Case No: 2000 04811W2
Neutral Citation No: [2002] EWCA Crim 1736
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
MR JUSTICE PENRY-DAVEY
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 10th July 2002
Before :

LORD JUSTICE KAY
MR JUSTICE HOLLAND
and 
MR JUSTICE ANDREW SMITH

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Between :

	R 		
	
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GRAHAM ROBERT NEARY	
Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr P Sapsford QC and Mr P Woodall instructed for the Appellant
Mr A Gee QC instructed for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Kay : 
1.	On 26 July 2000 following a trial in the Crown Court at Liverpool before Mr Justice Penry-Davey and a jury the appellant, Graham Neary was convicted of murder and ordered to be detained during Her Majesty’s pleasure.  He now appeals against conviction with leave granted by the full court.
2.	The appellant had been jointly indicted with three other youths Alan Bentley, Mark McKeefrey and Neil Breslin.  The allegation of murder related to the killing of Michael Moss, a 15 year old youth who was savagely attacked on two distinct occasions on the same night and who died from his injuries before the second attack was completed.  At the time of the killing the appellant was aged 16 and his three co-accused were 15.
3.	Before the commencement of the trial, the prosecution accepted a plea of guilty tendered by Breslin in respect of a second count against Breslin alone of violent disorder relating to the first of the two attacks and offered no evidence against him on the joint charge of murder.  Bentley and McKeefrey were tried with the appellant and they also were convicted of murder.
4.	The killing of Michael Moss was one of exceptional brutality.  At the time he was the subject of a care order and he was living at a local authority centre.  His naked body covered in injuries was discovered on a playing field at 7.30am on 13 November 1999 when a man out walking his dog came across the body.
5.	It was not in dispute at trial that there had been the two separate attacks nor that each of the four who had been indicted had been present at one or other or both of these attacks.  The prosecution’s case was that the two youths who bore the greatest share of responsibility in the killing were Bentley and McKeefrey and that each of them was involved in both attacks.  Breslin had admitted his presence at, but not any direct involvement in, the first attack but denied presence at the second attack.  It was on this basis that he pleaded guilty to violent disorder. 
6.	It was common ground that the appellant played a part in the second attack but he was not present at the first attack.  The appellant’s defence to murder was that he did not have the necessary mens rea for that offence.
7.	Precisely what lay behind the dreadful violence was disputed.  One suggestion made was that Michael Moss had initiated the infliction of injury upon himself in order that he could make a claim for criminal injuries compensation.  That can hardly have been the true explanation for violence of the severity that occurred in this case and it seems much more likely that it had its origin in the fact that Bentley’s girl friend had ended her relationship with him in October 1999 and started to go out with Michael Moss soon after.  Michael Moss was a good friend of Bentley and was also friendly with McKeefrey.  However, he did not know the appellant.
8.	On the evening before the killing, Bentley had a number of people round to his home to celebrate his birthday.  They included the appellant, McKeefrey and Breslin.  They had a bottle of vodka and some cider and there was evidence that both on this occasion and before it, Bentley had spoken about beating up Michael Moss referring either to the false claim for compensation or to Michael Moss having had sex with his former girl friend.
9.	At around 1am that night, 13 November 1999, McKeefrey telephoned Michael Moss and arranged to meet him in an alleyway leading to Moss Lane Park on the outskirts of Liverpool.  The prosecution suggested that he was lured to that location by a pretence that they would show him a motorbike.  Michael Moss set out from the home where he was living at 1.20am and never returned.
10.	Michael Moss met up with McKeefrey, Bentley and Breslin and in the park he was attacked.  Bentley admitted to the police that he had instigated the attack.  He said that he had head-butted Moss to the ground, then punched and kicked him.  He said that Breslin walked off but McKeefrey had started jumping on Michael Moss’s head with both feet.  McKeefrey, he said, had stripped Moss of most of his clothing except for his socks and thrown them in a puddle.
11.	McKeefrey  had claimed to the police that Bentley alone had attacked Moss.  In evidence he admitted that he had told “bare-faced” lies to the police and that he had kicked Michael Moss once in the face, once to the chest and a few times in the back.  He said that he had then left with Breslin and at that stage Bentley was still continuing the attack.
12.	Emma Farrell, McKeefrey’s girl friend, gave evidence of a conversation on the afternoon of the killing in which both Bentley and McKeefrey had admitted punching Michael Moss in his face and kicking him “in his privates”.
