Neutral Citation Number: [2010] EWCA Crim 525
Case No: 20805734 D2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 9th March 2010

B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE OUSELEY 
 
MR JUSTICE HICKINBOTTOM 
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R E G I N A 

v 

ZAHEER AHMED
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Mr W Clegg QC appeared on behalf of the Appellant
Mr J Laidlaw appeared on behalf of the Crown 
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J U D G M E N T 

1	LADY JUSTICE HALLETT:  The appellant was first tried for the murder of his wife in May to June 2005.  He was represented by the late, and much lamented, Mr Richard Ferguson QC.  Mr Ferguson led Mr Ghaffar for the purposes of that trial.  The jury failed to agree.  
2	On 16th January 2006 a re‑trial began at the Central Criminal Court.  The trial had been delayed to ensure that Mr Ferguson could represent the appellant.  Mr Ferguson did so for most of the trial leading Miss Kareena Maciel.  On 31st January 2006, sadly, Mr Ferguson fell ill.  This was towards the end of the prosecution case.  By that point all the contentious prosecution witnesses, family and friends of the deceased, had given their evidence and been cross‑examined by Mr Ferguson.  It was hoped that he would be fit enough to return to the trial and, therefore, the trial proceeded with Miss Maciel cross‑examining the remaining non‑contentious prosecution witnesses.  The judge complimented Miss Maciel on the way she undertook her duties.  
3	By 6th February it had become clear that Mr Ferguson would be unable to return to work for at least a month.  The judge was faced with the alternatives of allowing the trial to continue or discharging the jury.  Mr John Foy QC was brought in to advise the appellant.  We have been provided with the notes of Mr Foy's consultation with the appellant which took place in the presence of Miss Maciel and their instructing solicitor.  Suffice it to say that counsel discussed the advantages and disadvantages to the appellant in asking the judge to continue with the trial or applying to the judge to discharge the jury.
4	When the defence went back into court, on instructions, Mr Foy applied for the jury to be discharged.  The judge heard argument and gave his ruling.  It is against that ruling that this appeal has been presented.  
5	The judge noted in his ruling that Miss Maciel and the appellant accepted that there would be no difficulty in relation to her calling him to give evidence.  However, she lacked confidence in her ability to make an effective closing speech for the defence in such a serious case.  The judge indicated that a transcript of Mr Ferguson's speech on the previous occasion could be obtained.  He bore in mind that the appellant faced the most serious of criminal charges and he accepted counsel's argument that there was a public interest in the accused’s having counsel of his choice and leading counsel in whom he had faith, where possible.  However, the judge also observed that this was the fourth week of the trial and the appellant had had the benefit of Mr Ferguson's services to cross‑examine most of the contentious prosecution witnesses.  The judge had formed a very favourable view of Miss Maciel's abilities as an advocate and he ruled that the trial could continue and the appellant could have a fair trial.  He was satisfied that if she presented the rest of the defence case, including the closing speech, there was no risk of unfairness to the appellant.  The judge was prepared to give counsel as much time as she needed. Mr Laidlaw QC, representing the prosecution, said he was prepared to give her a copy of his closing submissions, in advance, to assist her in preparing her submissions.  
6	The judge also indicated that he was prepared to entertain an application for leading counsel, should the appellant request it.  The appellant decided to do so and Mr Foy was instructed to represent the appellant for the remainder of the trial.  He must have felt confident about his ability to represent the appellant effectively, because there were no further applications to discharge the jury.  Mr Foy was given a week to prepare the case.  He had the benefit of the assistance of junior counsel and instructing solicitors, and relevant transcripts from both trials.
7	On 12th February the trial proceeded.  On 24th February 2006 the appellant was convicted of murder.  On 2nd March 2006 he was sentenced to life imprisonment with a minimum term of 15 years, less time spent on remand.
8	Mr Foy and Miss Maciel prepared an advice on appeal.  They reviewed what had happened during the course of the re‑trial and they concluded that they would not persuade the Court of Appeal to interfere with what they described as “the exercise of the trial judge's discretion” to continue with the trial in Mr Ferguson’s absence.  They also stated that it was not "easy to identify any specific example in respect of which Mr Ahmed was prejudiced as a result of change of leading counsel".  Despite that advice, the appellant himself lodged grounds of appeal against conviction.  These were then supported by fresh counsel, Mr William Clegg QC.  He secured the leave of the single judge to appeal against conviction.  One of the matters that caused Mr Clegg concern was the reference by Mr Foy and Miss Maciel to the “exercise of the trial judge's discretion”.  As will become apparent when we consider Mr Clegg's one ground of appeal, it is very much his submission that the ruling was a matter of judgement, and an objective matter of judgement, not a matter for the exercise of the trial judge's discretion.
