Babamuboni & Ors, R v

Where an apparent attempt is made to intimidate a juror, the trial judge has a broad discretion to decide whether the trial may continue, whether a juror should be discharged, and what directions are required. A conviction remains safe where the judge takes appropriate protective measures and directions, and the jury’s verdicts demonstrate that it decided the case on the evidence.

For a young offender sentenced for two associated murders, the statutory scheme requires one overall minimum term. The court must take account of the seriousness and aggravating features of each offence, totality, youth, and mitigation. Youth does not prevent a sentence of the utmost severity where a planned armed robbery results in death.

The applicants were tried before Gross J and a jury at the Central Criminal Court for offences arising from an armed robbery at a christening ceremony. Mrs Kalokoh was shot and killed. Malasi was convicted of murder, robbery and possessing a firearm. Odigie was convicted of manslaughter, robbery, possessing a firearm and possessing ammunition.

Gross J sentenced Malasi, who was also to be sentenced for a later murder, to detention during His Majesty’s pleasure with a 30-year minimum term. Odigie received detention for public protection with an eight-year minimum term. Malasi renewed his application concerning conviction and sentence; Odigie renewed his application concerning sentence only. The central issues were the response to a possible attempt to intimidate a juror and the lawfulness of the minimum terms imposed on youthful offenders.

1. The renewed applications were refused. Even assuming that Malasi’s trial counsel had failed to advance instructions to seek discharge of the whole jury after an apparent intimidation incident, that ground was unarguable. The handling of such an incident lies substantially within the trial judge’s discretion. Gross J was entitled to discharge the affected juror, secure the remaining jury and direct it to decide the case solely on the evidence. The mixed verdicts, including acquittals of other defendants, confirmed that the jury had followed those directions and that Malasi’s conviction was safe.
2. For a person under 18 convicted of two associated murders, the court held that the statutory scheme in Criminal Justice Act 2003 requires a single overall minimum term. It may assist a sentencing judge to identify the likely minimum term for each murder viewed alone. The decisive task, however, is to take account of all factors concerning both offences and decide whether the overall term is correct. Consecutive minimum terms were not appropriate.
3. The 30-year minimum term for Malasi was neither wrong in principle nor manifestly excessive. The judge had properly started at 12 years, considered youth, prior good character, traumatic background and capacity for change, and weighed them against grave aggravating features. Those features included a planned armed robbery, the use of firearms, the killing during a christening ceremony, and the associated second murder.
4. Odigie’s eight-year minimum term for detention for public protection was also upheld. His youth, good character and asserted lesser participation did not make the term excessive. He had participated in a planned robbery involving loaded firearms at a religious ceremony, during which the offenders continued robbing while the victim lay dying.

• Court of Appeal (Criminal Division): The renewed applications by Malasi and Odigie were refused.
• Central Criminal Court (Gross J): On 14 February 2007, Malasi was sentenced to detention during His Majesty’s pleasure with a 30-year minimum term for two murders. Odigie was sentenced to detention for public protection with an eight-year minimum term for manslaughter and associated offences.
• Central Criminal Court: On 21 December 2006, Malasi was convicted of murder, robbery and possessing a firearm. Odigie was convicted of manslaughter, robbery, possessing a firearm and possessing ammunition.