Case No: 200001285Z1, 200001287Z1 & 200001288X1
Neutral Citation Number: [2001] EWCA Crim 863
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM H.H JUDGE GEDDES AT OXFORD CROWN COURT.

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 3rd April 2001

B e f o r e :

LORD JUSTICE MANTELL
MR JUSTICE PITCHFORD
and
RECORDER OF LONDON

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	REGINA		
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	ASGHAR ALI
LIAQAT ALI
&
SARFRAZ ALI		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr A McGeorge & Miss C. Harrington (appeared on behalf of the Crown)
Mr I J Kumi (appeared on behalf of the Appellants)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice  Mantell: 
1.	Between 10th and 27th January 2000 six members of the same family stood trial at Oxford Crown Court on an indictment alleging violent disorder and causing grievous bodily harm with intent.  They were Asghar Ali, Liaqat Ali, Sarfraz Ali, Tahir Ali, Mohammed Naveed Ali and Rashad Ali.  For ease of  reference and without intending any discourtesy we shall refer to each by his first name only.  Asghar now aged 39 and Liaqat now aged 47 are brothers.  Sarfraz aged 24 and Naveed 21 are the sons of Liaqat.  Tahir 20 and Rashad 18 are cousins of Sarfraz and Naveed.  In the event, Tahir, Naveed and Rashad were acquitted on both counts.  Asghar, Liaqat and Sarfraz were all convicted on count 1, (violent disorder).  Asghar and Liaqat were convicted on count 2, (causing grievous bodily harm with intent).  Sarfraz was acquitted on count 2 but convicted of an alternative of assault occasioning actual bodily harm.  Asghar and Liaqat were each sentenced to a total of thirty months imprisonment.  Sarfraz was sentenced to concurrent terms of eighteen months for the offences of violent disorder and assault occasioning actual bodily harm.  Asghar and Liaqat now appeal against their convictions.  They have leave from the single judge on one ground only and from this court on a further ground which was identified during the course of argument.  Otherwise their renewed applications to argue grounds not sanctioned by the single judge have been refused.  Sarfraz has renewed his application for leave to appeal against his convictions and has been granted leave by this court on the same ground identified in argument in relation to the other two appellants and a further ground which also surfaced for the first time during the hearing.  The single judge has referred  Liaqat’s application for leave to appeal against sentence to this court.
Background.
2.	There is bad blood between the family of which the three appellants are members and another Pakistani family, the Khans.  Both families live in Oxford.  The Alis seem to have based themselves in Howard Street.  Sometime prior to 11th July 1999 Sarfraz was attacked and beaten by members of the Khan family.  Some members of the Khan family were arrested charged and tried.  Of those some were convicted but one, Ishtiaq Mohammed was acquitted.  The feud continued.  
3.	According to Ishtiaq Mohammed at about 10:30 on the evening of  11th July 1999 he was helping his friend, Sajid Nasib to deliver a Chinese take-away in Iffley Road Oxford.  Ishtiaq stayed in the car while Sajid made the delivery.  As he waited two cars pulled up in front of him.  Liaqat got out of one of them and came towards him.  His attitude was threatening.  Ishtiaq got out of his car and made to defend himself.  Liaqat said something insulting about Ishtiaq’s mother and the two men began to fight.  Suddenly Ishtiaq felt a heavy blow on the back of his head and turned to see Asghar holding a cricket bat.  Then others including Sarfraz joined in.  They were waving cricket bats and stumps.  Ishtiaq was dragged into the front garden of a house and forced to his knees.  He was struck from all sides and Liaqat squeezed his throat.  He heard Sajid return to be told to stay clear or expect the same treatment.  He managed to release Liaqat’s hold on his throat but was dragged back into the road, pushed against the bonnet of a car and was struck many more blows.  Throughout his attackers were swearing and insulting his mother.  Eventually with Sajid’s help he managed to get away and escape in the car.  
4.	Similarly, Sajid was to say afterwards that having parked outside 373 Iffley Road with a view to making a delivery at 371 he had returned to the car to find Ishtiaq in the front garden of 373 being held down by Liaqat, whom he knew, and being hit on the back by a man wearing a suit and wielding a cricket bat.  He was also to describe another motor car pulling up from which several Asian youths got out and joined in the attack on Ishtiaq, each of them wielding some kind of weapon including cricket bats and stumps.  One of those youths was Sarfraz with whom he had been at school.  He was to describe how residents came out of their houses calling upon the attackers to stop what they were doing.
5.	Several of the local residents saw what happened.  Each had a slightly different perspective but in all essentials they agreed.  One of the residents was Mr Wood whose bedroom overlooks the front garden of 373 Iffley Road.  Between about 10:00 and 10:30 pm on 11th July he heard raised voices and looked out of his bedroom window.  He saw about eight people fighting and brawling and seeming to be having a go at an Asian youth who was on the ground with his shirt ripped.  He saw one of the attackers fetch a cricket bat from a car boot and use it to hit the youth on the head some three or four times.  He managed to take part of the registration number of the car.  He saw the police arrive and speak to the same man.
6.	A similar description was given by a Mr Ryn who lives at 369 Iffley Road.  
7.	Mr Gledic owns a guest house at 379.  He saw Ishtiaq’s  and Sajid’s car pull up between numbers 371 and 373.  A little later another car pulled up and two men got out and ran towards 373.  Mr Gledic went outside to see the attack in full swing while his wife called the police.  He particularly noticed a man with a cricket bat who was stopped by police as he attempted to drive away.  He thought that there were seven or eight Asians involved altogether.  
8.	Another local resident, Mr Earle was returning home at some time between 10:00 and 10:30 pm when he saw between six and ten people attacking a single victim who was being kicked and hit with various implements. He described a cricket bat being  brought down with force on the man’s head.  He, too, called the police.
