R v Janhelle Grant-Murray and Alex Henry
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWCA Crim 1228 |
| Docket Number | Case No: 201401659 C4, 201401814 C4, 201602628 C1, 201602631 C1, 201701474 C1, 201701476 C1, 201702315 C1, 201702318 C1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 August 2017 |
[2017] EWCA Crim 1228
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT AND THE CROWN COURT AT LIVERPOOL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lady Justice Hallett
Vice President of the Court of Appeal Criminal Division
and
Mr Justice Goss
Case No: 201401659 C4, 201401814 C4, 201602628 C1, 201602631 C1, 201701474 C1, 201701476 C1, 201702315 C1, 201702318 C1
Sallie Bennett-Jenkins QC for the Applicant Grant-Murray
David Bentley QC and Peter Marshall for the Applicant Henry
Jacob Hallam QC for the Respondent in the first application
Henry Blaxland QC and Shahida Begum for the Applicant McGill
Joel Bennathan QC and Joanne Cecil for the Applicant Andrew Hewitt
Mr Tim Moloney QC and Jude Bunting for the Applicant Corey Hewitt
NR Johnson QC and Anya Horwood for the Respondent in the second application
Hugh Southey QC for the Intervener in the second application, The Equality and Human Rights Commission
Tom Hickman for the Ministry of Justice in the application on sentence in the second application
Hearing dates: 14 and 15 June and 11 and 12 July 2017
This is the judgment of the court to which we have all contributed
These two renewed applications for leave to appeal, (1) R v Grant-Murray and Henry and (2) R v McGill, Corey Hewitt and Andrew Hewitt, were heard together as the grounds raised related to the decision of the Supreme Court in R v Jogee [2016] UKSC 8. In addition, the second application raised issues relating to the trial of young defendants in the Crown Court.
THE APPLICATIONS OF GRANT-MURRAY AND HENRY
On 12 March 2014 at the Central Criminal Court before HH Judge William Kennedy and a jury, the applicants Grant-Murray and Henry were convicted of the murder of Taqui Khezihi (the deceased) and the wounding of his brother Bourhane Khezihi with a knife contrary to s.18 of the Offences Against the Person Act 1861. Their co-accused, Cameron Ferguson, changed his plea to guilty on both counts. A further co-accused, Younis Tayyib, was acquitted. Henry was sentenced to life imprisonment with a minimum term of 19 years, less time on remand.
The applicants renew their application for leave to appeal after the Single Judge refused their application. The grounds are:
i) The judge erred in his rulings relating to the admission of bad character evidence; and
ii) The judge misdirected the jury on joint enterprise following the change in the law in R v Jogee [2016] UKSC 8; an extension of time is needed for this ground of appeal. It is contended there would be a substantial injustice if the conviction was not quashed.
iii) Fresh evidence has become available evidence of Henry's subsequent diagnosis of autism; he makes an application under s.23 of the Criminal Appeal Act 1968 (the 1968 Act) to call medical evidence.
iv) 'Fresh evidence' emerged at the sentencing hearing of Ferguson when Ferguson's counsel admitted on his behalf that he had inflicted the fatal wound to the deceased and the wound to his brother. Grant-Murray makes an application under s.23 of the 1968 Act to call evidence of counsel's submissions.
Factual background
Shortly before 3 p.m. on the afternoon of 6 August 2013 the four defendants, who knew each other well, were together at the Arcadia shopping centre in Ealing Broadway. Grant-Murray and Tayyib left together and headed along the Mall, Ealing towards the latter's home in Northcote Avenue, a street which ran south from the Mall. Henry and Ferguson remained at the shopping centre for a while.
The deceased, his brother, Bourhane, and two friends, Thompson and Tijani went in Tijani's car to the Costcutter supermarket which is on the corner of Northcote Avenue and the Mall. When they arrived the deceased's brother Bourhane and two of the others went into the Costcutter supermarket.
As Grant-Murray was walking down Northcote Avenue, he encountered the deceased and his friends on Northcote Road, where they were standing by their car. A spontaneous confrontation occurred between Grant-Murray and the deceased and his brother Bourhane; it is not clear why the confrontation took place, but it may have been triggered by a stare. Tayyib arrived and attempted to act as a peacemaker.
