England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 18th July 2006

1. LORD JUSTICE GAGE: This is a renewed application for leave to appeal against conviction by Navid Ullah.
2. Following a trial at Manchester Crown Court, on 21 October 2005, the applicant was convicted of one offence of conspiracy to defraud. That was count 1 on the indictment. He was sentenced, on 27 January 2006, to 30 months' imprisonment and ordered to pay £10,000 towards the prosecution costs. Charged on the same indictment was a man named Suleman Tahir. He pleaded guilty on re-arraignment to count 1, conspiracy to defraud, and count 5, obtaining property by deception, and counts 7 and 8, offences of theft. He was sentenced to a total of three years' imprisonment.
3. As we have said, this applicant renews his application for leave to appeal against conviction following refusal by the single judge. The facts of the matter we shall state shortly: Tahir was the sole director of a successful company retailing perfumes and cosmetics, which began trading in 1996 and achieved an annual turnover of £3,000,000. By 2001 the company had several shops in the north of England, but was heavily in debt.
4. At the end of 2001 Tahir also had serious financial and matrimonial problems. He built up stock from the trading houses which allowed him credit. Around Christmas he stripped the stock and fittings of the shop. He then dishonestly represented to employees that he had sold the business. The net value of the stock taken was approximately £675,000. However some of the perfume was recovered. He then siphoned off the company's money and other assets using various devices, including false names and property purchases with the assistance of the applicant. Some of the assets were transferred out of the jurisdiction, some were paid to the applicant and some to a shell company which received £400.
5. The prosecution allege that the applicant's part in this dishonesty was to assist Tahir to dispose of the sum of £437,900. The applicant's defence was that he was an innocent dupe of Tahir. He believed that he was helping him to hide assets from his wife to assist Tahir in his divorce proceedings.
6. There is one ground of appeal and it relates to the admission by the judge of a previous conviction for conspiracy to obtain goods by deception, of which the applicant was convicted on 9 November 1990. The details of his offending in that respect was that it was a conspiracy involving high valued goods in large volume. He had provided false references. The details, which were before the jury, are set out in appendix 8 to the skeleton argument and other documents provided for this court by Mr Pickup, who appears before us but did not appear at trial in relation to this application. The details are MO together with Aziz Khan and Mohammed Ali conspired together and gave references to Khan to obtain building material from various building plans to the value of £118,000.
7. The applicant also faced count 2 on this indictment, which was an allegation of obtaining property by deception. It is right to say that he was aged 23 at the time which the offence for the previous conviction occurred and it took place in 1989. The prosecution at trial sought to lead evidence of that offence pursuant to section 101(1)(d) and 101(1)(f) of the Criminal Justice Act 2003. The prosecution alleged that this conviction was relevant to an important matter in issue between the defendant and the prosecution, namely: (i) his propensity to commit offences of fraud; (ii) as to his truthfulness; and (iii) to establish dishonesty through guilty knowledge and to rebut the suggestion that the applicant was an innocent party.
8. The prosecution also sought permission to leave the evidence pursuant to section 101(1)(f), namely evidence to correct a false impression given by the applicant. This latter application was based on a statement made by the applicant at interview when he said in a pre-prepared written statement made in the course of, or at the end of, the fourth time that he was interviewed. It appears at page 7 of, I think, it is D1. It reads as follows:

"I will say again that both in my capacity as an individual and as a director of a reputable solvent company I have never acted dishonestly and have been meticulous in respect of my business dealings. This is what I have told the police from the first question and this is what I say today."

9. Before us Mr Pickup submits that that matter is a reference to an earlier comment by the applicant as to the second interview when he said:

"I've provided the police, upon my arrest, a full list of invoices confirming the items purchased and their respective prices. I wish to say finally that there has been no dishonesty on my part and I deny any such allegation that there has been."

