No. 2006/06234/B2
Neutral Citation Number: [2007] EWCA Crim 1250
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday  16  May  2007

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)

MR  JUSTICE  HENRIQUES

and

MR  JUSTICE  TEARE

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R E G I N A

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MR P ROUCH QC and MISS A DIXON appeared on behalf of THE APPELLANT

MR W BOYCE QC appeared on behalf of THE CROWN

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J U D G M E N T

THE LORD CHIEF JUSTICE: 
Introduction
1.  On 2 November 2006, at the Central Criminal Court, before His Honour Judge Paget QC, the appellant was convicted of murder.  On 1 December 2006, he was sentenced to be detained during Her Majesty's Pleasure with a minimum term of ten years, less 409 days spent in custody.  He appeals against conviction by leave of the single judge.

The Facts
2.  On 1 August 2005 an event was taking place at the pavilion in Leyton Manor Park, East London.  As part of a youth programme run by Beaumont Estate Community Links the centre was open to 11-19 years olds for them to attend an MC rapping/mixing records session between 5-7pm.  At about 7.20pm Jermaine Thompson and Tyrone Tassell got into an argument at or near the gates to the park.  The argument was over drugs.  Thompson was alleged to have given Tassell £1.50 less than Tassell had demanded for some cannabis.  Insults were exchanged and Thompson walked off along Capworth Street.  There were further insults and Thompson walked back and then walked away again.  That happened two or three times until a moment arrived when anything up to twenty to thirty youths ran out of the park after him.  They caught up with him at or near the junction with Bickley Road.  Seven youths kicked or punched him and he was stabbed once in the chest.  He fell to the ground and was robbed before the attackers ran off.  He was taken to hospital but died from a single, deep stab wound to the abdomen which lacerated the abdominal aorta.

3.  The knife that was used to kill Thompson was a lock-knife that belonged to the appellant.  It was at all times the appellant's case that he had given his knife to another youth at the scene before Thompson was killed.  That youth was Jermaine Dinnell.  In an initial written statement to the police the appellant said that this occurred after the argument between Thompson and Tassell had commenced.  When he gave evidence at his trial he said that it was before any disturbance had commenced and that he neither thought nor had any reason to believe that Dinnell would use the knife.

4.  It was the prosecution case that the appellant had either himself stabbed Thompson or given his knife to either Dinnell or Tassell knowing that they would or might use it with the intention of killing or causing really serious injury.

5.  The primary ground of appeal is that the judge wrongly permitted to be admitted in evidence a letter written by Tassell to the appellant ("Tassell's letter").  

6.  A secondary ground of appeal is that the judge caused or permitted the jury to be under a misapprehension as to whether charges of murder were or had been pending against Dinnell and Tassell.  We propose to deal with this ground first.  For this purpose it has been necessary to consider in a little detail the course of the criminal proceedings that were brought in relation to Thompson's killing.  It has also been relevant to consider the reasons for the various steps that were taken in relation to those proceedings.  Some of those steps were taken in the course of the appellant's trial.

7.  The relevant facts in relation to this aspect of the appeal were placed before the court only yesterday and in the form of averments in the detailed skeleton argument helpfully prepared by Mr William Boyce QC, who appeared for the Crown at the trial and before us.  It was unsatisfactory that they should have been received in this form.  Those acting for the Crown should have sought to prepare an agreed statement of the material facts with those acting for the appellant.  The facts set out by Mr Boyce were matters that should have been disclosed to those acting for the appellant at the time that they occurred.  We verified at the start of the hearing from Mr Peter Rouch QC, counsel for the appellant, that no challenge was made of Mr Boyce's account of the facts and that it was not suggested that there had been any failure to communicate them to the defence at the times when they occurred.

8.  The procedural history can be shortly stated as follows.  Originally the appellant was indicted together with five others: Tyrone Tassell, Paul Nkoma, Rohan Boreland, Bradley Campbell and Steven Wogan.  They were all charged with murder as the first count and violent disorder as the second count.  The trial of the six youths commenced on 16 May 2006.  On 25 May, following submissions on behalf of Tassell, the jury were discharged, the indictment severed and the accused separated into two groups.  In group number 1, there were Tassell, Wogan and Campbell.  In group number 2 there were the appellant, Nkoma and Boreland.

