Hafiz & Orsl v R

A prosecutor may call a witness whose evidence is capable of belief in part, even where other aspects may be unreliable. Fairness is ordinarily secured by disclosure, effective cross-examination and a clear cautionary direction to the jury.

For secondary liability in murder, a later change in the principal offender’s intention does not necessarily alter the underlying common purpose. The secondary party’s liability depends on the purpose in which he participated and the risk of intentional really serious injury which he realised.

A conviction is unsafe where an acquittal negates the sole basis put by the prosecution for conviction, and the appellate court cannot safely identify another basis on which the jury acted.

At Manchester Crown Court, before Spencer J, Hafiz and Rafiq were convicted of murder after the fatal shooting of a shop assistant. Afzal was convicted of assisting an offender and possessing a prohibited firearm. Hafiz and Rafiq received life sentences; Afzal received consecutive sentences totalling seven years.

Hafiz challenged the prosecution’s reliance on the evidence of Henderson, a co-operating offender, and alleged inconsistent verdicts. Rafiq contended that the joint enterprise had fundamentally changed and that his murder conviction was irreconcilable with his acquittal of possessing the firearm. Afzal challenged the refusal to sever his trial and his sentence.

1. Rafiq’s appeal was allowed. The court quashed his murder conviction. The prosecution and the judge had identified supplying the machine gun as the sole act by which Rafiq was said to have participated in the common purpose. His acquittal of possessing that gun was therefore, on its face, irreconcilable with his murder conviction. Although other explanations were possible, they had not been put as the prosecution case. The court could not safely determine the basis on which the jury had convicted him.

2. The judge had nevertheless correctly directed the jury on secondary liability. The underlying common purpose was to discharge the firearm into the shop to intimidate its occupants. A later intention held by other participants to shoot the younger shop assistant in the legs increased the risk of grave harm but did not necessarily create a wholly different enterprise. Rafiq could be guilty of murder only if the jury were sure that, when he participated, he realised the real risk that the gunman might deliberately cause really serious injury with the necessary intent.

3. Hafiz’s application was refused. Applying Cairns [2002] EWCA Crim 2838, the prosecution could call Henderson if part of his evidence was capable of belief. His credibility was properly tested before the jury. The defence had disclosure material, cross-examined the relevant witnesses, and received a strong cautionary direction. There was no abuse of process or unfairness requiring exclusion under section 78 of the Police and Criminal Evidence Act 1984. The differing verdicts for Hafiz and Manning were not inconsistent because the jury could rationally distinguish their knowledge of the changed instructions.

4. Afzal’s applications were refused. Severance was unnecessary despite the risk that co-defendants’ cases might implicate him more deeply. The evidence was intertwined, and the judge’s directions confined the jury’s consideration of Afzal’s guilt to the prosecution case and to events after the relevant telephone call. His sentence was not excessive. Harrison [2006] EWCA Crim 345 was materially different, and Afzal’s early assistance was self-interested and unsupported by a guilty plea.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 4, the court refused Hafiz leave to appeal against conviction and refused Afzal leave to appeal against conviction and sentence. It granted Rafiq leave, allowed his appeal and quashed his murder conviction. The order was deferred to allow the respondent to seek a retrial.
• Manchester Crown Court: Before Spencer J, Hafiz and Rafiq were convicted of murder. Afzal was convicted of assisting an offender and possessing a prohibited firearm. Sentences were imposed on 11 February 2011.