take the view that it was the appellant who was the stabber.  Mr Waters points here to what happened at the scene of the stabbing from witnesses Edwards, Rose, Baxter and Ashby and to other evidence of what the appellant did and said at earlier stages.  Mr Waters also points to evidence of what the defendants did after the stabbing as strongly suggesting that the stabbing itself was the product of the joint enterprise on which the main case against the appellant depended.
The appellant’s case
26.	The appellant did not give evidence in his defence.  He had handed two prepared written statements to the police after his arrest and relied on those statements as representing his case.  In the longer of these statements, he wrote that he did not stab anyone.  He gave an account of what he and the eventual victim (Ward) did on the top of the bus.  Ward used offensive language including the words “black” and “pussy” which irritated the appellant.  He stretched out his hand as if to slap Ward but missed intentionally.  Ward punched him in the mouth.  He and his friend got off the bus and just started walking away, when all of a sudden he was grabbed in a tight headlock from behind.  He did not know who was doing this, but suspected it was Ward.  He tried to move his body and twist his neck free, when suddenly his attacker’s grip loosened and it became evident that he had been stabbed.  The appellant heard his friend say “run” and his friend picked up his cap which had fallen to the floor.  The appellant ran with him in panic not knowing why he was doing so.  He first realised that his friend had stabbed Ward when his friend asked at some shops “do you think I killed him”.  The appellant’s statement ends:
“I did not stab him.  I did not stab him.  I did not know that my friend had a knife.  I do not know where the knife came from.  I have not asked for help whilst in the headlock.  He was gripping me very tight.  I did not know that he had been stabbed until after it had happened.  I now wish that I had not panicked and ran.”
27.	The factual case to be derived from this statement was that Lubango, not the appellant, stabbed Ward without the appellant knowing this at the time when Ward had attacked the appellant and was holding him in a headlock, having seized him from behind as he was walking away.  The case included that the appellant did not know that Lubango had a knife, and did not know where the knife came from.  The prosecution evidence as summarised by Lord Gifford, which the jury must in substance have accepted as true, comprehensively disproved this part of the appellant’s case.  He knew perfectly well that Lubango had the knife from events at the Dingwall Road bus stop and from what he himself said and did there.  He had asked Lubango to give him the knife when they were on the top of the bus.
Grounds of appeal
28.	The grounds of appeal for which the single judge gave leave are:
a)	that the judge in his summing up failed in the case of the appellant to give the jury any adequate help on specific issues arising from the law of joint enterprise;
b)	that the judge failed to sum up the evidence in a way that would help the jury determine the issues in the case; and
c)	that the judge failed to sum up the defence case.
Lord Gifford’s submissions took these three grounds together, and in conjunction with one of the other grounds for which the single judge refused leave, that is that the judge failed to direct the jury that, if they were sure that Lubango was the stabber, there was no sufficient evidence on which they could find the appellant guilty on the basis of common design.
Joint enterprise
29.	The liability of a secondary party for acts done in pursuance of what is commonly termed a joint enterprise sometimes gives rise to difficulties.  Where two or more persons embark on a joint enterprise, each is liable for the acts done in pursuance of the joint enterprise.  This may include liability for unusual consequences if they do indeed arise from the execution of the joint enterprise.  But if one participant goes beyond what has been agreed as part of the common enterprise, the other participants may not be liable for the consequences of that departure.  R v Anderson and Morris [1966] 2 QB 110, 50 Cr. App. R 216 and R v Powell; R v English [1999] AC1 are leading authorities commonly referred to in this respect.  The facts of R v Anderson and Morris have similarities with those in the present case.  In R v Powell, it was held that it was sufficient for a conviction for murder for the secondary party to have realised that, in the course of the joint enterprise, the primary party might kill with intent to do so or with intent to cause grievous bodily harm.  In R v English emphasis was placed on the need for the secondary party to foresee as a possibility the use of the weapon which the primary party in fact used – see Lord Hutton at page 30B.
