Mahmoud [2019] EWCA Crim 667

Regina v Shuayb Mahmoud [2019] EWCA Crim 667 concerned an appeal against conviction for murder, which the Court of Appeal (Criminal Division) dismissed.

Mr Mahmoud was convicted of murder at the Crown Court at St Albans on 25 June 2018 alongside four co-accused: Fisher‑Dixon, Gray, Stephens and Mohamed. All five were under sixteen at the time of the offence. Mr Mahmoud ran a cut‑throat defence against two of his co‑accused. The trial judge, Edis J, granted an application for Mr Mahmoud to be assisted by an intermediary throughout the twenty‑three‑day trial. Mr Mahmoud appealed by leave of the single judge on two grounds only, both relating to the use of that intermediary.

The prosecution case was that all five defendants were present during a pre‑planned ambush of Jacob Abraham in an alley near Waltham Cross. The victim was stabbed in the legs, probably by at least two knives, one from the front and one from behind. He had no defensive injuries. The Crown contended that all five intended to cause at least really serious harm but were unable to say who actually carried out the stabbing. Evidence included CCTV footage, analysis of telephone use, and images recovered from Fisher‑Dixon’s phone showing various accused holding weapons, wearing face masks and making hand gestures. One image depicted both Mr Mahmoud and Gray making what the prosecution asserted were pistol gestures. An image on a phone recovered from Mr Mahmoud’s sister showed him and another male making the symbol for the Albany Park Gang, which police officers described as a subset of the Get Money Gang, a rival of Dem Africans in the area. At Mr Mahmoud’s home, police found only a broken lock‑knife. Mr Mahmoud made no comment in interview but provided a prepared statement reading “I did not stab anyone.” At trial he admitted non‑accidental presence but denied prior knowledge that others were armed and alleged that Gray and Stephens were solely responsible for the stabbing. Much bad character evidence was admitted, largely concerning incidents of violence at school. Mr Mahmoud had no previous convictions but had been excluded from school for allegedly attacking a teacher.

Mr Mahmoud’s application for an intermediary was supported by a report from Jemma Wayman dated 22 February 2018. She reported that Mr Mahmoud needed extra time to process lengthy sentences, would require additional support to read and write, had a limited attention span, and had significantly limited understanding of the court process and legal terminology. She recommended that an intermediary explain the trial process, request regular breaks, summarise arguments, offer support with written materials, and ensure that he was granted extra time. Her recommendations for questioning included avoiding tagged or suggestive questions and keeping sentences short and simple, in order to avoid any tendency he may have to be suggestible. No objection was made and the judge granted the application. A ground‑rules hearing established the terms of the intermediary’s role and the nature of the questioning. The judge directed the jury on the use of an intermediary in accordance with the standard Judicial College directions.

When counsel for Gray, Mr Rouse QC, cross‑examined Mr Mahmoud, he acknowledged the ground rules but repeatedly breached them by asking lengthy, leading or tagged questions, which prompted intervention from the intermediary on fifteen occasions. When the intermediary did intervene, Mr Rouse re‑formulated his question appropriately. However, in his questions to both Mr Mahmoud and other co‑accused, Mr Rouse appeared to challenge the need for an intermediary. Mr Sidhu QC, counsel for Mr Mahmoud, expressed concern about Mr Rouse’s approach. The judge accepted that a further direction was required and set out how he intended to direct the jury: first, that the presence of an intermediary was not part of the evidence; second, that the jury could form their own inexpert impression of Mr Mahmoud’s abilities from evidence given by his friends and from observing him; third, that they had to ignore the fact that there was an intermediary; fourth, that they should not conclude either that Mr Mahmoud suffered from communication difficulties because there was an intermediary or that he was trying to manipulate the court process. The judge told Mr Rouse that he was entitled to comment on Mr Mahmoud’s intellectual ability but not to rely on the presence of the intermediary, save to the limited extent that he had not been able to test the evidence in quite the same robust way as other evidence was tested.