9.	The police arrived just as the group was dispersing.  They stopped a car. The driver was Asghar.  He was wearing a dark suit.  There were two cricket bats in the boot.  The registration number of the car was that recorded by Mr Wood.  Very early the following morning Liaqat, Sarfraz, and Naveed were arrested at 22 Howard Street as were Tahir and Rashad at another address in the same street.  
10.	Film from a CTV camera showed a number of men setting out from Howard Street at sometime between 10:00 and 10:30 pm on 11th July.
11.	Sarfraz declined to answer any questions when interviewed but handed in a prepared statement in which he stated that he was not present in Iffley Road but at the material time was at home and asleep.  Liaqat also declined to answer questions.  He handed in a prepared statement in which he alleged that Ishtiaq had attacked him and that all he did was defend himself.  Asghar simply declined to answer questions.
12.	Ishtiaq’s injuries included lumps, bruises, cuts and grazes to various parts of his head and body.  In addition he had a bite mark to one of his fingers and a bone in his right foot had been broken.  
13.	It was upon such evidence that the six defendants were charged, indicted and eventually stood their trial.  
The Trial.
14.	The Crown laid before the jury the evidence previously described.  At half time there was a submission that the injuries suffered by Ishtiaq did not amount to grievous bodily harm.  The submission was rejected and the trial continued on both counts.  
15.	Asghar told the jury that he knew of the previous troubles between the two families but had not been involved.  On the day in question he had been to a wedding.  He was on his way home and happened to be driving along Iffley Road when he heard what he thought was Liaqat screaming.  He stopped, got out and saw Liaqat struggling with Ishtiaq on the ground.  He himself had been attacked by Sajid Nasib as he went to help.  He had managed to get free and release Liaqat from Ishtiaq’s grip.  Liaqat had got up obviously shaken and frightened, climbed into his car and driven off.  He, Asghar had been stopped by the police as he attempted to follow.  He claimed that there were only the four people involved.  He had declined to answer questions by the police on the advice of his solicitor.  
16.	Liaqat told the jury that he had been to the mosque to pray.  He had stopped on his way back to take some exercise.  It was then that Ishtiaq had got out of a car and attacked him.  He described Asghar’s arrival and intervention.  He said that Ishtiaq had asked Sajid for a knife.  That was not something which had been in his prepared statement.  Eventually he had managed to escape.  He had been injured as a result of the incident.  He, too, had been advised not to answer questions.
17.	In his evidence Sarfraz told the jury that he had returned home from a concert in Birmingham at about 9:30 pm whereafter he had watched television until about 10:20 pm when his mother gave him some tea.  He remembered his father Liaqat leaving to go to the mosque and that he had gone to bed where he had remained until awakened by the police at about 5:30 am the following morning.  His solicitor had told him to say nothing.  He accepted that he was well known to Ishtiaq and Sajid but said that they had been telling lies.  He suggested they might have pointed the finger at him as a result of his having given evidence against Ishtiaq in the earlier trial.  He was supported in the alibi by his mother, Mrs Azra Ali, as was Naveed whom the jury acquitted.
18.	In summing up the judge gave guidance in regard to section 34 of the Criminal Justice and Public Order Act 1994 as to which we shall have more to say later in this judgment.  Otherwise his directions in law, many of which were reduced into writing and with the concurrence of counsel handed to the jury, have not been criticised.
The appeals against conviction.
19.	The ground upon which the single judge gave leave to Asghar and Liaqat was in each case, as he put it, “the apparent discrepancy between the conviction of your client of GBH and that of Sarfraz for ABH”.  The additional grounds for which permission was granted by this court, though not the subject of any of the original applications in the cases of all three applicants, were that in respect of their failure to answer police questions the directions given at pps. 47 and 48 of the transcript of the summing up were arguably inappropriate as cutting across each of the applicant’s professional privilege, and in the case of  Sarfraz alone, that in view of the contents of the prepared statement which he had handed to the police, it was wrong to give any section 34 direction at all.  Before giving those matters further consideration, however, it will be convenient to deal briefly with the grounds of the renewed applications for leave to appeal which the court has refused.  
The renewed applications.
Asghar.
20.	Mr Kumi, who at trial appeared on behalf of Tahir and now represents all three appellants, has argued that the evidence did not support the count of grievous bodily harm which ought to have been withdrawn from the jury at the close of the prosecution case.  The first observation we have to make is that, as appears from the transcript of the ruling, no submission was made at the close of the prosecution case on behalf of Asghar.  Submissions were made on behalf of Liaqat and Tahir.  Dealing with their cases the judge said:
	"Submissions have been made behalf of the defendant Liaqat and the defendant Tahir, first of all, that there is insufficient evidence on which a reasonable jury, properly directed, could be satisfied that the victim, Ishtiaq, suffered really serious harm.  I find I cannot accept that submission.  It seems to me there is certainly evidence on which a reasonable jury, properly directed, could come to that conclusion: whether they will do so or not is entirely a matter for them.  But I should perhaps point out that the jury are entitled to look at all the injuries before deciding whether or not it amounts to really serious harm.  It is the totality of the injuries which have to be considered, not any individual injury, as has been pointed out in the case in the case of R -v- Grundy & Others (1989) CAR 333.”

