No: 201206721/B4 
Neutral Citation Number: [2014] EWCA Crim 2216
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 22nd October 2014
 
B e f o r e:

LADY JUSTICE MACUR DBE 
MR JUSTICE SUPPERSTONE 
 
RECORDER OF NOTTINGHAM 
(HIS HONOUR JUDGE STOKES)
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

SHAKEEL AHMED HAQ
 
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Mr M Kelly appeared on behalf of the Appellant
Mr N Cartwright appeared on behalf of the Crown
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J U D G M E N T
1.	LADY JUSTICE MACUR:  This is an appeal against conviction with the leave of the Full Court.  
2.	The issue in the appeal is whether a witness statement, apparently signed by the appellant, which actually had the effect of undermining his alibi should have been excluded pursuant to section 78 of the Police and Criminal Evidence  Act 1984, by reason of the manner by which it was obtained and/or its adverse effect upon the fairness of the proceedings.  If so, is the conviction unsafe?
3.	The facts of the case may be given very briefly.  There is no issue that a young man by the name of Amjam Sarwar was kidnapped and blackmailed on 29th May 2009.  This fact may be stated by reason of the conviction of three others apart from this appellant namely, Hadait, Hadait and Hafiz, in 2010.  This particular appellant was also liable to be tried with those three defendants but at the time of the trial in 2010 was not within the jurisdiction.  Subsequently he was arrested on his return from Amsterdam, apparently upon his arrival at Liverpool Airport, on 3rd May 2012.
4.	In the proceedings that followed he served a defence statement.  His defence statement introduced the defence of alibi and suggested that at the relevant time he, the appellant, was in Morocco.  He sought to rely upon his passport in order to prove the same.  In fact it could not conclusively prove either that he was or was not in Morocco.  Significantly, as I will refer to in due course, he had said in police interview that he had not been present at the scene but had been in Yorkshire or Birmingham at the relevant time.  He was obviously cross‑examined at some length about his changing accounts both as from interview and the oral evidence that he gave before the jury.  
5.	The defence statement served was handed to the officer in the case, Detective Constable Hall who, in accordance with his duties of disclosure, researched the previous case papers relating to the three convicted men.  In the course of his inspection of those files he came across a witness statement, apparently signed by this appellant, which indicated that he, the appellant, was present with Mohammed Hafiz and had been at the relevant location concerned with the charges of kidnap and blackmail but had not been present when any such offences were said to have taken place and neither was Mohammed Hafiz.  That statement was dated September 2009.
6.	The statement, once found, provided obvious ammunition for the prosecution.  It was obviously disclosed, for in documents prepared by Mr Kelly, who appears on behalf of the appellant, he indicates that when the appellant’s case was listed for mention, prior to trial, he made clear that the statement was in dispute, not at that time as to provenance, strictly speaking, but as to whether or not it was in fact the statement of this appellant.
7.	The trial commenced shortly thereafter.  It is apparent that at the start of the trial the origins of the statement were still in some doubt.  Enquiries were made of Hafiz's former solicitors, Whitworth & Green, and they revealed that the relevant statement had been prepared by a Miss Smith, then employed by the firm as a legal assistant, indicating that the usual course would be for an interview with the maker of the statement to be recorded, a statement to be prepared thereafter and to be submitted for signature.  So far as the solicitor was concerned, there was nothing on the solicitor's file to suggest that any other course had been followed.
8.	The prosecution therefore sought to admit the same into evidence.  Mr Kelly, who appeared for the appellant below, sought to exclude the evidence in an application pursuant to section 78.  In doing so, and acting on his then instructions, he was to challenge the validity of the statement and made submissions that the production of the statement could not be investigated because the maker of the statement, that is the legal assistant who had produced the statement had not been produced for the purpose of cross‑examination.
9.	The appellant's case was firmly that he would not have made such a statement and that in fact although he signed his name at the request of the particular legal assistant, that he did so under peer pressure and that he signed blank pages.  The inference was, obviously, that through nefarious means the body of the statement had been completed after the event and in order to ascribe to him assertions that he could not and would not have made.
10.	The trial judge in dealing with the application understood that that statement had been found when the disclosure officer was investigating the original trial material.  The evidence of Detective Constable Hall, from whom we have heard this morning, confirms his evidence to that effect.  A statement prepared by Detective Constable Hall, on 25th October 2012, indicates that in his search of case documents he found the statement, both handwritten and typed, alongside a medical report.  He also recalls ‑ this is from his memory of 2 years ago ‑ that there was a memo from the solicitor's firm indicating that there was a medical issue in relation to the defendant Hafiz and also referring to the particular statement apparently made by this appellant.
11.	The judge, in considering the application to exclude the evidence, had regard to the statement produced by Whitworth & Green and on that basis considered that it was prima facie a valid statement, in that it was represented by the appellant's signature to be his statement and drew attention to the fact that the statement not only bore the name of the defendant, his correct age, an address at which he had lived but also the fact that there was an attendant document from an inquiry agent, who had attempted to serve a witness summons upon the appellant.
12.	The judge went on to conclude:  
"It seems to me that this statement is relevant, admissible and probative through the diligence of the officer in charge in this case. The prosecution have evidence available which bears on the credibility of the defendant's alibi.  I can think of no reason why the jury should not hear about it.  What they make of it in light of whatever evidence this defendant chooses to give is a matter for them."
