Harvey [2018] EWCA Crim 2936

**R v Harvey** [2018] EWCA Crim 2936 concerned an appeal against conviction and sentence by Jack Junior Harvey, who was convicted of murder and two counts of wounding with intent contrary to section 18 of the Offences against the Person Act 1861 following a joint attack in which a young man was fatally stabbed. The Court of Appeal (Lord Justice Gross, Mrs Justice Cutts and Sir Brian Keith) dismissed both appeals.

On 9 November 2017, the appellant, then aged 16, was convicted at the Central Criminal Court before Her Honour Judge Munro QC. On 15 November 2017 he was sentenced to detention during Her Majesty’s Pleasure with a minimum term of 19 years on count 1, with concurrent determinate sentences of 6 and 9 years on counts 2 and 3 respectively. His co-accused, Jahliel Rose (aged 20 at the time of the offence), was convicted of the same counts and received life imprisonment with a minimum term of 25 years. Two other co-accused were acquitted.

The offences arose from a group attack in King George’s Park, Croydon, on the evening of 31 October 2017. Scott Kouebetra, the deceased, was stabbed in the neck by a knife driven downwards at a steep angle, penetrating approximately 11 centimetres and causing fatal injuries to his chest, lung and aorta. Two other victims, Keith Hawker and Adil Jamal-Abdilahi, suffered stab wounds. The prosecution case was that the appellant and his co-accused were part of a group who arrived in two vehicles and were party to a plan to cause at least really serious harm to persons in the area. Against the appellant the Crown relied on eyewitness evidence, CCTV showing the attack and movement of the vehicles, the deceased’s blood found on the appellant’s snood and trainers, cell site and telephone evidence, evidence that the appellant had breached his electronically monitored curfew (in force from 8.00 pm to 7.00 am), his disposal of his mobile telephone after the incident, and his failure to mention drug dealing and the use of a bicycle in his defence statement. The appellant’s case was that he had been in the park to meet Rose to buy cannabis, saw the fight, ran away and jumped by chance into Jackson’s car. He could not explain how the deceased’s blood came to be on his clothing.

The trial involved a number of rulings concerning bad character evidence. Initially, the judge rejected an application by Jackson’s counsel under section 101(1)(e) and 104 of the Criminal Justice Act 2003 to adduce the appellant’s previous convictions. The judge ruled that apart from an agreed fact concerning a dispersal notice linking the appellant and Jackson to anti-social behaviour including joy-riding on mopeds, the appellant’s convictions for offences committed whilst riding or stealing mopeds did not meet the test of relevance. However, after the appellant concluded his evidence and following cross-examination of Jackson by the appellant’s counsel, Mr Ivers QC, Jackson’s counsel renewed the application. Mr Ivers had put to Jackson that his suggestion that the appellant, 10 years his junior, was directing him where to drive was ridiculous and that Jackson had fabricated his account. The judge then ruled, having regard to authorities including R v Lawson [2006] EWCA Crim 2572 and R v Hussain [2015] EWCA Crim 383, that the convictions were now admissible. The issue of when and why the appellant got into Jackson’s car was an important matter in issue between them and the convictions went to credibility. The judge found that her earlier ruling had been in error but directed that the evidence was relevant only to credibility and not to propensity. She refused applications to discharge the jury or sever the appellant’s case.

In a further ruling, the judge admitted limited evidence of Jackson’s bad character, namely that in 2012 he had been interviewed following allegations of assault on his mother which were never pursued or proven. Other unproven matters were excluded as unreliable or lacking probative value. Agreed facts were read to the jury setting out Jackson’s alleged assault on his mother, the appellant’s conspiracies to rob and steal involving mopeds over a three-month period in 2016, and the dispersal notice naming both the appellant and Jackson.

In his closing speech, counsel for Jackson, Mr Mendelle QC, made a number of assertions. He described the incident involving Jackson’s mother as trivial or occurring in the context of a silly argument, although there was no evidence as to the nature of the argument. He suggested that the appellant had kept his convictions from the jury until the end of the case and that they had been dragged out of him. He also asserted that Jackson had told his solicitor what he had told the jury. Following objections, the judge gave directions to the jury. She directed them that there was no evidence about the nature of the incident involving Jackson’s mother and that they should ignore Mr Mendelle’s comments about it being trivial. She explained that the appellant’s convictions had been admitted as a result of her ruling after both he and Jackson had given evidence. She also found that there had been no waiver of privilege in relation to Jackson’s communications with his solicitor.

On appeal, the appellant advanced five grounds challenging conviction. First, he contended that the judge should have discharged the jury when bad character evidence was introduced late and after he had given evidence, which prevented him from being asked about the matters and from cross-examining Jackson about them. Second, he argued that insufficient detail of Jackson’s previous conduct was admitted to correct false evidence and undermine his credibility. Third, he submitted that Mr Mendelle’s speech gave a wholly misleading impression of Jackson’s previous conduct which was not adequately corrected. Fourth, he contended that the speech gave a misleading impression that the appellant had chosen when his bad character was introduced. Fifth, he argued that Mr Mendelle’s assertion about what Jackson had told his solicitor amounted to a waiver of privilege likely to lead the jury to conclude Jackson had been consistent throughout.