Thereafter, in summing up the learned judge gave a perfectly proper direction as to how the jury should approach the question.  We acknowledge that in this case the injuries were less serious than in many another where causing grievous bodily harm is alleged. However, we agree with the learned judge that a reasonable jury could conclude that the injuries in their totality, including as they did a fracture of the foot, amounted to grievous bodily harm and it was proper for the learned judge to leave that assessment to the jury.  Consequently, and quite apart from the fact that no submission had been made on behalf of Asghar, we refused leave to appeal. 
21.	The next ground advanced on behalf of Asghar was that the conviction of violent disorder should not stand in view of the acquittal by the jury of Sarfraz.  The argument proceeds upon the assumption, undoubtedly correct, that for the offence of violent disorder to be committed at least three persons must be involved.  Mr Kumi relies upon R -v- Mahroof (1989) 88 CAR 317 in which the Crown’s case had been that three persons and three only had been guilty of an offence contrary to section 2(1) of the Public Order Act 1986.  In the event two of those charged were acquitted.  A third was convicted.  The trial judge gave a certificate raising the following question for the Court of Appeal:
	"Where three defendants are indicted for an offence of violent disorder contrary to section 2 of the Public Order Act 1986 and following unanimous verdicts of a jury that two of the defendants are not guilty of this charge, is the jury entitled in law to convict the remaining defendant of the offence provided the jury have been directed that they must be satisfied that the latter defendant is one of three or more persons who are present together using or threatening violence within the meaning of section (2) of the Act."

