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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bailey, R. v [2008] EWCA Crim 817 (18 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/817.html Cite as: [2008] EWCA Crim 817

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE STEPHENS PC
Indictment No T20050090

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/04/2008

Lord Justice Gage :

1. On 10 August 2006 at the Central Criminal Court, Tyrone Bailey, now aged 19 was convicted of murder. No verdicts were taken in respect of alternative counts 2 and 3. On 25 September 2006 he was sentenced to be detained during Her Majesty's pleasure with a minimum term of 14 years less a period spent in custody on remand. There were six co-accused. Shaun Ramsey, now aged 20, was convicted of murder and sentenced to be detained during Her Majesty's pleasure with a minimum term of 14 years. David Ramsey was convicted of murder and received a like sentence to those passed upon Tyrone Bailey and Shaun Ramsey, his brother. Papa Domfeh was convicted of manslaughter and sentenced to 4 years' detention. Shane Pearson was acquitted of all counts. Jerome Fantie and Jason Blair were acquitted of murder and manslaughter. The jury was unable to agree a verdict in respect of these two co-accused on count 3 and a re-trial was directed.
2. The appellant, Tyrone Bailey, appeals against conviction with limited leave of the full court. He and Shaun Ramsey also renew their applications for leave to appeal against sentence.
3. The facts can be summarised as follows. The prosecution arose out of an incident which took place on Saturday, 23 April 2005. The circumstances in which the incident took place are depressingly familiar. On the evening of 23 April 2005 there was a confrontation between two groups of youths near the home address of David Ramsey. The deceased victim, Stefan Persaud (aged 16) was in one group. The appellant and the co-accused Shaun Ramsey, then aged 16 and 17 respectively, were amongst those in the other group. Both groups consisted of young males who came from the Croydon area of South London.
4. The confrontation arose out of an incident earlier that evening when someone from the appellant's group hit Persaud's friend, Gladwin, as he rode past on a moped. The deceased and others, including Gladwin, decided to go and speak to those of the other group involved in that earlier incident. The confrontation between the two groups turned into a fight which moved from Towpath Way to Davidson Road. Persaud's group was chased by the other group. It was alleged that the pursuers included Shaun Ramsey and the appellant. The appellant was said to be wearing camouflage clothing. In the course of the subsequent fight Persaud fell to the ground and was attacked by a large group of young men. He was kicked repeatedly by at least two people, beaten with batons by at least two people, and punched. The assailants then turned their attention to a white car which was driven at the group in an apparent attempt to stop the attack on Persaud. One of the car's windows was smashed and the driver drove off. The attack on Persaud resumed. The prosecution alleged that it involved six or seven young men kicking, stamping and punching in a way which witnesses described as relentless, frenzied and like a pack of animals. Witnesses described the group as jumping over each other to get to Persaud. Weapons in use included a hammer and mini baseball bat.
5. It is common ground between the prosecution and the defence that the attack on Persaud occurred in two stages. The prosecution alleged that it was during the second stage that the white car drew up and Persaud was the subject of such a ferocious attack that he suffered injuries from which he subsequently died.
6. At 9.44 pm an ambulance arrived. The paramedics found Persaud in a semiconscious state with extensive multiple injuries to the top of his head. There was a bat lying beside him. There was blood on him and a small puncture wound was found in his back. In hospital he was treated for a subdural haemorrhage but on 10 May tests were conducted on his brain stem which resulted in him being declared dead. There were 32 separate injuries on him and death was found to have been caused by head injuries, including subdural bleeding and increased intracranial pressure. Scalp wounds found were consistent with the use of a hammer, or a stone or the end of a rounders bat; but the skull was not fractured. The blows had been delivered with substantial force. The deceased was found to have a puncture wound in the chest which could have been caused by a knife or broken glass. There was severe deep bruising to the back shoulder which was consistent with blows by a shod foot or large implement such as a stone. His knuckles were bruised and he had defensive injuries.
7. In addition to Persaud, the ambulance attended a young man named Bertin, who had also been injured. He was one of the appellant's friends and the appellant accompanied him into the ambulance and thence to hospital.
8. There was evidence of a background of rivalry involving Persaud and the appellant. This included an argument on an internet chat room; an incident when the appellant threw a brick at Persaud; and an assault by a gang known as "To Death". There was also evidence of an altercation on a bus between Persaud and the appellant one week before the killing in which Persaud got the better of the appellant. The prosecution alleged that this evidence demonstrated considerable ill-feeling between Persaud and the appellant before the night of the killing.
9. The prosecution case was that the accused men were jointly responsible and that all had joined in the attack which led to Persaud's death. The defence case of each accused was that each had played no part in the attack and that the wrong people were in the dock. In particular, the appellant's case was that when Persaud's group attacked his group he ran away in the opposite direction and hid until it was safe to return.
