Neutral Citation Number: [2014] EWCA Crim 521
Case No: 201300350/B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Thursday, 6th March 2014
 
B e f o r e:
LORD JUSTICE ELIAS 
MR JUSTICE SWEENEY 
MR JUSTICE GREEN

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B E T W E E N

	R E G I N A		
	v		
	NELSON IDIABETA		

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Mr O Pownall QC & Mr D George appeared on behalf of the Appellant 
Mr C Aylett QC & Mr W Jones appeared on behalf of the Crown  
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J U D G M E N T 

1.	 LORD JUSTICE ELIAS:  This is an appeal against conviction by leave of the single judge and the renewal of an application for leave to appeal against sentence after refusal by the same judge.
2.	On 17th December 2012 in the Central Criminal Court before His Honour Judge Marks QC the appellant was convicted of murder.  The following day he was sentenced to be detained at Her Majesty's Pleasure.  A period of 19 years was specified as the minimum term, under section 269(2) of the Criminal Justice Act 2003, less time spent on remand.  His co‑accused, Nathaniel Okusanya, was also convicted of murder and sentenced to custody for life and in his case the minimum period specified was 20 years.
3.	The facts were these.  This is yet another murder arising out of gang warfare among youths in London.  On Friday 2nd March 2012 Kwame Ofoso‑Asare, then aged 17, was stabbed to death, in broad daylight, on the Moorland housing estate in Brixton, South London at about 5.30 in the evening.  He was with a friend, Angeleto Davis, who managed to escape.  
4.	Two boys, the appellant and the co‑accused, chased Kwame and Angeleto. Angeleto jumped over a wall but Kwame was cornered in a cul‑de‑sac in Adelaide Close.  He was stabbed in the back some 14 times and died at the scene.
5.	He was a talented sixth former in the Forest Hill School.  The impact on his family of his death was devastating, as one would expect.
6.	Earlier that day a member of a South London gang TN1 (Trust No‑one), Garfield Stuart, had been stabbed 28 times in an incident at the West Norwood bus garage and had been blinded in one eye.  The attacker was apparently a member of a rival gang, known as GAS (Guns and Shanks).  The TN1 gang were apparently based mainly in and around the Tulse Hill Estate.  They were in conflict with the GAS gang whose patch is on a number of estates near Brixton including the Moorlands estate.
7.	The prosecution case was that Kwame had been killed by the two co‑accused in retaliation for the attack on Garfield Stuart.  The attackers were under the misapprehension that Kwame was a member of the rival gang. In fact he was not; he was not even from the Brixton area and had been in the estate only because he had been recording music with his friend.
8.	The appellant admitted that he was one of the two men who was present at the scene.  His case was that he had gone there with the killer, a man whom he described as "X" but whom he refused to identify.
9.	There was in fact very extensive CCTV evidence which followed the movement of the appellant throughout the day.  He had been to Kings College Hospital, shortly after Garfield Stuart had been taken there following his stabbing.  He had returned to his lodgings with another youth at around 4.30.  They then went to a shopping precinct in Camberwell and one of them (probably Mr X) managed to persuade a Mr Kawaja to buy a knife, or possibly two, on the basis that he needed it for his mother but he did not have any ID.  Mr Kawaja purchased the knives or knife and handed it to the appellant.
10.	Shortly thereafter a taxi‑driver, who also gave evidence at the trial, dropped the two youths at the Moorlands estate and was told to wait.  They returned 3 or 4 minutes later and asked to be taken back to Stockwell.  In the interim they had followed Kwame and Angeleto and Kwame had been killed.  Minutes afterwards the appellant's mobile phone was used to contact Garfield Stewart.  The Crown's case was that the purpose was to tell him that the job was done.  Later the appellant returned to his hostel.  According to the witness around the hostel, when he returned he was no longer wearing the distinctive light blue tracksuit he had worn earlier.