30.	The recent House of Lords decision in R v Rahman  [2009] 1 AC 129; [2008] UKHL 45 again concerned a death from knife wounds used with considerable force.  The trial judge’s directions to the jury, to which we will return below, included that, if the jury concluded that to stab with a knife had been “in a different league” from the kind of assault which the attackers had implicitly agreed on by the use of other weapons, the defendants would not be responsible for the consequences of the use of the knife unless they had actually foreseen its use.  The House of Lords held that the judge’s direction had been correct.  It was held that, where the principal committed an unlawful killing with the requisite intent for murder, a secondary party would be liable for murder on the basis of his foresight of what the principal might do, rather than his foresight of the intention with which the principal’s act might be performed.  Knowledge of the principal’s possession of an obviously lethal weapon would usually be very relevant to the secondary party’s foresight of what the principal might do.
31.	The trial judge in Rahman had directed the jury to address, among others, the following questions (paragraph 18 of the opinion of Lord Bingham of Cornhill):
“3.  Are you sure that in taking part in the attack on Tyrone Clarke, the defendant whose case you are considering either … or … realised that one of the attackers might use such violence by the use of lethal weapons to Tyrone Clare as to kill him with intent to kill or to cause really serious injury…
4. Are you sure … that the defendant whose case you are considering because of particular matters within his knowledge, realised that one or more of the attackers might produce and use a knife in the attack and that such attacker might kill with the intention of killing Tyrone Clarke or causing him really serious injury.”
It being agreed that the test of a secondary party’s liability was foresight, the main issue between the parties was foresight of what.  The appellant in Rahman contended that a requirement was foresight of the principal’s intention.  The Crown’s answer was foresight of what the principal might do – see paragraph 21.  Lord Bingham regarded the Crown’s submission as consistent with existing authority.  He said at paragraph 24 that it was safer to focus on the defendant’s foresight of what an associate might do, an issue to which knowledge of the associate’s possession of an obviously lethal weapon such as a gun or a knife would usually be very relevant.  Lord Bingham rejected the appellant’s submission and preferred the judge’s questions to the jury, amended to remove reference to the intention of the principal party, to those formulated by the Court of Appeal.  The other members of the House agreed with Lord Bingham on this aspect of the case, while expressing different opinions on a further matter not relevant to the present appeal.
32.	An essential question in the present case therefore was whether the appellant knew that Lubango was in possession of an obviously lethal weapon, and whether he engaged in a common enterprise with Lubango foreseeing that Lubango might use the knife aggressively.  The Crown would say that the common enterprise was a late night outing together which, as the appellant must have foreseen, might result in their participation in violence during which Lubango, if he had not passed the knife to the appellant, might use the knife aggressively with the requisite intent for murder.
The judge’s directions of law
33.	The judge gave directions of law to the jury relating to murder, manslaughter and joint responsibility by handing and reading to them two documents, which he had previously discussed in their absence with counsel for the parties.  The first document comprised Directions of Law; the second was headed “Steps to Verdict”.  By the first document, the judge explained that where an offence is committed by more than one person, each may play a different part.  But if they are both in it together as part of a joint plan or agreement, however informal or spontaneous that agreement may be, they are each guilty in law of the offence, provided each shared the required intent to commit it and each took some part in it.  He said that agreement to commit an offence may arise on the spur of the moment.  Nothing needs to be said at all.  An agreement can be inferred from the behaviour of the parties.  The essence of joint responsibility, he said, is that each defendant shared the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim.  Mere presence at the scene of a crime is not enough to prove guilt.  The jury had first to consider whether they could be sure who deliberately stabbed Billy Ward and so caused his death.  That person would be guilty of murder provided the jury were sure that he had the requisite intent such as the judge had directed them.  Any other person who took part in a joint attack on Billy Ward might also be guilty of murder if, but only if, he knew the knifeman had a knife; shared the knifeman’s intention to kill or do really serious bodily harm; or realised that the knifeman might use the knife to kill or cause really serious bodily harm.  Then, after other directions which it is not necessary to refer to, the judge said finally that, if the jury were to conclude that it might be the case that the attacker, whoever it was, acted not as part of any agreement or plan, but separately for reasons of his own, or went beyond anything the other had agreed or realised he might do, then the question of joint responsibility for the death of the deceased would not arise at all.
34.	These were, in our judgment, correct directions in law.  As we understand him, Lord Gifford does not submit otherwise. The judge’s directions may incidentally be said to be favourable to the appellant in requiring that the defendant shared an intent to commit the offence, which could be understood in the context as the offence of murder.  As Lord Bingham’s opinion in Rahman shows, it is unnecessary that the secondary party should intend death or really serious bodily harm, although he must foresee it as a result of the joint enterprise on which he is engaged.
