Jay Abatan (Hansard, 24 May 2000)

The Solicitor-General

[holding answer 16 May 2000]: The death of Jay Abatan in Brighton on 29 January 1999 is a tragedy. To his family, his widow and two young children, the criminal justice system appears to have let them down.

I informed the hon. Member in a written answer on 16 May 2000, Official Report, columns 80–81W, that I was making further inquiries about the criminal proceedings brought against those who were allegedly involved in the incident that resulted in Jay Abatan's death.

I have now met with the Chief Crown Prosecutor for Sussex, the Branch Crown Prosecutor responsible for the prosecution team, and prosecuting counsel who had 531W the conduct of the case throughout. I am satisfied that everything that could have been done by them to secure a successful conclusion to the criminal proceedings was done.

I know that the hon. Member attended parts of the trial, which lasted six days. It concluded on 9 May 2000 with the acquittal of two defendants.

The history of the proceedings is this: two defendants were jointly charged on 1 February 1999 with manslaughter, affray and causing actual bodily harm.

During the course of preparing the case for committal proceedings the Crown Prosecution Service took the unusual steps of obtaining reluctant witness summonses against two men in an attempt to clarify the sequence of events leading up to the assault on Jay Abatan. In the event they added nothing to the prosecution case and so were not used in evidence.

The charges related to an incident which occurred in the early hours of Sunday 24 January 1999 when a dispute arose over a taxi outside a nightclub in Brighton. The dispute involved two groups of men. No witness actually saw Jay Abatan being punched. However, as a result of being struck he fell to the ground, sustained a fracture to his skull and died in hospital on 29 January 1999 without regaining consciousness. His death was the basis of the manslaughter charge against the two men.

Prior to committal a conference was held with prosecuting counsel, the Crown Prosecution Service lawyer with conduct of the case and the police to discuss the evidence against both defendants. It was clear at the end of that conference that there was no evidence of joint enterprise and if both defendants were to be pursued for manslaughter then there was no prospect of a successful prosecution against either of them. Of the circumstantial evidence available the stronger evidence was against the first defendant, who on the evidence available was the closer of the two men to Jay Abatan at the crucial time and who had allegedly made a comment in the taxi after the incident was over: "I only hit him once". The second defendant was further away and had distanced himself from the argument at the time it was taking place in a comment to an independent witness. The decision was therefore made that the manslaughter case against the second defendant would be discontinued, unless the outstanding DNA evidence provided a link between him and Jay Abatan.

On 24 June, the day of the committal proceedings, the results of the DNA evidence were obtained. The results added nothing to the prosecution case against the second defendant. Consequently, in accordance with the decision reached in conference, the Crown Prosecution Service withdrew the manslaughter charge against the second defendant. It pursued the manslaughter charges against the first defendant. However, the magistrate refused to commit the first defendant for manslaughter because of what he held was insufficient evidence.

Notwithstanding this decision the prosecution, after taking counsel's advice, decided to pursue the charge of manslaughter at trial in the Crown Court. A draft indictment, which included the manslaughter charge, was therefore lodged at Lewes Crown Court on 22 July 1999.

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The prosecution wanted to continue with the manslaughter charge against the first defendant and made every effort to ensure that it remained on the indictment. The leader of the South Eastern Circuit, Mr. Michael Lawson QC, was instructed by the Crown Prosecution Service to appear and resist the defence application that the manslaughter count be struck from the indictment.

However, on 30 September 1999, following legal argument, the resident judge at Lewes Crown Court granted the defence application to have the manslaughter count struck out. In the light of this ruling there was nothing further the Crown could do to pursue the manslaughter allegation.

The trial of the defendants on the two remaining counts, affray and causing actual bodily harm to Michael Abatan (Jay's brother), commenced on 2 May 2000. During the course of the proceedings the defence applied to the judge that there should be no reference or mention of the fact that Jay Abatan had died in the incident. The Crown resisted this on the basis that the jury would raise questions as to why Jay Abatan was not giving evidence. However, the judge ruled that as the fact of his death could prejudice the jury and the fairness of the trial no reference should be made to it at trial. The judge also ruled that some other evidence obtained by the prosecution was inadmissible. On 9 May 2000 the jury returned a verdict of not guilty on both counts against each defendant.

I think this case did contain some unusual features. One of these was the proactive course of action adopted by the Crown Prosecution Service in trying to get the count of manslaughter reinstated. As I have said the manslaughter charge against the second defendant was withdrawn because there was no evidence of a joint enterprise and no evidence that this second defendant had thrown the punch that led to Jay Abatan's death.

Another feature, perhaps less unusual given the rules of evidence that apply in criminal trials, was the decision of the trial judge not to let the jury know that Jay Abatan had died in the course of the alleged affray and assault on his brother, Michael. Counsel for the Crown had argued that the jury should be told of his death because unless they were they would want to know why they were not hearing from Jay. In the event, I understand that the jury did ask to see the hospital notes but as the judge had already ruled that the fact of Jay's death could prejudice the jury and the fairness of the trial they were not told about that aspect of the case.

The group containing the two defendants were all white. The other group were of white, black and other ethnic backgrounds. On the face of the statements available to the prosecution, many of them made on the day of the incident, nothing was said to indicate that Jay Abatan died as the result of a racist attack. Indeed one witness, who is not white, stated to the contrary. "I do not believe that this incident was a racially motivated attack". This did not mean that the Crown Prosecution Service treated the incident any less seriously. At all stages of the inquiry they were alert to the possibility that this was a racist attack but this has simply not been borne out by the evidence.

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I understand that the Chief Crown Prosecutor for Sussex will be happy to meet the hon. Member or his constituent to discuss the case in greater detail. As I am sure the hon. Member will appreciate, it would not have been appropriate for the Crown Prosecution Service to discuss the case with a prosecution witness, such as Michael Abatan, when the proceedings were still ongoing since the defence could have claimed that his evidence was tainted as a result.

The police have not closed the file and the appeal for witnesses and further evidence is continuing. An appeal is scheduled to be made on the Crimewatch UK programme this evening.