In his closing speech, Mr Rouse reminded the jury that Fisher‑Dixon had said Mr Mahmoud was the smartest of the group but that he had nevertheless been given an intermediary “by his lawyers through the court.” Mr Rouse said that Mr Mahmoud thereby had the advantage of avoiding tough questions. He conceded that Mr Mahmoud was entitled to apply and that the court had granted the intermediary, but he commented that it would be intemperate for a judge to refuse an application where a report had been written for the defence justifying one. He asserted that Mr Mahmoud did not seem to need an intermediary when conducting his school exclusion appeal, or in police interview, or at any other time save when being cross‑examined in court. He made no secret of his scepticism about the need for an intermediary and described Mr Mahmoud as cunning, streetwise and devious. He observed that the jury had seen no report to suggest Mr Mahmoud had any major issues and commented that the jury might think he did not need the support of an intermediary. During a break in the speech, Mr Sidhu raised his concerns. Mr Rouse stated that he had tried to stay within the parameters of the guidance given by the judge and apologised if he had strayed beyond them, but he stood his ground in terms of criticising the presence of the intermediary. The judge confirmed that Mr Rouse intended to say no more about the intermediary and stated that he would give a direction in due course. However, Mr Rouse did return to the issue, telling the jury that the court had considered the application and that the court’s decision was unimpeachable and not criticised, that the presence of the intermediary was not evidence and was irrelevant, but nonetheless inviting the jury to consider whether Mr Mahmoud was someone who needed an intermediary like a six‑year‑old child or someone suffering from mental illness.

In his summing‑up, the judge directed the jury that if they thought they needed to make any finding at all about whether Mr Mahmoud was less intellectually capable than his co‑defendants, they must do so on the basis of the evidence, which comprised their assessment of him in the witness box over a period of time and the co‑defendants’ evidence of their impression of his abilities as his friend and classmate. The fact that he had an intermediary was not evidence and was simply irrelevant. There was nothing improper in such an application being made and granted. The jury had not seen the evidence on which the application was based. It had been suggested that the interventions of the intermediary meant that Mr Mahmoud was protected from some questioning which might otherwise have been asked, and the jury were well placed to assess that submission, but they must always try the case on the evidence.

Mr Sidhu submitted on appeal, first, that the repeated undermining of the need for an intermediary by co‑defending counsel unduly impacted on the fairness of Mr Mahmoud’s right to a fair trial. The Criminal Procedure Rules and Criminal Practice Direction provided for the proper procedure to be followed in appointing an intermediary, which had been followed to the letter. The judge properly kept his decision under review as the trial progressed, and at no point did he indicate that the intermediary was no longer required. Despite those facts, Mr Rouse sought actively and repeatedly to undermine the need for the intermediary and linked it to the level of Mr Mahmoud’s intelligence. Mr Rouse asked each of the accused questions about Mr Mahmoud being the brightest of the group and elicited that they had not seen him use the intermediary during the trial. His purported justification was that they knew him as a friend, had attended school with him, and could therefore comment on his intellectual capacity. Mr Sidhu contended that the four co‑accused were wholly unqualified to express an opinion about Mr Mahmoud’s intellectual functioning and that their opinions were irrelevant. No expert evidence as to his intellectual functioning was called. The clear implication of Mr Rouse’s questioning and comments was that Mr Mahmoud had acquired the intermediary in order to create a smokescreen and shield during cross‑examination and deliberately to misrepresent himself before the jury. Mr Rouse’s comments would have suggested that Mr Mahmoud was trying to deflect difficult questions by restricting the form in which they could be asked. Yet Mr Mahmoud was not responsible for commissioning the intermediary report or for the judge’s decision. Accordingly, the implication that he had manipulated the proceedings by obtaining unwarranted support was entirely unfounded and misleading. In the context of a cut‑throat defence, it was positively dangerous. Combined with the questions themselves, it would have undermined the principal issue in Mr Mahmoud’s case, namely his credibility and his explanation for being present at the scene.

