Jordan Dania [2019] EWCA Crim 796

The appellant was one of five defendants convicted of murder. The CCTV showed a group of eight youths, five in the lead, followed by a further three of which the appellant was one. The murder was not covered by CCTV, approximately one minute elapsed between the group passing out of view of the CCTV, starting to run as they did so. They ran to the victim in a car and began to attack the car, the victim ran from the car, was chased and attacked in the front garden of a house. One of the five was identified as the one who inflicted the fatal stab wounds, he cut his finger in the process and his blood was found on the appellant’s trainer and jacket.

After a minute the group left the street and were again on CCTV. The defence argument was that the appellant was one of the last to enter the street and one of the first to leave which did not realistically provide him with any opportunity to have reached the leading group and play an active role in the fatal attack.

Lee was one of the following group who was not alleged to be involved in the attack and he gave a witness statement. He said that as the lead group entered the street three of them ran after the victim and attacked him, Lee was frightened and promptly left with the third member of the following group. He did not specifically refer to the appellant, but the CCTV showed the appellant leaving the area sandwiched between Lee and this third male. The defence wanted to argue that the Crown’s case could not be correct through a combination of the movements shown on CCTV and Lee’s account.

When contacted to attend court Lee refused to do so as he was a “gypsy and gypsies do not go to court”, the Crown therefore decided not to call him and to omit his evidence. As a result of an objection to this course of action by counsel for the appellant the prosecution made an application for a witness summons, the judge invited them to reflect on whether they wished to rely on Lee given he was part of the group. The application was made, and a summons issued by the judge under s2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 although she remained concerned about him as a witness and felt it was important that he have independent advice when he attended court.

As the trial progressed the prosecution reviewed the position and decided not to call Lee as his evidence was inconsistent, in some respects, with eye witness evidence and CCTV footage and emailed the defence. The appellant argued that the prosecution should either call Lee as their witness or at least tender him for cross examination. The prosecution response was that Lee’s evidence was suspect and they did not need him, applying the principles in the case of Russell-Jones.

Lee was brought to court pursuant to the summons, the prosecution then indicating they would tender him for cross-examination. Lee and his father left the court at the beginning of a short adjournment and did not return. His father was contacted and said they were unhappy at waiting all morning and refused to return. The defence applied to read the statement as hearsay on the ground he could not be found or that he did not want to give evidence through fear.

The judge refused the application saying it was plain he would have to be regarded as an accomplice, referring to the Crown’s position that he was a witness regarded as unworthy of belief and any fear may stem from being incriminated in a murder rather than anything else. Her view was that any such advantage as might be gained for the appellant’s case from Lee’s account could be gained from the CCTV footage alone and that Lee’s account didn’t exculpate the appellant in any event. The ruling on hearsay was not challenged in the appeal.

Application was made by the defence for an arrest warrant or, alternatively, a new witness summons, opposed by the Crown and the co-accused. The judge refused the application saying it would not be in the interests of justice to do so as Lee was not “capable of being a reliable witness” and that Lee may have grounds for seeking to set aside a witness summons on the ground of his right not to incriminate himself.

The sole ground of appeal pursued was that the judge erred in law in not granting a witness summons. The defence submitted the judge went outside her proper role imposing her own view of the witness instead of leaving it to the jury to make their own assessment, had the witness attended court and refused to give evidence a further hearsay application could have been made and he had not indicated he would seek to invoke his right against self-incrimination. The prosecution argued that the judge directed herself properly and applied the two-stage approach under s2.

Held: Russell-Jones sets out seven principles as to whether or not the prosecution are obliged to call or tender particular witnesses and a “failure to apply those principles correctly contributed to some unfortunate features of the events at court”. There was no question of the prosecution acting in bad faith but the email to the defence did not spell out with sufficient clarity that the prosecution now took the view that Lee was a witness who was not worthy of belief. The Court was satisfied that the Crown had reached that conclusion but this was inconsistent with the application of the Russell-Jones principles to then tender him as a witness.

The decision reached when Lee failed to return to court was justified but no attention was given to the fact that up until that point Lee had been regarded as a witness the prosecution would tender, no application was made to discharge the summons.

In circumstances such as these, where defence counsel wishes to call a witness who, on the face of it, is able to give relevant evidence but will not attend court unless compelled to do so a trial judge should be slow to refuse an application for the issue of a witness summons, and should be careful not to trespass into the territory of the jury by forming his or her own view as to the credibility of the witness.

The trial judge’s decision was clearly based on her assessment of whether requiring the witness to attend would be in the interests of justice. In making this assessment the judge must be careful not impose his or her own opinion as to the wisdom of calling the witness. “The judge must bear in mind that were it not for the need to invoke the assistance of the court to compel attendance, the defendant would be entitled to call the witness, however unwise a tactical decision that might seem and whatever the potential for damage to co-defendants from the evidence which may be given.” Nonetheless, the judge is entitled to consider objective evidence which bears upon the reliability of the witness. If a witness were to give evidence on a minor point and could plainly be shown to be wrong the judge would be entitled to take that evidence unreliability into account in determining the interests of justice.

The Court was not persuaded that the judge fell into error, commenting that if Lee had given evidence in accordance with his statement, he would have been able to add very little to points which the appellant could, in any event, make to the jury. The judge was entitled to weight in the balance the fact that there was very little prospect that Lee could give reliable evidence which could be of any significant value in assisting the jury.

The appeal against conviction was dismissed, the renewed application for leave to appeal against sentence was also dismissed, while the minimum term of 16 years was heavy for one so young it was not manifestly excessive.