Practice and Procedure


PUBLISHED April 10, 2003

In all the circumstances of the case the direction given on identification evidence was correct and the conviction was safe. Sentences passed for violent disorder were manifestly excessive, in all the circumstances the defendants should have been sentenced on the basis that the offences were not racially motivated and on their level of involvement.Appeal against conviction with leave of the single judge by one defendant, ('K'), renewed application for leave to appeal conviction by one defendant ('B'). Renewed applications for leave to appeal against sentence by all defendants. On 10 October 2002 at Burnley Crown Court before HH Judge Boulton the defendants ('S', 'B', 'DK' and 'K') were convicted of violent disorder and possession of offensive weapons. S was also convicted of criminal damage. S, B, DK and K were acquitted of counts one and two, violent disorder. On 25 September 2002 RK pleaded guilty to violent disorder. The defendants were sentenced on 4 November 2002 as follows; S to three years imprisonment, B to 30 months imprisonment, DK to twelve months detention and training order, K to two years imprisonment to be served consecutively with a four year sentence he was already serving and RK to 18 months in a Young Offender's Institution. The offences arose out of confrontation between the Asian community and white youths in Burnley most of which was video filmed. On 23 June 2001 white youths smashed windows of Asian properties and an Asian taxi driver was subjected to a serious racially motivated assault. The Asian community feared an organised attack and although there was no evidence the British National Party or other Nazis were involved, the Asians thought they were. The group of white youths who attacked the taxi driver were released on bail. At a pub frequented by white youths a large group of Asians gathered with sticks and other weapons and broke all the pub windows. On 24 June groups of Asians gathered in the town and a group of white men gathered at a pub where they got drunk and aggressive. They threw missiles at cars containing Asians and made Nazi salutes. They then left on what they declared was a march. Police formed a line to prevent the group from getting into an area dominated by Asians. A large group of Asians appeared and confronted police officers and the white men. That formed the basis of count 1 on the indictment against B, DK, RK and K. The Asians made their way to the boundary between the communities, carrying weapons, where they believed an Asian taxi driver had been dragged from his car. They expected to find the white racists. That formed the basis of count two on the indictment. The count of violent disorder the defendants were convicted of, or pleaded guilty to, occurred when a group of about 60 to 70 Asians charged at a static police line. RK was at the front of the group. Several of the group threw missiles at the police and shouted "white bastards". The police were not in riot gear and retreated. The Asians made their way to a pub where they believed the white group were waiting to attack the Asian community. When they realised no-one was there they hit the windows with sticks. RK swiped at a passing car with a stick and another car, containing a young family, had its window smashed. S damaged a CCTV with a cricket bat he was carrying. K carried a sword. K was identified by a police officer from video tape, who recognised him as someone he had known well for three or four years. K denied being present and gave no evidence at trial. The judge gave written and oral directions, without first inviting submissions from counsel. K appealed conviction on the basis that the direction on identification was inadequate. The judge, in accordance with guidelines in R v Turnbull (1977) 63 CAR 132, should have warned of the special need for caution given the short period of time K appeared on the video and the fact the police officer admitted he could not see his eyes, mouth or nose. B sought leave to appeal conviction on the basis the direction on joint enterprise was not sufficient. All the defendants sought leave to appeal sentences on the basis they were manifestly excessive given; (i) the behaviour of a large number of white youths, who were charged and sentenced at separate trials; and (ii) as all the defendants were acquitted of counts one and two then when count three began they were on the streets lawfully.HELD: (1) The judge should have discussed the directions he proposed to give. This was a complex case and he should have invited submissions from counsel before summing up. However, there was no prejudice suffered because a number of submissions were made by counsel after directions had been given and the judge altered a written direction to reflect them. (2) The nature of a warning on identification evidence was dependant on all the circumstances of the case. The police officer had known K well from 1998. At the time he identified K he had actually been watching the videos looking for somebody else. The jury were able to see the video and assess the quality and length of time K was visible. On the facts of the case the warning given was sufficient and there was nothing unsafe in K's conviction. (3) There was nothing wrong with the direction given on joint enterprise and B's application for leave to appeal would be dismissed. (4) When assessing whether the sentences were manifestly excessive the exercise of comparison between the white defendants and the Asian defendants was of limited value. The white defendants were charged with riot, not violent disorder. Sentences for riot were reviewed in R v Najeeb (2003) EWCA Crim 214. (5) The fact that the defendants were not on the streets unlawfully with weapons and were in real fear of what the white men would do set the case apart. The judge could not have had sufficient regard to that point or there would have been a much greater difference between the sentences of these defendants and the white defendants. (6) The defendants should have been sentenced on the basis that none of the offences were racially motivated. When they shouted "white bastards" they were referring to the white defendants not the police officers. They were part of a group of 50 or 60 men when the police line was charged. They did not intend to attack the police and although there were some nasty incidents their whole involvement lasted only about three minutes. There was a marked difference between their participation and that of the white defendants and the offences were nothing like those in R v Najeeb (supra). (7) The judge had faced a difficult sentencing exercise but in all the circumstances he had used too high a starting point. A starting point of two and a half years to three years on conviction was manifestly excessive. A just starting point would have been 18 months. (8) The applications for leave to appeal would be granted, the sentences quashed and the following sentences substituted: S would be sentenced to 18 months imprisonment, B to 15 months imprisonment, K to 14 months imprisonment, DK to eight month detention and training order and RK to eight months in a Young Offender's Institution.Judgment accordingly.