Second, Mr Sidhu submitted that the judge’s directions to the jury about the intermediary were inadequate. The directions left the jury with the wrong impression that they could revisit the judge’s decision to grant an intermediary. They provided legitimacy to the improper questioning that elicited inadmissible opinion evidence about Mr Mahmoud’s intelligence in the context of why he needed the assistance of an intermediary. In dealing with the appropriateness of the intermediary’s interventions during Mr Mahmoud’s evidence, the judge invited the jury to assess for themselves the submission that the intermediary’s interventions unfairly protected him, yet the intermediary acted properly throughout and there was no basis for Mr Rouse’s submission. The attack on the need for an intermediary had implied some form of manipulation on the part of Mr Mahmoud and his lawyers, which required a robust response from the judge. None was given.

Lady Justice Hallett, delivering the judgment of the court, first noted the role of an intermediary. A trial judge will allow the instruction of an intermediary to assist a witness or defendant in communicating and participating in the trial. The role of an intermediary is not to provide expert or professional opinion on the level of cognitive skills or intellectual functioning. Ms Wayman had rightly declined to assess Mr Mahmoud’s IQ and underlying emotional issues, as his solicitors had invited her to do, because they were beyond her assessment skills. If evidence of cognitive skills or intellectual functioning is both relevant and admissible, it should come from an expert suitably qualified to comment. No such evidence was called. Thus there was no evidence of Mr Mahmoud’s intellectual functioning, other than the jury’s assessment of him and the evidence of his co‑accused. Mr Sidhu suggested that they did not know him well enough or were not expert enough to comment upon it. The court disagreed, holding that they certainly knew him well enough to comment on his general level of functioning. The fact that an intermediary had been granted carried with it no implications of the level of Mr Mahmoud’s intellectual functioning. The only implication was that he may need assistance in communicating and participating.

Second, the court emphasised that in a cut‑throat defence it is often the case that grave allegations are made by one accused against another. In this case, Mr Mahmoud alleged that Gray was a murderer. It was the duty of Gray’s counsel to do his best to challenge the prosecution case and to undermine that allegation. He was therefore bound to attempt to undermine the credibility of Mr Mahmoud. He tried to do that in several ways, including by challenging the provision of an intermediary and linking that to his level of intellectual functioning. The court accepted both that he laboured the point and that in his closing speech he contravened the judge’s clear directions by referring yet again to the issue of whether Mr Mahmoud needed an intermediary and effectively inviting the jury to revisit the issue. He should not have done so. However, he was entitled to suggest that Mr Mahmoud was sheltered from more robust questioning by the provision of an intermediary. That is a standard argument and the court has endorsed more than once that a judge should direct the jury that the effect of a special measure may mean that an advocate may not ask questions in the usual form. Mr Rouse was also entitled to ask questions about the level of Mr Mahmoud’s functioning, provided that it was relevant to an issue in the case. Here it was said to be relevant to the issue of his credibility.

Bearing those observations in mind, the court considered Mr Rouse’s comments in their entirety. They were mild in comparison to some that are made during a cut‑throat defence, and indeed those that were made during Mr Mahmoud’s defence. In addition, they were peripheral to the main issues in the case. Ultimately, Mr Rouse’s comments were not supported by other counsel, even counsel for the co‑accused whom Mr Mahmoud also accused of murder. The judge corrected any wrong impression by his clear and robust directions in his oral summing‑up. The judge also gave the jury a written copy of his directions. The jury could therefore have been in no doubt as to how they should approach the role of the intermediary. Balancing the interests of all the parties, the judge could not properly go any further. His directions were impeccable. Thus, accepting as the court did that Mr Rouse crossed a line, the court was satisfied that in so doing he did not cause Mr Mahmoud the kind of prejudice that would call into question the safety of the conviction. The case against Mr Mahmoud was a powerful one. In short, although co‑counsel crossed a line in challenging the need for an intermediary and linking it to the appellant’s intellectual functioning, the judge’s clear and robust directions corrected any wrong impression and the appeal was dismissed.