10. There were a number of eye witnesses. They can be divided into two categories. First, witnesses from one or other of the two groups involved in the altercation. Secondly, witnesses independent of either group.
11. Daniel Gladwin, aged 16 at the time, in an ABE video interview which took place within hours of the event, said that because of what happened to him Persaud called up his cousin and others to go to Towpath Way. It was common ground that Persaud also telephoned the appellant challenging him to a confrontation. Gladwin described the two groups walking towards each other and he complained that he was attacked and hit on the head with a hammer. He described one boy, whom he knew to be the appellant, as wearing an army combat suit and possessing a knife. Gladwin described running away from the first confrontation on hearing what he thought was gunfire or bottles smashing. He said he saw a red car being driven at people. Someone put a gun out of the window and shouted "Fuck the Muslims". Persaud's group was outnumbered. He denied the suggestion that his group far outnumbered the other group and had gone there with weapons. Of the appellant he said that he had swung a knife at him (Gladwin), but he had pulled Shaun Ramsey in front of him. He attributed two slice wounds on his back to an attack by the appellant. He said that the knife in the appellant's right hand had a blade which was about four inches long. Gladwin said that he saw and could easily identify the appellant. He thought that the appellant had a hat on under his hood and both his top and bottoms were army green camouflage coloured. Subsequently he picked the appellant out at a video identification parade. He did not know if the appellant was involved with the deceased or not but both the appellant and Shaun Ramsey had been in the group talking to Persaud. He said that he did not actually see the appellant or anyone attack Persaud.
12. Another witness, Aaron Browne, 16 at the time, said that Persaud had called up his cousins because they were older. The intention was just to resolve the difference of opinion with the other group but it ended up as a fight. He said that he had told Persaud that they should go but then a large number of other young men appeared out of nowhere with weapons and started fighting Persaud. He described the other group as beating Persaud with weapons, bricks and hammers. He described a white car arriving and having the window smashed. He said that there had been shouting at first but the additional group which arrived included Shaun Ramsey, the appellant and the appellant's friend, Bertin. He said that he did not see the appellant carrying anything but saw him stamp on Persaud. His evidence was that Persaud and himself became detached from their group and that it was then that the other group came up and started fighting. At first about six of them attacked without weapons. They appeared to be trying to stamp on his head, punch and kick him in the face. It carried on towards the house although he did not know how Persaud got from the shop to the house in Davidson Road. He described young men from the other group arriving with weapons. He saw the appellant beat up Persaud just outside the Spar shop before they got to the driveway. The appellant kicked and stamped on Persaud's face. He thought that Shaun Ramsey hit Persaud with a weapon. Again, it is common ground that the second and final stage of the fight took place at or near to the Spar shop, ending up outside 512 Davidson Road.
13. At a video identification parade Browne picked out Pearson as one of those who had joined in to hit Persaud with fists and feet but no weapon. He said that he had deliberately left out the names of some other persons present because he was scared. He picked out the appellant as wearing camouflage clothing and as one of the first six. He said that the appellant stamped on the deceased with force before a large number of other young men joined in and connected with his head. He said that he had not originally named the appellant because he did not want to be considered a "grass". He conceded that there might have been more than one person involved in the attacks. He denied the suggestion that the appellant was not present after the first incident.
14. Another witness, Anwar Wilson-Nabil, aged 16, said in evidence that the appellant was wearing camouflage clothing and standing about, although he was at the front of his group. He did not see him do anything before he ran away. Following an identification parade, at which he identified the appellant, he told the police officer that he had turned back and seen the appellant pick up a brick but he did not see him do anything with it. Three other witnesses from one or other of the two groups gave evidence but none identified the appellant as being present.
15. Five independent witnesses gave evidence. They described the attack on Persaud but none was able to identify any of those involved. One, Eunice Fearon, described the white car as arriving at the second stage of the fight. Two police officers said that after the incident the appellant told each of them that he had been present when the white car arrived on the scene.
16. At the scene, members of the ambulance crew described the appellant as wearing camouflage clothing. Various weapons were recovered from the scene but forensic evidence connected none of the weapons with the appellant. Clothing from the co-accused, Pearson, showed bloodstains which came from at least three people but the majority of the stains came from Persaud.
17. Shane Pearson and the appellant, amongst other defendants, gave evidence. Pearson's case when first interviewed was that the appellant had been involved to a degree in the fatal attack but had not used a weapon. In a later interview he said that the appellant used a hammer on Persaud and he also implicated David Ramsey, Shaun Ramsey and the co-accused, Jason Blair. Pearson had been identified by Weir, the driver of the white car, as the person striking Persaud with the hammer.