9.  On 31 May 2006, the trial of group 1 commenced.  On 12 June no evidence was offered in relation to Wogan and Campbell on both counts.  The trial came to an end and a retrial was ordered in relation to Tassell.

10.  On 18 September 2006, the trial of group 2 commenced.  At the close of the prosecution case, following submissions on behalf of Nkoma and Boreland, the jury were directed to acquit both of murder.  Each was subsequently convicted of count 2, namely violent disorder.

11.  On 30 October 2006, Tassell, who was awaiting trial, pleaded guilty to count 2 (violent disorder) and the Crown offered no evidence in respect of count 1 (murder).  

12.  On 4 December 2006, Tassell was sentenced to 18 months' detention in a young offender institution and Nkoma and Boreland were each sentenced to two years' detention in a young offender institution.

13.  Jermaine Dinnell was also charged at one point with Thompson's murder, but proceedings against him were subsequently discontinued at the magistrates' court stage.

14.  The reasons for this procedural history, as provided to us by Mr Boyce, were extremely complex and it would not be helpful or appropriate to go into them in detail.  In essence, problems arose with the procedure as a result (not untypically) of witnesses making statements and then retracting their statements, giving inconsistent statements, or having given statements then refusing to continue as witnesses.  Some defendants sought to have adduced in evidence statements by witnesses that other defendants contended would be unfair to them.  It was that type of situation which resulted in the initial trial of the six co-defendants being sub-divided into two separate trials.

14.  A boy named Liam Jeffrey, who was interviewed by the police on video-tape, purported to describe the stabbing.  He said that Tassell was by the victim and had a knife in his hand, but that before he (Tassell) could stab the victim, Dinnell ran in and stabbed the victim with a bottle.  The unchallenged evidence from the forensic pathologist made it clear that Thompson was, in fact, stabbed with a single-edge-bladed knife and not a bottle.  Despite this, Liam Jeffrey's account heavily implicated Tassell in that he said that he had a knife in his hand.  It also implicated Dinnell as at least a participant in violent disorder (if not in the murder).  

15.  As a result of this evidence, Dinnell was arrested and charged with murder.  He was placed on ten identification procedures before other eye-witnesses, but not one of them identified him.  Liam Jeffrey was not permitted by his mother to play any further part as a witness.  Nor was he permitted to attend the identification procedures.  In these circumstances proceedings against Dinnell were discontinued.

16.  The charge of murder against Tassell was dropped very near the end of the trial in which the appellant was concerned.  This was on the basis that the Crown Prosecution Service, having considered all the evidence, but reached the conclusion that it was not strong enough to justify continuing with the prosecution of Tassell for murder.

17.  The points taken by Mr Rouch in relation to these proceedings were as follows.  First, at one stage of his summing-up the judge erroneously remarked to the jury that Dinnell had not been charged.  Secondly, the jury had been given an indictment containing the names of all the original six defendants, including Tassell.  If they noticed this they would have concluded that Tassell stood charged with murder.  In these circumstances the jury should have been informed that the Crown had offered no evidence in relation to the charge of murder against Tassell.  Both these matters, it was submitted, were prejudicial to the appellant in that it was his case that Dinnell was the murderer, rather than Tassell.

18.  Had there been anything in these points, they should have been taken at the time.  The defence were informed of all that was taking place in relation to other suspects.  There is, however, nothing in the points.  As far as Dinnell was concerned, the jury had before them an admission that Dinnell was a suspect.  It could not have assisted them in any way to be told that a charge of murder had been brought against Dinnell for a short period and then dropped.

19.  So far as Tassell was concerned, the fact that the Crown accepted that they lacked the evidence that they needed to prove his guilt did not mean that they were satisfied that he was innocent.  It was and remained their case in the trial against the appellant that it was possible that Tassell had inflicted the fatal wound.  Basically, however, their case was that it did not matter who wielded the knife.  It did not matter whether it was wielded by the appellant or by a youth to whom the appellant had handed the knife for the purpose of being used as a weapon.  Had anything been said to the jury about the circumstances in which the charge of murder had been dropped against Tassell, this would have called for careful discussion between the judge and counsel as to the appropriate information to be given to the jury.  That discussion did not take place because the point was not raised.  But we do not consider that this can have had any effect on the safety of the verdict.  For these reasons we reject the appeal in so far it is based on the procedural ground.  Indeed, Mr Rouch realistically accepted that this ground would not get him home by itself.  His submission was that it bolstered the strength of his primary ground of appeal: that Tassell's letter was wrongly admitted.

