Neutral Citation Number:  [2018] EWCA (Crim) 2153
Case No. 201705006 C4
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  17th  July  2018

B e f o r e:
LORD  JUSTICE  SIMON

MR  JUSTICE  SWEENEY

and

THE  RECORDER  OF  PRESTON
(His Honour Judge Brown)
(Sitting as a Judge of the Court of Appeal Criminal Division
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R E G I N A
 
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MORID  KHAN  ORIAKHEL
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		Computer Aided Transcript of Epiq Europe Ltd, 
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Miss E Collins appeared on behalf of the Appellant

Mr R Merz appeared on behalf of the Crown
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J U D G M E N T
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LORD JUSTICE SIMON:    
1.  On 13th October 2017, following a retrial in the Crown Court at Isleworth before His Honour Judge Ferris and a jury, the appellant was convicted of a single charge of perverting the course of justice.  He was sentenced to a term of six months' imprisonment suspended for twelve months.

2.  He appeals against that conviction with the leave of the single judge.

3.  The background to the offence was a conspiracy to intimidate a witness, Avesta Hashemi.  Three men pleaded guilty to that offence: Rafi Majid, Tarek Tufan and Alexander Edusei.  Two other men, Zayed Kalantar and Samim Naziri, were tried with the appellant on the conspiracy charge and were acquitted.

4.  The origin of the conspiracy was the report by Majid's partner (Avesta Hashemi) that he had assaulted her on 20th March 2016.  Following contact from the police, Majid recruited Tufan and Edusei to intimidate her by pouring petrol around her house in Southall, London in the hope that she would withdraw the allegation.  The conspirators used the appellant's car to travel from Coventry.  The extent of his knowledge and intentions in respect of the use of his BMW was a key part of the case against the appellant.

5.  Majid, Tufan and Edusei had travelled in the appellant's BMW from Coventry to Southall, on a reconnaissance trip, on the afternoon of 25th March 2016.  They left at about 4.30pm and arrived at about 6pm, before returning to Coventry.  Later that day, at about 9pm, Tufan, Edusei and another unknown man left Coventry and returned to London, again in the appellant's BMW.  They poured petrol around the front door of the victim's house, outside the house and over the gate into the garden behind the house.  The smell of petrol was strong and the inhabitants came out of the house, disturbing the arsonists.  The men fled shortly after midnight on 26th March and were seen to get into the appellant's vehicle.  No doubt realising that the car had been identified, they abandoned it nearby, called a taxi and made their way to Victoria in Central London.  Majid then drove down the M40 to pick up the men who had abandoned the car.  His car was intercepted near Beaconsfield and he was arrested.  The men who had abandoned the BMW were picked up by others.  Police subsequently located the BMW, which had no damage.  There was no key in the vehicle.  At trial there was no positive evidence that the BMW had not been interfered with by way of hotwiring.

5.  In the meantime, at about 56 minutes past midnight on 26th March (about eight hours after Majid had driven to London on the first reconnaissance trip and shortly after the BMW had been abandoned) the appellant, who lived in Coventry, reported to the police that his vehicle had been stolen and that he had the key with him.  

6.  The appellant was arrested on 27th March.  He had in his possession a key to the BMW and a mobile phone.  In interview he provided a prepared statement in which he said that he did not know how his car came to be taken and that he did not know either Majid or Tufan.  He had gone to work at his fast food franchise outlet at about 11.30 on the morning of 25th March and had parked his car nearby.  He had come out of his premises at around midnight to get some fresh air.  He went to check on his car and found that it was missing.  He then phoned the police to report it missing.  That account was set out for the convenience of the jury at paragraph 14 of the Agreed Facts.

7.  The prosecution case was that the appellant lent his car to Majid knowing that it would be involved in criminality and had falsely reported the vehicle as stolen, thereby perverting the course of public justice.  The prosecution relied on a number of pieces of evidence:

1.  A mobile phone taken from Majid had the appellant's telephone number stored in it under the name "Gogo".  (The appellant owned a pizza restaurant called Pizza Go-Go.)

2.  A call had been made from the appellant's phone to Majid for one and a half minutes at 5.38pm on 25th March.  This was at a time when cell-site data established that Majid had been in London.  The appellant claimed in interview that he did not know Majid; but his phone number also tried to contact Majid at 10.49am on 26th March, by which time Majid had been arrested.

3.  At 51 minutes past midnight (approximately 40 minutes after the BMW had been abandoned) a call was made from the appellant's mobile phone that connected to Tufan's voicemail (the calls were of three and two seconds duration).  Although there was no evidence of the appellant receiving the call and the calls were not completed, the inference was that the appellant had become aware of what had happened in London either in person or via another telephone – hence his report to the police at 12.56 am.

4.  The appellant also attempted to call Tufan (whom he claimed in interview he did not know) at 11.56am on 26th March and there were calls between their numbers at 1.48pm, 4.35pm and 5.40pm, as well as SMS messages and voicemails.