35.	Lord Gifford does have two criticisms.  He says, first, that these were directions of law dissociated from the facts and that the judge gave the jury no help in relating the various strands of the evidence to the questions of law which arose.  Second, he submits that the part of the directions which particularly bore on the appellant’s case was given insufficient prominence, being relegated to the very final part of the direction of law.  There is nothing in this second submission.  The direction in question came logically and sequentially at the place where the judge had it and cannot properly be seen as subordinated.
36.	Among the judge’s “Steps to Verdict”, the following was central to the case against the appellant as the evidence had been given, and is central to this appeal:
“If the prosecution has proved that Billy Ward was murdered as set out in paragraph 2 above (whether or not the prosecution has proved who the murderer was) has the prosecution proved so that you are sure that D (the defendant whose case you are considering):
(a) unlawfully took part in a joint attack upon Billy Ward and
(b) knew that the other attacker had a knife, and
(c) knew or realised that the attacker with the knife would or might use it to stab Billy Ward and kill him or to cause him really serious injury and D intended that that should happen?”
This question correctly encapsulated the critical element of foresight to which Lord Bingham referred in Rahman.
The summing up
37.	The third of the grounds of appeal for which the single judge gave leave was that the judge failed to sum up the appellant’s case.  As we have said, the appellant did not give evidence.  His case was that which he had advanced in his prepared statements.  It was, in short, that he did not know that Lubango had a knife; that he did not stab Ward; and that he did not participate in any aggressive assault on Ward.  On the contrary, Ward attacked him and held him from behind in a headlock until (the appellant would suppose) Lubango, acting on his own, stabbed Ward.
38.	The judge’s summing up contained the following passages in which all or parts of the appellant’s case was put:
a)	In the context of cut throat defences when Lubango had given evidence to the effect that the appellant must have been the killer,
“Lord Gifford on behalf of Starfield Badza has put to Junior Lubango in terms, and of course on instructions from his client, that it was he, Lubango, who stabbed Billy Ward to death.” (page 20B).
b)	In the context of the appellant’s good character
“Starfield Badza made a prepared statement at the time of his arrest, the contents of which you are urged by Lord Gifford to accept as true, and you must take his good character into account in assessing  the value of that statement.” (page 21E)
c)	In the context of neither defendant having answered questions in their police interviews,
“In the case of Badza, although he also failed to answer questions in interview, and of course was cautioned in the same way, he has added nothing to his prepared statement in this trial, for he has not given evidence, and nor has Lord Gifford advanced on his behalf anything which does not appear in those prepared statements.  Accordingly, the question of any adverse inference does not arise in his case as a result of his failure to answer questions in interview.” (page 24D)
d)	In the context of the appellant not having given evidence
“Nevertheless, he gave, as you know, two prepared statements while in custody of the policy, and he now seeks to rely on the content of these statements in so far as they exculpate him of this offence.” (page 25B)
Later in the summing up on its second day, after the judge had completed his summary of the eye witness evidence which he had supplemented somewhat with passages which counsel had asked him to include, and before he reminded the jury of Lubango’s evidence, he returned to the prepared statements.  He said this: 
“In the case of Starfield Badza you are encouraged by Lord Gifford to accept the contents of his prepared statements as true and as representing his case.  I have already given you directions upon how you approach the fact that he has not given evidence in contrast with Mr Lubango.  You will see, and you will no doubt recall in any event, that towards the end of his prepared statement Badza denies that he knew that his co-defendant had a knife.  It may be – I know not, for it is a matter for you, having considered all the evidence – that you may determine that was a lie.” (page 13B)
The judge then followed this with a re-statement of a Lucas direction which he had given earlier with reference to Lubango.
39.	As these passages show, it is simply not correct that the judge did not indicate the appellant’s case as advanced, according to the judge, on his behalf by Lord Gifford.  The case resided in the prepared statements.  The judge put the case that it was Lubango not the appellant who stabbed Ward in terms and twice.  He put the case that the appellant denied that he knew that Lubango had a knife.  He referred four times to the prepared statements, which the jury had, as comprising the appellant’s case and as containing the case that it was not the appellant who stabbed Ward.  It is not a persuasive submission that the judge did not further spell out the straight forward content of the statements.  It is a matter of comment that the two main elements of the appellant’s case, (that is that he did not know that Lubango had a knife and that he did not participate in any aggressive assault on Ward but that Ward attacked him and held him from behind in a headlock) were not credibly available on the preponderant evidence of the eye witnesses, which Lord Gifford now promotes as the salient facts relevant to this appeal.