18. In evidence he said that he saw the appellant approach the other group with a claw hammer which he had taken from his trousers. He denied hitting Persaud with the hammer. He said that the appellant hit Persaud on the lower part of his body with it. When others joined in he saw the appellant hit Persaud with a hammer and at the same time had a knife in the other hand. When he was interviewed as a suspect he had named the appellant but said that at that time he did not have a weapon. After the incident he said that the appellant had threatened him with a knife.
19. The appellant gave evidence and acknowledged that he had a number of previous convictions. He denied throwing a brick at Persaud but accepted that he had been attacked by him on a bus. On the evening of the incident he described meeting up with others in Towpath Way and going on to David Ramsey's house. Whilst there he was called on the telephone by Persaud, who said he knew where he was and that they were coming. He denied that he had tried to knock Gladwin off his bicycle, although Pearson had gone into the road to block Gladwin. Later there was a telephone call summoning him out to where a large group including Gladwin had gathered. He heard someone shout "blaze him first". He heard what sounded like gunshots so he ran away but into a dead end. He waited until he thought that the group had dispersed before returning and finding his friend with his head bleeding. He took him to David Ramsey's house and called an ambulance. He accompanied Bertin to hospital. Following the incident he said that he received telephone calls with death threats. He received a voice mail from Myles Harris, to whom we shall refer later, who accused him of trying to hammer Persaud and said he was coming to shoot them all. The appellant denied having any weapon that night and denied being anywhere near the incident when Persaud was attacked. He denied threatening Pearson and denied that he was part of a gang or that he inspired fear in others.
20. We turn now to evidence admitted by the Judge in the form of an ABE video interview of Myles Harris which was played to the jury. It was common ground that by the date of the trial Harris had left the United Kingdom and gone to his father in Jamaica. But, following the incident he had given a video recorded interview to the police. In it he said that he was aware of a history of ill-feeling between the appellant and Persaud. Persaud was his friend. He had not been present at the incident but had heard about it subsequently. He had spoken to the appellant on the telephone several times on 23 and 24 April. At first the appellant said that it was not him who had attacked Persaud. The witness said that he had put it to the appellant that everyone knew that it was him and that he had hit Persaud with a hammer. He claimed during the video interview that the appellant agreed, saying, "Well, yeah, I did hammer him like, Stefan, he deserved - he should not have tried beating me up and not expect that I am not going to do nothing". The witness added that the appellant said he did not mean Persaud to get hurt that much and he gave the names of others who were present.
21. Harris had previous convictions. During his evidence, Pearson said that he was frightened of Harris because he was violent and believed he was in the same group as Gladwin. Pearson also said that Harris had chased him, saying that he was going to get him because he was involved in the incident with Persaud.
22. At the trial the prosecution applied to play Harris' video interview. This application was supported by Pearson's counsel because this evidence also supported Pearson's account of the incident. It was opposed by counsel for the appellant. The Judge was given details of the events which led to Harris leaving the country. Evidence was given by a police officer who had spoken to Harris on the telephone when Harris was in Jamaica. The police officer said Harris told him that he, Harris, had left the country in fear not of persons in the case but of other young men connected with another matter. He said his father had refused permission for his son to give evidence by way of a video link. It was not conceded on behalf of the appellant that all practicable steps had been taken to secure Harris' attendance but the principal argument against the use of that evidence was on the basis of unfairness, pursuant to s.78 of the Police and Criminal Evidence Act.
23. The Judge ruled that it was not reasonably practicable to secure the attendance of Harris. He said that after anxious consideration he found the evidence of Harris vital to the interests of Pearson and that the fairness of the trial would not be undermined by admitting it. The Judge further refused a subsequent application made on behalf of the appellant that his trial be severed from the trial of the others.
24. There are three grounds of appeal. The first and principal ground centres on the admission of the evidence of Myles Harris' video interview. It is submitted on behalf of the appellant that the judge was wrong to admit this evidence. The second ground of appeal challenges the judge's ruling that evidence of what was found on a computer chat room was admissible. This evidence was admitted following an application made on behalf of Pearson to admit the evidence under the hearsay provisions of the Criminal Justice Act 2003. In the third ground of appeal the appellant submits that the judge was wrong to refuse an application to sever the indictment so as to permit the appellant to be tried separately from his co-accused. It is submitted that the admission of the hearsay evidence was so prejudicial to the appellant's case that the only remedy to correct this prejudice was to sever the appellant from the indictment.