Grant-Murray walked away, but he was followed by the deceased and his friends. The confrontation continued and steadily escalated. At about 3.09 p.m. Grant-Murray went into Costcutter and took a bottle of wine. He then returned to confront the group with it. Bourhane took off his belt and held it ready to use as a weapon if necessary. A CCTV camera showed them in Northcote Avenue at about 3.09 p.m.
At about 3.10 p.m. Grant-Murray used his phone to make a call to a friend who was not one of the defendants. Bourhane gave evidence that Grant-Murray said "bring the nank" which he understood as a request that a knife be brought to the scene. Grant-Murray denied saying this. Grant-Murray also made two calls to Ferguson. It was accepted by the prosecution that the calls did not connect and therefore nothing was said to Ferguson.
The deceased and Bourhane crossed the Mall into a side road, Hamilton Road, that ran in the opposite direction to Northcote Avenue. Grant-Murray and Tayyib followed them, Grant-Murray holding the bottle.
Henry and Ferguson by this time had left the shopping centre and were walking along the Mall towards the junction with Northcote Avenue. At 3.12 p.m. CCTV showed them on the Mall. A witness described hearing Grant-Murray shout "hurry up come on". As they approached they ran across the Mall to join Grant-Murray and Tayyib who were on the other side of the Mall.
Bourhane heard Grant-Murray shout that he and his brother were "fucked now". A violent confrontation took place a short way into Hamilton Road after its junction with the Mall. It was observed by numerous witnesses; none of these saw knives used. Bourhane claimed he saw Ferguson and Henry with a knife. The deceased and Bourhane were both stabbed in the back. This part of the incident was not captured on CCTV, but the police subsequently found the bottle of wine taken by Grant-Murray discarded in some bushes just off Hamilton Road.
At 3.13 p.m. CCTV recorded Ferguson crossing the Mall and then running up Northcote Avenue. He can be seen carrying a belt which came from the deceased and Ferguson's bloodstained polo neck shirt was found discarded in an adjoining street. Ferguson, Grant-Murray, Henry and Tayyib met up later in Ealing.
It was Henry's evidence that Ferguson confessed to stabbing the deceased and his brother.
The trial
The respective cases of the prosecution, Henry and Grant-Murray
The prosecution case was that after the confrontation began, Grant-Murray called one of his friends to ask him to bring a knife, although it was accepted in the course of the trial, as we have set out, that Grant-Murray did not ask Ferguson to bring a knife as the call did not connect. However, when Grant-Murray saw Ferguson and Henry had arrived in the Mall after he had crossed the road in pursuit of the deceased and his brother, he called for their assistance knowing they would be armed, as was their habit, with knives. All four men were involved in a joint attack on the two brothers. It was the prosecution case that the persons who stabbed were Ferguson and Henry.
Grant-Murray and Henry both said that that they had no knowledge that Ferguson or any other co-accused was in possession of a knife.
Ferguson's plea
On the sixth day of the trial Ferguson pleaded guilty to both counts. The prosecution case following this plea was that there was adequate evidence to show that Henry also stabbed the deceased. Alternatively, the prosecution contended he was guilty on the basis of secondary liability, as were Grant-Murray and Tayyib.
After Ferguson's plea there was discussion regarding the precise basis upon which he had pleaded as it was contended by the other defendants that it was relevant to the trial as a whole. Ferguson's legal team said that Ferguson was unwilling to see Henry's legal team. His counsel said:
"[Henry's] solicitor has no right to see my client. Advantage is being taken of the fact that he is at the Central Criminal Court and he would not be able to be seen in Belmarsh."
Further legal argument followed. Counsel for the others expressed concern that if there was no clarity about the basis of plea, and particularly whether Ferguson accepted responsibility as a principal, they would be unable to address a jury with certainty and clarity regarding the positions of their own clients. However, the judge concluded that the position of the other defendants was largely unaffected by the plea. They were entitled to address the jury on the basis that Ferguson was a principal, and whether the evidence supported that contention was a matter for the jury.
The judge's direction to the jury in his summing up was that Henry could either be convicted on the basis of primary or secondary liability. He further directed that Ferguson's plea could not by itself prove anything except the murder of the deceased and the offence against Bourhane and Ferguson's participation in the commission of each offence.
Following the conviction of Henry and Grant-Murray it became clear during sentencing that Ferguson's basis of plea was that he had stabbed both the deceased and Bourhane.
We turn to the grounds of appeal.
Ground I: There would be a substantial injustice as the directions given did not accord with the law as established in the decision in R v Jogee
The ground relating to R v Jogee, was...
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