40.	It is further of relevance that, in the course of summing up to the jury the evidence given by Lubango, the judge gave an extended and in part verbatim account of Lord Gifford’s cross-examination of Lubango, in the course of which, as is evident, Lord Gifford put the appellant’s case in detail (page 31G to 35E).  By themselves, of course, submissions of counsel or answers to questions put by counsel related by the judge are no substitute for directions by the judge himself.  But this passage did not stand alone and will have served to supplement the detail of the case in the prepared statements to which the judge had referred four times as containing the appellant’s case.
The forensic case and the main ground of appeal
41.	Lord Gifford submits that this case was unusual.  In the first phase, that is at the Dingwall Road bus stop and, in the appellant’s case, on the bus, there was all too familiar evidence of two young men, one of whom to the knowledge of the other had a knife, boasting about the use of knives and apparently prepared to use the knife which they had.  In the second phase on the bus, when the appellant and Ward confronted each other, there was no participation by Lubango in any aggressive act or word against the victim.  On the contrary, Lubango tried to restrain the appellant.  In the third phase, the appellant fought with the victim and it was in the course of the fighting that Lubango intervened with the knife.  Lord Gifford submits that this may have been a spontaneous action by Lubango to help his friend and that the element of agreement necessary for a joint enterprise was not present.  The prosecution had to prove that Lubango did not act spontaneously.  On the evidence, the appellant had expressed a desire to inflict serious injury with a knife, at first in general terms at the bus stop and then specifically with reference to Ward on the bus.  By saying “give me the shank”, he was evincing an intention to stab Ward if the weapon was to hand.  He had the mental element for murder as a secondary party.  But for joint enterprise there must also be an agreement and, if Lubango stabbed spontaneously without invitation from the appellant or with out his agreement, there was no joint enterprise sufficient to convict the appellant of murder as a secondary party.  Lord Gifford submits that there has to be a meeting of minds.  If one person shows a wish to stab the victim and a second person spontaneously does so, there is no meeting of minds.  Here there was no evidence of agreement because there was no evidence that the appellant saw or knew what Lubango might be doing.  He was trying to fight with Ward.  There was no question of the appellant holding Ward to enable Lubango to stab him.
42.	There was a problem with this submission in that it did not for obvious reasons represent the appellant’s case.  His case was that he did not know that Lubango had a knife and that he was not fighting with Ward, but that Ward grabbed him in a headlock from behind.  Mr Waters submits that the submission apparently sidesteps without meeting, but in truth fails to provide a defence to, the prosecution’s case and fails to address the application to that case of the law of joint enterprise as derived from Rahman.  The prosecution case was that the appellant and Lubango engaged on a common enterprise that night going back at least to the time when they were at the Dingwall Road bus stop.  Between them they had a knife, a lethal weapon, which they were prepared to and intended to use, if aggressive or defensive occasion arose.  Such occasion did arise with Billy Ward and Lubango (in all probability) used the knife intentionally as the appellant and Ward were fighting.  In Rahman terms, the appellant foresaw what Lubango might do if there were such a fight, and what he did in fact do assuming that the appellant himself was not the knifeman.  In the language of the judge’s direction in Rahman, the appellant realised that Lubango might produce and use a knife with the intention of killing or causing really serious injury; and this is what happened.  In the language of the judge in the present case, the appellant knew or realised that Lubango with the knife might use it to stab Billy Ward and kill him or cause him really serious injury and the appellant intended that should happen.  In the light of the judge’s direction it may be taken that the jury were sure that the evidence established this factual case.  Mr Waters submits that the preponderance of the evidence was overwhelming and Lord Gifford’s summary of it sufficiently established the prosecution’s case.  Mr Waters says that Lord Gifford’s submission does not meet this case and provides no defence to it, because the case established a common enterprise by virtue of which Lubango’s stabbing quite simply was not spontaneous, and in the light of which an on the spot agreement at or near the Gravel Hill bus stop to stab Billy Ward was irrelevant.  It made no impact on the common enterprise or the appellant’s foresight.  Nor did any restraint which Lubango might temporarily have exercised on the bus, which was plainly insufficient to bring the common enterprise to an end and which could make no impression on the appellant’s foresight of what Lubango might do, when the appellant himself on the bus would have Lubango hand him the knife so that he might use it; and when no less than six witnesses (Flint, Aaron Rogers, Lauren Stevens, Logan, Ryan Rogers and Ross Stevens) heard a shouted warning to Ward not to get off the bus because “You’re gonna get stabbed”.  