The Court of Appeal dealt with grounds two, three and five first. The court rejected the submission that the prosecution was under a duty to make an application to adduce evidence of Jackson’s bad character under section 101(1)(f) of the 2003 Act to correct a false impression. The matters were unproven allegations not admitted by Jackson and there was a real danger of satellite litigation. Some prosecutors might have felt it appropriate to introduce the evidence but there was no breach of duty in not doing so. The judge had appropriately balanced the position by admitting evidence that Jackson had been interviewed in relation to allegations of assault on his mother, which was of substantial probative value in relation to credibility. Mr Mendelle’s comment about the incident being trivial was inappropriate and should not have been made, although the court accepted it was not deliberately misleading. However, the judge had dealt with the comment adequately in the summing-up. As to ground five, Jackson’s evidence that he had given the same account to his solicitor as he gave to the jury was simply his evidence and did not amount to a waiver of privilege. The judge had dealt adequately with the matter in the summing-up.

The court found grounds one and four more troubling. As to ground one, the court disagreed with the judge’s conclusion that she had no discretion to exclude the evidence, as courts are not powerless to deal with late applications that may unbalance the trial. However, even acknowledging that discretion, the judge was amply entitled to admit the evidence. The suggestion that unfairness resulted from the appellant not being cross-examined was fanciful, as he would not conceivably have benefited from such cross-examination. Had there been realistic concern, an application could have been made to recall him but none was made. The court was unpersuaded that any cross-examination of Jackson would have been significantly different had the convictions been adduced earlier. The real reason for the convictions coming in late was that the relevant authorities had been missed when the earlier application was made. As to ground four, the court considered Mr Mendelle’s observation that the appellant had kept his convictions from the jury and that they had to be dragged out of him to be potentially misleading and not an observation expected from counsel. The judge’s treatment of it was somewhat more forgiving than perhaps warranted. However, even assuming the judge’s treatment was inadequate, the court was not persuaded it rendered the conviction unsafe. The strength of the case was simply too strong: the appellant was present in the park; he had the deceased’s blood on his clothing; he was in the getaway car; he dumped his mobile telephone; and he had embellished his account from his defence statement, which the jury rejected.

Turning to sentence, the judge had noted that despite the age difference, the appellant and Rose were close friends. The appellant had numerous previous convictions and had been subject to a youth rehabilitation order with intensive supervision and surveillance and an electronically monitored curfew at the time. He had volunteered in evidence that he was a long-standing cannabis dealer. Rose had extensive previous convictions including robbery, possession of an offensive weapon, assaults and wounding, and was on bail for conspiracy to rob at the time. The judge found that the appellant with Rose was in the leading car directing the driver, that they or others with their knowledge and intention were armed with knives and other weapons, that they played a leading role in a planned group attack with weapons, and that they were disguised and disposed of their telephones afterwards. The judge found the appropriate starting point for the appellant was 12 years and for Rose 25 years, given the different starting points under schedule 21 to the Criminal Justice Act 2003 for offenders under and over 18 who take a knife to the scene with intent. The associated section 18 offences fell within category 1 of the guideline with a starting point of 12 years for an adult. Aggravating factors included significant planning and premeditation, use of disguise, disposal of telephones, the offences occurring at night in a public park on Halloween when young people were present, and the fact both were subject to court orders or on bail. Mitigating factors included that although they intended serious harm they had not intended to kill and, for the appellant, his youth. The judge set Rose’s minimum term at 25 years with concurrent sentences for the wounding offences, and the appellant’s at 19 years with concurrent determinate sentences of 6 and 9 years on counts 2 and 3.

On appeal, Mr Ivers submitted that the sentence was manifestly excessive in light of the appellant’s young age, that the judge erred in assigning a leading role to him, and that there was objectionable disparity with Rose’s sentence. The Court of Appeal began by noting that paragraph 5A of schedule 21 increased the starting point to 25 years for an offender aged 18 or over who took a knife to the scene with intent but left it at 12 years for an offender under 18, leaving the fixing of the minimum term to the judge’s discretion to deal with as just on the facts: R v Moore [2010] EWCA Crim 2197. Where two defendants jointly commit an offence but attract very different starting points on account of age, the judge should generally move from each starting point to a position where any disparity is no more than a fair reflection of the age difference: Attorney General’s References Nos 143 and 144 of 2006 [2007] EWCA Crim 1245. The Sentencing Council’s guideline Sentencing Children and Young People was inapplicable to murder but age was not irrelevant. The judge had carefully addressed these considerations and the sentence as a whole, including the three offences, needed to be considered.

The court held that although the sentence was undoubtedly severe it was not manifestly excessive or wrong in principle. The court entertained some misgivings about an additional year for antecedents in the judge’s route to her conclusion but that was not crucial to the overall assessment. Despite the appellant’s young age, the judge was entitled to form a view of him having conducted the trial. He appeared more dominant than Jackson, who was acquitted, and he and Rose were close friends. The age difference led to a very different starting point but not necessarily a markedly different finishing point. The aggravating factors significantly outweighed the mitigating factors including his youth and difficult start in life. Planning, taking weapons to the scene with intent, the group attack, disguises, disposing of telephones, breach of curfew and the intensive youth rehabilitation order all fell to be considered. Importantly, the sentence needed to reflect the criminality of the section 18 offences and the fact there were three victims. The judge was entitled to find the appellant played a leading role having conducted the trial. As to disparity, the highest it could be put was that Rose may have been fortunate not to receive a somewhat higher sentence, but that did not render the appellant’s sentence manifestly excessive.

In short, the Court of Appeal dismissed the appeal against conviction, finding no material unfairness arising from the late admission of bad character evidence or from aspects of co-counsel’s closing speech, and dismissed the appeal against sentence, holding that despite the appellant’s youth the minimum term was not manifestly excessive given the aggravating features, the multiple victims and the need to reflect the associated section 18 offences.