This court presided over by Lord Lane Chief Justice answered affirmatively subject to two “very important qualifications” of which only the first is material in the present context namely:
	"That three people were involved in the criminal behaviour, though not necessarily those named in the indictment.” 

22.	Here count 1 alleged violent disorder on the part of all six defendants “with others” and the evidence already recorded in this judgment amply supported the Crown’s contention that at least three individuals were taking part in the attack on Ishtiaq.  This proposed ground of appeal was entirely misconceived and for that reason the court refused leave to appeal.
23.	Mr Kumi also renews his application for leave to argue that the directions with regard to the failure to answer police questions were inadequate.  Except for the discrete question with regard to professional privilege, which we have already identified, Mr Kumi has not developed any argument that the direction given was other than in accordance with the guidance given by this court and the specimen direction provided by the Judicial Studies Board.  We shall return to the question of professional privilege when we come to consider the substantive appeals.
Liaqat.
24.	On behalf of Liaqat, Mr Kumi sought leave to argue the same grounds already considered in the case of Asghar.  Predictably this court’s response was the same and save for the particular matter raised in connection with section 34 of the Criminal Justice and Public Order Act 1994 leave was refused.  
25.	Additionally, however, Mr Kumi has made an uninhibited attack upon the competence of counsel representing Liaqat at trial.  He had obtained a transcript of counsel’s speech to the jury.  He invited us to read it through, which we did, and form our own conclusions.  He particularly invited our attention to the various places in the transcript  where the transcriber was unable to pick up what was being said.  In such a case the transcriber has simply said that the passage is “inaudible”.  We are bound to admit that the speech or such parts of it as have been transcribed, does not excite our admiration, but that, of course, is not the test.  The question for us is whether counsel’s performance was so incompetent as to have deprived Liaqat of a fair trial and consequently to lead to the conclusion that his convictions are unsafe.  We are quite unable to form that judgment.  So far as the passages which it was not possible to transcribe are concerned we note that such is frequently the case were the microphone is not specifically placed to catch what is being said.  Here counsel was addressing the jury,  and, in all probability, was facing away from any microphone designed to record the evidence, interchanges between the Bench and counsel and the judge’s directions to the jury.  We are quite unable to conclude, therefore, that what was said was inaudible to the jury.  There are other criticisms directed at counsel’s failure to introduce evidence of Liaqat’s medical condition and what is said to be an unwarranted concession that the jury might convict of violent disorder even though not satisfied that the constituents of count 1 had been made out.  It seems that counsel at trial did not consider the medical evidence to have any particular relevance and nor do we.  As to the supposed concession we consider that it was entirely reasonable of counsel to adopt the stance which he did in the hope of avoiding conviction on count 2.  Accordingly we viewed that proposed ground as being wholly devoid of merit and leave was refused.  
Sarfraz.
26.	We have indicated already the grounds upon which Sarfraz has been granted leave to appeal against conviction.  There was one other ground, in effect, on which he sought leave to appeal.  It was this.  Naveed, Tahir and Rashad were all acquitted in the face of identification evidence which was deemed sufficient to convict Sarfraz, and, moreover, Naveed had relied upon the same alibi evidence as Sarfraz which, presumably, was accepted in his case but not in the case of the applicant.  All that the verdicts reveal is that the jury were not satisfied that Tahir, Naveed and Rashad were correctly identified as being at the scene.  It does not follow from Naveed’s acquittal that the jury accepted the evidence of  Mrs Ali.  Sarfraz, as he conceded, was well known to Ishtiaq and Sajid.  So in his case the evidence was of recognition.  That seems to us to be ample explanation for the distinction which the jury made between his case and that of the others.  We concluded, therefore, that that ground also was without merit and accordingly refused leave.  
27.	We turn to the substantive grounds.
28.	The first ground of appeal which we consider is that upon which the single judge granted leave to appeal to Asghar and Liaqat.  It is set out at an earlier point in the judgment.  In order to support a conviction on the charge of causing grievous bodily harm with intent it would be necessary for the prosecution to prove against an individual defendant that he joined in an attack with the shared intention of causing Ishtiaq really serious harm and further that such harm resulted from the attack.  It would also be necessary on the facts of this case for the Crown to prove that the particular defendant was acting unlawfully i.e. not in self-defence.  The jury was so directed by the learned judge, as they were also directed that they were required to consider the case against each defendant separately.  In the written directions they were invited to ask themselves whether or not they were satisfied that the defendant intended to cause Ishtiaq really serious harm and “if yes” to convict of causing GBH with intent but “no” to acquit.  As to the alternative of attempting to cause grievous boldly harm with intent the jury was invited to answer the following question:
	"Are we satisfied that the defendant whether alone or as part of a joint attack and acting unlawfully intended to cause Ishtiaq really serious physical harm and did some act that was more than merely preparatory to the commission of the offence of causing GBH with intent.
	If “yes” then convict of attempting causing GBH" with intent.  If “no” then go on to paragraph (c).”

