Re H
| Jurisdiction | England & Wales |
| Judgment Date | 2018 |
| Neutral Citation | [2018] EWCA Crim 2868 |
| Date | 2018 |
| Court | Court of Appeal (Criminal Division) |
Crime - Evidence - Fresh evidence - Convicted offender making admissions to youth offending service case manager during welfare visit - Offender subsequently appealing against conviction - Crown applying for court to receive case manager’s statement as fresh evidence on appeal - Whether contrary to public policy for statement to be admitted -
The defendant, who was aged 15, was convicted of the murder of a man who had been shot in the street. While serving his sentence at the young offender institution, the defendant was visited by his case manager from the local youth offending service. During the course of their conversation the defendant said that he had not meant to kill the deceased, but that the gun he had been holding in a downwards position had moved up when it went off. Subsequently the defendant appealed against conviction. On the application of the Crown, a judge in the Crown Court made an order requiring the case manager to produce her notes of her conversation with the defendant, after which she made a witness statement about it. The Crown applied to adduce the case manager’s notes and/or her statement as fresh evidence under section 23(1)(c) of the Criminal Appeal Act 1968F1, contending that it was in the interests of justice that it should be before the court.
On the application—
Held, refusing the application, that although discussions between an offender and an individual charged with his supervision or rehabilitation were not subject to privilege, it would be contrary to public policy to breach the confidentiality of such discussions save for very good reason; that the discussions between the defendant and his case manager were not analogous with the interview of an offender for the purpose of preparing a pre-sentence report in the Crown Court, since any offender interviewed for the latter purpose would be advised by any competent legal representative that what he said would be placed before the judge; that, in any event, the fresh evidence which the Crown sought to adduce was not relevant to the grounds of appeal in the present case; and that, accordingly, the court would not receive the evidence under section 23(1)(c) of the Criminal Appeal Act 1968 (post, paras 48, 53–55).
Per curiam. If in the course of an application for fresh evidence to be received under section 23(1)(c) of the 1968 Act the Crown wishes to make an ancillary application, such as for a production order, directions should be sought from the Court of Appeal (Criminal Division) as to how the matter is to be handled. It is not appropriate to ask a judge of the Crown Court to make an order in relation to pending proceedings in the Court of Appeal (post, para 47).
The following cases are referred to in the judgment of the court:
Attorney General’s Reference (No 60 of 2009)
Attorney General’s Reference (No 16 of 2014)
R v Hanratty, decd
R v Tesfazgi
R v Weir
No additional cases were cited in argument.
The following additional cases, although not cited, were referred to in the skeleton arguments:
Makin v Attorney General for New South Wales [
R v Hanson
R v McNeish (Wayne)
R v Mitchell
R v Sula (Ermal)
APPEALS against conviction
On 23 October 2017 in the Central Criminal Court, before Judge Lucraft QC, the defendants were convicted as follows: (i) H and Sammi Tesfazgi of an offence of murder (count 1), (ii) Rilind Tahiri of an offence of manslaughter (count 2), (iii) Ashley McFarland and Kim McFarland, respectively H’s father and grandmother, an offence of assisting an offender contrary to section 4(1) of the Criminal Law Act 1967 (counts 3 and 4 repectively). On 27 November 2017 in the same court, before the same judge, the defendants were sentenced, respectively, to detention at Her Majesty’s pleasure for life, with 20 years less the time spent on remand specified as the minimum term under section 269(2) of the Criminal Justice Act 2003, life imprisonment, with 27 years less the time spent on remand specified as the minimum term under section 269(2) of the 2003 Act, life imprisonment with 14 years less time spent on remand specified as the minimum term under section 269(2) of the 2003 Act, five years’ imprisonment and three years’ imprisonment.