13.	After the first attack Michael Moss was left lying on the ground whilst Bentley, McKeefrey and Breslin returned to Bentley’s house where the appellant had remained throughout.
14.	Bentley and McKeefrey decided to return to the Park.  The appellant went with them.  He gave evidence that Bentley and McKeefrey had told him that they had “got” Michael Moss, stripped him and battered him.  He said that he was unable to explain why he had gone with them.
15.	Precisely what happened upon their arrival at the Park on this occasion was the subject of differing accounts.  McKeefrey and the appellant gave evidence at trial but Bentley did not.  All three had given accounts to the police.  The differing versions essentially attributed a greater degree of blame to the others.
16.	The appellant’s evidence was that on arrival, McKeefrey had said: “There he is, he’s still there”.  He described Michael Moss as being “in a bad state” and he noticed slash marks on his legs.  He said that he was only wearing socks.  McKeefrey went to him and told him to get up threatening that if he did not he would “smash” his face in.  Michael Moss had started to rise but had immediately fallen back down.
17.	There then followed a further attack which involved kicking and also stabbing with a broken bottle.  The appellant admitted that he had participated in this further attack.  He said that he had never intended to hurt or to kill Michael Moss but he did not want to get on the wrong side of the other two.  His evidence was that he was kicking him so that they would think he was now part of the group.  He admitted kicking him several times and stamping on his belly but he denied that any of his kicks were to the head.  He admitted that he had kicked him hard because he had wanted it to look good.  Eventually he had told the other two to stop and ring for an ambulance.  McKeefrey had delivered one more kick.  The whole incident had lasted around half and hour.  Then they had gone and McKeefrey telephoned for an ambulance.
18.	It was clear from the medical evidence that Michael Moss had died before the attack was over because a number of the injuries caused by the bottle were inflicted after death or at the very least shortly before death.  This was consistent with the appellant’s account because he described how for the last ten minutes of the attack Michael Moss had made no movement or sound.
19.	McKeefrey had, as the appellant described, made a telephone call for an ambulance.  It was made at 3.31am, some 2 hours and 11 minutes after Michael Moss had left the home where he was living.  The information given was unprecise and despite a search by a paramedic and the police Michael Moss was not located.  As already explained, the body was found the next morning.
20.	During the course of the day, the appellant learnt that Michael Moss had died and he went to the police and revealed his part in the matter.  He also named McKeefrey and Bentley.
21.	McKeefrey in his evidence painted a quite different picture to that given by the appellant.  He said that the appellant on hearing of the first attack had asked the other two to show him and as a result all three had returned.  He alleged that the appellant had started the violence on the second occasion by kicking him.  He had tried to help Michael Moss up but he fell back to the ground and he had then seen that the appellant was about to run up and kick him again.  Before he could do so, Bentley had smashed a vodka bottle that they had with them.  Bentley had then used the bottle jabbing Michael Moss with it a couple of times in the thigh.  He too had used the bottle and jabbed Michael Moss with it twice.  The second time it had felt horrible and so he had thrown it to the ground.  He then claimed that the appellant had resumed his attack kicking him in the face with the back of his heel and stamping on his private parts and kicking him with his toes in the same area.  McKeefrey suggested that at one stage the appellant was taking runs up and shouting that he was Michael Owen, the footballer, before kicking him in his face.  At one point he described how the appellant had stamped on Michael Moss’s head with both his feet falling over onto his head.  McKeefrey claimed that at the end he had crouched down and spoken to Michael Moss telling him that he would go for an ambulance.  Michael Moss, he said, had thanked him.  He had then left being followed by the other two.
22.	Clearly if McKeefrey’s account was accepted to any significant degree it was very damaging to the appellant’s case.  In the same way the appellant’s evidence was very damaging to the case of each of the other two.  Attempts were made, therefore, to discredit the others and it is these attempts to which we will have to return as they lie at the very heart of this appeal.
23.	Before turning to these matters, it remains to record in summary form the extent of the injuries suffered by Michael Moss, which caused his death, and the scientific evidence that related to the appellant.  Dr Williams the forensic pathologist, who examined the body at the post mortem on 13 November, found fractures to both cheekbones, with complete separation of the nose from the facial skeleton and fractures extending into the eye sockets.  These injuries could block the airways and were likely to be fatal.  They could have been caused by kicking, stamping, punching, or, possibly jumping from a height.  He found ten broken ribs and a break in the cervical vertebra, which could have been caused by a karate blow or a very forceful kick to the back side of the head.  There were ten separate areas of bruising to the face and head, and fifty to the body and forty-eight separate areas of cuts on the body, including a deep wound between the ear and the scalp.  He estimated that there had been at least sixty stamps and kicks to cause the injuries and at least forty-nine separate movements of a sharp object to cause the incises wounds.  None of the individual stab or incised wounds were life threatening, but there was potential from blood loss for them to be really serious.  They were random rather than targeted at the dangerous areas of the body.  The degree of force applied to create the footwear marks in the bruising in the groin area would have been considerable (4 or 5 on a scale from 1 to 5), as there was no bone immediately below the surface.
