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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Agera & Anor v R [2017] EWCA Crim 740 (09 June 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/740.html Cite as: [2017] 4 WLR 115, [2017] EWCA Crim 740, [2017] WLR(D) 404, [2017] 2 Cr App R 22

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
Her Honour Judge Poulet Q.C.
T20147303

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/06/2017

Sir Brian Leveson P:

1. On 14 May 2015, after a trial lasting some five weeks, Stephen Agera (who is now aged 26) and Stephen Lansana (now aged 24) were convicted at the Central Criminal Court before Her Honour Judge Poulet Q.C. and a jury of robbery and murder. Both had previously pleaded guilty to conspiracy to commit burglary in respect of Lansana on 8 April 2015 and Agera, during the trial, on 24 April 2015. Two other defendants (Terae Eusebe and Bruno Guimaraes) were each acquitted of murder and robbery.
2. On the following day, 15 May, Judge Poulet sentenced both to life imprisonment for murder with a minimum term of 30 years less time spent on remand specified under s. 269 of the Criminal Justice Act 2003. Concurrent terms of 10 years' imprisonment were imposed for robbery and 4 years' imprisonment for conspiracy to commit burglary. In Agera's case, a suspended sentence of 12 months' imprisonment was activated concurrently.
3. Following refusal by the single judge of leave to appeal against conviction and (in the case of Lansana) sentence, both renewed their applications to the full court. Further, following the decision of the Supreme Court in R v. Jogee [2016] UKSC 8 and having regard to the decision of this court in R v. Johnson and Others [2016] EWCA Crim 1613, Lansana sought to amend his grounds of appeal (out of time) to add a further ground relating to the direction to the jury regarding joint enterprise.
4. On 17 May 2017, these applications were fully argued before the full court but each was refused. Having regard to the issues raised, however, we felt it appropriate to reserve our reasons which we now provide.

The Facts

5. For the purposes of this appeal, the facts can be summarised shortly. The conspiracy to commit burglary concerned the top floor flat at 5a Glebe Crescent, Hendon where it was believed there was between £20,000 and £30,000 in cash. Shortly after 11.00 pm on 2 July 2014, while the owner was away, with the assistance of a locksmith, access was gained to the premises; although no cash was then found, a number of items were taken, including a television.
6. In the early afternoon of the following day, 3 July, in a VW Passat being driven by Terae Eusebe, the applicants and two other occupants, including Bruno Guimaraes, returned to Glebe Crescent to take care of 'unfinished business', namely gaining access to the flat and to the money. They were unsuccessful in their attempts and at around 4.30 pm decided to abandon the burglary attempt and drove off into Downage.
7. What happened thereafter was substantially evidenced by CCTV. Shortly before 4.45 pm, the Passat was in Parson Street, Hendon when it passed a Lithuanian national, Zydrunas Laurinavicius ("the deceased") and his father Pranas who were on their way home from work, walking towards a bus stop. Eusebe brought the vehicle to a halt. The applicants and Guimaraes alighted with the intention, alleged the prosecution, of robbing the two men. Lansana had a bag and, prior to leaving the vehicle, there was some activity at the boot. Thereafter, the three of them then made off in the direction of the deceased and his father.
8. The case for the Crown was that they approached the two Lithuanians from behind. During the course of the subsequent attack, the deceased received two serious knife wounds: one to the back of his right forearm; the second, and fatal one, to the left side of his body which penetrated to a depth of 16 cm, the knife bisecting a rib and damaging the aorta before entering the right lung. The attackers made off having taken the deceased's watch and bag.
9. The knife used in the attack was a large hunting style 'Rambo' type with a black edged blade and a serrated upper edge which the Crown contended had been brought to the scene by Lansana in his bag although it was common ground that the positioning of the CCTV was not such as to identify where the knife came from. It was recovered from the roadside in Rowley Lane, Hendon.
10. The knife (which had a blade of 23.5 cm in length and a maximum width of 4 cm) was subsequently examined by a forensic scientist with expertise in bloodstains and the interpretation of DNA profiling evidence. Part of his work was to recover non-blood, cellular material to determine who might have touched or handled it. One area of bloodstaining was swabbed and sent off for DNA analysis: not surprisingly, this yielded a complete DNA profile that matched the profile of the deceased with a match probability of 1:1 billion. The whole of the handle of the knife was swabbed to recover any cellular DNA that might be present; DNA analysis of the swab produced a low level, mixed profile, indicating at least four contributors with a major DNA profile at most of the areas tested. All of the deceased's profile was represented within this major profile with the same match probability as the blood.
11. The applicants were subsequently arrested, Agera on 6^th July 2014 and Lansana on 11^th September 2014. Having answered "no comment", in his first interview, when further questioned, Agera served a prepared statement denying involvement in the incident putting forward an alibi defence saying he was with a friend called Paul Makoko. Lansana answered "no comment" to all questions except to provide his name and address.
12. At the close of the prosecution case, Agera changed his defence and his plea in relation to the conspiracy to commit burglary which he then admitted. He also then admitted presence at the scene, saying that he alighted from the Passat in order to return to the address they intended to burgle, there being no intention to rob the deceased. An application by counsel on his behalf to discharge the jury on the grounds of prejudice following his change of account was rejected.
13. The evidence that Agera gave was that, as he (together with Lansana and Guimaraes) caught up with the deceased and his father, the deceased began to behave in an aggressive and racist manner towards Guimaraes, with whom, Agera said, the deceased had had previous dealings; he called Guimaraes a "nigger". The deceased then produced a knife and, in the fracas, the knife went to ground. Agera picked it up, and acting in defence of himself and Lansana, stabbed the deceased. Agera accepted that he had subsequently wiped the knife down and had then disposed of it in Rowley Lane.
14. Lansana also gave evidence. He also denied that there was any question of robbing the Lithuanian men and asserted that he saw the deceased take a knife from his father's bag shortly before he directed the comment "fucking nigger" towards Guimaraes. He, Lansana, had no physical contact with the deceased and did not steal a watch or a bag. Both he and Agera placed reliance on the fact that the deceased had convictions for violence in Lithuania including for robbery. He had also been cautioned in the UK for possessing a knife and had a history of called black people "niggers".
15. The evidence of Guimaraes was very different to that of his co-accused. He said that he got out of the Passat and followed the applicants. He said that Agera and Lansana went to the back of the car, he heard rustling and Agera say "Let's get it" (which the Crown contended was a reference to the knife). The two men then caught up with the Lithuanians and attacked them. He said that one or other of the applicants had a knife. He denied that the deceased had racially abused him and said that the Lithuanian men had done nothing to encourage any aggression. It was put in cross examination that he was trying to distance himself from his co-accused.