9	The background facts can be relatively shortly stated, albeit Mr Clegg described them as “complicated”.  We begged to differ. Mr Clegg then described them as “detailed”.  The appellant and Adeeba Ahmed married in 2001.  At the beginning, they were very happy with each other.  However, problems arose between the deceased and her mother‑in‑law.  The young couple took the decision to move into another property to see if that would help matters.  They moved in December 2003.  Living above them were another young couple called Lisa Mathurin and Justin Battle.  They reported hearing a heated argument coming from the flat on New Year's Day 2004.  It sufficiently concerned them to contemplate checking if the young woman they could hear crying was all right, but they decided it would be wrong to interfere.  
10	The next event of any significance was on 11th February 2004.  The appellant's mother rang the deceased's mother in Pakistan and was highly critical of her daughter‑in‑law.  This was reported back to the deceased.  She seemed, outwardly at least, to take the report calmly.  She was at work on 13th February 2004 and spoke happily about her plans for Valentine’s Day on the 14th.  She told her sister that she and her husband would be staying in and she would be cooking dinner for him.  Lisa Mathurin again heard voices coming from the appellant's flat on the evening of 13th February, some time after 9 pm.  She said that she heard voices arguing for about half an hour and later, shortly before midnight, she heard a door slamming.  She was not particularly concerned at that time.
11	On St Valentine's Day, the Saturday, the appellant called his wife's sister, Atiya.  This was at about 8.18 pm.  He told her that his wife had gone missing.  He asked her if she was with Atiya, and when Atiya said no, he told Atiya that he had dropped the deceased in Hounslow to have her hair done at 2 o'clock and not seen her since.  The appellant was persuaded by members of the deceased's family to go to a police station to report the deceased missing.  The appellant told Police Constable Blackmore that he had dropped the deceased in Hounslow for her to go shopping and she was meant to call him when she had finished.  He said they had plans to go out for dinner because of it being St Valentine's Day.  He gave a description of her clothing to the police, which included her wearing black trousers and a black jumper.  Police officers searched the flat but found nothing out of place.  There were sheets on the floor but this was said to be to protect new carpets.
12	On 16th February, at about 5 o'clock in the evening, a Mr Timothy Mitchell noticed a large, black‑wheeled suitcase by the slipway to the Thames at Barnes.  He saw a human hand sticking out of the suitcase and called the police.  The suitcase contained the body of the deceased.  Subsequently other witnesses came forward and reported sightings of a suitcase on Saturday and Sunday, some of which seemed to have been contradictory.  
13	When she was found the deceased was wearing a black jumper and black trousers, as described by the appellant.  She was not wearing any jewellery or a watch, as her family said was her custom.  She was not wearing any shoes or stockings, nor an outer garment.  When her body was examined there was no suggestion of sexual assault, but there were clear signs that she had died of asphyxia caused by manual strangulation.  There was evidence of a possible blow to her right cheek.
14	The appellant's DNA was found under her fingernails.  The appellant at this time had a scratch to his neck.  It was agreed that it had been made by the deceased's nail.  The appellant was later to claim it had been caused during their love making on Thursday 12th February.
15	The appellant was arrested on 18th February.  He was interviewed and given legal advice.  He made no comment in answer to questions.  He did, however, provide a number of prepared statements.  Save for two points, his explanation for the scratch on his neck and whether or not his wife had been wearing an outer garment when he said he last saw her, he gave a consistent account throughout.
16	Police investigations revealed no evidence that the deceased had visited any shops or hairdressers in Hounslow on 14th February.  She had not made an appointment at any of her usual hairdressers.  Cell site evidence suggested that the telephone call made by the appellant to Atiya on 14th February had not been made from the Hounslow area, as he claimed, but was likely to have been made from within one to one and a half miles from the M4/A4 intersection, which was much nearer the centre of London.  
17	CCTV evidence was of limited assistance.  There was no evidence from the relevant footage that would support the appellant's account that he had dropped the deceased in Hounslow or gone back to look for her.  There was no evidence of her in the shops or in the pedestrian areas.  It was accepted that the failure of the footage to show either the appellant's car or her did not, of course, mean that they might not have been where the appellant said they were.
18	Much more significantly, fibres were recovered from the outside of the suitcase in which the deceased's body had been found.  Collectively there were 27 fibres of eight different types that were chemically and microscopically indistinguishable from six different sources at the appellant's flat.  The suitcase had been imported into the United Kingdom on 13th January 2004.  One of the retail outlets for the suitcase was a shop in Slough which the appellant had used in December 2003.  
