Sardar v R

In a circumstantial case, a judge considering a submission of no case to answer must ask whether a properly directed jury could convict on the prosecution evidence taken at its highest. The judge must not choose between reasonable inferences or decide whether innocent hypotheses are reasonably open.

A defendant seeking a witness anonymity order must disclose the proposed witness’s identity to the prosecutor under Coroners and Justice Act 2009, section 87(3). The provision cannot be read to permit defence witnesses to remain anonymous from the prosecution, because disclosure enables proper investigation and fair-trial disclosure.

For murder by explosives, the 30-year starting point under Schedule 21 may be increased for a conspiracy involving several devices. A lesser role and accepted protective motive may nevertheless justify a reduced minimum term.

The appellant was convicted at the Crown Court at Woolwich of murder and conspiracy to murder arising from his involvement in constructing improvised explosive devices in Baghdad in 2007. One device killed Sergeant First Class Randy Johnson. The appellant admitted helping to construct devices but maintained that he had acted lawfully to defend Sunni civilians from Shia militia.

He renewed an application for leave to appeal against conviction. He challenged the rejection of a submission of no case to answer and the refusal to admit evidence from anonymous defence witnesses. He also sought to rely on fresh evidence from two further anonymous witnesses and a journalist. He appealed his minimum term of 38 years for murder.

The central issues were whether the circumstantial evidence permitted the murder count to go to the jury, whether defence witnesses could withhold their identities from the prosecution, and whether the fresh material affected conviction or sentence.

1. The renewed application for leave to appeal against conviction was refused. Applying the no-case-to-answer approach in R v Galbraith [1981] 1 WLR 1039, the court held that a judge must consider whether a properly directed jury could convict on the prosecution evidence and reasonable inferences favourable to the Crown. In a circumstantial case, the judge does not decide between competing inferences or innocent hypotheses. The similarities between the four devices, their geographical and temporal proximity, the appellant’s fingerprints on two devices, and the common forensic evidence permitted a jury to infer common manufacture and the appellant’s involvement in the device which killed Sgt Johnson.

2. The proposed evidence of witnesses C and D was not arguably admissible. Section 87(3) of the Coroners and Justice Act 2009 requires a defendant seeking a witness anonymity order to inform both the court and the prosecutor of the witness’s identity. Section 87(4) permits protective non-disclosure before determination of the application, but preserves disclosure to the prosecutor. The court rejected the proposed reading which would excuse disclosure where it was said to be required for a fair trial. It would contradict the statutory structure and prevent the prosecution from investigating the witness and making any required disclosure.

3. The journalist’s evidence, even assuming it could not have been obtained for trial, did not arguably afford a ground for allowing the conviction appeal. Evidence from people who did not know the appellant could add background colour but could not materially establish his own intention when constructing the devices.

4. The same obstacles prevented reliance on the fresh evidence in the sentence appeal. The general principles governing fresh evidence on a conviction appeal also apply to sentence appeals.

5. The appeal against sentence was allowed to a limited extent. Paragraph 5(1) of Schedule 21 to the Criminal Justice Act 2003 required a starting point of at least 30 years. The conspiracy and the number of potentially lethal devices increased culpability and potential harm. Nevertheless, the appellant’s lesser role and the accepted element of protection of the Sunni community warranted reducing the murder minimum term from 38 years to 35 years. The conspiracy sentence remained unchanged.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 1616, the court refused the renewed application for leave to appeal against conviction and allowed the sentence appeal to the limited extent of reducing the murder minimum term from 38 to 35 years.
• Crown Court at Woolwich: On 21 May 2015, the appellant was convicted of murder and conspiracy to murder. On the following day, Globe J imposed concurrent life sentences with minimum terms of 38 years for murder and 25 years for conspiracy to murder.