43.	This is a powerful submission and we are quite satisfied that, so far as it goes, the jury must surely have found the essential facts upon which it depends.  But it does not eliminate entirely the point which Lord Gifford’s submission addresses.  The prosecution had to prove both that the appellant foresaw that Lubango might use his knife to kill someone in a fight intending to kill him or to cause him really serious harm; and that this occurred in the course of a relevant common enterprise in which the appellant participated.  On facts which the jury must have found, the appellant’s foresight is not an issue in this appeal.  But the jury still had to identify the relevant common enterprise.  There was an intellectually definable case, as described by Lord Gifford, that the prosecution had failed surely to eliminate the possibility that there was no relevant common enterprise if Lubango had attempted to restrain the appellant on the bus; if the appellant had fought with Ward on his own; and if Lubango had stabbed Ward spontaneously without agreement or encouragement by the appellant.
44.	The judge did not direct the jury so as to indicate this case to them, as we consider he should have done.  It was not the appellant’s case.  But the prosecution evidence had disproved the main factual lines of that defence, and the forensic case had become the appellant’s main defence, and realistically his only defence.  In our judgment, however, this error does not result in the conviction appeal being allowed, because we are each satisfied that the appellant’s murder conviction is nevertheless safe.
45.	The forensic case was, in our judgment, intellectually definable, but otherwise entirely unrealistic on evidence which the jury must have surely accepted.  Once the jury had rejected the primary cases of each defendant, as we can be sure they did, it is fanciful to suppose that, with an appropriate direction about the forensic case, they might not have concluded that the relevant common enterprise continued from the Dingwall Road bus stop through to the stabbing.  The forensic case was, on the evidence taken as a whole which the jury must have accepted, one of legal technicality divorced from what happened.  The fight with Ward was not, other than intellectually, on the evidence capable of being divorced from the events which preceded it.  The evidence of those events surely established a sufficient common enterprise going back to the Dingwall Road bus stop.  The appellant’s own actions on the top of the bus established his continued participation in that common enterprise and, as we have said, the question of his foresight is no longer an issue.  If there is an intellectual case that Lubango may have withdrawn on the top of the bus from the original common enterprise – which in reality on the evidence as a whole is fanciful – a supposedly separate enterprise in which the appellant, initially alone, fought with Ward was so closely associated with Lubango’s armed presence and with the common enterprise events which preceded it, that a fully directed jury must surely have concluded that the supposedly separate enterprise was one in which both defendants jointly participated, with the appellant having the necessary foresight of what Lubango might do.  The appellant did not have to summon Lubango’s lethal help.  He knew that he was there to provide it and foresaw that he might.  It was but a very short time before the stabbing that the appellant had himself asked for the knife so that he might use it in confrontation with Ward.  The main basis of the appeal does not therefore persuade us that the appellant’s conviction is other than safe.
The other grounds of appeal
46.	The submission that there was no case to answer at the close of the prosecution case contended that (a) a properly directed jury could not reasonably conclude that Badza was the stabber; and (b) that there was no evidence of joint enterprise because the prosecution had not established that Lubango did not act spontaneously – reference is made to R v Smith [2008] EWCA Crim 1342.  As to (b), there was the plainest case of common enterprise in the way that we have described the prosecution case on the particular facts which it is now accepted the evidence established.  As to (a), this by itself was insufficient to carry the submission.  But in any event, although the prosecution were inclined to accept that the balance of the evidence showed that Lubango was the stabber, Lubango’s case was that he was not, and there was some evidence from which a jury might properly have concluded that he was not.  There plainly was a case to answer and the single judge correctly refused leave to appeal for the ground that there was not.  The same applies for the same reasons to the second ground of appeal, to the effect that the judge should have directed the jury that, if they were sure that Lubango was the stabber, there was no sufficient evidence on which the jury could find the appellant guilty on the basis of common enterprise.
