Miah & Ors, R v

Where provocation is left to a jury under Homicide Act 1957, the judge should identify, unless obvious, the evidence capable of supporting loss of self-control. The jury decides both actual loss of control and whether it was sufficiently excusable by contemporary standards. Directions need not use a prescribed formula or enumerate characteristics already apparent to the jury.

If the Crown relies on alleged lies, it should identify their purpose so that the jury is directed about their proper and limited relevance. A no-case submission fails where there is cogent identification evidence fit for jury assessment. Joint trials of charges with a common factual foundation should ordinarily continue unless justice requires severance; a co-accused's inability to compel favourable evidence will rarely suffice alone.

Following a joint trial at the Central Criminal Court before HHJ Forrester, Bodrul Miah was convicted of murder and attempted wounding with intent. Avinash Aubeelack was convicted of attempted wounding with intent and violent disorder. Basharath Miah was convicted of acts tending and intended to pervert the course of public justice.

After the single judge refused leave, the Court of Appeal granted leave on specified conviction grounds. Bodrul challenged directions on provocation and lies. Aubeelack challenged the refusal of a no-case submission based on identification evidence. Basharath challenged the refusal to sever his trial from that of his son.

1. All three conviction appeals were dismissed.

2. Bodrul's provocation directions were adequate. Under section 3 of the Homicide Act 1957, as explained in R v Smith (Morgan) [2001] 1 AC 146, the jury had to decide whether he lost self-control because of things said or done and whether his reaction was sufficiently excusable by objective contemporary standards. The judge had adequately directed the jury to consider all the circumstances. He was not required to identify separately Bodrul's youth, sex and height, which were evident throughout the trial.

3. The direction on lies could have dealt more directly with their relevance to provocation. Nevertheless, the Crown had relied on the identified lies only as evidence that Bodrul committed the homicide, not to disprove provocation. Read as a whole, the summing-up sufficiently confined their use. Bodrul's central denial that he stabbed anyone was not a collateral lie requiring a modified Lucas direction. The conviction was safe.

4. The judge correctly left the attempted-wounding count against Aubeelack to the jury. Applying the principles in R v Galbraith 73 Cr App R 124 and R v Turnbull [1977] QB 224, there was evidence capable of identifying him as the additional Asian participant: his involvement in the earlier incident, the descriptions of the new Asian boy, and the limited possible candidates. Contradictions and weaknesses in the evidence were matters for the jury.

5. The refusal to sever Basharath's trial was correct. Under section 5(3) of the Indictments Act 1915, and consistently with Ludlow v Metropolitan Police Commissioner [1971] AC 29, charges sharing a factual foundation should normally be tried together unless separate trials are required in the interests of justice. The joint trial gave the jury the full picture. Bodrul's inability to be compelled as a defence witness for his father was, without more, insufficient to require severance, and the judge's directions reduced any resulting prejudice.

• Court of Appeal (Criminal Division) — leave to appeal against conviction was granted on 3 October 2003. The court dismissed the three appeals: [2003] EWCA Crim 3713.
• Central Criminal Court — following a joint jury trial before HHJ Forrester, convictions were returned on 23 January 2001. Sentences were imposed on 16 February 2001.