Paul Yusuff v The Governor of HM Prison Belmarsh

Hearing dates: 1 February 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on Wednesday 27 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

On 29 October 2022, Adrian Keise died after being stabbed twice in the back and once in the shoulder outside the Cubana Bar near Waterloo Station. Between 6 November 2023 and 11 January 2024, the applicants, Paul Yusuff, Matthew Yusuff and Moussa Traore, stood trial at the Central Criminal Court before His Honour Charles Gratwicke (a circuit judge sitting in retirement) on an indictment which was amended during the trial to contain three counts. On count 1, each of the applicants was charged with murder. On count 2, each of the applicants was charged in the alternative with manslaughter. On count 3, the first applicant was charged with having a bladed article in a public place contrary to s.139(1) of the Criminal Justice Act 1988.

It was not in dispute that the first applicant had stabbed Mr Keise. It was the prosecution case that the second and third applicants had acted as secondary parties to the murder or manslaughter. In relation to count 3, the prosecution alleged that the first applicant had taken to the scene the knife that he used to stab Mr Keise. That was denied by the first applicant. He said that he picked it up from the ground. He did not know where it had come from, but Mr Keise may have dropped it. Otherwise, the applicants' defence was that during the incident they acted in lawful self-defence and/or defence of another.

On 1 December 2023, at the close of the prosecution's case, the judge upheld a submission of no case to answer made by the third applicant on the charge of murder. On the judge's direction, the jury therefore returned a not guilty verdict in relation to him on count 1. Charges of manslaughter against all three applicants were then added to the indictment.

The issue before concerns what happened after the jury had retired to consider their verdicts and were brought back into court to be given a majority direction.

The jury retired to consider their verdicts on 20 December 2023 (there were potentially six verdicts in all, depending on the outcome of the charges of murder). One juror became seriously overnight and was discharged. There were 11 jurors from then on. On 22 December 2023, the trial was adjourned for the holiday period.

The jury resumed their deliberations on 10 January 2024. That afternoon, the jury sent the judge a note. The judge told counsel he had received the note; he could not reveal its contents, but in consequence of what was said, he proposed to bring the jury back into court and give them a majority direction. The jury were brought into court, and in accordance with the usual practice, the clerk of the court asked the forewoman to stand and answer the questions that were put to her. Again, in accordance with the usual practice when a majority direction is to be given, the forewoman was asked whether the jury had reached verdicts in relation to all defendants. That question was asked of course, as a precursor to giving the jury a majority direction, the need for which had plainly been foreshadowed in the jury's note. To the evident surprise of those in court, the forewoman answered yes.

In view of that answer, the clerk, after checking briefly with the judge, proceeded to ask the jury in respect of each count on the indictment, whether they found the particular defendant to whom that count related, Guilty or Not Guilty. In respect of each count her reply was “Not Guilty”; and then to the subsequent question (whether that was the verdict of them all) she said it was. The judge then discharged the applicants and the jury.

Within a few minutes of the court rising however, the judge received a communication from the jury. We have not seen any record of that communication, but the judge asked them for a note (and having asked for the court to be reassembled) told counsel in the case in the absence of the jury, the substance of what was said. In short, their forewoman had made a mistake when answering the questions put to her; and the jury had not reached unanimous verdicts in respect of any of the counts they were required to consider. The judge having heard brief submissions from counsel about what was to be done, did not accept, as he had been invited to by counsel for the applicants, that the verdicts should stand nonetheless, or that the court was functus. He revoked his direction for the discharge of the applicants and of the jury. The jury were brought back into court, given a majority direction in conventional terms, and invited to retire to continue their deliberations. The applicants remained in custody. More detail of the precise sequence and timing of these events is provided at paras 70 to 80 below.

The court adjourned at the end of the afternoon, and on the following day, 11 January 2024, the jury returned a not guilty verdict on count 3 (the bladed article offence) against the first applicant. The jury were unable to agree verdicts on the remaining counts, that is count 1 of murder and count 2 of manslaughter and they were discharged on the same day. The applicants were remanded in custody and remain in custody (no applications for bail have been made).

On 19 January 2024, at a mention hearing before the judge, the prosecution confirmed they would proceed with a retrial, the date of which has provisionally been fixed for 2 December 2024.

The present proceedings

Between 13 and 15 January 2024, the applicants each issued applications under the Civil Procedure Rules ( CPR), rule 87 for a writ of habeas corpus directed to the respondent, the Governor of HMP Belmarsh, for their immediate release.

In the alternative, they apply under CPR 87.5(d) for permission to apply for judicial review. The way in which the case is put for each applicant is not identical. In broad summary however, the claims seek to quash: (i) the decision of the judge on 10 January 2024 (he having found that the jury verdicts were given in error) to revoke the discharge of the applicants and of the jury and to remand the applicants in custody; and (ii) the decision of the judge on 11 January 2024, to discharge the jury and to allow the prosecution to apply for a retrial. The relief asked for is a mandatory order requiring the Central Criminal Court to enter not guilty verdicts on all relevant counts in relation to each applicant and that the applicants be released from prison.

The Central Criminal Court, the Crown Prosecution Service (CPS) and the Government Legal Department (GLD) have been joined by the applicants as interested parties. The GLD acts as solicitor for the respondent. The Central Criminal Court has taken no part in these proceedings.

For the reasons set out below, we have concluded that the applicants' continuing detention pending their retrial is lawful; this court has no jurisdiction to judicially review the decisions under challenge; the applications for judicial reviews are accordingly not arguable and all applications before us including the applications for a writ of habeas corpus, must be refused.

It is common ground that there is no immediate right of appeal to the Court of Appeal, Criminal Division. The applicants have indicated that they may challenge their (continued) prosecutions as an abuse of the process. In the event that those challenges (if made) are unsuccessful and/or if any applicant is convicted at the retrial, then subject to the issue of leave being given, the correct route of challenge will be by way of appeal to the Court of Appeal, Criminal Division.

Habeas Corpus

We start with the applications for habeas corpus.

On 28 April 2023, the Central Criminal Court made orders remanding each of the applicants in custody pending trial. The custody time limit was extended to 10 November 2023. No point has been taken about the validity of those orders.

The trial began on 6 November 2023, inside the custody time limit for the purposes of section 22 of the Prosecution of Offences Act 1985. The jury were discharged on 11 January 2024, because they were unable to reach verdicts on five counts. This did not amount to an acquittal on any of those counts ( R v Robinson [1975] QB 308). Their remand in custody continued pending a retrial (Archbold (2024) at para 4–320). The orders previously made for the applicants to be remanded in custody continued in force and continue to be in force. They have not been set aside by any court.

The applicant's challenge to their continued detention depends upon their contention that the judge's decisions on 10 January to revoke the discharge of the jury and of the applicants so that the jury could continue to deliberate, were...