25. We start with the first ground of appeal. On behalf of the appellant, Mr Corkery QC makes a number of submissions. First, it is submitted that the judge was wrong to find that it was not reasonably practicable to secure Harris' attendance at trial (s.116(2)(c) of the 2003 Act). Secondly, it is submitted that the judge could not properly find that Harris was not able to give evidence through fear (s.116(2)(e)). Thirdly, it is submitted that the judge ought to have excluded the evidence under the provisions of s.78 of the Police and Criminal Evidence Act 1984. In support of this submission reference is made to the considerations set out in s.114(l)(d) and (2). Fourthly, the appellant seeks to rely on fresh evidence consisting of statements made by Harris since the trial in which he states that what he said in his video interview was not true.
26. At the start of the hearing of the appeal we informed counsel that we intended to hear the fresh evidence before we heard submissions. In fact, Harris was delivered to court late from the prison at which he is currently serving a sentence of imprisonment. When he did arrive we received evidence from him de bene esse. In the event, his evidence was extremely short. The application to the court to hear his evidence was made on Form W, with two witness statements attached. The purport of the witness statements, which he signed, was that what he had said in the video interview was not the truth. He explained that he had agreed to the video interview because of pressure from police officers and under the threat that he might be charged with an offence.
27. In one of his first answers in examination-in-chief he said of the video interview that it took place a "couple of years" ago and he could not remember what had happened that long ago. In cross-examination by Mr Curtis QC he said that he could not remember what he had said to the police in the video interview. He agreed that he gave the video interview willingly but said that he did not want to attend court. He was unable to remember whether he had told the truth in the video interview but agreed that he was not under any pressure from the police, nor was he in any way fearful of the police. He agreed that he had tried to tell the police what he honestly remembered of the incident. He agreed that he later left the country and went to Jamaica. He agreed that he had spoken to a police officer on the telephone when he, Harris, was in Jamaica. He agreed that at that stage he was not going to come back to court to give evidence. He also agreed that at no stage did he tell the police officer that his statement in the video interview was untrue. Of the video interview he said that he just wanted to help the police officers with their enquiry by telling them the truth but did not want to give evidence. He said that he was 15 or 16 years old at the time when he gave that video interview.
28. Having heard his evidence, we do not doubt that Harris has endeavoured to tell this court the truth. He was given ample opportunity to say, as he had done in his witness statement, that the video interview did not represent the truth. He said no such thing. On the basis of his evidence we are quite satisfied that the answers given by him to questions asked during the video interview were truthful in the sense that he believed them to be true and accurate answers. We have also had the opportunity, ourselves, as did the judge, of viewing the video interview. In our judgment the demeanour of Harris on that occasion is entirely consistent with his assertion that he was not under any pressure from police officers and that he was doing his best to tell them the truth. Accordingly, we approach the admissibility of the video interview on that basis.
29. Mr Corkery also sought to place before the court fresh evidence in the form of a witness statement made recently by Sheree Bayes. Mr Corkery indicated that there was a further witness whom he had intended to call but she had not been served with a witness summons and the application to hear her evidence by way of fresh evidence was not pursued. So far as Sheree Bayes is concerned she was served with a witness summons on 2 April 2008, two days before the hearing of this appeal. We were told by Mr Corkery on the morning of the hearing that she was unable to be present because she was suffering from a bout of vomiting. We were invited to receive her witness statement as evidence. We were not asked to adjourn the appeal for her to attend on a later date. We were also not supplied with a doctor's certificate.
30. Sheree Bayes' witness statement purports to demonstrate that she had on a number of occasions since the trial spoken to Pearson. The implication of the witness statement is that Pearson admitted telling lies at the trial. He indicated that he would be prepared to give such evidence to support an appeal by co-accused other than the appellant. His refusal to do so in respect of the appellant was on the ground that he had' cause to dislike him.
31. In our judgment this witness statement carries the appellant's appeal no further. Accepted at face value it contains simply assertions that Pearson admitted telling lies at the trial. It is unspecific as to the nature of the lies and which, if any, defendants was affected by them. Assuming that the lies affected the appellant it remains the fact that Pearson agreed to see solicitors for two other defendants but refused to see a solicitor acting for the appellant. In the circumstances in our judgment little if any weight can be attached to the witness statement made by Sheree Bayes.
32. Having reached the conclusion set out above in respect of Harris' evidence to this court we go on to consider the other submissions on this ground of appeal. It is necessary at this stage to set out some of the relevant statutory provisions and their effect. Unless otherwise stated all the statutory provisions are those contained in Chapter 2 - Hearsay evidence - of the Criminal Justice Act 2003. First, it is common ground that the video recording was a document (see s.134(1)). Section 114(1) provides gateways which permit the introduction of hearsay evidence. So far as material to this appeal it reads:

"114. Admissibility of hearsay evidence

1. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b)...

(c) ...,or

(d) the court is satisfied that it is in the interests of justice for it to be admissible."

Section 114(2) set out factors to which the court must have regard when deciding whether or not to admit evidence pursuant to s.114(l)(d).

33. Section 116 is headed "Cases where a witness is unavailable". There are five conditions under which statements of a witness who is unavailable can be admitted. These are set out in sub-section (2) and read:

"(a) that the relevant person is dead;

(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence."

Although we have set out all five conditions the relevant one for the purposes of this appeal is (c).

34. Section 117 is concerned with "Business and other documents". It is common ground that the provisions of sub-sections (1) to (5), so far as are material, are satisfied. In respect of such documents sub-sections (6) and (7) provide power for the court to exclude such statements:

"(7) The court may make a direction under this sub-section if satisfied that the statement's reliability as evidence for the purpose for which it is tendered is doubtful in view of

(a) its contents,

(b) the source of the information contained in it,

(c) the way in which the circumstances in which the information was supplied or received, or

(d) the way in which or the circumstances in which the document concerned was created or received."

35. It is further common ground that in relation to a document admissible under s.116(2)(c) the court has power to exclude such a statement pursuant to s.78 of PACE 1984 provided the application to admit the statement is made by the prosecution. If the application to admit the statement is made on behalf of a co-defendant the court has a similar power to exclude the document under s.117(6) and (7) referred to above.
36. Finally, in relation to the statutory provisions this court in R v Cole, R v Keet [2007] EWCA Crim 1924, [2008] 1 Cr App R 5 held that the test to exclude evidence under s.78 of PACE and the test provided by s.114(l)(d) and (2) are unlikely to produce different results.
37. Before ruling on the admissibility of Harris' video interview the judge heard evidence on a voire dire. He heard evidence from Harris' mother and from DS Dunthorne. The chronology of the police action to secure Harris' attendance at court is set out in agreed admissions relating specifically to Harris. In summary the evidence showed that up to 12 May 2006 the police believed that Harris would attend to give evidence on that date. However, from mid-May the police had difficulty in contacting Harris and at the end of May the prosecution applied for a witness summons. On 31 May 2006 Mrs Harris told police officers that her son was not happy to come to court. It transpired that on 2 June 2006 Harris purchased a ticket to fly to Jamaica and left this country on 5 June 2006. Meantime, the trial had started on 2 May 2006.
38. The judge accepted DS Dunthorne's evidence. In his ruling he said:

"On the evidence now before me, I am satisfied that Miles Harris is outside the United Kingdom, in fact in Jamaica. In the light of his attitude and that of his father, it is not, in my judgment, reasonably practicable to secure his attendance. There is no consent forthcoming, for example, for his giving of evidence from Jamaica over the video link".

The judge recorded then that Mr Corkery made his submissions on the basis that s.116(2)(c) "may well be satisfied".