11.	The appellant gave evidence.  He accepted that he was the person on the images shown throughout the day.  He said he had never been a member of a gang or associated with one.  He became friends with the co‑accused in 2010.  He had a number of friends on the Moorlands estate.  He also knew Garfield Stuart but not very well.  On 2nd March he had been to court in the morning and expected to be remanded in custody but he was not.  Later he went to the Kings College Hospital to visit a friend of his who had been stabbed in a robbery a week before.  He was not there in fact to visit Garfield Stuart at all.  It was only while he was at the hospital that he discovered that Stuart had been stabbed.  He met X at the hospital.  X was there to see Garfield.  He was not willing to give X's name for fear of reprisals but nor was he prepared to eliminate anyone.  
12.	X asked the appellant if he would accompany him to the appellant's hostel to retrieve a jacket which X had previously lent the appellant.  They agreed and went back to the hostel and than X badgered the appellant to go with him to the Moorlands estate.  He also asked the appellant for a knife, which he said was for protection, but the appellant said he had refused to give him one.  The appellant said that he went with X to Butterfly Walk where Mr Kawaja agreed to buy the knife.  From there they took the taxi to the Moorlands estate, asked the driver to wait because they did not think they would be long. The appellant did not see X putting the knife into his pocket.  They saw two youths talking to some boys who were on bicycles.  The youths started to run and the appellant instinctively ran after them and in a non aggressive way asked one of them why he was running away. The boy did not reply.  X suddenly run towards the boy and started attacking him.  The appellant did nothing to stop the attack as he feared that he too might be stabbed.  However he did say to X: "Stop what you're doing.  We didn't come here for this" but X ignored him.
13.	In cross‑examination the appellant accepted that he was the first in and last out of Adelaide Close where the attack took place.  He was asked whether he was prepared to eliminate Okusanya as the other youth, X, by prosecuting counsel but he declined to do so. He was also asked by prosecuting counsel a series of further questions which touched upon the identity of the stabber and his replies were in fact entirely consistent with X being Okusanya, the co‑accused, and his replies too would have eliminated most other people.  The co‑accused did not cross‑examine the appellant.
14.	There are three interrelated grounds of appeal against conviction.  In essence, they submit that the trial was unfair because the closing speech of Mr Jeremy, counsel for Okusanya, unfairly attacked the credibility of the appellant and the judge did not adequately ameliorate the prejudice in his summing‑up.  In that closing speech Mr Jeremy had asserted before the jury that in reality the appellant had, by implication, identified the co‑accused as Mr X, notwithstanding that he had purported not to do so on the grounds that he was afraid of reprisals. That had been the substance of his evidence.  He would not eliminate the co‑accused, allegedly his friend, when he was in a position to do so.
15.	Counsel noted that if Okusanya was not Mr X the appellant could readily and without difficulty have told the jury that fact without placing himself in jeopardy.  Yet he had been unwilling to do that, thereby sending the obvious message to the jury that the co‑accused was indeed Mr X.  This was reinforced by his answers to the specific questions which, taken together, strongly pointed the finger at the co‑accused as being the attacker.
16.	The appellant therefore sought to put the blame entirely on the co‑accused without directly doing so and facing a full‑on conflict.
17.	Mr Jeremy, in his closing speech, also directed much fire at the appellant and identified 15 aspects of the evidence which he alleged pointed strongly towards the appellant being in fact the principal and main attacker.  He submitted to the jury that the appellant's implied identification of Okusanya as the attacker was opportunistic and self serving and that the jury should not rely upon that evidence when assessing the co‑accused's guilt.
18.	There had been a discussion before closing speeches in which Mr Jeremy had indicated that he might make certain disparaging remarks about the appellant in his closing submission.  Mr Pownall QC, counsel for the appellant, objected at that stage on the grounds that there had been no cross‑examination of his client, there was no proper evidential basis for such an attack and that there never had been any identification of Okusanya as the murderer.
19.	There was also a discussion with the judge before closing speeches as to whether, in light of the implicit identification of Okusanya as the attacker, the judge ought to give the jury a warning as to the caution with which the jury should approach the appellant's evidence, at least in so far as it bore on the case of Okusanya.  The judge said that he would revisit the issue after closing speeches and that is exactly what he did.
