Ferdinand & Ors v R

Further hearsay evidence is not automatically barred because the prosecution has already read an agreed witness statement. Where the witness is unavailable and the statutory conditions are met, the court may admit the further material if it is necessary to give the jury a fair and accurate context and does not cause unfair prejudice.

Gait-comparison evidence requires careful scrutiny. A jury may act on it only where the relevant features are clearly demonstrated in the images, the limitations of the material are explained, and the jury evaluates the features for itself rather than deferring to the expert. In sentencing young co-offenders, a material age difference may require a proportionate reduction in the minimum term.

The four appellants were convicted at the Central Criminal Court of the murder of Milad Golmakani and the attempted murder of Zain Salah Uddin. The prosecution alleged that they formed part of a hooded group which entered the Abbey Road Estate and carried out a knife attack.

The appeals challenged the admission of further hearsay from an unavailable eyewitness, the introduction of evidence that Hutton dealt in class A drugs, an asserted factual misdirection, proposed fresh eyewitness evidence, and gait-comparison evidence identifying Hashi from CCTV. McSween also appealed his 19-year minimum term. The central issues were whether any alleged evidential or summing-up error rendered the convictions unsafe and whether McSween’s minimum term was proportionate.

1. The appeals against conviction were dismissed. The court held that the jury’s verdicts were safe. McSween’s appeal against his minimum term was allowed, and the term was reduced from 19 to 17 years.
2. The prosecution’s earlier reading of Hashani’s statement by agreement created no automatic bar to a later application to adduce her interview. Under Criminal Justice Act 2003, section 116, the judge had to decide whether the witness was unfit and whether admission would be unfair. The medical evidence, supported by the officer’s observations, entitled the judge to find that the witness could not give evidence even with special measures. The interviews were necessary to place her descriptions in their proper context. The defence was not placed in a worse position than it would have occupied if the full hearsay application had been made initially, and it could still rely on the interview material to support its submissions on reliability.
3. The prosecution’s failure to obtain leave before eliciting evidence of Hutton’s class A drug dealing was unsatisfactory. However, the evidence was relevant to important issues concerning his asserted purpose in visiting the estate and his explanation for using Ferdinand’s telephone. It would likely have been admissible under section 101(1)(d) of the Criminal Justice Act 2003. The prosecution’s express concession and the judge’s directions prevented unfair prejudice to the other appellants.
4. The judge’s correction of the cell-site point made clear that the jury could not use that evidence to conclude that Ferdinand had moved west of the youth centre. The proposed fresh eyewitness evidence was incapable of belief and was rightly refused under section 23 of the Criminal Appeal Act 1968.
5. Gait comparison was a developing technique requiring careful scrutiny. The expert could assist the jury because the alleged gait features were shown in the images and were open to independent evaluation. The judge gave adequate safeguards concerning image quality, distortion, clothing, frame rate, the absence of a database, and the danger of treating the recordings as a composite whole. The evidence was fit to leave to the jury.
6. For McSween, the serious aggravating features justified a substantial minimum term. However, his age, being materially lower than that of his co-offenders, required greater recognition. A 19-year term was excessive by comparison with their 22-year terms; a 17-year term was proportionate. The court also directed correction of the form of the concurrent attempted-murder sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

• Court of Appeal (Criminal Division) — In [2014] EWCA Crim 1243, the court dismissed all conviction appeals and allowed McSween’s sentence appeal by substituting a 17-year minimum term.
• Central Criminal Court — On 26 April 2012, following trial before His Honour Judge Wide QC, all four appellants were convicted of murder and attempted murder. McSween received detention at Her Majesty’s pleasure with a 19-year minimum term for murder.