39. The judge then went on to consider the question of whether the statement should be excluded pursuant to s.78 of PACE. For reasons which he expressed he decided that the evidence should be admitted.
40. Mr Corkery's main submission is that by admitting the evidence under s.116(2)(c) the judge was in effect providing a "rogue's charter" for witnesses who, in his words, provided untruthful statements and then deliberately absented themselves from the United Kingdom. He submitted that the admission of the video recording in this case rendered the trial of the appellant unfair. The prejudicial effect on the appellant's case rendered by the admission of this evidence was so great that he could no longer have a fair trial. Mr Corkery relies on Article 6 of the European Convention on Human Rights. Further, he submits that it provided an inequality of arms between the appellant, the prosecution and the co-accused, Pearson. Mr Corkery submits that the judge ought first to have considered the application by the prosecution to admit the evidence before going on to consider an application made on behalf of Pearson for the evidence to be admitted.
41. In making this submission Mr Corkery sought to emphasize what he describes as the background evidence. He submits that the unfairness arises from the fact that the prosecution case against Pearson was much stronger than against the appellant. So far as Pearson is concerned he submits that he was identified by Weir as the person who struck Persaud with a hammer. He had Persaud's bloodstains on the sleeve of his coat and, Mr Corkery submits, on learning from the police the contents of Harris' video interview he was able to tailor his interview and evidence taking into account what Harris had said. By contrast, it is submitted that the case against the appellant was weak. There was no forensic evidence which connected the appellant with the killing. There was little identification evidence of the appellant's participation in the second incident which led to Persaud's death. Accordingly, the Harris video interview provided a very substantial and prejudicial shift in the balance of the prosecution case against the appellant and in favour of Pearson.
42. In our judgment the first issue for the judge to decide was whether or not s.116(2)(c) was satisfied. In our opinion he was clearly right in deciding that it was so satisfied. Indeed, as we have already observed, Mr Corkery all but conceded this to be so. It follows that the real issue arises on the consideration of s.78 of PACE. Mr Corkery's submission is in reality based upon the premise that Harris' video recording was untruthful. He submits that there was no opportunity to cross-examine Harris in order to demonstrate his bad character and the likelihood of the video statement being untrue.
43. The judge considered the submissions made to him and in his careful ruling gave his reasons for rejecting the submission that the statement should be excluded pursuant to s.78 of PACE. He referred to the decision in R v Sellick & Sellick [2005] EWCA Crim 651, [2005] 2 Cr App R 15. In that case the court gave guidance on the considerations relevant to an application to admit a statement where the witness was absent. Despite the fact that Harris was absent and refused to co-operate in any way with the prosecution's efforts to obtain his presence at the trial or to give evidence by way of a video link, in our judgment the judge's discretion cannot be said to be either flawed or "Wednesbury" unreasonable.
44. As was made clear in Cole & Keet the question of unfairness under Article 6 is a question for the national courts. Accordingly it was for the judge to decide initially, and for this court to determine in the appeal, whether or not the trial was rendered unfair by the admission of this evidence. In our view it is clear that Harris' video recording was an important piece of evidence in respect both of the prosecution's case and that of Pearson. The admissions before the jury set out the bad character of Harris and his apparent animosity towards the appellant. It also set out his friendship with the deceased. The appellant had the opportunity of refuting the video recording evidence by himself giving evidence, an opportunity of which he availed himself. We reject the submission made by Mr Corkery that the video recording confession was the principal plank of the prosecution's case against the appellant. As we have set out in our summary of the evidence, at least one witness, admittedly a partisan witness, gave evidence of the appellant's participation in the second stage of the fight which led to the deceased's death. There was in our view no reason for the judge to regard the statement in the video recording as unreliable. We accept that Harris had absented himself from this country but his demeanour and the evidence of police officers demonstrate that he was under no pressure to give untruthful evidence. As we have already stated, we have now heard Harris give evidence and we are satisfied that he told us the truth. It follows that we are now in a better position than the judge to assess the reliability of the video recording. We see no reason to conclude that it is of doubtful reliability. Whatever the reason was for Harris to refuse to co-operate with the prosecution we do not think that such refusal renders unreliable the answers given by him in the video recording. As he said in evidence to us, he was doing his best to help the police with their enquiries. In the circumstances, we are quite satisfied that the judge's decision to admit evidence of the video recording was correct and did not give rise to unfairness.
45. Mr Corkery submits that the judge ought to have made a finding in respect of the prosecution's application for the video recording to be admitted pursuant to s.116(2)(e). The judge declined to make any finding in respect of this condition. Since we have concluded he was entitled to find that s.2(c) was satisfied there was no reason for him to go on and deal with s.2(e).
46. We turn to the second ground of appeal. This concerns an apparent confession made on a condolence chat-room website set up following the deceased's death. Included in the unused material was a document purporting to be sent by "Mifer" to the website which read:

"Yeah me and Ma Bredrins bunned him up but I didn't kill him and whoeva try say Im a shookhed is gonna get murdered. So watch ureself n ewayz Poets was a dickhed,"

The document had a box for an e-mail address of the sender. That was blank. It was dated 25 May 2005.

