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Cite as: [2000] EWCA Crim 15

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PABA, R v. [2000] EWCA Crim 15 (17th February, 2000)

Case No: 997026Z3

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 17 February 2000

B e f o r e :
LORD JUSTICE MANTELL
MR JUSTICE KLEVAN
and
HIS HONOUR JUDGE MARTIN STEPHENS QC
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	REGINA
	- v -
	MATTHEW JOHN PHILLIP PABA

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr I A Ross (instructed by Coles & Miller for the Appellant)
Mr A D Hope (instructed by CPS for the CROWN)

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Judgment
As Approved by the Court
Crown Copyright ©

HIS HONOUR JUDGE MARTIN STEPHENS QC:
On 7 September 1999 at the Crown Court at Bournemouth the applicant was convicted of being knowingly concerned in the taking of steps with a view to the fraudulent evasion of tax, contrary to section 72 (1) of the Value Added Tax Act 1994. He was sentenced to 9 months imprisonment by the trial judge, His Hon. Judge Beashel. This application came before this Court on a referral by the Registrar who granted an extension of time in which to seek leave to appeal; we have granted leave to appeal, and have had the benefit of submissions from counsel for the appellant and the respondent.
It is not necessary for the purposes of this judgment to deal with the facts of this case of VAT fraud in any great detail. The prosecution case was that the appellant took deliberate and dishonest steps to try to obtain more than £81,000 from the Commissioner of Customs & Excise by submitting a fraudulent claim for repayment. He sought this money as he had no other funds to enable him to purchase land in Shropshire to hold a "rave". He used the device of two "off the shelf" companies to make it seem that transactions had been concluded when in reality they had not, thus enabling him to formulate his claim. The money was not paid out as quickly as he had expected it to be and the alleged fraud came to light.
The appellant did not deny most of the primary facts. The issue for the jury was whether it was proved that he was acting dishonestly. We have been told that there was some challenge of prosecution evidence. The statement of Mr Lord, a Customs & Excise officer, was read to the jury as unchallenged evidence. However, when the appellant gave evidence, he denied part of it. More significantly, a Mrs Crinnion, another Customs & Excise officer, based at the Poole VAT office, gave evidence about her dealings with the appellant. She said he was evasive with her. He denied this.
The issue that has led to this referral arose after conviction; no complaint was or is made about the conduct of the trial or, indeed, the sentence.
What happened was that the officer of Customs & Excise who was in charge of the case became aware that one of the jurors who sat on the case was related to two officers from Customs & Excise; he is the father of an officer based at Poole Ferry Terminal, and the father-in-law of that officer's wife, who is based in the same office as the officer in charge of the case, that is to say the Poole office dealing with VAT matters; the same place where Mrs Crinnion worked.
Before the trial began, the judge told counsel that it was his intention to ask the panel of jurors in his court two questions, and having told them what they were, counsel agreed that it should be done. He asked whether any of them was related to or knew any witnesses in the case; and he asked whether any of them had had dealings with H. M. Customs & Excise.
The fact that the juror in question failed to respond to this, and his subsequent participation in the trial amounts to a material irregularity, argues counsel for the appellant. His failure, it is said, calls into question his motives in serving as a juror in the trial. It follows, says Mr Ross, that where the integrity of the jury is thus impugned, the verdict of the jury cannot be regarded as safe.
He referred us to the test propounded by the House of Lords in R -v- Gough [1993] AC 646 at 670F:
"the court should ask itself whether, having regard to the circumstances, there was a real danger of bias on the part of the relevant member of the [jury] in the sense that he might unfairly have regarded with favour, or disfavour, the case of a party to the issue under consideration by him."
Counsel therefore urges that this Court should ascertain the relevant circumstances and then ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the juror, in the sense that he might unfairly have regarded with favour or disfavour, the case of a relevant party. The answer to this question is very simple and straightforward in this case, says Mr Ross. The judge himself felt it necessary to ask the question. If the juror had spoken up, as he should have, he would surely have been told he should not sit on the case. The fact that he did not speak up, and that he did sit on the jury, renders the verdict unsafe.
Mr Hope, for the prosecution, began his submissions with a proposition that the members of the Court found somewhat startling, especially as he had agreed with the judge's proposed questioning at the trial. He said that the question the judge put to the jury was improper and offended against the principle of random selection of the jury. Whereas jury panels, in exceptional cases, can be vetted, this was not such a case.
Apart from that, there was no power for a judge to interfere with the random selection of a jury, and this is what the judge in this case did.
He referred us to section 18 (1) (d) of the Juries Act 1974, which states that no judgment after verdict in any trial by jury in any court shall be stayed or reversed by reason that any juror was unfit to serve. However, this section does not preclude an appeal on the ground that the conviction is rendered unsafe by the presence of an unfit or ineligible juror. See R -v- Chapman (1976) 63 CAR 75.
He referred us to the Practice Direction (Jury Service: Excusal) 87 CAR 294, which gives examples, and no more than examples, of circumstances where a juror should be excused from service. He referred us to two cases, R -v- Healey (1965) 109 S.J. 700, which is a very brief report in which Lord Parker CJ said that where the defendant was charged with conspiracy to burgle an NCB office, and certain employees of the National Coal Board happened to be on the jury, they were not disqualified from sitting by reason of their occupation. The Court pointed out that the defence could have seen the occupations of the jury panel before the trial and could have challenged if they wished. Such rights, of course, have since been withdrawn.
Counsel also referred us to the case of R -v- Ford [1989] 1QB 868, where a defendant had requested a multiracial jury and had been refused. So the circumstances which led to that appeal were very different from this case. However, we note the words of Lord Lane CJ at 871G where he said:
"At common law a judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the judge's duty to ensure that there is a fair trial."
In the judgment of this Court, the proposition put forward by Mr Hope that the judge was wrong to ask the question of the jury is misconceived. Judges have to ask such questions of jury panels from time to time. If they did not, many trials could collapse, juries having to be discharged, perhaps after many weeks, when it emerged that a wholly inappropriate person was sitting on the jury. Such questions should only be asked where strictly necessary, and after full consultation with counsel. This is necessary to ensure a fair trial. And the judge is in the best position to decide if and when such questioning is required. This judge was entirely correct to ask the questions he did.
In all the circumstances, we have concluded that not only may justice have not been done in this case, but that it manifestly has not been seen to be done. The juror in question failed to disclose his close family relationship with two officers of Customs & Excise when asked to do so by the trial judge. At least one of those officers worked in close proximity to those responsible for the conduct of the case against the appellant. The verdict is unsafe and is quashed.
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LORD JUSTICE MANTELL: The appeal is allowed and the conviction is quashed.