47.	The third ground of appeal is that the judge failed to give the jury any adequate help to relate factual parts of the evidence to the directions of law.  There was no recapitulation or summary of the issues at the end of his summing up of the evidence.  Lord Gifford takes parts of directions as to the law relating to common enterprise and submits that the judge did not explain the relevance of those parts to the line of defence which Lord Gifford developed on behalf of the appellant; and that the judge failed to apply the generalised law to the need for the prosecution to establish the necessary agreement, as the submission would have it, and to establish positively that Lubango’s stabbing was not spontaneous.  Lord Gifford submits that the direction to consider whether Lubango may have acted, not as part of any agreement or plan, but separately for reasons of his own, which was the essence of the appellant’s case, appeared as an afterthought.
48.	We have already said that this part of the judge’s directions of law appeared in its logical place.  We have also explained that the case to which this submission relates was not the appellant’s case as given in his prepared statement, but a different forensic case constructed for him, entirely legitimately no doubt, by Lord Gifford from the preponderance of the evidence which in important particulars did not accord with the appellant’s case.  The judge did not intersperse his directions in law with references to the evidence relevant to each part of the directions.  It would, we think, have been more confusing than helpful if he had done so in this case, where there was a large body of detailed eye witness evidence.  He gave a full and balanced summary of the evidence, drawing some further passages of the evidence to the attention of the jury at the request of various counsel.  He did not draw the evidence together with the legal issues at the end of his summary, as might have been helpful.  But the jury did have both the Directions of Law and the Steps to Verdict in writing, and we consider that this will have given them an adequate basis for a step by step and orderly application of the facts as found by them to the legal issues.
49.	Lord Gifford refers to R v Duncan (1981) 73 Cr. App. R 359 and R. v Sharp (1988) 86 Cr. App. R. 274 for the proposition that where a defendant who has not given evidence relies on a mixed statement, partly incriminating and partly excuses or explanations, the jury should be told to consider the whole statement in deciding where the truth lies.  The judge did not give this direction.  But the appellant’s statement was not in the main a mixed statement and the judge cannot be persuasively criticised for not giving this direction.
50.	The ground of appeal to the effect that the judge failed to sum up the defence case needs to be considered in two parts.  Lord Gifford refers to R v Curtin (1996) Crim. L.R. 831 for the submission that, as part of the judge’s duty to give succinct directions about relevant law, the salient pieces of the evidence and identifying the issues, the judge has a duty to identify the defence.  This may be difficult if the defendant has neither answered questions in interview nor given evidence, although it will usually be appropriate in such a case to remind the jury of significant points made in defence counsel’s speech.  The judge has to decide in every case how fairly and conveniently he should put the defence case before the jury.  
51.	This ground of appeal needs to consider (a) the appellant’s case, which was that to be found in his prepared statement, and (b) the different forensic case legitimately constructed for him by Lord Gifford, which is the main emphasis of this appeal.  As to (a), we have already shown that the judge did identify this adequately, as we think, by specific references to the prepared statement and to the case that it was Lubango, not the appellant, who stabbed Billy Ward to death with a knife which the appellant did not know he had.  As to (b), the submission is that the judge did not refer to what are said to be key issues, as discussed above, relating to lack of a meeting of minds and the possibility that Lubango acted spontaneously.  The judge did not refer to this alternative forensic case in the course of his summing up.  But we have concluded earlier in this judgment that the appellant’s conviction is nevertheless safe.
52.	The final ground of appeal, for which the single judge refused leave to appeal, is insubstantial.  It is said that the judge was wrong to refuse an application on behalf of the appellant to admit bad character evidence of Billy Ward under s. 100 of the Criminal Justice Act 2003.  This is said to have been relevant to the issues whether Ward had used racial abuse to the appellant on the bus as the appellant had stated in his prepared statement; and as to the extent of the aggression shown by Ward to the appellant outside the bus.  The proposed evidence in summary was of (1) a conviction for arson and witness intimidation, where Ward had attacked the home of a Somali family and burned their car, and had then used gross racial abuse and threats against a witness; (2) his arrest for an incident on a bus where he punched the driver’s screen, abused him racially and used Nazi-style salutes; (3) a photograph of Ward making a Nazi-style salute at a party.  As to the salutes, there was a suggestion that a CCTV image from the tope of the bus in the present case shows Ward making a Nazi-style salute.  So far as it goes, we find this unconvincing.  It looks more like Ward holding an overhead rail to steady himself and the timing of the image appears to relate a point where the bus was stopping.
