Yemoh & Ors v R.

A conviction is not rendered unfair merely because a serving police officer sat on the jury. The question is whether a fair-minded and informed observer would see a real possibility of bias. Where the police evidence was disputed by another police officer and by other evidence, and there was no rational basis to suppose that the police juror would favour one officer’s account, that test was not met.

In joint-enterprise cases, whether the principal’s act was fundamentally different from what a secondary party foresaw is generally factual. A principal’s greater intention does not alone create a fundamental difference. Nor does the use of a different knife, where both weapons are sufficiently capable of causing serious injury or death, require that issue to be left to the jury.

Five youth appellants were tried at the Central Criminal Court before His Honour Judge Moss QC for offences arising from the fatal stabbing of Kodjo Yenga. BR and TD were convicted of murder. Yemoh, JB and MW were convicted of manslaughter. The appellants also faced convictions for violent disorder and, in Yemoh’s case, grievous bodily harm arising from an earlier incident.

They appealed against conviction. First, they contended that the late discovery that the jury foreman was a serving police officer made the trial unfair, particularly because a police witness’s account was contested. Secondly, all appellants except BR challenged the leaving and direction of manslaughter under joint-enterprise principles. The central issue was whether the fatal stabbing was fundamentally different from the harm which they intended or foresaw.

Appeals dismissed.

1. The judge ought preferably to have disclosed the police juror’s identity when it was discovered. The appellate issue, however, was whether the trial had been fair. Applying the appearance-of-bias test in Abdroikov and others [2007] UKHL 37 and the two-stage approach in Khan and others [2008] EWCA Crim 531, there was no real possibility of bias. The juror had stated that he knew nothing professionally about the case. The jury were directed to decide solely on the evidence. DC Smith’s contested evidence was neither the only evidence supporting the prosecution’s route to verdict nor corroborated by a fellow officer: DC Cayley gave a materially different account. There was no logical or evidential basis to suppose that the juror would prefer DC Smith’s evidence merely because both were police officers.

2. The jury’s manslaughter verdicts necessarily meant that each relevant appellant knew that an attacker had a knife and intended, or might intend, to use it to cause some injury. Under Rahman [2008] UKHL 45, the principal’s intention to kill does not make the stabbing fundamentally different from the injury intended or foreseen by such a secondary party. The judge was therefore entitled, and indeed obliged, to leave manslaughter.

3. The unforeseen-weapon qualification in R v Powell (Anthony), R v English [1999] 1 AC 1 did not assist the appellants. The issue is ordinarily one of fact, but it may only be left where a properly directed jury could find the principal’s act fundamentally different. A Stanley knife and the knife used here differed in their usual manner of inflicting injury, but both were sufficiently capable of causing serious injury or death. Their difference alone could not support that finding.

4. In any event, the convictions were safe. The verdicts established the necessary knowledge and foresight concerning the use of a knife.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed.
• Crown Court at the Central Criminal Court: Following a 38-day trial before His Honour Judge Moss QC, BR and TD were convicted of murder, while Yemoh, JB and MW were convicted of manslaughter.