We need to deal with the application which was intimated on the last occasion for an order for retrial. Do you make it?

MR HOPE: I do, my Lord, yes. Would your Lordship wish me to go through the reasons?

LORD JUSTICE MANTELL: I think you advanced reasons on the last occasion.

MR HOPE: I did, yes. Very briefly, I did, yes.

LORD JUSTICE MANTELL: Mr Ross, have you anything to say?

MR ROSS: My Lord, yes. I oppose the application on the grounds basically that the interests of justice do not require a retrial. Mr Paba is in a situation where he has effectively almost served the sentence which was passed upon him. He was sentenced to nine months' imprisonment. Having served two months or so he was then released under the provisions of electronic tagging.

LORD JUSTICE MANTELL: The question of whether or not the sentence has been served is not the only matter affecting the public interest.

MR ROSS: My Lord, I accept that.

LORD JUSTICE MANTELL: As was explained on the last occasion and I do not think it needs to be rehearsed now.

MR ROSS: That is the only matter I put before the Court.

LORD JUSTICE MANTELL: We have allowed the appeal and quashed the conviction, but we do propose to direct that a fresh indictment be preferred and further that the appellant be re-arraigned on that fresh indictment within two months. Where should the retrial be heard?

MR HOPE: I suspect it is going to be Bournemouth again.

LORD JUSTICE MANTELL: Is there any objection to that?

MR ROSS: My Lord, no.

LORD JUSTICE MANTELL: All right.

LORD JUSTICE MANTELL: Are there any further applications arising out of that?

MR ROSS: My Lord, yes, I have an application for a defendant's costs order. Mr Paba did not have the benefit of legal aid until shortly before his trial.

LORD JUSTICE MANTELL: That is an application which ought to be made at the conclusion of the retrial.

MR ROSS: My Lord, so be it.

LORD JUSTICE MANTELL: He is at liberty at the moment, is he, so no question of bail arises?

MR HOPE: No.

LORD JUSTICE MANTELL: Legal aid for the retrial, counsel and solicitor, Mr Ross.

MR ROSS: I am very grateful.

(The Court later made an order for bail on condition of residence.)