Tassell's Letter
20.  On 13 October 2005, while Tassell was remanded in custody, but before the appellant had been arrested, Tassell wrote the appellant a letter.  It was found when the appellant's flat was searched on the occasion of his arrest.  This letter is quite lengthy and, because it is in the vernacular, the meaning that the writer intended to convey by parts of it was not and is not agreed by counsel.  What is agreed is that the letter stated that the knife had been found by the police and whoever's prints were on the knife would be likely to be arrested.

21.  The prosecution sought to adduce this letter in evidence.  The reason that they gave was not that they wished to rely upon anything in it as to the truth of what was said; they wanted the letter in evidence because it demonstrated the close association between the appellant and Tassell.  They further submitted that it was arguable that the letter had influenced the appellant in deciding on the content of his first written statement to the police.  The letter, so they suggested, informed the appellant that there was information circulating that "F" had committed the murder.  This referred to Dinnell, who was know as "Fatal".  This might have led the appellant to decide to tell the police that Dinnell had committed the murder.

22.  The defence objected to the admission of the letter on the ground that it constituted hearsay.  The judge rejected that submission.  On 3 October 2006 he ruled as follows:

		"Well, it seems to me, having heard the competing arguments, that this letter is admissible to show the state of mind of the [appellant].  It can be shown that the letter was in his possession, opened, and therefore the natural inference was he had read it and kept it, because it was found in a secure place.

		The letter deals with the fact that the writer says his fingerprints are on the knife which is the murder weapon, and there is independent evidence that his DNA was on the knife, and evidence from which the jury could infer that that knife is indeed the murder weapon.

		For the reasons advanced by Mr Boyce, it seems to me it is at least a possibility that that letter played a part in influencing the [appellant] to make the prepared statement that he did.  Of course it is not essential that he followed that course.  An alternative may be that that is the truth, which is no doubt what his case will be.

		For the limited purpose that Mr Boyce puts forward, it seems to me that the letter is admissible, and I so rule."

23.  In summing up to the jury, the judge had this to say about the Tassell letter:

		"The prosecution say [the appellant] may have given the knife to Dinnell, but equally he may have found it convenient to blame Dinnell and the truth may be either that he stabbed Thompson himself or that he gave his knife not to Dinnell but to Tassell who stabbed Thompson.  They base that suggestion, as you know, on the letter which you have at divider 19 from Tassell to [the appellant], which the police found in [the appellant's] bedroom.  That letter informs [the appellant], so the prosecution say -- and its actual meaning is for you to determine because it is all a question of fact -- the prosecution suggest that the letter informs [the appellant] that the knife has been found, that [the appellant's] prints will be found on it and the police will soon be asking [the appellant] about it.  And, say the prosecution, the letter goes on to instruct [the appellant] not to implicate anyone else, but it also goes on to say that it is already rumoured that Dinnell stabbed Thompson.

		Well, as I say, whether that is the correct interpretation of that letter is for you to say.  Mr Rouch on behalf of [the appellant] has suggested at least one other interpretation, namely that it is saying Dinnell's prints may be found on the knife.  That is certainly a possibility and it may be there are other possibilities.  It is all a matter for you to consider and determine as the judges of the facts.

		But if the prosecution theory is right, what they suggest is that [the appellant] may have decided to blame Dinnell so as not to implicate either Tassell or [the appellant] himself.  The prosecution say it does not mater which of those three possibilities is correct, because, they say, in each case, [the appellant] is guilty of murder or manslaughter, either because he stabbed Thompson himself, or because he gave his knife to Dinnell, knowing that Dinnell would or might stab Thompson, or because he gave his knife to Tassell, knowing that Tassell would or might stab Thompson.  If you are sure that one of those three possibilities is right, [the appellant] is guilty of either murder or manslaughter, depending what you decide his actual intention was.  Of course, if you are not sure that one of those possibilities is right, then you cannot find him guilty of either murder or manslaughter."