53.	In ruling against the application, the judge expressed his conclusion that he was not required in this case to leave provocation to the jury as a partial defence to murder.  No complaint is made as to that conclusion, which was plainly correct.  The judge referred to section 100 of the 2003 Act.  It provides, so far as is relevant to the application under consideration, that the bad character of a person other than the defendant is admissible only if it is important explanatory evidence (which this evidence was not), or if it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole.  The appellant had stated in his prepared statement that Ward had been abusive and offensive on the top of the bus and that he remembered the words “black” and “pussy” in particular.  Lord Gifford had put to a number of witnesses that Ward had been racially abusive on the top deck of the bus.  None of the witnesses had heard anything of the sort.  There was therefore no witness evidence of racial abuse.  The jury would be able to consider the CCTV images.  The question of racial abuse or behaviour by Ward arose in an insubstantial way and had no substantial probative value.
54.	Lord Gifford submits that evidence that Ward was prone to racially aggravated expressions of violence would be substantially probative of the ferocity of an attack by Ward on the appellant, itself relevant to the question whether the appellant had an opportunity to encourage or invite or agree with Lubango that he should join in with a knife.  There was also a question whether the appellant’s statement account of racial abuse might be true.
55.	We have indicated that we regard this proposed ground of appeal as insubstantial.  In our judgment, the judge reached the right conclusion for the reasons which he gave.
Conclusion
56.	In the result, the appeal against conviction fails on the grounds for which the single judge gave leave, and we refuse leave on the renewed grounds on which she refused leave.  In our judgment, the appellant’s conviction for murder is safe.  The appeal against conviction is therefore dismissed.
Sentence
57.	The appellant appeals with leave against his sentence of detention for life with a specified minimum term of 18 years less 367 days during which he was remanded in custody.  The appellant was 19 at the time of his sentence, 18 at the time of the murder.  He was of good character.
58.	The judge’s assessment of the evidence for sentencing purposes was that Billy Ward had done neither defendant any harm.  He was, in common with many other young people on the bus, simply on his way home after a night out.  By contrast, both defendants appear to have been out for trouble.  Lubango was carrying the knife and revealed possession of it at the Dingwall Road bus stop.  The appellant asked to be given the knife when he was on the bus in altercation with Billy Ward.  If Billy Ward offered violence, he had been sorely provoked predominantly by the appellant.  He was murdered while the appellant held him in a headlock while Lubango stabbed him no less than nine times.  Each defendant blamed the other and continued to do so.  It was agreed that the appropriate starting point for the required minimum term under section 269(2) and Schedule 21 of the 2003 Act was 15 years.  The appellant plainly not only knew of the presence of the knife, but was prepared himself to use it.  That required an increase above the starting point.  The judge found an intention to kill in both defendants and made no distinction between the two.  
59.	It is submitted on the appellant’s behalf that the evidence did not establish on the appellant’s part an intent to kill; that the appellant should have received a lesser minimum term than Lubango, because Lubango was the stabber; and that insufficient reduction was made for the appellant’s previous good character, supported as it was by character references and evidence, his age and remorse as shown in the Pre-sentence Report and his positive good conduct in prison.  As to the appellant’s intent, it is submitted that there was no reliable evidence that the appellant was holding Ward to enable Lubango to stab him.  An intent in the appellant to kill, as opposed to an intent to cause really serious harm, was not established to the criminal standard.  
60.	We indicated at the oral hearing that we found these submissions to an extent persuasive and were inclined to allow the sentence appeal by reducing the minimum term, if the conviction appeal failed.  The main persuasive point, we think, is that it was Lubango who had the knife throughout and who used it to kill Billy Ward.  That justifies a distinction between the two defendants.  Admittedly the appellant at one stage asked to be given the knife, but it was not handed over.  As to an intent to kill, we recognise that the judge heard the evidence and we have not.  But our own paper assessment of the evidence suggests that an intent in the appellant that Lubango should kill Billy Ward may not have been surely established, as it obviously was for Lubango.  The appellant’s participation in the common enterprise which embraced the lethal use of a knife was an aggravating feature.  But we consider that the balance of aggravation and mitigation should have distinguished between the appellant and Lubango so as to bring the appellant’s minimum term back towards the 15 year starting point.  We therefore allow the sentence appeal by reducing the appellant’s minimum term to 16 years.  To that extent the appeal against the sentence is allowed.