The Juror

16. The first (and primary) ground of appeal concerns the behaviour of a juror (and the inferences to be drawn about the jury as a whole). By way of introduction, it is important to identify that, at the commencement of their jury service and prior to selection for any trial, the jury panel had seen the video which is played to all prospective jurors who attend to do service at the Central Criminal Court which included the information that, if empanelled, the jury should only discuss the evidence in the case when all twelve members of the jury were gathered together. At the commencement of a trial, it was the judge's usual (if not invariable) practice to repeat that warning along with warnings about research and not discussing the case with family or friends. Such a warning, sometimes abbreviated, is properly repeated at different stages of the trial. Unfortunately, in this case, the judge did not instruct the jury only to discuss the evidence when all members were together and neither prosecution nor any defence counsel noticed the omission.
17. On Friday, 1 May, towards the end of the trial, five of the jurors including a white juror (to whom we shall refer as PB) went for a drink at the Corney and Barrow wine bar in Paternoster Square close to the Central Criminal Court. At about 10.30 pm, PB and a couple of the other male jurors were still at Corney and Barrow. PB then became involved in a confrontation with a black man who was part of another group. PB, who had an alcohol problem, had drunk a number of pints and was the worse for wear. CCTV footage captured him acting aggressively towards the black man and there was evidence that he referred to him as a "black cunt". He was arrested for a racially aggravated public order offence and subsequently received a police caution, although the officer responsible for that investigation reported that the incident was no longer construed as racist "based on the language used being taken out of context".
18. When these facts were revealed on the following Monday, counsel on behalf of the applicants argued that, because of the racial element in the trial, the entire jury should be discharged: it was not sufficient merely to discharge PB. As a result, Judge Poulet embarked on a voir dire. She watched the relevant CCTV, read the police report of the incident and heard evidence from the five jurors, to establish what had happened. There was no evidence that any of the jurors, except PB, had been involved in any aggressive, racist or inappropriate behaviour while at Corney and Barrow, or at any other time. It did emerge, however, that the five jurors had spoken briefly about the case whilst at the wine bar.
19. The judge discharged PB but went on to consider the other four jurors in these terms:

"I wish to stress that I was very impressed by the candour of the four jurors who had been with [PB]. They readily accepted and told me of what they had had to drink, and of what had gone on and what had been discussed. None of the four questioned said that they had heard any racist language from [PB] on that night or previously and I fully accept their honesty. In my view, there was absolutely no reason to think that any of them was in any sense, as it was put by Mr Rees in his argument, a kindred spirit to [PB]."

