Agera & Anor v R

An apparent-bias challenge to a jury requires the court to ask whether a fair-minded and informed observer would see a real possibility of bias. A trial judge’s factual assessment, following an appropriate inquiry and directions, will not be displaced without legal or factual error.

A defendant seeking to add a post-Jogee ground out of time must obtain exceptional leave and demonstrate substantial injustice. The inquiry includes whether the corrected law could realistically have affected the verdict. A conviction remains safe where the jury’s findings establish an intention to assist at least serious bodily injury. The robbery-murder starting point in Schedule 21 to the Criminal Justice Act 2003 was correctly applied.

After a five-week trial at the Central Criminal Court before Judge Poulet QC and a jury, Stephen Agera and Stephen Lansana were convicted of robbery and murder. Both received life sentences with minimum terms of 30 years, together with concurrent sentences for robbery and conspiracy to commit burglary.

They renewed applications for leave to appeal against conviction. Lansana also renewed his sentence application and sought, out of time, to add a joint-enterprise ground following the Supreme Court decision in R v Jogee [2016] UKSC 8. The principal issues concerned a juror who had used racist language outside court, the judge’s treatment of DNA evidence, the effect of the change in joint-enterprise law, and the minimum term.

1. The applications for leave to appeal against conviction and sentence were refused. The trial judge had properly discharged the juror who had behaved offensively outside court, investigated the position of the other jurors, and gave suitable directions. Applying the fair-minded and informed observer test, there was no real possibility that the remaining jurors were biased. The judge was best placed to assess the evidence obtained on the voir dire, and her conclusion disclosed neither legal nor factual error.

2. The judge’s summing up on the mixed DNA profile on the knife was fair. She accurately summarised the expert evidence, reminded the jury of the defence submission, and left its assessment entirely to them. Her comments did not amount to advocacy or undermine the defence case.

3. The pre-Jogee joint-enterprise direction no longer stated the law. Under R v Jogee [2016] UKSC 8, however, a late challenge requires exceptional leave and substantial injustice. Following R v Johnson and Others [2016] EWCA Crim 1613, that requirement applies equally to an out-of-time amendment to an otherwise timely appeal. It is not a formality: the court must consider the public interest in certainty and trials conducted under the law then binding on the judge.

4. No substantial injustice was shown. The jury had necessarily concluded that Lansana knew Agera might use a particularly lethal knife to stab. That finding supported the conclusion that Lansana intended that, if the knife were used, it would cause at least really serious injury.

5. The 30-year minimum term was not manifestly excessive. Robbery brought the murder within paragraph 5 of Schedule 21 to the Criminal Justice Act 2003. The sentencing judge was entitled to find that Lansana brought the murder weapon to the scene. She did not wrongly attribute Agera’s intention to kill to Lansana, and she had not increased the statutory starting point.

• Court of Appeal (Criminal Division) — renewed applications for leave to appeal against conviction and sentence, and Lansana’s out-of-time application to add a post-Jogee joint-enterprise ground, were refused: [2017] EWCA Crim 740.
• Central Criminal Court — the applicants were convicted of murder and robbery and sentenced to life imprisonment with 30-year minimum terms.