19	The prosecution case was that there were problems in the marriage caused by the appellant's mother rejecting the deceased.  The defence case was that the appellant and his wife had a close, loving relationship and there were no tensions between them.  The appellant put forward evidence of a positive good character and claimed that he had never lost his temper with his wife or harmed her in any way.  He denied the suggestion that there had been the arguments described, suggesting that possibly the noises heard could have been the television.
20	Most of the witnesses at the trial were members of the two families, who obviously had different perspectives on the relationship between the appellant and his wife.  There does not seem to have been a great deal of significant challenge to what the prosecution witnesses said, but there were one or two details upon which Mr Ferguson pressed them as to what happened in the hours before and after the deceased went missing.  Most of the truly significant cross‑examination was reserved for the forensic scientist who gave the evidence of the fibres.
21	Mr Clegg has advanced but one ground of appeal: the trial was unfair as a result of the judge's refusal to discharge the jury when Mr Ferguson fell ill and was unable to conduct the case.
22	Mr Clegg invited the court to find that His Honour Judge Rook, must have adopted and applied the wrong test.  He suggested that it is unclear exactly what test the trial judge did apply. In all likelihood Mr Clegg argued the judge applied what he called “the objective test”, whereby he considered whether the trial would be fair in the sense that any conviction would be safe, using the criteria applied in the Court of Appeal Criminal Division.  
23	Mr Clegg accepted that he would face an uphill task in persuading this court that the trial resulted in an unsafe verdict in the sense that the evidence could not support the conviction.  However, he reminded the court that if this appellant did not have a fair trial, that fact alone could render the conviction unsafe.  
24	He invited the court to conclude that the correct test for the trial judge to have adopted was to ask himself whether a refusal to discharge the jury would have created a perception of unfairness in the mind of a fair‑minded observer.  Had the judge applied this test, he submitted, he would have acceded to the application to discharge the jury.  
25	Mr Clegg reminded the court of a number of decisions of various appellate courts and the Privy Council in which this test has been applied.  For the most part, the decisions were cases involving allegations of alleged judicial bias. However Mr Clegg argued the principles established are applicable in the present situation. 
26	Furthermore, Mr Clegg placed emphasis on the well‑established principle that justice must not only be done, but it must be seen to be done.  He emphasised the right of the appellant to a fair trial, both in common law and by reason of his European Convention rights.  He submitted there have been a number of cases where a conviction has been quashed where the verdict might be described as safe in the sense that it is supported by strong evidence, but where the trial process was in some way fatally flawed so that the process, when viewed as a whole, cannot be said to be fair.  The most recent example was a decision of the Privy Council, appeal number 0075/2008, [2009] UKPC 41, judgment delivered on 4th November 2009.  This was a case in which the Privy Council felt compelled to find that the judge’s interventions during the trial were sufficient to give the appearance of bias and despite the strength of the evidence against the appellant they quashed the conviction.    
27	Mr Clegg also referred us to the decision in Society of Lloyds v Jaffray & others [2002] All ER 399, in which the Civil Division of the Court of Appeal was concerned with allegations that litigants to a major piece of civil litigation had not been afforded a reasonable opportunity to present their case and had been placed under a disadvantage.  Mr Clegg placed particular reliance on paragraph 494 of the judgment of the court, where it was stated that the questions to be asked were whether the parties had sufficient equality of arms and whether or not the trial process could be described as fair.
28	Applying the test of whether the fair‑minded independent observer would think that the trial was fair, Mr Clegg submitted that he or she would not. He maintained it is plain that justice has not been seen to be done. The trial was unfair because fresh leading counsel was inevitably at a significant disadvantage as against prosecuting counsel. Junior counsel would have been at a significant disadvantage as compared to prosecuting counsel.  He submitted that an adjournment of seven days did not remove the unfairness created by the ruling.  Prosecuting counsel had the advantage of being present at two trials.  Leading counsel for the defence Mr Foy did not have the advantage of seeing the prosecution witnesses give their evidence and being cross‑examined. Junior counsel had not been present at the first trial.  He submitted therefore that Mr Laidlaw, prosecuting, was in a far more favourable position than both defence counsel and there was no equality of arms.
