R v Basharath Miah Bodrul Miah and Avinash Aubeelack
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,Mr Justice Aikens,Lord Justice Auld |
| Judgment Date | 02 March 2004 |
| Neutral Citation | [2003] EWCA Crim 3713,[2004] EWCA Crim 528,[2003] EWCA Crim 3178 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 March 2004 |
| Docket Number | Case No: 2001/1089/X4 2001/1091/X4,No. 2001/01089/B1, 2001/01090/B1,No: 200101089/1091/1090/B1 |
[2003] EWCA Crim 3178
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Auld
Mr Justice Aikens and
Mr Justice Grigson
No. 2001/01089/B1, 2001/01090/B1
& 2001/01091/B1
MR M RYDER appeared on behalf of THE APPLICANT BASHARATH MIAH
MR I BOURNE and MR J BUCHANAN appeared on behalf of THE APPLICANT AVINASH AUBEELACK
MR J BENNATHAN appeared on behalf of THE APPLICANT BODRUL MIAH
Friday 3 October 2003
It seems to us, at any rate at the moment, that it would be a waste of a large number of people's time if the matter were to come back to the court by way of an appeal before a separate constitution. We will adjourn this matter for a transcript of today's submissions to be prepared and for the Crown to be invited to attend on the hearing of the appeal. It may be that, armed with the transcript, they will be able to deal with the matter and we could treat the hearing of the application as the hearing of the appeal. Very often, as you know, when both sides are represented, if the application is successful, the application is treated with consent as the hearing of the appeal. At the moment it has been fully argued on one side.
My Lord, yes. I have come across that in sentence when the prosecution have not been represented, but I have not come across it when the prosecution are not represented —
Oh, no, the prosecution would have to be here and would have to have a transcript of what you have said.
I have no objection to that course.
( Following further submissions by counsel)
We propose to adjourn this matter as a whole and to have it re-listed before this constitution. As we have indicated, we shall give leave to Mr Bennathan on the three grounds that he advanced, to Mr Bourne on the single ground that he relies on, and to Mr Ryder we shall give leave on the first of the two grounds, but not on the second.
I am very grateful. May I mention one other matter? Would your Lordships grant a representation order for the presentation of the applications today and to cover the hearing?
Yes, certainly. We shall give reasons in due course, but not today, as you might expect, given the time. We will grant a representation order for junior counsel in each case. We reckon that the whole thing could be argued probably in the space of half a day; and if it were listed before us, probably shorter. We would like to have the matter listed before us in the next fortnight or so, if counsel for the prosecution can be instructed and prepared in time. If not, you will have to open it all again to another court. Very well, in granting leave we shall indicate to the listing officer, if possible, that this case is to be inserted into the list in the next fortnight with a time listing of half a day. Is there any disagreement with that?
No, my Lord.
Subject to your own availability, of course. It may be a hopeless aim, but we shall try to save some public money along the way, if we can. Thank you all for your assistance, written and oral. It has been a great help and also very interesting.
[2003] EWCA Crim 3713
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Auld
Mr Justice Aikens and
Mr Justice Grigson
Case No: 2001/1089/X4
2001/1090/X4
2001/1091/X4
William Boyce QC and Steven John represented the Crown
Joel Bennathan represented Bodrul MIAH
Matthew Ryder represented Basharath MIAH
Ian Bourne and James Buchanan represented Avinash AUBEELACK
These appeals arise out of violent clashes between two groups of young men that took place on 13 September 1999 near Southgate College, North London. During the violence Abdul Osman was fatally stabbed in the chest. His brother, Mustafa Osman, was stabbed in the back and the upper arm. So also was their cousin, Mohammed Abdullahi. Two days later, Bodrul Miah, who was one of those involved in the incident, left the UK for Bangladesh. Basharath Miah, Bodrul's father, had organised the ticket and passport for Bodrul's journey. Bodrul Miah returned to the UK in March 2000.