At (c) under the heading “assault occasioning actual bodily harm” the judge invited the jury to ask themselves this question:
	"Are we satisfied that the defendant acting unlawfully assaulted Ishtiaq and thereby caused him some bodily harm?  

	If “yes” then convict of assault occasioning ABH.  If “no” then acquit on count 2."

29.	It is apparent, therefore, that on the directions they received, possibly too favourable to the defendant, that the jury were entitled to make a distinction between  Sarfraz and the others on the basis that they were not satisfied that he shared their intention of causing really serious physical harm.  The alternative of causing grievous bodily harm, that is to say contrary to section 20 and without the intent, was not left to the jury either in the body of the summing up or in the written directions which they received.  It follows that if the jury were not satisfied that the required intent had been proved against Sarfraz the only alternative available to them was that of assault occasioning actual bodily harm.  Accordingly his acquittal is readily explained without calling into question the logic behind the verdicts against Asghar and Liaqat on count 2 and we find no substance in that ground of appeal.
30.	The second ground of appeal affects all three of the appellants.  It arises out of the judge’s direction at pps. 47 and 48 of the transcript of the summing up:
	"As you know, there is evidence before you on the basis of which each of the defendant’s advocates invite you not to hold it against his client that he failed to answer questions about his activities that night when he had the opportunity to do so when he was questioned by the police, and that evidence is that in each case the defendant’s solicitor advised him to answer “no comments” to every question asked him by the police.  Members of the jury, no evidence was called by any of the defendants as to why the solicitor gave him that advice.  You might think it would have been the easiest thing in the world to call the solicitor to tell you why he gave that advice and for you to judge whether that was a good reason, a bad reason or an indifferent reason.  That was not done, nor was any defendant asked if he knew what the reason for the advice was, despite the fact that he had been cautioned, as I say, or why he accepted that advice.  If  you think that the giving of that advice amounts to a reason why you should not hold the defendants failure against him well do not do so.  On the other hand, if it does not, in your judgement provide an adequate explanation and you are sure that the real reason for his failure was that he had no innocent explanation to offer in relation to this aspect of the case, then, as I say, you can hold it against him."

