Jordan Dania [2019] EWCA Crim 796

R v Jordan Dania [2019] EWCA Crim 796 was an appeal against conviction and renewed application for leave to appeal against sentence heard by the Court of Appeal (Lord Justice Holroyde, Mr Justice Butcher and Mrs Justice Farbey DBE). The appeal against conviction was dismissed and leave to appeal against sentence was refused.

Mr Dania and four co-defendants had been convicted on 8 June 2018 at Maidstone Crown Court before Her Honour Judge Williams DL of murder and violent disorder arising from the fatal stabbing of Kyle Yule in Gillingham on 6 October 2017. Mr Dania, then aged 16, was sentenced to detention at Her Majesty’s pleasure with a minimum term of 16 years and a concurrent term of three years’ detention for the violent disorder. The case arose from ongoing rivalry between two groups of youths. On the night in question, a group of eight, including the five defendants and three white youths (Ben Lee, William Harris and Radu Niculescu), went first to Corporation Road looking for Gabriel Calin, where an assault occurred on his younger brother Alfie. They then proceeded to East Street, where CCTV captured their movements. The prosecution alleged that all five defendants participated in a fatal attack on Mr Yule, who was chased and trapped in a front garden before being punched, kicked and fatally stabbed. Victor Maibvisira was identified by the judge as the person who inflicted the fatal wounds, sustaining a cut to his finger in the process; spots of Maibvisira’s blood were found on Mr Dania’s trainer and jacket.

The CCTV footage showed that as the group approached East Street the five defendants and Niculescu formed the leading group, with Mr Dania, Harris and Lee following a short distance behind. After approximately one minute in East Street, where the attack occurred out of camera view, they departed in a different sequence: Mr Dania left between Harris and Lee, ahead of the other four defendants. In interview, Mr Dania admitted presence but denied participation or carrying a knife. He did not give evidence at trial, though two co-defendants did, in what became a cut-throat defence case.

A central issue in the appeal concerned the evidence of Ben Lee, aged 17, a member of the travelling community. Lee had made a witness statement indicating that three of the accused attacked a car in East Street and “they” all ran after and attacked the deceased, though he said he and Harris left promptly because he was frightened. Crucially, Lee’s account identified only four attackers, not five, and he did not specifically mention Mr Dania by name. Defence counsel Mr Higgs QC wished to rely on Lee’s evidence in conjunction with the CCTV sequence and the “last in, first out” point—namely that the timing between Mr Dania being one of the last to enter and one of the first to leave East Street provided no realistic opportunity for him to have reached the leading group and participated actively.

Lee attended court initially but on 24 April 2018, the day before he was due to give evidence, police were told that Lee had left his father’s home and did not wish to attend, telling officers he would rather die than attend court and that “gypsies do not go to court”. The prosecution initially indicated they were prepared to omit his evidence altogether, but Mr Higgs objected. On 25 April the prosecution applied for a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, which the judge granted on 27 April after an adjournment to allow further reflection, though she remained concerned that Lee would require independent advice and a warning against self-incrimination.

As the trial continued, the prosecution reviewed Lee’s evidence and found inconsistencies with eyewitness testimony and CCTV. On 8 May prosecuting counsel Mr Perian QC emailed all defence counsel stating the Crown no longer relied on Lee’s evidence and would not call him as a prosecution witness. The judge understood the Crown’s position to be that Lee was unworthy of belief. Mr Higgs made written submissions that the prosecution should either call Lee or tender him for cross-examination. The prosecution applied the principles in R v Russell-Jones and concluded Lee’s evidence was suspect and not needed, though they subsequently indicated willingness to tender him.

On 14 May Lee attended court pursuant to the summons but left during the short adjournment with his father and did not return, the father explaining they were unhappy about having waited all morning. Mr Perian did not seek Lee’s further attendance or apply for a warrant of arrest under section 4 of the 1965 Act. Mr Higgs then applied to read Lee’s statement as hearsay evidence on grounds that Lee could not be found or had not given evidence through fear. The judge refused the application, finding Lee could plainly be found and that any fear issue was problematic because he would have to be regarded as an accomplice whose fear might stem from potential self-incrimination rather than external threats. She observed that Lee was unreliable, his statement contradicted other evidence and CCTV, and that any advantage for the defence could be obtained from the CCTV footage alone without the risk of calling an accomplice who did not exculpate Mr Dania.

Mr Higgs then applied for either a warrant to arrest Lee pursuant to the existing summons or a fresh witness summons. This was opposed by the Crown and all co-accused. The judge refused the application, holding it would not be in the interests of justice to grant a warrant for the reasons given in her earlier hearsay ruling, namely that Lee was not capable of being a reliable witness. She added that Lee might have grounds to set aside the witness summons on the basis of his right against self-incrimination. The trial proceeded without Lee’s evidence.

On appeal, Mr Higgs initially advanced two grounds but realistically abandoned the first, which contended the prosecution had breached their duties. The surviving ground argued that the judge erred in law in not granting a witness summons or warrant, thereby depriving Mr Dania of the ability to call a material eyewitness whose account would have significantly supported his case. Mr Higgs submitted the judge went outside her proper role by imposing her own view of the witness rather than leaving credibility to the jury, and that it was difficult to think of a better-placed witness than one present at the scene who was an eyewitness and potential accomplice. He argued the judge wrongly substituted her opinion about reliability and denied the defence equality of arms on a matter pre-eminently for the jury.