13.	Mr Kelly indicates that he is not now instructed to pursue any ground of appeal which suggests that the witness statement with which this appeal is concerned did not emanate at the direction of the appellant.  His submissions on this appeal, he correctly concedes, have been significantly altered by the changing circumstances of the matter.  He reminds the court that section 78(1) of the Police and Criminal Evidence Act 1984 makes clear that the court must consider the manner in which the evidence was obtained.  It follows from his submissions that he invites the court to say that if mala fides is established in the obtaining of the document, then the judge inevitably would have excluded the evidence.
14.	We have read the witness statement of Miss Sam Smith , the legal assistant engaged by Whitworth & Green to take a statement from the appellant.  We have not considered it necessary that she should be called to speak to that statement and clearly the contents of the statement are capable of belief, would not have been available at the time of the trial and otherwise fulfill the requirements of which we must be satisfied in order to admit fresh evidence pursuant to section 23(2) Criminal Appeal Act 1968.  This particular statement makes clear that a solicitor's file in which was inserted a copy of this appellant's statement was left in the court during the trial of Hafiz and others and was left behind at the conclusion of the case.  It is apparent from that which Mr Cartwright has told the court that an investigation of papers now produced from the Sheffield archives of CPS material, that the contents of that particular file were undoubtedly collected together with CPS material.
15.	We have no basis whatsoever upon which to base any finding that this particular file was deliberately targeted and removed by anyone connected with the Crown Prosecution Service or police officers involved in the case and is more likely to have been left behind by oversight of defence counsel who had been commissioned to look after the file in the absence of the solicitor.
16.	Mr Cartwright, on behalf of the prosecution, the respondent, tells us, properly, that he has researched the bundles and cannot identify the documents to which Detective Constable Hall refers, namely the memo or the medical report.
17.	This does not necessarily mean that Detective Constable Hall did not see those documents. We do not have to make such a finding, merely to record that there is nothing to suggest other than that this particular statement came into the hands of the prosecution entirely fortuitously.  It is quite clear to us that it would not have been referred to in any regard, or have any relevance but for the defence statement, served by the appellant and his assertion of alibi.  But for that we can see no reason whatsoever why any investigation of previous case papers would be made some two‑and‑a‑half years after the first trial.
18.	In these circumstances, we find no impropriety on behalf of the officer or the Crown Prosecution Service.  At its highest, Mr Kelly can therefore only rely upon the fact that it should have become apparent far earlier than it did that this was a privileged document that must be returned and not referred to.
19.	Before us today Mr Kelly must concede that he faces difficulty in arguing that this privileged document, and I interpolate not privileged as between this appellant and counsel but between Hafiz and his solicitor, could be admissible in proceedings.  He acknowledges that the case of R v Tompkins (1978) 67 Cr App R 181, makes clear that privilege protecting communication between counsel and client relating to the production of a document in question does not determine its admissibility. In this case however, quite rightly, he goes on to submit that that is not determinative of any application pursuant to section 78 of the 1984 Act to exclude the same.  We respectfully agree.  
20.	We therefore go on to consider the course of the application and whether or not the judicial exercise of discretion can be said to be impugned by what may have been incorrect information before the court.  It is clear that this court should be loathe to interfere with the judicial exercise of discretion and Mr Kelly obviously recognises that his task in submitting that the trial judge was perverse, in the legal sense that no reasonable trial judge would have come to the same decision, is a difficult burden that he bears.  He therefore must rely upon the manner in which the statement came into the hands of the prosecution and suggests that if the judge had known he would not have permitted its admission into the proceedings.
21.	We have considered the circumstances of this case and have already determined, as I have indicated, that any suggestion of impropriety is unfounded on the basis of the evidence of information before us.  The nature of privilege does not determine admissibility and the substance of this this particular witness statement, now implicitly conceded to be that of the appellant, was such that must have driven the trial judge to see that fairness required, in the face of the defence statement, that it should be admitted as part of the prosecution evidence.
22.	This was not a case of ambush.  The prosecution had disclosed the existence of the document prior to trial.  It was not a case in which Mr Kelly can argue that he could not have challenged the substance of the statement and in fact no longer would seek to do so.  The appellant gave evidence before the court.  His assertion that it was not his statement could not be challenged by any contrary evidence.
23.	In these circumstances, any suggestion that the judge was perverse in his ruling as to the admissibility and subsequently his directions to the jury cannot be sustained.  
24.	We have, in any event, considered whether or not but for this statement this particular conviction would be capable of being regarded as unsafe.  We come to the firm conclusion that it cannot.  Quite apart from the statement there was the evidence of the complainant identifying, by name, this appellant.  Other prosecution witnesses spoke of identifying his voice in telephone threats in the course of the blackmail charged.  His failure to mention in interview his ultimate alibi that he was in Morocco was rightly subject to a direction to the jury as to the potential inference to be drawn.  In any event, none of these matters have been criticised on the appellant's, behalf.  Consequently, our firm view is that this conviction is safe.  In those circumstances this appeal against conviction must be dismissed.