20. It was submitted that PB might have influenced the jury more subtly on the basis that the other members of the jury seemed to like him: that potential influence was particularly significant in this case where racist attitudes were at its heart. It would be impossible, so it was argued, to unpick the attitude of a person with racist views from their body of opinion. Criticism was also levelled at the failure to comply with the requirement that the jury should not speak about the case when not all together but Judge Poulet did not consider this last point to be fatal. As to the substantial point, she concluded:

"I have decided that clear direction from me is and would be quite sufficient to deal with the suggestion that they may have been affected by his views. In other words, I intend to clearly direct the jury that they should put out of their minds any view he may have expressed at any stage during this trial.

…I have determined that this trial can continue fairly with this jury. I do not consider that an informed outsider would take the view that there is either evidence of bias amongst the eleven, nor that there is an appearance of bias, based on everything that has occurred."

21. The judge went on to explain that she would tell the jury only to talk about the case when all together and not overheard, to keep an open mind until they had heard speeches and her directions and for each one to inform her if he or she was aware of any reason whatsoever that they could not fairly continue to try the case. Although a transcript of her remarks to the jury is not available, it is not suggested that the judge did not loyally follow the path that she described and no criticism is addressed to any aspect of her summing up in relation to this point.
22. In this court, James Scobie Q.C. for Agera and Charles Burton for Lansana both repeat the argument advanced before the judge, recognising that the test is that articulated in R v Gough [1996] AC 646, adjusted in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 and affirmed in Porter v Magill [2002] 2 AC 357 namely whether a fair-minded and informed observer, who is aware of the relevant facts, would conclude that there was a real possibility, or real danger, the two being the same, that the judge (or, in this case, the jury) was biased. They further emphasise the underlying issue of racism raised by the case and the potential insidious influence of the twelfth juror who was discharged following his comments; the fact that he was in drink at the time was irrelevant. The fact that jurors had discussed the case outside all of their number was an additional factor to be brought into the balance that some might have been affected by what JB said.
23. In that regard, we have been referred to the decisions of the European Court of Human Rights in Sander v United Kingdom [2000] ECHR 194, (2001) EHRR 44 which refers to the earlier decision in Gregory v United Kingdom (1998) 25 EHRR 577. The former case led to a finding of a violation of article 6(1) of the ECHR (by a majority of four to three) on the grounds that the note from a juror complaining of openly racist remarks by "at least two" members of the jury in a case concerning a defendant of Asian origin remained credible even though the entire jury (including the juror who complained) wrote refuting the allegation and denying racial bias. This was to be contrasted with the latter case where no violation was established although, after retirement, a note was received from the jury to the effect "Jury showing racial overtones. 1 member to be excused". The judge limited what he did to providing a strong direction to the jury which this court concluded could not be faulted and the European Court concluded that no more was required. This case is far removed from these: here, the relevant juror was discharged and the remaining jury disavowed having heard anything from him which could be construed as racist.
24. When refusing leave, William Davis J recounted the facts and observed that this court was bound to proceed on the basis of the judge's findings of fact. As regards the argument that other jurors might have been affected by his racist views, he observed that the argument could not survive those findings of fact. As to the popularity of the juror, he added:

"It also is said that the discharged juror was popular with the others and that his discharge may have led to resentment against the defence. This proposition carries no weight. It would tend to suggest that discharge of one juror should lead to discharge of the entire jury. How is a judge to determine whether a discharged juror is more or less popular? How is a judge to decide when the discharge of one juror will be laid at the door of the defendants as opposed to the prosecution or the judge?"