5.  The prosecution also relied on the inferences to be drawn from the appellant's failure to give evidence.  The appellant did not give evidence.  He did, however, rely on his good character and evidence that supported that.

8.  Naziri and Kalantar, who were charged with the conspiracy to intimidate a witness, gave evidence.  They said that they had spoken to the appellant on the phone on the evening of 26th March about an employee for the appellant's pizza restaurant.  They also said that Majid had stopped in Far Gosford Street and had gone to a shop.  The prosecution relied on this evidence as providing an opportunity for Majid to have spoken to the appellant whose pizza shop was in Far Gosford Street.

9.  It appears that, before he summed up the case to the jury, the judge did not discuss with counsel the legal and factual issues on which the jury should be directed.  In our view he should have done so.  It would have enabled him in particular to identify what the defence was and it would have avoided the error into which he later fell.

10.  The appellant had served a Defence Statement, as required by section 6A of the Criminal Procedure and Investigations Act 1996 (as amended) on 30th November 2016, in which he said that a set of his car keys had gone missing two weeks before the incident.  However, neither the contents of the Defence Statement, nor what was described as the "stolen keys defence" was mentioned during the trial and it formed no part of the defence which was advanced before the jury.  

11.  At page 22B of the summing-up, the judge summarised the case against the appellant.  He described the charge as "an allegation that he falsely reported his white BMW was stolen because he knew that it had been used in some criminal offence".  He pointed out that, although it had been used to go from Coventry to London twice, the car was not broken into nor hotwired.  He then continued (at 22D):
No one explained how you would do that, how you would steal the BMW without breaking in until [the appellant] signed off his defence statement about eight months after the night of the petrol pouring.  In his defence statement dated November 2016, [the appellant] said that he had lost one set of keys to the BMW two weeks before he says his car went missing.

It is common ground between the prosecution and the defence that the judge was in error in referring to the contents of the Defence Statement.  The error should have been immediately apparent and the judge should have been informed of his error.

12.  Instead of it being put right promptly, the judge went on to compound the error later in the summing-up.  At page 32 he returned to the issue in the context of the appellant's prepared statement.  He said:

The telephone number attributed to him is the one on which his BMW car was reported stolen and you have a transcript of that call.  It is clear that he now admits that that was him making the call.  That same number was listed in Mr Majid's contact section under 'Go-go'.  There is no evidence that the BMW was broken into or hotwired.

(Nor was there any evidence to the contrary.)

It was not until his November 2016 defence statement that he said he had a set of keys for the car stolen two weeks before Good Friday.  When he was arrested at Pizza Go-Go, he had a BMW with him.  This is the stolen keys defence which you know about but which was not confirmed by [the appellant] either to the police at interview or in evidence to you.

You may want to ask yourselves some questions about the stolen keys defence.  Why would Mr Majid steal the keys of a motor car owned by a man from his community?  His telephone number is on the contact list of his mobile phone and why would he do that before he beats up his girlfriend and before she goes to the police, in other words, before there could be any plan to intimidate a witness living in London and why would Mr Majid take the risk of using a stolen car, a new white BMW, and driving it openly around Coventry, picking up friends, driving it to London and then using it again, giving it to the petrol pourers, so how does the stolen keys defence work, exactly?

13.  There are a number of problems with this passage.  First, it repeats the error of referring to a defence that was never put before the jury.  Second, it points out that the stolen key defence was not mentioned when the appellant reported that his car was missing, thereby undermining the defence that the car had been stolen at some time during the afternoon and evening of 25th March, which was his defence before the jury.  Third, it contains a direction under section 34 of the Criminal Justice and Public Order Act 1994 that the jury were entitled to take into account the appellant's failure to mention to the police a defence that was never put before the jury.

14.  Having asked the questions about the stolen keys defence and having made comments which would have cast doubt on the defence if it had been advanced, the judge concluded: "… so how does the stolen keys defence work, exactly?"  A little later (at page 34) he said:
[The appellant] has taken his chances in not giving evidence.

In our view, that observation undermined any direction that it was, of course, the appellant's right not to give evidence.

15.  After the jury retired at about 1.30pm, Ms Collins pointed out that the stolen keys defence had never been advanced before the jury: "the jury have never heard about it and they have never seen it".  This was confirmed by Mr Merz on behalf of the prosecution, who pointed out, accurately, that the judge had referred to the defence a number of times.  The judge adjourned to consider whether he should give a further direction in the light of what he had heard from counsel and said he would then hear an application to discharge the jury. 

16.   At 2.22pm (54 minutes after they had retired), the jury returned to court.  The judge referred to the stolen keys defence on which he had understood the appellant relied and which had been advanced in the evidence.  He said this:

That was my error.  [The appellant] has not relied on that defence at this trial.  This case is not about possible defences that [the appellant] might have argued and I was wrong to suggest weaknesses in a defence that he does not rely on.  It is right that you should hear about my mistake and that I should correct it swiftly.  Remember, the prosecution bring this case and the prosecution must prove it so that you are sure.  The [appellant] does not have to prove his own innocence.

