Azam & Ors v R

A murder conviction based on participation in a retaliatory group attack is unsafe where the prosecution must prove that the alleged secondary parties knew the gunman was armed, but the evidence does not permit a safe inference as to when or in what circumstances he obtained the weapon. Earlier association with the gunman, participation in the attack, subsequent movements, lies and covert conversations may raise suspicion, but cannot fill that evidential gap.

Evidence proving participation in the attack may nevertheless support a conviction for violent disorder. After two hung juries, a third trial should proceed only where the evidence remains very powerful, applying Bell [2010] EWCA Crim 3; that observation did not determine this appeal.

The three appellants were convicted of murder at the Crown Court at Birmingham before Burton J on 11 December 2008. Two earlier trials had ended without the jury reaching verdicts. The prosecution alleged that Kadeer Hussein fired a shotgun during a retaliatory attack by a group of Asian men on a cul-de-sac gathering, and that the appellants participated in that attack.

Kadeer Hussein did not stand trial. The jury had been directed that murder required proof that he was the killer, that the appellants participated in the attack, and that they knew he was armed and had the necessary foresight. The appeals were permitted on a lurking-doubt ground. The central issue was whether there was evidence on which the jury could properly find that the appellants knew, before the shooting, that Kadeer Hussein had a gun.

1. The appeals against the murder convictions were allowed. The court quashed those convictions, substituted convictions for violent disorder, and imposed sentences of four years’ imprisonment on each appellant.
2. The jury were entitled to find that Kadeer Hussein was the gunman and that each appellant participated in the attack in the cul-de-sac. Those findings supported the substituted convictions for violent disorder.
3. Knowledge that Kadeer Hussein was armed was, however, essential to the murder case. On the evidence, any such knowledge had to have been acquired before the group reached the cul-de-sac. There was no evidential basis on which the jury could properly find that the appellants first learned of the gun after arrival.
4. The evidence did not safely establish when Kadeer Hussein obtained the shotgun. He was not armed with it while observed on CCTV. It was likely that he received it from one of the larger group shortly before the killing, but he could have received it at the last moment. The jury could not infer that the appellants must have witnessed the handover or walked with an obviously armed gunman.
5. The appellants’ earlier association with Kadeer Hussein, their participation in a revenge attack, their subsequent movements, their lies and the covert recordings did not cure that deficiency. Lies might reflect participation in the attack while being of limited value on the distinct issue of prior knowledge: see Bullen [2008] EWCA Crim 4.
6. The court also stated, without deciding the appeal on that basis, that a third trial should not have occurred after two hung juries unless the evidence remained very powerful, as required by Bell [2010] EWCA Crim 3.

• Court of Appeal (Criminal Division): Allowed the appeals against murder convictions, quashed those convictions, substituted convictions for violent disorder, and sentenced each appellant to four years’ imprisonment.
• Crown Court at Birmingham: Burton J convicted the appellants of murder on 11 December 2008. Two previous trials had ended without verdicts.