England and Wales Court of Appeal (Criminal Division) Decisions

96/5614/Y3

Royal Courts of Justice

The Strand

London WC2

Monday 9 June 1997

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

MR JUSTICE ROUGIER

and

MR JUSTICE MAURICE KAY

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R E G I N A

- v -

MOHAMMED IMRAN

SAJID HUSSAIN

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Computer Aided Transcription by

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MISS NINA STEVENS appeared on behalf of BOTH APPLICANTS

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE: Mr Justice Rougier will give the judgment of the court.

MR JUSTICE ROUGIER: It so happens that on 10 May 1995 the police had set up a concealed look-out on some matter which has never been identified. As ill-luck would have it for four young men that was the day when an attempted robbery of a shop took place in Warwick Road, Birmingham, which was, in fact, recorded on the video cameras which the police had set up. A car driven by the applicant Imran was seen to arrive and in it was the applicant Hussain and two other people, Tariq Nasir and Mohammed Maqsood. The car stopped and all four were seen to get out and go to some shrubbery across the way from the shop where Tariq Nasir and Mohammed Maqsood collected some weapons under the eyes of the other two. Maqsood then ran into the shop. He was wearing a balaclava and holding a machete. Nasir, who was also masked, followed with a knife and stood by the door. The applicant Hussain then rushed into the shop and shortly afterwards all three ran towards the car which had now been parked in a different place. It was still being driven by Imran. It was reversed hastily with all doors open, whereupon the other three bundled into it and away they went. They did not get very far because the police arrested them. It is the fact that, when arrested, Hussain had a balaclava in his hand and in the car three pairs of clear plastic gloves were found. It was the prosecution's case that this was a concerted plan to rob the shop; that Maqsood was to do the robbery; that Nasir was to be the look-out; that Imran was to drive the car; and that Hussain would assist generally.

However, Hussain had somehow appreciated that the police were watching them, had rushed into the shop to warn the other two and they had attempted to make a quick get away. It was a case which received strong evidential support from the video.

On 22 January Nasir and Maqsood pleaded guilty to attempted robbery. The present applicants contested the matter and, on 10 June 1996, at the Crown Court at Birmingham, they were convicted by majority verdicts. They renew their application for leave to appeal against that conviction following refusal by the learned single judge. We deal, first, with the proposed appeal of Imran. It centres on the fact that when they began to interview Imran, having cautioned him perfectly properly, the interviewing officers failed to inform him that he had been caught on the video. It is the contention of Miss Stevens that this constitutes unfairness. In relation to that we can do no better than repeat the words of the learned judge in rejecting the application to exclude the evidence. He said:

"It is totally wrong to submit that a defendant should be prevented from lying by being presented with the whole of the evidence against him prior to the interview."

With that statement we agree. Miss Stevens has relied on certain principles affecting disclosure of evidence by the prosecution, but these enter the picture when the prosecution present their case, not when the police are investigating, and to hold that the police have to play a form of cricket under one rigorous set of rules whereas the suspect can play under no rules whatever seems to us to lack reality. Secondly, it is said that, having disclosed halfway through the interview that the video was in existence, the officers not only failed to make a copy available for the defendants and his solicitor, but misled them as to the matter by saying that one was not on the premises. As to the first of those grounds, it is a fact that the applicant himself, having been told that the video was in existence, was asked point blank whether he asked to see it and whether he knew he had a right to see it before going on with his interview. He conceded that he did not wish to see it.

Thirdly, the issue which was tried before the learned judge as to whether or not the officers were being truthful in denying the presence of the copy of the video seems to us to be largely irrelevant. It was open to the solicitor, had he thought it proper, to advise his client to say no more until the officers had vouchsafed an opportunity to consider the video if they thought it proper to do so. If they had refused to do such a thing and the solicitor had then advised his client to say no more, it would at the trial have been up to the learned judge to have come to a decision as to whether or not the jury should be entitled to draw any adverse inference from the defendant's silence on that point.

In support of the application it is submitted that the tenor of sections 34 to 38 of the Criminal Justice and Public Order Act 1994 require the police to give as full a briefing as possible of disclosing all material to a legal representative before the interview with a suspect commences. We do not agree. There is of course a duty on the police not actively to mislead any suspect, but it is in our judgment totally impossible to spell out either expressly or by any permissible implication from those five sections any such requirement on the part of the police. In those circumstances we think there is no merit whatsoever in the proposed grounds of appeal on behalf of Imran.

We turn now to the application of Hussain. It is put on a different basis. After retiring the jury returned and asked to see once more the video tape of the police surveillance. The learned judge allowed them to do so and he allowed them to do so in the privacy of the jury room. It is submitted that this was an irregularity. Reference has been made to R v Stewart and Sappleton 89 Cr App R 273 and R v Rawlings and Broadbent [1995] 2 Cr App R 222. There are, however, certain basic differences between the situation in those cases and that which confronted the learned judge here. In the present case there was effectively a silent film of what had been going on, without comment, without voice-over -- nothing but action. In R v Stewart and Sappleton the jury had asked to see scales used by the alleged drug dealer for the purposes of experiment. It was held that this was new material which should not have been put before them. In R v Davis 62 Cr App R 194, the court stressed that, although no additional evidence should be placed before the jury after their retirement, it is perfectly permissible for them to have a repeat of evidence which had already been given.

In our judgment for the jury to view the tape again amounted to no more than a repeat of evidence which had been given. It is contended, however, that the jury might have been tempted -- and indeed succumbed to the temptation -- of making impermissible use of the tape either by playing it backwards, or holding pictures, or playing it slowly forward, and thereby creating a distorted picture in their own minds and that the judge failed to give any warning against such a proceeding. We think that is in the highest degree unlikely. The only conceivable reason behind the jury's request would be to test the evidence that they had heard and, since it had not been given orally, they may well have wished to be reminded of certain features which appeared on the video.

Having said that, it is the view of this court that in future if such a request is made to re-view evidence of police surveillance, it is better if it is done in open court where it can be seen that nothing untoward takes place. However, even if one designates that what happened in the instant case as an irregularity, in our view the evidence against the applicant was overwhelming and it does not render the conviction in any way unsafe. This application too must be refused.

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