Marsh-Smith, R v

A properly joined criminal trial should be severed only where the interests of justice require it. The trial judge must balance the connection between the allegations, the risk of avoidable unfairness, the likely course of the trial, and the capacity of clear directions to protect the defendant.

Successful severance applications face a high threshold and require very exceptional circumstances. Robust and unambiguous directions will ordinarily enable a jury to distinguish evidence from counsel’s questions and to disregard inadmissible material. A joint trial remains fair where those directions adequately address any resulting risk of prejudice.

The appellant was convicted at the Central Criminal Court of the attempted murders of Inan Eren and Samuel Zerei, and the murder of Zafer Eren. He appealed his convictions by leave of the single judge.

The proposed ground concerned the refusal to sever the count alleging the attempted murder of Zerei. Zerei was a co-defendant on the murder count and the complainant on the attempted-murder count. The appellant argued that cross-examination conducted for Zerei’s case, and aspects of the Crown’s cross-examination, risked giving inadmissible allegations an evidential status they did not possess.

The trial judge refused severance and gave strong written and oral directions on the distinction between evidence, counsel’s questions, and inadmissible material. The central issue was whether the joint trial had denied the appellant a fair trial.

1. The appeal was dismissed. The counts were properly joined and the refusal to sever did not deprive the appellant of a fair trial.

2. The interests of justice are ordinarily served by trying before one jury allegations connected by a common thread, whether between defendants, events, or other material circumstances. The shooting allegations were linked by the gang conflict and the Eren brothers as victims. If the attempted murder of Zerei had been tried separately, the Crown would in any event have sought to adduce the murder of Zafer Eren as evidence of motive.

3. A severance decision calls for a discretionary balancing exercise. The judge must identify and weigh the competing interests, assess the likely course of the trial, and consider how effectively directions can prevent avoidable injustice. Miah [2011] EWCA Crim 945 confirmed the high threshold: only very exceptional circumstances justify severance. None was present here.

4. The contents of Zerei’s post-shooting accounts were not admissible against the appellant. However, that did not establish that the jury was incapable of following the judge’s clear directions. Jurors are to be assumed to follow proper directions. The judge had repeatedly distinguished admissible from inadmissible material, stripped any false evidential status from counsel’s questions, and gave directions which were not criticised on appeal.

5. The unusual position of Zerei as both complainant and co-defendant did not alter those conclusions. The experienced trial judge had correctly managed the risk of prejudice, and separate trials were unnecessary.

• Court of Appeal (Criminal Division) — the appellant’s conviction appeal was dismissed: [2015] EWCA Crim 1883.

• Central Criminal Court — the appellant was convicted of two attempted murders and murder. The trial judge refused applications to sever the count concerning the attempted murder of Samuel Zerei.