In the course of argument in support of the renewed applications for leave to appeal the court expressed some concern as to whether the passage cited above in some way undermined each of the appellants right to claim privilege in respect of what was said by him to his solicitor and vice versa.  We do not, for one moment, criticise counsel for not being prepared to deal with the point.  However, since reserving our judgment we have reminded ourselves of the relevant authorities from which we extract the following propositions.  
	(i)	A defendant is entitled to rely upon his solicitor’s advice to remain silent, but that is unlikely to be regarded by the jury as a sufficient explanation for silence, if he does so without explaining the reasons for the advice,(see R -v- Roble (1997) CLR 449).
	(ii)	If the defendant chooses to reveal the reason for the advice either personally or by calling his solicitor he risks losing his privilege, (see Roble above and R -v- Bowden (1999) 2 CAR 176).
	(iii)	The question for the jury is not whether the advice given was good advice but whether it provides an adequate reason for failing to answer questions.  As was said by this court in R -v- Argent (1997) 2 CAR 27 at 35:
		"Under section 34...the jury is not concerned with the 	correctness of the solicitors advice, nor whether it 	complies with The Law Society’s guidelines, but with 	the reasonableness of the appellant’s conduct in all 	circumstances which the jury have found to exist.  One 	of those circumstances, and a very relevant one, is the 	advice given to a defendant.  There is no reason to doubt 	that the advice given to the appellant is a matter for the 	jury to consider.  But neither the Law Society by its 	guidance, nor the solicitor by his advice can preclude 	consideration by the jury of the issue which Parliament 	has left to the jury to determine."
	
31.	It follows that the learned trial judge was entitled to direct the jury’s attention to issues relevant to their consideration which included the reasonableness or otherwise of the particular appellant acting upon the advice which he had received.  Accordingly the direction which the judge gave in this case was entirely proper and provides no ground of appeal provided always that it was appropriate in the circumstances to give a section 34 direction at all. 
32.	The adverse inference which is available from a failure to mention facts in interview which are subsequently relied upon at trial is either that those facts have been subsequently fabricated (see R -v- Condron (1997) 1CAR 185 per Stuart-Smith LJ at 197) or because it is an account which will not withstand scrutiny (see R -v- Daniel (1998) 2CAR 373).  An adverse inference of the former kind would clearly not be available where the fact relied upon had been disclosed at the date of the interview in a previously prepared statement.  The second kind of adverse inference might.  Asghar had not submitted a prepared statement.  Liaqat did but failed to mention the fact that Ishtiaq had asked Sajid for a knife - very material to self-defence - or that he had set out to go to the mosque.  At p.45 of the transcript the learned judge drew attention to those particular omissions.  He went on to say to the jury:
	"None of the matters which I have referred to are mentioned by any of those witnesses when questioned by the police.  They all said “no comment”.”

33.	So far as Asghar and Liaqat are concerned it seems to this court that the approach taken by the learned judge was justified and the direction given was entirely appropriate.  But Sarfraz had flagged up the defence of alibi in the prepared statement which he submitted at the time.  That is recorded by the learned judge at p.45:
	"Sarfraz and Naveed said in evidence they were not present at the scene but were asleep at home at the time.  This is also what in essence they said in their prepared statements."

The judge went on to instruct the jury in relation to the case of Sarfraz as well as the others that:
	"The prosecutions case is that in the circumstances and having regard to the warning which had been given, if those accounts had been true the defendant in question could reasonably have been expected to mention that account at that stage, namely when he was being questioned by the police, and as he did not do so you may therefore conclude that he realised that account would not stand up to scrutiny."