20.	When he did so, he agreed that the jury might well understand the appellant had been implicitly identifying his co‑accused as Mr X and that in so far as the jury felt that he had done so, they should treat the evidence of the appellant with caution.
21.	In fact, when it came to giving his directions, he recounted to the jury the submissions made by Mr Jeremy in his closing speech, to the effect that the co‑accused had in all but name been identified by the appellant, and that the purpose was to enable the appellant to get the best of both worlds because he could shuffle off the entire responsibility for what had occurred and place the blame upon Okusanya. This was done without in fact identifying him and facing the potential repercussions which might have arisen had he done so.  For example, he might have been cross‑examined on his gang links.
22.	The judge then told the jury they could accept or reject that assessment by Mr Jeremy as they thought fit and he continued as follows: 
"If, but I emphasise only if, you think that there is force in Mr Jeremy's submission and you were to conclude that Idiabeta was impliedly incriminating Okusanya and giving him the leading role, you would in those circumstances need to exercise causation in relation to your evaluation and assessment of his evidence in this regard because on Mr Jeremy's analysis, if it be right, it is clearly the case that Idiabeta would have had interests of his own to serve, namely minimising his own involvement in these events."  
The judge then went on to note that Mr Jeremy had not cross‑examined Idiabeta to this effect, but he observed that the jury might consider that this was understandable having regard to the fact that Okusanya's case was that he had not been there at all. 
23.	Mr Pownall now runs three interrelated grounds of appeal against this conviction.  He says these closing remarks were impermissible; indeed he described them as "grotesque" and said that they should never have been made, given in particular that counsel had not cross‑examined his client.  Second, the judge ought to have told the jury that the observations were impermissible and not grounded in the evidence and that they should be ignored.  This was particularly so given that the co‑accused's closing speech came after that of the appellant and so he had not had a proper opportunity to respond.  Third, it was submitted that the judge ought not to have given any accomplice warning at all to the jury in the way in which he had done because this inevitably undermined, to some extent, the appellant's own evidence.
24.	We reject these submissions.  First, in our view there were powerful reasons to suppose that the jury would have understood that the appellant was implicitly fingering Okusanya as the guilty party.  That was plainly an inference open to the jury.  We do not accept counsel's submission that there was no proper evidential basis for drawing this inference.  Moreover, in so doing, the appellant clearly had his own interests to serve.
25.	We think there was nothing wrong in principle with Okusanya's counsel attacking the credibility of the appellant in his closing submissions.  Nor was there anything wrong in the judge telling the jury that they need to exercise caution when assessing the appellant's evidence in so far as it bore on Okusanya's guilt.  The judge appropriately limited his direction in the way we have indicated by telling the jury that it was only if they thought the appellant was indeed seeking to re‑shift responsibility to the co‑accused that they should adopt that caution with regard to his evidence.
26.	Counsel submits that the judge should have dealt with this simply by telling the jury that they could ignore that aspect of the appellant's evidence.  But that of course would potentially have prejudiced the prosecution, because if and in so far as the jury thought that the appellant was indeed pointing the figure at Okusanya, that was evidence which supported the jury's case in relation to him.
27.	The principal objection made by Mr Pownall is that there had been no cross‑examination of the accused by Mr Jeremy.  There is no doubt that normally it is incumbent on a co‑defendant to challenge another defendant where he is not accepting the evidence of that defendant.  He must identify where he says the defendant is telling lies and in what respect ‑ see R v Fenlon 71 Cr App R(S) 307.  Fairness will require that the defendant has a chance to deal with the points and there will be circumstances where it may be unfair for an accomplice warning to be given when there has been no cross‑examination; alternatively for the counsel of the co‑accused to launch an attack on the credit of a defendant, as this counsel did. 