24.	A second post mortem was carried out by another pathologist, Dr Burns, on 3 December.  His evidence was that the groin bruises were over an area which was likely to bruise easily.  He did not consider that it was possible to quantify the amount of force used to inflict these injuries.  The presence of the pattern did not mean that severe force had been used.  It might have been caused by moderate force or by hard blows.
25.	Examination of the appellant’s clothing revealed heavy contact blood-staining consistent with it being Michael Moss’s blood on both of the appellant’s socks.  There was contact blood staining and blood splattering on his tracksuit trousers and his tracksuit top.  There was extensive blood staining on both of his trainers, a lot of which was impacted into the stitching and crevices consistent with use in a kicking assault.  At least four marks across the groin area of the body and another on the right side corresponded with the pattern of the appellant’s trainers and had been caused with the flat of the foot.
26.	Having summarised those parts of the evidence relating to this appeal, it is necessary to turn to the events that give rise to the ground of appeal upon which the full court granted leave.  As already indicated these relate to the efforts made by the various accused to discredit each other at trial.
27.	Counsel for Bentley and McKeefrey asked, and was permitted to ask, questions of the appellant about matters of relatively minor dishonesty revealed by his school records.  One had resulted in a police caution for theft.
28.	Mr Sapsford QC who appeared for the appellant at trial, as he has done in this appeal, sought the leave of the trial judge to cross-examine McKeefrey to establish that both McKeefrey and Bentley were expelled from school for a vicious group attack upon a boy called Graylish in which Graylish had been punched to the ground and kicked.  His injuries were severe and resulted in his hospitalisation.  If the allegations were not admitted, Mr Sapsford intended to apply to call evidence to establish those facts.
29.	Mr Sapsford’s application to cross-examine, and if necessary to call evidence was based upon two contentions, firstly that the evidence of the earlier attack was admissible in itself under the principle explained by the House of Lords in DPP v P. [1991] 2 AC 447.  Secondly that McKeefrey, having given evidence. which was adverse to the appellant and also having attacked the character of the appellant, had lost the protection which otherwise would be afforded to him by Section 1 of the Criminal Evidence Act 1898 from being asked questions about his bad character.
30.	The judge rejected the submission that the evidence was admissible in accordance with the principles in DPP v P.  He looked at the circumstances of the attack on Graylish and the attack upon Michael Moss and concluded that they were very different, the only similarity being that each involved kicking.  Since McKeefrey admitted kicking Michael Moss, the judge concluded that such evidence went to no easily discernible issue in the case.  Thus although its prejudicial value was obvious, its probative value, if any, was unclear.
31.	The judge also rejected the submission made under proviso (f)(iii) of Section 1 of the Criminal Evidence Act 1898.  He accepted that McKeefrey had given evidence against the appellant and that in accordance with Murdoch v Taylor [1965] AC 574, he had “no discretion to disallow relevant cross-examination under the Section”.  However he concluded that the proposed cross-examination was not relevant to any issue in the case and did “not impair his credibility as a witness”.
32.	By his grounds of appeal, the appellant contends that the ruling to prevent his cross-examination of McKeefrey on these matters was wrong.
33.	Mr Gee QC, on behalf of the prosecution, has conceded that the judge’s ruling was wrong.  He accepts that once evidence has been given against a co-accused by a defendant, evidence of the bad character of the defendant is evidence that may impair his credibility as a witness just as it might for any other witness and that since the judge had no discretion to prevent such cross-examination, it should have been allowed.  He maintains that the judge was right to rule that the evidence was not admissible in accordance with the principle in DPP v P, and further contends that whilst cross-examination should have been permitted, evidence in rebuttal of any denials by McKeefrey would not have been admissible under the rule that answers to questions going to the credit of a witness are generally speaking final.
34.	We have no doubt that Mr Gee’s realistic concession is entirely right.  We understand the judge’s concern about the prejudicial effect of such questioning not only upon McKeefrey but also upon Bentley but are satisfied that since there was no discretion to prevent such cross-examination, the appellant was clearly entitled to ask the questions of McKeefrey that he wished to ask.
