R v Akmol Miah and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] EWCA Crim 945 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201003503 B4 |
| Date | 15 April 2011 |
[2011] EWCA Crim 945
Lord Justice Aikens
Mrs Justice Rafferty DBE
and
Mrs Justice Thirlwall DBE
Case No: 201003503 B4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT at LONDON
HIS HONOUR JUDGE MOSS, QC
T20097293
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Griffiths QC and Mr Trevor Siddle for the 1 st Appellant
Mr Mark Dennis QC and Mr Sangita Modgil for the 2 nd Appellant
Mr Jonathan Laidlaw QC for the Crown
Hearing date: 30 th March 2011
On Wednesday 30 March 2011, we heard appeals against conviction and sentence by Akmol Miah, who is still only 15, and Shihabuddin Choudhury, who is now aged 21. An order that had been made under section 39 of the Children and Young Persons Act 1933 in respect of Miah was revoked after the trial and we do not re-impose it. At the end of the hearing we announced that the appeals against conviction would be dismissed, for reasons to be handed down later. We reserved our decision on the sentence appeals because counsel asked for a little time to consider two questions that we put to them concerning this court's decision in R v Babamuboni, Adigie and Malasi [2009] 1 CR App R (S) 51.
These are our reasons for dismissing the appeals against conviction and sentence. All three members of the court have contributed to this judgment.
The convictions and sentence against which the appellants appeal arise from a disastrous fire which occurred at about 4.30 am in the Masud family home at 86 Lessingham Avenue in Tooting, South London on 21 June 2009; midsummer's day. Five members of the family were asleep in the house at the time. As a result of the fire, Maleha Masud, the youngest daughter in the family and aged 15, died on 25 June 2009. Nabiba Masud, aged 21, died on 25 July 2009. The three other members of the family, Zain, the eldest son aged 22, Junaid, his brother aged 17, and their mother, Rubina Masud, were all injured but survived.
The two appellants, together with a co-accused, Rasan Khan, were charged with the murders of Maleha and Nabiba and the attempted murder of the other three victims who survived. There was no alternative count of arson with intent to endanger life. On 26 May 2010 after a trial in the Central Criminal Court before HHJ Moss QC and a jury, the appellant Miah was convicted of murder (counts 4 and 5) and attempted murder (counts 1, 2 and 3). On 27 May 2010 the appellant Choudhury was convicted of the same offences.
Rasan Khan was acquitted of all counts.
On 9 July 2010 the appellants were sentenced as follows:
Total sentence: to be detained at Her Majesty's Pleasure with a period of 23 years less 372 days specified as the minimum term.
Total sentence: imprisonment for life with a period of 21 years less 341 days specified as the minimum term.
The Outline Facts and the respective cases
| MIAH | ||
| Counts 4 and 5 | Murder | To be detained at Her Majesty's pleasure; the period of 23 years less 372 days was specified as the minimum term. Concurrent on each |
| Counts 1, 2 and 3 | Attempted murder | Detention for 20 years under s.91 Powers of Criminal Courts (Sentencing) Act 2000 concurrent on each and concurrent to counts 4 and 5 |
| CHOUDHURY | ||
| Counts 4 and 5 | Murder | Imprisonment for Life; the period of 21 years less 341 days was specified as the minimum term. Concurrent on each |
| Counts 1, 2 and 3 | Attempted murder | 18 years imprisonment concurrent on each and concurrent to counts 4 and 5 |
The appellant Miah had been in a teenage relationship with Maleha Masud since March 2009. They had kept their relationship a secret from their parents and communicated by mobile phones and texts. In the days preceding the fire the two had argued and had fallen out. The prosecution case was that Miah had wanted revenge for the breakdown of the relationship. It was alleged that he had enlisted the help of his cousin, Choudhury, to set fire to Maleha's home. The two were linked by a number of telephone calls between them leading up to and after the fire and by MSN messages sent to each other. The prosecution case was that Khan was to collect Choudhury from his home in Nottingham and to transport him to London and meet Miah. The prosecution alleged that Khan took part in the offence, but this was not accepted by the jury.
