Taylor & Ors v R.

Under Criminal Evidence (Witness Anonymity) Act 2008, an appellate court must decide both whether an anonymity order could lawfully have been made when made and whether, viewed retrospectively, it resulted in an unfair trial. Important or damaging anonymous evidence does not itself make a trial unfair where witnesses’ fear is justified, disclosure enables proper testing, and no concrete basis for collusion or dishonesty emerges.

A court imposing an extended sentence must be affirmatively satisfied that the offender poses the statutory risk of serious harm. It cannot impose the sentence because it is unable to exclude that risk. In fixing a minimum term for a young offender, the statutory starting point must be adjusted to give proper weight to youth, good character, lack of premeditation and the intended level of harm.

Five young defendants were convicted after a gang attack in which Paul Erhahon was killed and Stephen Mafolabomi was seriously wounded. A, B and C were convicted of murder; Taylor was convicted of attempted murder; and D was convicted of manslaughter and wounding with intent.

The appeals challenged, among other matters, pre-commencement anonymity orders for young prosecution witnesses, the safety of Taylor’s conviction based on identification, mobile-phone location evidence and a video recording, and the sentences imposed on D, Taylor and C. The central anonymity issue was whether the order satisfied the statutory conditions retrospectively applied by the appeal court and whether it had resulted in an unfair trial.

1. The conviction appeals were dismissed. Taylor’s renewed application for leave to appeal against conviction was granted, but his appeal was dismissed. The appeals of A and B against conviction were also dismissed.

2. The court held that section 11(2) of the Criminal Evidence (Witness Anonymity) Act 2008 required two distinct inquiries. First, the court asks, by reference to the position when the order was made, whether an order could have been made under the Act. Secondly, it asks retrospectively, in light of the whole trial, whether the defendant in fact received a fair trial. Conditions A and C were met: the witnesses’ fear of gang reprisals was justified and their evidence was important. The judge had also been entitled to conclude that the measures were compatible with a fair trial.

3. The enhanced investigation and disclosure ordered for anonymous witnesses gave the defence an adequate means of testing credibility. The later emergence of evidence damaging to A or B, and speculative assertions of collusion, did not establish unfairness. After an anonymously protected witness has testified, revocation will ordinarily be improper where the safety condition remains satisfied; it requires a showing that maintaining anonymity is inconsistent with a fair trial.

4. The judge correctly left Taylor’s case to the jury. In the absence of contrary evidence, the jury could infer that he was where his mobile telephone was. It could also infer from the video recording on his telephone, and its informed commentary, that he had been involved in the attacks. The material was probative and could support the identification evidence.

5. The sentence appeals succeeded in part. D’s extended sentence under section 228 of the Criminal Justice Act 2003 was quashed because the judge had reversed the statutory inquiry into significant risk. Concurrent eight-year detention terms under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 were substituted. C’s minimum term was reduced from 11 to nine years, less time on remand. Taylor’s sentence appeal was refused. A’s and B’s unlawful YOI detention terms were replaced by equivalent detention under section 91.

• Court of Appeal (Criminal Division) — In [2010] EWCA Crim 830, dismissed the conviction appeals of A, B and Taylor; allowed D’s and C’s sentence appeals to the stated extent; refused Taylor’s sentence application; and substituted lawful section 91 detention sentences for A and B.

• Central Criminal Court — Before Keith J, the defendants were convicted on 9 April 2008 and sentenced on 9 May 2008. No citation for the lower-court judgment is stated.