25. The single judge could have added that the judge specifically made it clear to the jury (at the request of counsel) that the discharge of the juror was her responsibility and that counsel had, at all stages, assisted the court in accordance with their duty. It is not suggested that she did not do so.
26. It is undeniable that the judge was in the best position to consider the proper conclusions to be drawn from the circumstances in which PB was arrested and whether a fair-minded and informed observer would conclude from what was known from the examination of the other jurors that there was a real possibility of the remaining eleven jurors being biased against the applicants on the grounds of their race. That is what she did and her approach reveals neither legal error nor any basis for concluding that the answer she reached was one which was not justified by the facts and circumstances. In our judgment, Judge Poulet handled this difficult issue with skill and her ruling was entirely justified by her analysis of the evidence. It need only be added that this conclusion is further reinforced by the fact that the jury, dealing with four black men, convicted two and acquitted two others.

The Summing Up

27. The second ground of appeal concerns the way in which the judge dealt with the evidence of the DNA of the deceased found on the knife (said to support the evidence that it came from him rather than the applicants). Both by Mr Scobie and Mr Burton argue that it failed to do justice to the defence case and descended into argument that had not been advanced by the prosecution in its closing speech.
28. Without reciting verbatim the analysis contained within the summing up, we can do no better than agree with and endorse the observations of William Davis J who dealt with this argument in these terms:

"The judge spent some time setting out the conclusions of the scientist called by the prosecution. This included the fact that there was mixed DNA on the knife handle but one of the contributors could have been the deceased, the match probability being 1 in a billion. The judge also rehearsed the expert's evidence as to how DNA may come to be on an item i.e. direct contact and secondary transfer. It is not said that her review of this evidence was inaccurate. The grounds argue that the judge engaged in what was akin to argument when considering the effect of the evidence on the defence case.

The judge reminded the jury of the defence submission that it was "incontrovertible" that the deceased had handled the knife and said that they should consider the submission in the light of the expert evidence. That was not engaging in advocacy or argument. Indeed, the judge specifically said that the assessment of the defence submission was entirely a matter for the jury. She left the topic by saying "I make no further comment". The judge left the defence case in clear terms to the jury. To describe that as undermining the defence case is unsustainable."

Joint Enterprise

29. It was common ground that the fatal injury had been inflicted by Agera (the issues for the jury being in whose possession the knife originated and self defence). In relation to the other defendants (including Lansana), the learned judge directed the jury in relation to the law of joint enterprise by reference to the law as it was then understood to be (set out in R v Powell, R v English [1999] 1 AC1). Thus, in the case of Lansana, the jury had to be sure that:

a. Agera was guilty of murder;

b. he was involved in a joint enterprise to rob Zydrunas Laurinavicius;

c. at the time of embarking on the robbery, he was either carrying a knife or was aware that one of his co-defendants was carrying a knife;

d. at the time of embarking on the robbery, he realised that there was a real risk that one of his co-defendants might use the knife to stab with the intention of killing or causing really serious bodily harm; and

e. he went ahead and played a part in the robbery in this knowledge.

30. Following the decision of the Supreme Court in R v Jogee, this direction no longer represents the law and it must be proved that the person whose case the jury is considering "intended to assist in the intentional infliction of grievous bodily harm at least" although Lord Hughes and Lord Toulson make it clear (at [98]):

"Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, and may be irresistible evidence one way or the other, but it is evidence and no more."

31. Lord Hughes and Lord Toulson went on to say (at [100]) that, even in relation to in time appeals, the effect of putting the law right would not render invalid all convictions which applied R v Powell, R v English on the basis that it did not follow that it will have been important on the facts to the outcome of the trial. For appeals out of time, exceptional leave would be required which would require substantial injustice to be demonstrated. In R v Johnson and other cases [2016] EWCA Crim 1613, this court identified that hurdle in these terms (at [21]):

"In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct."