The defence cases were as follows: Miah said that he had not been involved in either the planning or execution of the offences. He said that he had not been present but had suspected that Choudhury had been involved. In the alternative he denied any intent to kill or cause grievous bodily harm. Choudhury's case on the facts was based on what he had said in interview. He therefore accepted that he had been brought into the plan by Miah who, he said, had set light to the house with Khan. He said that he had withdrawn from the plan at the last moment.
Choudhury's case, on the basis of the facts as set out in the interview and the medical evidence called on his behalf, was therefore put on three bases: first, he had withdrawn from participation in the offences before the actus reus of arson was committed. Secondly, he did not have the necessary intent to commit any of the offences of which he was charged. Thirdly, even if the prosecution proved participation and, prima facie, intent on the murder charges, the medical evidence demonstrated that Choudhury was suffering from an abnormality of mind which substantially impaired his mental responsibility for the killing of Maleha and Nabiha. Therefore, in respect of the two murder charges, he could rely on the partial defence of diminished responsibility, pursuant to section 2 of the Homicide Act 1957, which was still then in force.
Khan accepted that he had driven Choudhury from the Midlands to London that night. He said that Choudhury and Miah (whom he had never previously met) had gone into a shop and had bought matches. They had returned to his car about 10 to 15 minutes later and told him to drive off. He had had no knowledge of the fire.
Outline of the evidence called at the trial
The prosecution called evidence of fact from Mrs Masud and two friends of Maleha.
There was evidence from two forensic scientists about the fluid used to accelerate the fire. A piece of green painted wood from the front door of number 86 bore traces of Shell additives. Ms Rebecca Pepler, who is a forensic scientist, chemist and fire investigator said that her analysis of the green container (which had no liquid in it upon her examination) demonstrated the presence of both Shell and Esso additives, although it was mainly Shell. Her analysis of the green container recovered from the ground floor cloakroom of Miah's home address (which had no liquid in it upon her examination) demonstrated the presence of both Shell and Esso additives, although it was mainly Shell. In cross-examination she said that she was able to conclude that the additives contained in the petrol used to light the fire at 86 Lessingham Avenue and the additives in petrol residues found in a green petrol container were not dissimilar, but not the same. Mr Ian Peck, whose evidence was given through Ms Pepler, said that the fire had been caused by a spark or flame. He had examined clothing attributable to Miah and he confirmed that common flammable liquid residues were found on any of the items that he had examined.
Brian Kennedy (who is a computer expert with the Metropolitan Police) gave evidence that he had examined Miah's lap top. Miah was the registered owner and there was one user profile related to him. There had been no attempt to delete the internet history. There was a photograph of the fire damaged house taken from the Daily Mail and this was set as "wall paper" on the computer.
Acting Detective Inspector Harper, the investigating officer, said that there was a Shell petrol station in Whitehorse Road in the direction of Croydon within walking distance of the Miah household. He accepted that there was no CCTV evidence of Miah purchasing petrol from the petrol station. He confirmed that after viewing CCTV images of an unknown and unidentifiable male in a street next to the Miah address a search was made in the area. Two plastic bottles in the undergrowth near to Miah's home were recovered. The smaller of the two had once contained white spirit. However, that was definitely not the accelerant used in the fire.
Inspector Harper also gave evidence that it was known that Choudhury had been collected from work on the night of the fire by a red Corsa vehicle driven by the co-accused Rasal Khan. The vehicle was tracked via CCTV images from the Midlands to London and then down to Croydon and on to Tooting before returning to Croydon and then travelling back to the Midlands. He gave evidence that Choudhury and Miah were further linked by cell site evidence.
With regard to the police interviews, Miah gave a full comment interview after his first arrest. He also put forward prepared statements which foreshadowed his evidence at trial save that he later accepted that he did not mention his suspicions regarding Choudhury's involvement. Nor did he say that he had carried out a Google search obtaining information about how to burn down a house.
Choudhury gave a full comment interview and said that Miah had called him on 20 June asking him to burn a house in Tooting. He eventually agreed and asked his friend Khan to drive him to London. He said that when they later picked up Miah he had with him a green petrol can and an empty plastic bottle. He admitted he bought some matches. He said that Miah directed them to Lessingham Avenue and they got out of the car. Miah then poured petrol from the can into the plastic...
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