47. The prosecution did not seek the admission of this document. However, an application was made on behalf of Pearson for leave to cross-examine the appellant on the document. The submission was that this amounted to a confession by the appellant to taking part in the attack on the deceased. The judge permitted such cross-examination. Mr Corkery submits that he ought not to have done so and that this document combined with the alleged confession in Harris' video interview rendered the trial unfair by adding further prejudice against the appellant.
48. Despite the fact that, as Mr Corkery submits, it is perfectly possible for any person to make such an entry on the website giving a false name, in our judgment this document is potentially evidence against the appellant. In the circumstances, it seems to us, that Pearson, his co-accused running a cut-throat defence, was quite entitled to cross-examine the appellant on the document. The appellant denied that he had anything to do with this entry on the website. In his summing up the judge directed the jury in the following terms:

"If you are driven to the sure conclusion that it did come from Tyrone Bailey, then you should attach such significance to it as you think appropriate. If you are not sure, and if you are not driven to the sure conclusion that it came from him, obviously you will not attach any weight to it."

49. In our opinion, this was an entirely appropriate direction. In our view, this evidence was of little weight and is certainly not of sufficient prejudicial value on its own or in combination with the Harris confession to render the verdict of the jury unsafe.
50. The final ground of appeal criticises the judge for not severing the indictment and directing a separate trial of the appellant from his co-accused. Mr Corkery makes this submission on the basis that the Harris confession and the chat-room confession were so prejudicial that the only possible remedy to cure such prejudice was to sever the indictment. In making this submission Mr Corkery realistically accepts that in cases where defendants run cut-throat defences the court will only in very rare circumstance sever the indictment. The principle lying behind such decisions is that fairness dictates not only fairness to individual defendants but also to the prosecution.
51. The question of whether or not to sever an indictment is pre-eminently a decision for the trial judge to make in the exercise of his discretion. In our view there is no exceptional circumstance which should have caused the judge to exercise his discretion in any way different from that which normally obtains in such cases. We add that the directions given to the judge in respect of the issues which were said to prejudice this appellant were correct and appropriate. In the circumstances this ground of appeal fails.
52. For these reasons we conclude that the verdict of the jury is safe and the appeal must be dismissed.

Sentence

53. Tyrone Bailey and Shaun Ramsey renew their applications for leave to appeal against sentence following refusal of leave by the single judge. Each appeals against the minimum term of 14 years' detention during Her Majesty's pleasure passed by the judge. Neither submits that there is any ground for distinguishing the sentence one from the other.
54. The principal grounds of appeal are that the judge, having taken the correct starting point of 12 years failed properly to balance the aggravating factors against the mitigating factors in each case. It is submitted that had he done so the minimum term set in each case would have been less than 14 years. The two factors relied upon are first that the judge failed to give sufficient weight to the ages of each of these two applicants. Bailey was aged 16 at the date of the offence and Ramsey 17. Bailey had some previous convictions. Ramsey was of hitherto good character. Secondly, it is submitted that there was considerable provocation, not amounting to a defence of provocation, which constituted real mitigation for each applicant. Reliance is placed upon the fact that the deceased and his gang had been the instigators of the confrontation. The deceased had made several telephone calls on the evening of the killing to Bailey challenging him and his gang to a confrontation. It is submitted that the judge should have given weight to this factor. Erroneously, he rejected the submission that this factor constituted any real mitigation.
55. In sentencing these applicants the judge said:

"One of the seriously aggravating features of this case is that it took place in a quiet suburban street, ending up, as I have said, in a small front garden. In addition to the outrage committed on the victim the court also has to take into account the effect that witnessing such frenzied violence had on those unfortunate enough to witness it. Such conduct produces huge public dismay and I have no doubt that it did in this case. Deterrence and punishment are required."

56. In our judgment the judge was correct to regard this as a seriously aggravating factor. He was quite entitled to uplift the starting point above 12 years and even allowing for such mitigation as there was, in our view there is no ground for holding that the minimum term of 14 years was in either case manifestly excessive. These applications must be refused.