REGINA v NELSON IDIABETA

A co-defendant will normally have to challenge another defendant’s evidence if it is said to be false. The purpose is to give that defendant a fair opportunity to answer the allegation. The absence of such cross-examination does not itself make a closing-speech attack or a carefully limited caution direction unfair where the defendant has already had that opportunity and further questioning would be formal only.

A conviction will remain safe where any alleged defect in the direction could not affect the verdict in light of overwhelming evidence. In sentencing for a joint murder, age-based starting points must be applied contextually with the aggravating features, comparative responsibility and relevant antecedents.

The appellant was convicted at the Central Criminal Court of the murder of a 17-year-old boy, who was stabbed after being chased on a housing estate. He was sentenced to detention at Her Majesty’s Pleasure, with a 19-year minimum term under section 269(2) of the Criminal Justice Act 2003.

He appealed against conviction and renewed his application for leave to appeal against sentence. His principal complaint was that his co-accused’s counsel had unfairly attacked his credibility in closing speech without cross-examining him, and that the judge’s conditional caution concerning evidence which might implicitly identify the co-accused compounded the unfairness. He also challenged the minimum term and the alleged disparity between the two defendants’ sentences.

1. The appeal against conviction was dismissed and leave to appeal against sentence was refused.

2. The jury could properly infer that the appellant had implicitly identified his co-accused as the attacker while seeking to avoid the consequences of an express identification. That inference had an evidential basis and gave the appellant an interest in minimising his own involvement.

3. Although a co-defendant will normally need to challenge another defendant’s alleged lies, the governing concern is fairness and a real opportunity to answer. R v Fenlon 71 Cr App R(S) 307 was applied on that basis. The appellant had been questioned at length by prosecuting counsel and had already declined either to identify X or to exculpate his co-accused. Further cross-examination would have been a formality, particularly because the co-accused’s case was that he had not been present.

4. The judge was entitled to permit the credibility attack and to direct the jury to exercise caution only if they found that the appellant was implicitly shifting responsibility to the co-accused. A direction simply excluding that evidence could instead have unfairly prejudiced the prosecution. In any event, the conviction was safe because the evidence of the appellant’s participation in a planned and violent joint attack was overwhelming.

5. On sentence, the judge was entitled to treat both defendants as equally responsible for the joint enterprise. The aggravating features, including premeditation, knife use, revenge, gang context and the ferocity of the attack, justified a substantial increase from the applicable Criminal Justice Act 2003 Schedule 21 starting point. The differing age-based starting points did not require a mechanical approach, and the appellant’s worse record answered the asserted disparity.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed and the renewed application for leave to appeal against sentence was refused: [2014] EWCA Crim 521.
• Central Criminal Court: On 17 December 2012 the appellant was convicted of murder before Judge Marks QC. The following day he was sentenced to detention at Her Majesty’s Pleasure with a 19-year minimum term.