H appealed against conviction by permission of the single judge (Sir Alistair McDuff) on the grounds, inter alia: (1) that the judge had erred in permitting the Crown to adduce bad character evidence of (i) Ashley McFarland’s convictions for armed robbery with an imitation firearm in 2010 and in 2014 for escape from lawful custody, (ii) Kim McFarland’s conviction for harbouring Ashley McFarland following his escape from custody, (iii) the facts surrounding the shooting of Tesfazgi in September 2016, (iv) the facts surrounding the shooting of Ahmed later in September 2016, (v) the facts surrounding the arrests of Tesfazgi and Tahiri in St Albans in January 2017 and (vi) Tesfazgi and Tahiri’s convictions in the Crown Court at St Albans on 28 June 2017; (2) that the admission of evidence relating to Ashley McFarland, and Kim McFarland, demonstrated the defendant was from a criminal family and was unfair to him; and (3) that the evidence relating to Tesfazgi and Tahiri was prejudicial and the judge gave no direction that could adequately safeguard the defendant against the prejudice. He also appealed against sentence.
By a notice dated 2 December 2018 the Crown applied to adduce as fresh evidence, pursuant to section 23(1)(c) of the Criminal Appeal Act 1968, a statement by Hayley Mullen, H’s case manger at the Camden youth offending service, describing a conversation that she had had with H in which he made admissions about the killing. This case is reported only in relation to the Crown’s application.
The facts are stated in the judgment of the court, post, paras 1–12.
Tom Allen QC and Rory Keene (assigned by the Registrar of Criminal Appeals) for H.
Charles Royle (assigned by the Registrar of Criminal Appeals) for Tesfazgi.
Ian Henderson QC (assigned by the Registrar of Criminal Appeals) for Tahiri.
Nicholas Fooks (assigned by the Registrar of Criminal Appeals) for Ashley McFarland.
Benn Maguire (assigned by the Registrar of Criminal Appeals) for Kim McFarland.
Brian O’Neill QC and Emily Dummett (instructed by
The court took time for consideration.
21 December 2018. BEAN LJ handed down the following judgment of the court.
1 On the afternoon of 8 December 2016 a 21-year-old man named Yasir Beshira was shot in a side street off Kilburn High Road, London NW6. He was pronounced dead at the scene an hour later. A post-mortem examination confirmed the cause of death to be a single gunshot wound to the abdomen.
2 H, Sammi Tesfazgi and Rilind Tahiri were charged with his murder. Ashley McFarland and Kim McFarland, respectively the father and grandmother of H, were charged with assisting him in the days after the shooting with intent to impede his apprehension and prosecution. Following a trial at the Central Criminal Court before Judge Lucraft QC and a jury, H and Tesfazgi were convicted of murder and Tahiri of manslaughter. Ashley McFarland and Kim McFarland were convicted of assisting an offender. H, Ashley McFarland and Kim McFarland now appeal against conviction by leave of the single judge; Tesfazgi and Tahiri renew their applications for leave to appeal against conviction after refusal by the single judge.
3 The Crown’s case was that H, then aged 15, confronted and shot Mr Beshira. The incident may have been connected to drug dealing. Tezsfazgi and Tahiri provided intentional support and assistance to H. They had collected him from near his home and took him to and from the scene in a stolen Range Rover. The three men were shown on CCTV footage driving past a William Hill shop on Kilburn High Road 15 minutes prior to the shooting. This shop was known to be used by the deceased as a base for drug supply. Tesfazgi and Tahiri waited nearby while H carried out the shooting. They then drove him back to his home address.
4 The Range Rover was recovered the following day. It had been destroyed by fire. Cell site evidence and mobile phone records suggested that Tesfazgi and Tahiri had been involved in the theft of the Range Rover on 21 November 2016 and that Tahiri had set it alight on 9 December 2016.
5 The firearm used in the shooting was not recovered but casings were found at the scene. A firearms expert expressed the opinion that the weapon used to kill Mr Beshira had been used in a non-fatal shooting nine weeks previously to which Tesfazgi was linked by forensic evidence: his DNA was found on a knife recovered from that scene. The Crown’s case was that either H was in possession of the firearm when he got into the Range Rover or he was given it by Tesfazgi or Tahiri once inside the car.
6 The Crown’s case against Ashley McFarland and Kim McFarland was that they knowingly assisted H by making arrangements for him to leave London on the night of the shooting and made and assisted with a false report to the police as to his whereabouts. H lived with his grandmother Kim McFarland in London NW3; Ashley McFarland lived in Hertford. On the evening of the shooting, H left his grandmother’s home at around 4.30 p m. Mr Beshira was shot shortly before...
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