32. In this case, leave to appeal was refused on the grounds which we have considered and an application is now made to amend the grounds (out of time) to include a post-Jogee challenge. Johnson makes it clear (at [25]) that in such cases leave is required.
33. Our attention has been drawn to the decision of this court in R v Chapman [2013] EWCA Crim 1370, [2014] 1 WLR 1376 (dealing with a confiscation case after the decision in R v Waya [2013] 1 AC 294) in which the court observed (at [24]) that it would be difficult to see how it could be justified to refuse to allow an appellant to take advantage of a change in the law occurring between the filing of the notice of appeal and the hearing. The court suggested that this approach was "borne out" by observations in R v Jawad [2013] EWCA Crim 644 [2014] 1 Cr App R (S) 16. In that case, the single judge had granted an extension of time and therefore the point did not arise although the court (at [29]-[30]) went through the authorities that identified the requirement that an extension of time would be granted only if a substantial injustice would otherwise be done, the mere fact of change of law not ordinarily creating such injustice; the court doubted that, had the issue fallen for decision, it would have granted an extension. In the circumstances, it is difficult to see how the observations in Jawad bear on the question whether an amendment to an in-time appeal should be permitted out of time.
34. The court in Chapman did not consider the line of authorities set out in Johnson (and neither were those decisions cited to them although they are referred to in Jawad). In our judgment, following Johnson, leave to amend is not a formality based only on the potential merits of the ground but extends into a consideration of the wider public interest in certainty and the conduct of trials based on the law as it was properly understood then to be. There is no justification for distinguishing between appeals commenced out of time and applications to amend out of time what are in time applications or appeals. It may be that cases arising out of Waya can be distinguished because of prior uncertainty as to the law. Whether that is so or not, we have no doubt that Chapman does not affect the approach to post-Jogee cases identified in Johnson not least because prior to Jogee, the law was not uncertain and was correctly applied by judges on the basis that it was accurately enunciated by the binding House of Lords decision in R v Powell, R v English.
35. Mr Burton did not press the proposition that he did not require exceptional leave based on the demonstration of substantial injustice. He initially submitted that there was such injustice on the basis that crime A was the planned burglary although he accepted in argument that, in the context of this case, crime A was the robbery of the two Lithuanians which involved the knife. He developed his submission, however, by distinguishing this case from those discussed in Johnson because, on any showing, the joint enterprise was very much on the spur of the moment: this was not a case of pre-planned use of violence of any sort, let alone such violence involving the knife.
36. In our judgment, there is no such difference. As is clear from Johnson (at [22]) we put out of our mind the judge's conclusions as to the production of the knife but, on any showing, at the time when Agera and Lansana approached the Lithuanians, the jury clearly concluded that the joint enterprise involved the use of what was a particularly lethal weapon (the serrated blade of which was of 23.5 cm in length). Once the jury concluded that Lansana knew that Agera might use the knife to stab (i.e. he had that conditional intent), its size could only lead the jury to conclude that he intended that, if used, at least serious bodily injury would be caused. There is no substantial injustice demonstrated in the circumstances of this case and leave to amend the grounds of appeal on this ground is refused.

Sentence

37. Both applicants sought leave to appeal against the term of 30 years specified under s. 269 of the Criminal Justice Act 2003 ("the 2003 Act") as the minimum term to be served within the sentence of life imprisonment: in both cases, leave to appeal against sentence was refused by the single judge. Lansana renews his application.
38. When passing sentence, Judge Poulet expressed herself "quite satisfied" that Lansana took the bag that he had in the car, that it contained the 'Rambo' knife which was to be the murder weapon and that he "took it to the scene". The motive was robbery so that it fell within para. 5 of Schedule 21 of the 2003 Act, thereby attracting a starting point of a minimum term of 30 years on the grounds.
39. Mr Burton accepted that the judge had correctly identified the starting point but argued, however, that she was wrong to conclude that Agera (who had wielded the knife) intended to kill or, in the alternative, she was wrong to attribute the same intent to the secondary party, Lansana. Furthermore, the judge was wrong to classify the defence of racism as an aggravating feature and also erred in giving insufficient weight to Lansana's youth and in deciding that there was no mitigation.
40. As to the first point, the judge was entitled to conclude that use of the particular knife, plunged to a depth of 16 cm into the victim, demonstrated an intention to kill. As for Lansana, she did not ascribe that intention to him but said only that she would not distinguish his position because he "had physically brought that terrible weapon to the scene" (which would, itself, have required a starting point of 25 years even without the robbery). In any event, all the features of the case were reflected in the required starting point: she did not increase it further.
41. As for the mitigation, she reflected both on Lansana's youth but also his previous conviction for conspiracy to rob which led to a term of 3½ years detention: that itself increased the gravity of his further involvement in robbery. The single judge observed that the suggestion that the minimum term should have been reduced was unarguable.

Conclusion

42. It is for these reasons that the applications for leave to appeal against conviction and sentence were refused.