24.  Mr Rouch submits that the judge's ruling was wrong.  The letter was full of averments of fact, and the jury were invited by counsel and the judge to treat it as evidence of fact.  Its admission was in breach of the rule against hearsay.  In any event the use made of it was unfair.  It was not capable of giving rise to the inference suggested by the Crown.  Furthermore, it was unfair that the appellant should have been subject to cross-examination about the meaning of someone else's document.

25.  Mr Rouch submitted repeatedly that the justification advanced by the Crown for adducing the letter in evidence was that the letter constituted an instruction from Tassell to the appellant to pin the blame on Dinnell.  This, he submitted, it plainly did not.  The Crown had submitted that the letter informed the appellant that there were rumours circulating that "F" had committed the offence.  It did no such thing.

26.  None of these submissions is valid.  Mr Boyce helpfully referred us to the following passage in the 2007 edition of Archbold at paragraph 11-8:

		"'Evidence of a statement made to a witness .... may or may not be hearsay.  It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.  It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made': Subramaniam v Public Prosecutor [1956] 1 WLR 956 at 969, PC; and Ratten v R....  Where for example, the purpose is to tender the statement as evidence of the hearer's state of mind (see Subramaniam, ante), then it may be admissible as original evidence, ie the statement will be in issue or relevant for a reason quite independent of whether any assertions contained in the statement are true or false."

Mr Boyce submitted that that passage applied precisely to the issue with which we are concerned.  We agree.

27.  The letter written by Tassell was not hearsay.  It was real evidence.  It was relevant to show that there was a close relationship between the appellant and Tassell, who was the party to the original argument with Thompson.  The prosecution further relied on the letter as something that might have affected the appellant when deciding what to put into his initial written statement to the police.  The prosecution did not suggest that the letter instructed the appellant what to say.  It did, however, inform the appellant that he would soon be subject to the attention of the police as his knife had been discovered and would be subject to fingerprint analysis.  The appellant then proceeded to state to the police that he had handed the knife to Dinnell.  The prosecution case was that this might or might not be true.  Either he handed it to Dinnell for use as a weapon or he used it as a weapon himself and falsely tried to shift the blame to Dinnell.  In the latter case, the prosecution suggested that his choice of Dinnell as the subject of this false allegation could have been influenced by the fact that he had just received Tassell's letter telling him that rumours were going around to the effect that Dinnell had been the person who stabbed Thompson.

28.  As to that, the material part of the letter said this:

		"What is this bullshit about I told my dad that F done it, anyone that believes that is a mug, I havnt even told my solicitor who done it ...."

It is common ground that "F" was Dinnell.

29.  The clear inference is, as the prosecution suggested, that it was going around that Dinnell was the murderer and that Tassell had told his father that this was the case.  The judge, however, properly left it to the jury to decide how the appellant did or might have understood the letter.  The letter was potentially relevant.  The judge properly directed the jury as to its potential relevance and left it to them to form their own conclusions on the matter.  There was nothing unfair either about the introduction of the letter or the manner in which the judge directed the jury in relation to it.

30.  We should add that we consider that on this appeal the significance of the Tassell letter has been blown up out of all proportion.  The case against the appellant was a very simple one and a strong one.  He had been present at the quarrel between Tassell and Thompson that had degenerated into mob violence.  His knife had been used to inflict the wound that killed Thompson in the course of that violence.  It was the prosecution case that he had either used the knife himself or handed it to another for use as a weapon in that violence.  He had originally stated to the police that he had handed the knife to Dinnell after the quarrel had broken out between Tassell and Thompson.  Subsequently in his oral evidence he said that this was not correct and that he had handed it over, with no intention that Dinnell should use it or reason to believe that he might, well before there was any disturbance.  The vital issue before the jury was whether they believed that this revised version might be true.  If they did, then the appellant fell to be acquitted.  If they did not, the overwhelming inference was that if he handed the knife to Dinnell, he did so with the expectation that it would be used as the weapon that it was.

31.  For the reasons that we have given, this appeal is dismissed.

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