The Court of Appeal began its analysis by noting that the prosecution’s handling of Lee’s evidence exhibited some unsatisfactory features, though there was no question of bad faith. The court held that the email of 8 May and subsequent communications did not spell out with sufficient clarity that the prosecution regarded Lee as unworthy of belief, and that it was inconsistent with the principles in R v Russell-Jones to tender a witness on 14 May whom the prosecution regarded as incapable of being believed. The court also considered it regrettable that when Lee failed to return after the adjournment, no attention was given to the fact that he was subject to a current witness summons and had acted in disobedience to the court’s order, and that no application was made to discharge the summons.

Turning to the substantive appeal, the court set out important guidance on applications under section 2 of the 1965 Act. The court emphasised that a trial judge should be slow to refuse an application for a witness summons where defence counsel, with full appreciation of potential risks, wishes to call a witness who appears able to give relevant evidence but will not attend voluntarily. The judge must be careful not to trespass into the jury’s territory by forming his or her own view of the witness’s credibility. Nonetheless, section 2 requires consideration first of whether the witness is likely to give material evidence, and secondly whether it is in the interests of justice to compel attendance. Issues may arise where a witness could at best give evidence on peripheral matters echoing other evidence or where there is a clear basis for the judge to assess the witness as incapable of being believed, though such circumstances will arise comparatively rarely. When they do, the judge must address that issue without improperly trespassing upon the jury’s province.

The court held that the assessment of the interests of justice will necessarily be fact-specific, based on evaluation of all relevant circumstances. Relevant factors may include the level of assistance the jury may derive from the evidence if given in accordance with any prior statement; the foreseeable need to warn the witness against self-incrimination; the prospect that a direction will be required about a witness who has or may have interests of his own to serve; and objective evidence bearing on the witness’s reliability, such as incontrovertible photographic evidence flatly contradicting important parts of the probable evidence. The judge is entitled to consider such factors in balancing competing interests, though must not unfairly subordinate the interests of the defendant wishing to call the witness to the interests of co-accused taking the opposite view. The judge must bear in mind that but for the need to invoke the court’s assistance, the defendant would be entitled to call the witness however tactically unwise and whatever the potential damage to co-defendants.

Applying these principles, the court was not persuaded the experienced judge had erred. It was unfortunate she did not address the point that a summons was already in force, though it was implicit she would have discharged it if applied. The judge had identified considerations prompting her decision and had raised concerns about Lee’s evidence much earlier in the trial. If Lee had been called and given evidence in accordance with his statement, which was far from clear he would, he would at best have added very little to points Mr Dania could make in any event. The judge was right that he would require a warning against self-incrimination and possibly a further warning about having interests of his own to serve, which would only distract the jury from the issues they had to decide. In all the circumstances, the judge was entitled to weigh in the balance that there was very little prospect Lee could give reliable evidence of any significant value in assisting the jury.

On sentence, the judge found Maibvisira had inflicted the fatal stab wounds with intent to kill and imposed a minimum term of 25 years. For the four younger co-defendants, including Mr Dania, the judge was not satisfied of intent to kill but described the murder as senseless, ruthless and calculated, noting she had not observed any sign of remorse from any of the accused. She found Mr Dania, aged 15 at the time, had been in close proximity to Maibvisira during the attack based on Maibvisira’s blood on his jacket and trainer, placing him “in the thick of the attack”. She identified as aggravating factors significant planning and premeditation, a group attack, a knife taken to the scene and the attack occurring in a public place. Mitigating factors were the defendants’ youth and absence of intent to kill. She took the starting point of 12 years prescribed by Schedule 21 of the Criminal Justice Act 2003 but increased it to 16 years to reflect knowing involvement in a murder with a knife taken to the scene and that it was a revenge attack.

Mr Higgs submitted that Mr Dania’s minimum term should have been shorter than his co-defendants’ because he was significantly younger (15 years 9 months at the time, compared to Daley at 17 years 3 months, Akinwunmi-Streets at 16 years 6 months and Ralph at 16 years 9 months). The court rejected this submission, holding that Schedule 21 already takes youth significantly into account by setting a starting point of 12 years, substantially lower than the adult starting point of 25 years where a knife has been taken to the scene. The sentencing judge must consider age and maturity and may reduce the starting point or mitigate an increase if the offender is particularly young or immature, but it was not suggested Mr Dania was particularly immature for his age. It was implicit in the judge’s remarks that having heard all the evidence and seen all the accused during trial, she assessed them as being of equal culpability save for Maibvisira’s more serious role. The judge was in the best position to make that assessment and was entitled to conclude that although the four younger accused ranged in age from 15 to 17, their respective involvement warranted equal sentences. Standing back, the court found it impossible to say that the minimum term of 16 years, heavy though it was for one so young, was manifestly excessive for his part in this dreadful murder.

In short, the appeal against conviction was dismissed because the judge had properly exercised her discretion under section 2 of the 1965 Act in refusing to issue a witness summons or warrant for Ben Lee in the particular circumstances of the case, and leave to appeal against sentence was refused because the minimum term of 16 years was not manifestly excessive given the appellant’s culpability and the aggravating features of the offence.

R v Russell -Jones [1995] 1 Cr App R 538
R v Ma kanjuola [1995] 2 Cr App R 469

DM & SC [2019] EWCA Crim 1354