29	We did not need to trouble prosecuting counsel because, on close analysis, the ground of appeal as advanced by Mr Clegg, with all due respect to him, was simply unarguable.  As Mr Laidlaw observed in his written submissions, although it is not determinative, it is interesting to note that the test of the independent fair minded observer as now proposed was not put before the trial judge and he was not given an opportunity to rule upon it.  However, more important is the fact that the judge applied the test of whether or not the appellant could have a fair trial. That is the correct test under the Convention and at Common Law. There was no need to import the test of the independent fair minded observer, a test generally used in cases of alleged judicial bias.  No bias was alleged here; nor could there be. It is plain that His Honour Judge Rook acted at all times with scrupulous fairness. For these purposes the trial judge was the independent fair minded observer. However, even if Mr Clegg was correct, and the trial judge should have asked himself what would the independent fair minded bystander say about the trial’s continuing in Mr Ferguson’s absence, we fail to see why the bystander would have come to a different conclusion. In our judgment whichever of the two tests Judge Rook applied, he would have come to the same conclusion. The trial process was fair.   
30	Mr Clegg complained that the judge appears to have performed a balancing exercise in which the judge took into account the practical problems of discharging a second jury as against the fairness of the trial. True it is that the judge referred in his ruling to the fact that some of the witnesses had had to give evidence twice and that the family of the deceased were no doubt distressed by the fact there had already been two trials.  However, elsewhere in his ruling at page 5, letter C, the judge put his approach beyond doubt.  He said this:
"I make it quite clear that should I feel that there is a risk of the defendant having an unfair trial, I would have no hesitation whatsoever in discharging the jury, unfortunate though it would be for the family witnesses, who would have to go through the distressing experience of giving evidence yet again." 
31	It is clear, therefore, that the judge had fairness of the trial process as the essential test that he was bound to apply.  He was not purporting to exercise a subjective discretion.  He was, as a matter of objective judgment, concluding that a fair trial was possible.  No doubt if matters had proceeded in such a way that he felt a fair trial was no longer possible, he would have reconsidered his ruling.
32	We accept that it is obviously preferable, where an accused has the benefit of experienced leading counsel in whom he has confidence and who has been with him throughout, for the trial to proceed with the appellant so represented; but it is not always possible.  It is far from unknown for leading counsel to fall ill and for junior counsel to step into the breach.  In those circumstances, provided the trial judge is satisfied the accused can still have a fair trial the trial can proceed.  Here, junior counsel had been present throughout the second trial.  By 2006 she was an experienced criminal advocate, and the judge had been in a position to assess her competence as an advocate.  She may have been self‑deprecating enough to express reservations about her ability to make a closing speech, but that did not mean that she was not competent to do so.  It was the judge who was in the best possible position to decide whether or not, in all the circumstances, she could fairly and effectively represent her lay client.  He was satisfied she could.  She would have had the benefit of the transcripts of the evidence of both trials.  She would have had the benefit of Mr Ferguson's closing speech and she would, unusually, have had the benefit of Mr Laidlaw's closing submissions.  No doubt the judge would have allowed Miss Maciel whatever time she needed to prepare.  
33	In the result, the appellant had the benefit of very experienced leading counsel, and neither he nor Miss Maciel could put before this court any aspect of the trial which they say caused prejudice to the appellant.  They did not advise that the trial was unfair.  The highest Mr Clegg can put his case is the following passage contained in Miss Maciel's post trial comments about the trial's continuing.  She said this:
"I felt that it was a difficulty of getting the flavour of the witnesses' evidence which he had not heard.  There were transcripts to cover the material, but I suppose the mannerisms and the way the evidence was given would not have come across."
However, had Miss Maciel been conscious of any significant nuances or mannerisms which required highlighting to the jury, we have no doubt she would have made those nuances and mannerisms known to Mr Foy. We note that neither counsel make any mention of any “mannerisms” or nuances in their advice on appeal. They both seemed satisfied that there had been no unfairness to the appellant in the trial’s continuing.   Mr Clegg, with his customary frankness, conceded that there was no particular prejudice to the appellant that he could bring to our attention.  In any event, this was not a case that was determined by the demeanour of the prosecution witnesses.  It was, as both sides agree, a circumstantial case based principally on the scientific evidence.  
34	We are satisfied, therefore, that the judge asked himself the right question.  He came to the right conclusion.  We have looked at the whole trial process from beginning to end.  We are satisfied that it was fair.  The appellant had a fair trial.  As, we hope we are, fair‑minded, independent observers, we are satisfied there has been no breach of the appellant's right to a fair trial either under the European Convention or under common law.  Therefore, despite Mr Clegg's customary eloquence, (he has said everything that could be said on the appellant's behalf), nothing has been put before us which causes us to doubt the safety of the conviction and the appeal against conviction must be dismissed.