35.	Since we cannot know what McKeefrey’s reaction to these questions would have been, we cannot exclude the possibility that the appellant might have established the facts that he wanted to establish whether or not he was permitted to call evidence from Graylish.  Hence it is not necessary to consider whether such evidence might have become admissible although we doubt very much whether such evidence could have been called.
36.	Equally it is unnecessary to determine whether the cross-examination and the evidence of Graylish was admissible in accordance with DPP v P although again we think that the Crown’s position was in all probability right in this regard and that the judge’s ruling was entirely sound.
37.	The question, therefore, that we have to determine is whether this wrong ruling renders the resulting conviction unsafe.  Mr Sapsford argues that it does because as a result, the jury were presented with “a wholly false and wholly unfair impression of the respective characters of all three defendants”.
38.	We accept that a possible consequence of the jury’s not hearing matters about McKeefrey’s bad character is that the jury may have been more willing to accept McKeefrey’s version of events at least in part, to act upon it, and, therefore, to reject the appellant’s version.  There were reasons why it was unlikely that McKeefrey was telling the truth and clearly the fact that they convicted both McKeefrey and Bentley before they reached any conclusion in the appellant’s case suggests that they had little difficulty in deciding that McKeefrey’s account was far from the whole truth.  Nevertheless the possibility remains that in determining the facts relevant to the appellant’s case the jury may have been influenced at least to some degree by the evidence of McKeefrey in a way that they might not have been if they had heard about the Graylish incident.
39.	Thus if the appellant’s credit were central to his defence, that is, if a jury concluding that his account was or might be true would be obliged to acquit, then we for our part would have been similarly obliged to rule the conviction as unsafe in that it follows upon a wrong ruling relevant to credit.  It is accordingly necessary for this Court to examine the account advanced by the Appellant: if it was or might be true, did it provide a basis for acquittal?
40.	The essential features of the appellant’s version were:
(i) he had been reluctant to join in the final attack but he had been persuaded to do so by apprehension about how the other two might view him if he did not;
(ii) he had, therefore, lent his support to the attack by actual involvement in it, kicking the prone body of Michael Moss;
(iii) he had not wanted to cause really serious harm or death and had taken care to ensure that he had only kicked those parts of the body where it was unlikely that he would cause any serious harm to Michael Moss;
(iv) he was fully aware that when the second attack started that Michael Moss was already seriously injured;
(v) it was obvious to him that Bentley and McKeefrey were intent upon causing further serious harm to Michael Moss both by kicking and by the use of the broken bottle; and
(vi) after he withdrew from the attack and suggested calling an ambulance, one and only one further kick was delivered.
41.	The judge’s direction to the jury in relation to what had to be established before a murder conviction might result was:
“The offence here is murder and so the question in each case of each defendant is are you sure that defendant X (and that is simply an illustration, it means whichever defendant you are considering) unlawfully killed Michael Moss intending to kill him or to cause him really serious bodily harm or that defendant X joined in an unlawful physical attack on Michael Moss as part of a joint venture with defendant Y or defendant Z or both of them realising that Y or Z or both of them might kill Michael Moss with the intention of killing him or causing him really serious bodily harm?  If in that case you are also sure that Y or Z or both of them did kill Michael Moss with the intention of killing him or of causing him really serious bodily harm X would also be guilty of murder.  If you are not sure he would be not guilty.”
42.	If that direction accurately reflected the law, then the appellant on his own version could only be convicted of murder if he realised that Bentley and/or McKeefrey might kill Michael Moss.  He could not be convicted as a principal because although he admitted joining in the attack, he asserted that nothing he had done could have caused the death since he had made sure that he had not kicked Michael Moss on any part of his body that might have been life threatening.  Thus it must have been the acts of one or other or both of his co-accused that caused the death and not his own acts.  Accordingly his guilt of murder could only be established in accordance with the judge’s direction on his version if he took part in a joint attack with the other two realising one or both of them might kill Michael Moss with the required intention.
43.	Thus provided the judge’s direction represents the law of murder, it would follow that the appellant might have been acquitted of murder.  No concession had ever been made that he appreciated when he joined in the attack that one or both of the other two might kill Michael Moss even though it is clear that he accepted that he appreciated that they might intentionally cause really serious injury.
44.	We, therefore, have to consider whether the judge’s direction properly reflected the law of murder in such circumstances or whether it was too favourable to the appellant.