34.	There is some uncertainty as to the nature of the adverse inference which may be available following a failure at interview to mention facts later relied upon at trial.  The problem is highlighted by the learned editors of Archbold at paragraph 15-404A of the current edition.  One line of authority of which Condron & Condron (1997) 1CAR 185, Roble (1997) CLR 449 CA and Samuel (David) unreported May 12th 1997 CA (971143Z2) are examples suggests that the only inference adverse to the accused might be that the later version has been made up at some stage after interview.  A second line of authority suggests that a further adverse inference might be that an accused was reluctant to expose himself to questioning on the topic.  (See Taylor (1999) CLR 77 CA, Daniel (1998) 2CAR 373 and Beckles & Montague (1999) CLR 148).  We have not heard any argument on the point and, consequently, are not disposed to attempt a resolution of the conflict if any.  For present purposes we simply remind ourselves of the wording of section 34 which makes it clear that any available adverse inference depends upon a failure to mention any fact relied upon by the defendant in his defence.  Here, as acknowledged by the learned judge, the essential facts had been disclosed in the prepared statement.  Accordingly, in our view, in the case of Sarfraz there was no such failure and in his case it was not appropriate for the jury to be permitted to draw an adverse inference on the basis of any such failure.  We have considered carefully whether in spite of what we conceive to have been a material mis-direction it is possible to view the conviction of Sarfraz as safe.  In our view it is not and in his case the appeal against conviction will be allowed.  

Liaqat’s application for leave to appeal against sentence.
35.	This was referred by the single judge.  As we have noted Liaqat was sentenced in total to thirty months imprisonment.  That was the same sentence as was passed on Asghar.  It is suggested that a distinction ought to be made on two grounds.  First of all it is said that he, unlike Asghar, was responding to a situation rather than joining in.  That is not how it appeared to the learned trial judge who heard the evidence.  He took the view that the two of them were engaged in a joint attack which on the evidence he was entitled to hold was being orchestrated by Asghar and Liaqat.  No doubt he had in mind the fact that the attackers set off from Howard Street as a body and he was certainly entitled to reject the account given by Liaqat in evidence that he had simply been passing on his way to or from the mosque.  The second basis upon which it is suggested that a distinction should be made is that Liaqat had suffered from psychiatric illness in the past.  The judge referred to the report in his sentencing remarks.  He said:
	"I have read that psychiatric report and in my view it does nothing to help you in a sense of persuading me to reduce the sentence which I would otherwise have passed.  Indeed the author of that report states, in terms, that there is no psychiatric recommendations with respect to disposal of this case.

	The highest he says in that report is that in view of your past history of mental illness you might be at greater risk of developing mental illness than other inmates, but if that should happen (and I sincerely hope that it will not) then there is of course provision for looking after you in prison, if that should occur.
	But I can see nothing in this report which would persuade me to distinguish between the sentence I have imposed upon Asghar and the sentence I am going to impose upon you."

36.	We can find no fault with the approach adopted by the learned judge.  This was a serious public order offence which resulted in what the jury deemed to be serious injury.  It was an offence in which Liaqat played a prominent role when, if anything, he ought to have been a restraining influence.  In the view of this court even allowing for Liaqat’s mental infirmities it is quite impossible to categorise as manifestly excessive a sentence of thirty months for an offence of this gravity.  Accordingly leave to appeal against sentence is refused.  

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MR KUMI: My Lord, the only application I seek to make is a legal aid application in respect of Sarfaz Ali.  The application for leave was not granted in respect of Sarfaz Ali originally by the single judge and hence there was not any order made as regards the grant of legal aid for him.
LORD JUSTICE MANTELL: Yes.  We think you are entitled to have legal aid for that, Mr Kumi.  You were successful both in getting leave from this court and in your appeal.
MR KUMI: My Lord, I am grateful.