Miah & Anor, R v

A joint trial of defendants charged from the same central facts should ordinarily proceed together. Severance under section 5(3) of the Indictment Act 1915 is justified only in a truly exceptional case, and an appellate court will intervene only where the refusal has rendered a conviction unsafe. A cut-throat defence, a co-defendant’s interview implicating another defendant, or a decision not to give evidence will not normally meet that standard.

When fixing minimum terms for two murders dealt with together, the court must set one overall minimum term after considering the seriousness and associated nature of each offence. A judge may assess notional terms for each murder, aggregate them and allow for totality, provided that the resulting overall term is correct.

Miah and Choudhury were convicted at the Central Criminal Court of the murders of two sisters and the attempted murders of three other members of the same family after a deliberately started house fire. Miah, aged 14 at the time, received detention at Her Majesty’s pleasure with a 23-year minimum term. Choudhury received life imprisonment with a 21-year minimum term.

They appealed against conviction on grounds including the refusal to sever their trials, the treatment of co-defendant evidence, evidential rulings and the summing up. Choudhury also challenged the admission of his previous robbery conviction. Both appellants challenged their minimum terms. The central questions were whether any trial ruling or direction made the convictions unsafe and whether the judge had adopted a correct approach to minimum terms for two associated murders.

Appeals against conviction and sentence dismissed.

1. Section 5(3) of the Indictment Act 1915 confers a discretion to order separate trials, but a joint trial is strongly favoured where defendants face the same charges arising from the same facts. Cut-throat defences, an implicating police interview which is not evidence against a co-defendant, and the possibility that its maker will not testify are commonplace features. Neither appellant’s position was exceptionally prejudicial.

2. Choudhury’s diminished-responsibility case and the expert evidence did not require severance. The appropriate safeguards were trial management to confine factual narratives to what was necessary for the experts’ opinions, and clear directions that Choudhury’s interview and hearsay accounts given to experts were not evidence against the co-defendants. Although a more specific direction concerning the expert narratives would have been preferable, the directions as a whole made the convictions safe.

3. The CCTV and bottle evidence had no evidential link to either the fire or Miah and was irrelevant. Its admission at Khan’s instance did not affect safety because the judge directed the jury to disregard it in considering the prosecution case against Miah. The admission of the wallet evidence did not disclose an error in the exercise of the discretion under section 78 of the Police and Criminal Evidence Act 1984.

4. The robbery conviction had little apparent substantial probative value on the issues identified between Choudhury and his co-defendants under section 101(1)(e) of the Criminal Justice Act 2003. The judge may therefore have erred in admitting it. The conviction nevertheless remained safe because the jury was expressly directed that it made guilt no more likely and must be put out of mind when deciding guilt.

5. For the sentencing appeals, section 269 of the Criminal Justice Act 2003 required one overall minimum term for each of the two associated murders. The court applied R v Babamuboni, Odigie and Malasi, [2009] 1 Cr App R (S) 51: the murders need not have occurred on separate occasions for that approach to be available. Considering individual notional terms, aggregating them and making a totality allowance was permissible, though not mandatory.

6. The respective 23-year and 21-year terms were not manifestly excessive. They properly reflected Miah’s youth but leading role, and Choudhury’s lesser role and mental and cognitive difficulties.

• Court of Appeal (Criminal Division) — Dismissed both appellants’ conviction appeals and sentence appeals in [2011] EWCA Crim 945.
• Central Criminal Court — Miah and Choudhury were convicted of two murders and three attempted murders in May 2010. On 9 July 2010, Miah received detention at Her Majesty’s pleasure with a 23-year minimum term, and Choudhury received life imprisonment with a 21-year minimum term.