45.	This is an area of the law which has been the subject of considerable authority and the long line of cases was reviewed by the House of Lords in R v Powell and Another and R v English [1999] 1 AC 1.  Their Lordships considered two distinct cases raising similar issues as to whether the realisation by a secondary party of the possible consequences of a joint enterprise were sufficient to found a conviction for murder.  Powell is the more relevant of the two cases to this appeal, and it is important to remember that there the question for decision was whether a secondary party to a charge of murder is guilty if he sufficiently foresees what might be done in the course of a joint enterprise or whether his guilt depends upon his intention.
46.	In Powell’s case the Recorder of London had directed the jury in the following terms:
“If B or C realised, without agreeing to such conduct being used, that A may kill or intentionally inflict serious injury and they nevertheless continue to participate with A in the venture, that will amount to a sufficient mental element for B and C to be guilty of murder if A with the requisite intent kills in the course of the venture.  In those circumstances B and C have lent themselves to the enterprise and by doing so have given assistance and encouragement to A in carrying out an enterprise which they realised may involve murder.  These are general principles which must be applied to the facts of this case.”
47.	It will readily be seen that there is a significant distinction between that direction and the direction in the present case.  If the Recorder of London’s direction was correct, not merely foresight that death might result would suffice but so too would foresight that serious injury might be inflicted.  Thus applying that direction to the appellant’s case in the instant appeal, if the appellant realising that one or other or both of his co-accused might intentionally cause really serious harm to Michael Moss, joined in a joint attack upon him and death resulted from that joint attack caused by the deliberate infliction of really serious harm on Michael Moss by the others, he too would be guilty of murder.
48.	In Smith and Hogan “Criminal Law” (10th Edition, page 163), Professor Sir John Smith, dealing with liability of an accomplice for unforeseen consequences says:
“It is apparent from the foregoing discussion that, where B is liable for an act done by A, he is liable for the unforeseen consequences of that act to the same extent as A.  B foresees that A may do an act with an intent to cause gbh.  A does so and kills: both are guilty of murder even if neither foresaw the possibility of death.”
49.	The view of Professor Sir John Smith was expressly approved by the Court of Appeal in R v Hyde and others [1991] 1QB 134 at 139 A-D. A direction based directly upon this approval was upheld by the Court of Appeal in R v Roberts (1993) 96 Cr. App. R. 291.
50.	Thus the direction of the Recorder of London in Powell’s case which we have earlier set out represented the law as it was considered at that time.  The only question is whether anything in the decision of the House of Lords in R v Powell and R v English alters that position.
51.	In the course of his speech, Lord Hutton, with whom the others expressed agreement said at page 27E:
“... it is sufficient to found a conviction for murder for a 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.”
52.	We anticipate that Penry-Davey J in this case in formulating his direction to the jury did so by reference to that passage since the wording of the direction so closely follows that passage.
53.	The question, therefore, arises whether the House was thereby intending to indicate that, contrary to decisions such as Hyde, a realisation that the primary party might inflict really serious injury with the required intent for murder would not suffice.  However, if that was the case since the direction of the Recorder of London left open to the jury the possibility of conviction on that basis in Powell’s case, the direction would have been wrong in law and could hardly have escaped comment.  Immediately after the passage in Lord Hutton’s speech set out above, he rejected the appeals in that case without further explanation.
54.	At page 27H, Lord Hutton refers to the conclusion of the Court of Appeal in Hyde with apparent approval in a case where the attack on the victim took place without a weapon but distinguishes a case where the secondary party does not foresee an act of the type which the principal party committed.  That distinction has no application to the present case because the appellant continued to participate in the attack even after he was fully aware of the nature of the attack.
55.	It would seem that Lord Hutton expressed himself in the way that he did because the questions certified in each case had been posed in terms of foresight of the possibility of killing.  That has to be seen in the context that in each case death had resulted from the use of a weapon which it was claimed was unforeseen by the appellants.
56.	Similarly Lord Steyn (who gave the other reasoned speech) used terminology apparently directed to the certified questions and so, for example, said, “It is just that a secondary party who foresees that the primary offender might kill with intent sufficient for murder, and assists and encourages the primary offender in the criminal enterprise on this basis, should be guilty of murder”.  However, there can be no doubt that he was not intending to depart from the statement of law in Hyde.  On the contrary, Lord Steyn specifically emphasised his approval of the views of Professor Sir John Smith, referring to his article Criminal Liability of Accessories: Law and Law Reform in (1997) 113 LQR 453 at 464:
“The accessory to murder...must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime” (Lord Steyn’s emphasis).
