Momodou, R v

In criminal proceedings, witness coaching or training connected with a forthcoming trial is prohibited because it creates a continuing risk of tailored or contaminated evidence. Witness familiarisation is permissible only where it prepares a witness for court procedure without discussing, prompting or resembling the evidence.

A stay for abuse of process remains exceptional. Third-party conduct may justify one only where it makes a fair trial impossible; disclosed difficulties will ordinarily be tested before a properly directed jury. Allegations of jury impropriety require a case-specific inquiry into whether impropriety occurred and, if so, whether it can be cured. Individual questioning of every juror is not automatically required.

Following a lengthy trial in the Crown Court at Harrow, Momodou and Limani were convicted of violent disorder arising from major disorder at Yarl’s Wood Immigration Detention Centre. Momodou was acquitted of arson. Each appellant received four years’ imprisonment.

They appealed against conviction and sentence. The principal issues concerned the removal of potential defence witnesses, informal photographic identification, counselling and group therapy for prosecution witnesses, and improper witness training arranged by Group 4. Further grounds concerned allegations of juror prejudice, Momodou’s representation at trial, the admission of Rippingale’s evidence, and alleged disparity with the sentence imposed on a co-defendant who pleaded guilty.

1. The appeals against conviction and sentence were dismissed. The conduct of Group 4 and its advisers was capable of creating difficulties for the defence, but it did not make a fair trial impossible. Although a prosecution may be stayed for abuse of process because of the activities of a third party, even where the prosecuting authorities are blameless, that power is exceptional. The difficulties here were fully exposed to the jury and were capable of fair assessment through evidence, agreed facts, submissions and directions.

2. Immediate trauma de-briefing and later cognitive therapy were not, on the known facts, an abuse. Employers could provide therapeutic support after a traumatic incident. Where a witness receives pre-trial treatment that may affect recollection, however, the court must be told so that its possible effect can be investigated and assessed at trial.

3. Witness training or coaching for a criminal trial is prohibited. It risks witnesses consciously or unconsciously adapting their accounts, and joint training heightens the danger of collusion or contamination. By contrast, witness familiarisation is permissible if it concerns only court procedure and leaves the evidence wholly the witness’s own. Outside familiarisation should be notified in advance, recorded, independently supervised, kept unrelated to the issues, and its materials retained and disclosed. The improper Bond Solon arrangements did not render these convictions unsafe because they were exposed and used adversely to the prosecution before the jury.

4. Applying the principles derived from R v Mirza [2004] 1 AC 1118, the trial judge had to decide whether alleged juror impropriety had occurred and, if so, whether it could be cured. Inquiry into such an allegation did not contravene section 8 of the Contempt of Court Act 1981. The judge was entitled to seek a collective response rather than interview every juror individually. The response of the remaining jurors, the verdicts and the judge’s repeated directions demonstrated that the jury had acted impartially.

5. Momodou had not shown flagrant or persistent incompetence by counsel, or a substantive error that rendered his trial unfair or his conviction unsafe. The judge’s later direction that the jury should ignore Rippingale’s evidence did not show that its earlier admission had been wrong. Finally, the four-year sentences were neither manifestly excessive nor wrong in principle. Any apparent disparity with the sentence imposed on Aliane was explained by Aliane’s guilty plea and the appellants’ significant participation in the disorder.

• Court of Appeal (Criminal Division): By a single judgment, dismissed the appeals against conviction and sentence: [2005] EWCA Crim 177.
• Crown Court at Harrow: Momodou and Limani were convicted of violent disorder after trial before HHJ Sanders and a jury. Momodou was acquitted of arson. Each was sentenced to four years’ imprisonment.