28.	But in Fenlon the court made it clear the purpose of this rule is to ensure that the defendant has a proper opportunity to respond to the allegation that he is not telling the truth.  This was a different case.  The contention was of course that the appellant was, by implication, blaming the co‑accused but the appellant had every opportunity to deal with the issue because he was questioned at length by prosecuting counsel.  He made it clear that he would neither disclose the name of Mr X nor would he exculpate the co‑accused.
29.	It also worth pointing out that before closing speeches Mr Jeremy had suggested that the appellant could be recalled to allow further cross‑examination, if the appellant so wished, but that offer was refused by Mr Pownall.  That of course he was perfectly entitled to do but, in our judgment, it does weaken to some extent the submission he is now advancing.
30.	In our judgment to require cross‑examination here would have been no more than a formality.  As the judge pointed out, in reality there was no possibility that the appellant, even if questioned, would have said anything other than he had already said when cross‑examined by the prosecution.  Moreover, as the judge also pointed out to the jury, the range of cross‑examination by Mr Jeremy would inevitably have been limited, since counsel could not sensibly put a positive case to the appellant, given that Okusanya's case was that he was not there.
31.	  The judge we think was faced with a very difficult situation.  He adapted what he considered to be a solution which was fair in all the circumstances to each of the parties and, in our view, he achieved that objective.
32.	  We would only add that in any event we are fully satisfied that the verdict was safe, even if the judge was in error.
33.	There was overwhelming evidence against this defendant.  He admitted his presence.  The idea that he just innocently went with the co‑accused in the taxi, knowing at the very least that the co‑accused had a knife, ran after two boys in order to ask them why they were running away, and suddenly found to his surprise that his co‑accused was attacking one of them with a knife is wholly fanciful.
34.	Even if there was one knife used, and that is far from clear, it seems to us, there was overwhelming evidence that each must have been a party to this vicious and premeditated execution.  Accordingly the appeal against conviction fails.
35.	We turn to consider the application for leave to appeal against sentence.  The judge concluded that he could not tell whether one or two knives was used for the actual stabbing but that it was plainly a joint enterprise in which both were equally responsible.  He recognised that the starting point, under Schedule 21 of Criminal Justice Act 2003, was 12 years for the appellants, since he was only 17 at the time of the offence whereas it was 25 years for Okusanya because he was over 18 and had taken a knife to the scene.  Of course the appellant had also but curiously this fact does not affect the starting point of those under the age of 17.  The judge found no mitigating features in the case of the appellant but he did identify a whole range of aggravating features including a substantial amount of premeditation, the use of a knife in a residential area in daylight, the gang related background, the revenge nature of the attack, the deliberate purchase of the knife for the purpose of carrying out the attack and the ferocity of the attack itself.  In addition the appellant had appeared before the courts on numerous occasions including for an offence of attempted robbery and this incident itself was committed whilst he was on bail.
36.	By contrast with the appellant, Okusanya had a good character and indeed the judge pointed to a number of commendable features in his character; and although he was in the 25 age bracket, he was only just over the relevant age at the time.
37.	The grounds on which this renewed application are made is that the increase of 7 years from the 12 year starting point was too high.  The judge ought to have found that the co‑accused was the more culpable and the differential of just 1 year was insufficient given the difference in starting points.  We reject all these points.  First, there were the serious aggravating features which the judge identified, which certainly justified a significant increase from the 12‑year starting point.  Second, the judge was in the best position to determine who precisely struck the attack with the knife.  He was not able to resolve that.  He treated each of the defendants equally. There was certainly a proper basis for inferring that there may be two knives, not least perhaps the fact that this is a gang attack and is unlikely that they would have gone with one of them unarmed.  There was ample evidence to conclude that they were equally responsible.  The difference in age was not very significant and it would have been wholly inappropriate to apply the guidelines in a slavish way.  Given the significantly worse record of the appellant, we do not think there is anything in the disparity point.  No‑one considering the facts of this case would, in our view, think that something had gone seriously wrong with the sentencing.
38.	On the contrary it seems to us that after a careful and considered deliberation by the judge, he fixed on sentences which were wholly appropriate for the nature of this dreadful offence.  Accordingly, we refuse leave to appeal against sentence.