57.	We add that the House of Lords in Powell referred with approval to the opinion of the Privy Council in Chan Wing-siu v R, [1985] AC 168, in which the three accused were all convicted of murder.  The Privy Council upheld convictions for murder after the trial judge had summed up the law thus:
“The Crown does not have to prove which accused inflicted the fatal blow.  You may convict any accused of murder if you come to the conclusion that he either personally inflicted the fatal wound on the deceased with the intention of causing at least serious bodily injury or that one of his companions inflicted the wound and that the accused contemplated that either of his companions might use a knife to cause serious bodily injury on any one or more of the occupants of the flat.”
58.	Thus we are satisfied that nothing in Powell’s case in any way changed the law as it applied to the circumstances of this case and that a realisation that McKeefrey and/or Bentley might inflict really serious injury intentionally amounted to sufficient mens rea on the part of the appellant for him to be guilty of murder.
59.	The appellant withdrew from the attack before the final kick.  That cannot avail him because on the medical evidence Michael Moss was almost certainly dead already but in any event the cause of death was not the result of a single kick.  No further consideration of the principles of withdrawal from a joint attack is, therefore, necessary.
60.	Accordingly in our judgment even if the appellant’s own version of events is accepted as being accurate, he was in law guilty of murder.   Thus the wrong exclusion of his cross-examination of McKeefrey cannot render his conviction unsafe.
61.	For these reasons the appeal against conviction is dismissed.
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LORD JUSTICE KAY:  For the reasons which appear in the written judgment which has been made available to the parties this appeal will be dismissed.
     Mr Sapsford, just one matter, since you are here.
MR SAPSFORD:  Yes, my Lord.
LORD JUSTICE KAY:  One thing that occurred to us is this.  We know nothing about the tariff fixing exercise that went on in this case.  It is possible that the tariff was fixed on the basis that he must have had foresight of death, since that is the way the judge left it to the jury.
MR SAPSFORD:  Yes, my Lord.
LORD JUSTICE KAY:  Clearly we are not upholding it on the basis that the jury could have established that, so what we are proposing to do is to write a letter to the Secretary of State, forwarding a copy of our judgment and saying the basis on which we have upheld it is foresight of causing really serious injury.  As I say, because we do not know anything about that exercise we do not know whether it has had any bearing on it.  It also ought to be there on the parole record for when eventually he comes to be released.
MR SAPSFORD:  Yes, my Lord.  We know that the exercise has been carried out, which is unusual when in fact  there is a pending appeal, but it has actually been carried out and completed, and I know that the Lord Chief Justice has ‑‑
LORD JUSTICE KAY:  It is now the Lord Chief Justice, is it not?  Perhaps I ought to send a copy to him.
MR SAPSFORD:  Yes, my Lord, and maybe they could look at it again in the light of the fact now that the appeal process has come to the end.
LORD JUSTICE KAY:  In any event, one of the things which I think is the weakness in the system is where the Court of Appeal have considered a case, that which they have said does not in any way tend to get on to the parole file, and I think that is wrong myself because ‑‑
MR SAPSFORD:  Your Lordship's judgment has analysed in great detail exactly what the (inaudible) was, which in fact was not particularly clear when we came to draft the grounds of appeal.
LORD JUSTICE KAY:  Equally it ought to be on the basis that the basis upon which we upheld his conviction is his own version of events.  In other words, we are not in any way finding that the jury found he was not being entirely frank.  That has a bearing, maybe on tariff, but equally, and perhaps more importantly, on whether people think it is safe to release him.
MR SAPSFORD:  My Lord, I ought to say that I know that  what has caused greatest grievance in this case is the fact that he felt that there was an element of unfairness in procedural issues, but of course, in the light of your Lordship's judgment, we feel there is no further scope.
LORD JUSTICE KAY:  I think that is right.  Do you know what the tariffs are, out of interest?
MR SAPSFORD:  Forgive me, I do not at the moment, my Lord.  It is a long time since this trial took place, a very long time.
LORD JUSTICE KAY:  Quite.  We will do something to see that no unfairness follows from that, but since you know about it you will at least be in a position to say, "well, we know the court has done that".
MR SAPSFORD:  He has waived his right to be here this morning, my Lord.  I will personally write to him with a copy of the judgment and indicate what your Lordship has told me this morning.  Thank you very much.
LORD JUSTICE KAY:  We certainly took the view that he was in a very, very different category from the other two.
MR SAPSFORD:  Thank you very much.