17.  The jury then retired again and the judge heard the defence application that the jury should be discharged from bringing in a verdict.  It is fair to say that the prosecution did not resist that application with great vigour.

18.  In any event, the judge rejected the application.  He said this (at 53G):
The stolen keys defence I referred to is not now and has never been a part of [the appellant's] defence before the jury.  If I had not made that mistake, I would have pointed out with much greater emphasis and comment the absence of any explanation for the new BMW having been stolen and driven away immediately, without any evidence of break-in damage or hotwiring.

That has not been done now as a consequence of my mistake.  An objective bystander could well observe that [the appellant's] case now stands in a rather stronger position as a result of my error than it did before.

We note that the judge had in fact already raised with the jury that the car had been taken without evidence of either break-in or hotwiring.  

19.  On this appeal, Ms Collins submitted that the judge made a number of errors which, either individually or cumulatively, rendered the conviction unsafe.  First, he referred to the contents of the Defence Statement (the stolen keys defence), which was not in evidence.  Secondly, he made unduly prejudicial comments about the contents of the Defence Statement before unnecessarily and unfairly giving a section 34 direction without any prior warning.  Third, the judge's attempt to rectify his error was insufficient and did not cure the prejudice.  Fourth, the errors required the judge to discharge the jury.  She adds a further point: that the identified errors amounted to an infraction of the appellant's right to a fair trial under Article 6(2) of the European Convention on Human Rights, which includes the presumption of innocence and the right to silence.

20.  Mr Merz, for the prosecution, accepted that the judge improperly referred to the Defence Statement and the stolen keys defence, which was not in evidence, and erred in commenting that the appellant had not mentioned the stolen keys defence in this initial report to the police that his car had been stolen, or in police interviews, and had erred in effectively giving a section 34 direction, which was not prefigured in any discussion.  However, he submitted that this assisted the defence as there was no explanation before the jury as to how the appellant's car had been taken without his permission, there being no evidence of damage or hotwiring.  The jury had been directed that the facts were for them to determine and the judge clearly rectified the error he had made – a misunderstanding that the appellant was relying on the stolen keys defence mentioned in the Defence Statement.  The jury were appropriately directed on section 35 and the burden and standard of proof, and any prejudice caused was reduced by the judge's correction and fresh direction.  

21.  Mr Merz drew the court's attention to R v Tufail [2006] EWCA Crim 2879.  In that case the judge had inadvertently disclosed matters in the summing-up which had not been adduced during the trial and an application to discharge the jury was refused.  In that case, which is cited in Blackstone's Criminal Practice 2018 at D13.65, the court indicated that the factors to be considered in deciding whether to discharge the jury were: (a) the nature of the judge's actions to cure the error; (b) the strength of the case against the defendant; and (c) the degree to which the jury were or may have been influenced by it.  He submitted that the judge acted promptly to correct the error and that the jury would not have been unduly influenced by it.  In addition, he submitted that the evidence that the appellant was well aware of who had his car when he reported it stolen was overwhelming.  He could have told the police that he knew who had taken the car, but that would have implicated Majid and Tufan.  He acknowledged that a jury note indicating that they were not sure that the appellant knew everything, but submitted that they were sure he knew enough to make him guilty.

22.  It is clear that the judge made a mistake.  He then went on to repeat his mistake as to the nature of the defence and to undermine it.  His correction was short and acknowledged his mistake, but it did not cure the error that had been made.  The appellant was entitled to have his defence placed before the jury.  His defence was that the car had been stolen during the afternoon and evening of 25th March.  It did not cure the harm done to the defence simply for the judge to admit that he had made a mistake and remind them that it was for the prosecution to prove the case.

23.  The judgment in Tufail indicates factors that may be relevant in particular cases where an error is made before the jury.  It may often be sufficient to tell the jury to disregard what had been said before them.  But the present case was different – at least to this extent.  The jury had been told of a defence that had never been advanced and which was subjected to adverse comment by the judge.  The jury had been left for the best part of an hour in retirement before a correction was made, which admitted the error and reminded them of the burden and standard of proof but did not remind them of the appellant's defence as advanced in the prepared statement and at trial.

24.  In our judgment, the case should have been withdrawn from the jury.  We note that when this possibility was raised, it was not opposed by the prosecution, although Mr Merz very properly said that it was a matter for the judge.

25.  We turn to the prosecution argument that the case against the appellant was strong and that for that reason the conviction should not be regarded as unsafe.  We accept that the circumstantial case against the appellant was strong, although Ms Collins has addressed us effectively on the basis that it was not as strong as the prosecution has asserted.  She points out that the prosecution relied on contact with Kalantar and Naziri and that Kalantar and Naziri were acquitted of the conspiracy charge.

26.  In the circumstances we have described, we do not consider that the verdict can be regarded as safe.  Accordingly, we quash this conviction.

(An application by the Crown for a second retrial was refused)