Subsequently five young men were charged with various offences arising out of the violence. They stood trial on a single Indictment at the Central Criminal Court before HHJ Forrester and a jury from 31 October 2000 until 23 January 2001. On the Indictment Bodrul Miah and Ryan Reid were charged with the murder of Abdul Osman (Count 1). Bodrul Miah and Avinash Aubeelack were charged with the attempted wounding with intent of Mustafa Osman (Count 2). Bodrul Miah, Ryan Reid, Mohammed Basil Mollany, Marcus Oranu and Avinash Aubeeleck were charged with violent disorder (Count 3). The same five men were charged, in the alternative, with affray (Count 4). Basharath Miah stood trial at the same time and was charged on the same Indictment with doing acts tending and intended to pervert the course of public justice (Count 5). The allegation against Basharath Miah was that he had procured a passport and airline ticket in order to enable his son Bodrul to flee the country on 15 September 1999. This last Count had been joined to the Indictment upon the application of the Crown on 20 October 1999, despite opposition from Basharath's counsel. Two applications to sever the trial of Basharath were rejected by the judge during the course of the trial itself.
The trial before HHJ Forrester took 49 days in all. The summing up took six days to deliver. Although the summing up has been criticised in certain respects by counsel in this court, we wish to pay tribute to the sustained and careful treatment that the judge gave to both the law and the facts of this complex case.
On 23 January 2001 the jury convicted Bodrul Miah on Count 1, but acquitted Ryan Reid. The jury convicted both Bodrul Miah and Avinash Aubeelack on Count 2, that is the attempted wounding with intent of Mustafa Osman. On Count 3 (violent disorder) Avinash Aubeelack was convicted, as was Ryan Reid. Basil Mollany and Marcus Oranu had changed their plea to guilty during the trial. Basharath Miah was found guilty on Count 5.
The judge passed sentence on 16 February 2001. Bodrul Miah was sentenced to life imprisonment on Count 1 and 10 years imprisonment on Count 2. Avinash Aubeelack was sentenced to 10 years imprisonment on Count 2 and 5 years (concurrent) on Count 3. Basharath Miah was sentenced to 3 years imprisonment on Count 5.
Each of the appellants Bodrul Miah ("Bodrul"), Avinash Aubeelack ("Aubeelack"), and Basharath Miah ("Basharath") lodged appeals against both conviction and sentence. All their applications were refused by the single judge. The applications for leave to appeal against conviction were renewed before us on Friday 3 October 2003. All save Aubeelack, abandoned their applications on their sentences. We heard oral argument from Mr Joel Bennathan on behalf of Bodrul and Mr Matthew Ryder on behalf of Basharath. We had the benefit of a very clear and full written Outline Argument from Mr Ian Bourne on behalf of Aubeelack and we did not need to call on him at that hearing.
As a result of the written and oral submissions made, on 3 October 2003 we granted leave to appeal on conviction to all three applicants. We directed that the appeals would be heard by the same constitution of the court, in order to save time and effort. It was agreed that in those circumstances the appellants would need to say little further to open their appeals. Counsel for the appellants agreed to ensure that counsel for the Crown was fully informed of the content of the argument before us on 3 October, as well as the orders that we had made.
We heard oral argument on the substantive appeal on Friday 17 October 2003. Mr William Boyce QC made submissions for the Crown and we heard further oral argument from each of the appellants' counsel. At the conclusion of argument we reserved our judgment, which we give now.
The Facts
The participants in the violent incident on 13 September 1999 were all students at Southgate College. On 9 September 1999 there had been some argument just outside the college between two students. One of them was Mohammed Abdullahi, who was part of a group of students at the college who were of Somalian origin. The other man was an Indian youth, said by the Crown to have been Aubeelack.
13 September 1999 was the first day of the new term at Southgate College. During that morning there was an initial meeting between the two groups near the college. Aubeelack was not present at that meeting. Some time later, at around lunchtime, the two groups met in Crown Lane. There a fight took place between the two groups, which we shall call "the Somalian group" and the "Asian group".
One of the Asian group boys, who at the trial was referred to as the "the Indian boy from the week before" or "the new Asian/Indian" and who the Crown alleged was Aubeelack, challenged Mohammed Abdullahi, of the Somalian group, to a fight. "The new Asian/Indian boy" was encouraged by others in his group, which included Bodrul Miah. Mustafa Osman (of the Somalian group) tried to intervene. Bodrul then stabbed Mustafa Osman with a knife which was said by the Crown to have been passed by Ryan Reid, although Reid was acquitted of murder by the jury. At some...
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