10. He submits that that is the proper way of reading the first of those citations from the pre-prepared statement, to which we have referred. We reject that submission. It seems to us that that is, as the judge interpreted, something that is relevant to the proceedings before the jury.
11. Be that as it may, the judge in his ruling in respect of the prosecution's application ruled as follows:

"The prosecution base their application, as I have said, under 2 heads, gateways D and F, and the gateway D I have to consider a number of matters, one of the most important of which is whether the bad character evidence is significantly probative in the context of the case as a whole, in the light of the way the case is being run, is there a potential illuminated light for the jury's proper consideration upon the defendant's state of mind when acting with Mr Tahir?

I have borne in mind that the conviction was a considerable time before the events with which the jury is now concerned and I have borne in mind the helpful submissions made by Mr Loades directed towards the potential for unfairness, but having regard to the issues which arise for consideration in this case, I am of the clear view that the fact of the conviction is clearly admissible and relevant under the new legislation, under section 101, sub-section 1D and notwithstanding the provisions of section 101, sub-section 3 and sub-section 4, together with section 103, sub-section 3, it being conceded that the conviction relates to an offence of the same description and category as those charged.

I have borne in mind the assistance given to this and other Courts by the Court of Appeal, presided over by the Vice President in the case of R v Hanson, reported on 22nd March this year [2006].

I have come to a similar conclusion in relation to the application based upon gateway F, which entitles the prosecution to adduce bad character evidence, if it is evidence to correct a false impression given by the defendant. Having regard to the case as a whole and with regard to this specific matter concerning his interview, to which I shall now turn. So far the jury have not heard what the defendant said in interview. The defence suggest that the interview should be edited so as to exclude or exercise the section or passage which previously I have quoted. However, in my judgment, that would be unfair upon the prosecution. It is open to the jury to conclude that what he said there during that interview was a deliberate, calculated lie told in an effort to dissuade the police from prosecuting him. This passage was read by the solicitor into the record of the interview, in the presence of the defendant who made no demur at the time and was read, it is to be remembered from the statement, prepared prior to the interview, so we are not dealing here with a slip of the tongue, or some unambiguous comment but rather and by contrast a considered, deliberate response to the accusation. In my judgment this sub-section F is triggered and this aspect of the defendant's bad character becomes relevant and admissible and should be heard by the jury, notwithstanding the exclusionary provisions to which I have previously referred, and notwithstanding section 105, sub-section 3."

12. Mr Pickup does not specifically criticise the judge's direction in relation to this matter in his summing-up. He does, however, submit that the judge was wrong and misdirected himself when he ruled that the conviction was admissible. He relies on the fact that the background to the applicant's case was that he believed that the money being moved by Tahir was to defeat claims by Tahir's wife in divorce proceedings. The issue for the jury was whether he had guilty knowledge of the fraud, or whether he was an innocent dupe. The important issue, stresses Mr Pickup, was his state of mind. He submits that the judge in his ruling appears to have failed to distinguish between two matters, namely, propensity and dishonesty. He submits that in failing to do so the judge did not have, or pay proper regard to dicta of this court in the case of Hanson, Gilmore and Pickstone [2005] EWCA Crim 824.
13. Mr Pickup made to this court detailed submissions to support his main submission, which rely on the general comments made by the judge in the first paragraph, to which we have just referred. He further submits that the single conviction was not sufficient to show a propensity to fraud. There were no striking similarities in relation to his previous conviction with the facts of the instant offence. Furthermore, the offence was committed a very long time ago. In this respect he relies on argument by the Crown before the judge in which the Crown appeared to be nailing their colours to the mast not of propensity but of dishonesty. The prosecution's reason for so doing appears from argument, he submits, to be on the ground that the conviction was too long ago in order for it to be relevant in relation to propensity. Further, it is submitted that for those reasons the judge did not properly assess, nor analyse, the relevant probative force of the conviction in relation to these matters.
14. Next, it is submitted that the judge was wrong to rule the conviction admissible under the gateway provided by section 101(1)(f). The basis of this submission is the explanatory section in section 105, which is headed: "Evidence to correct a false impression." In short, the submission is that this statement relied upon by the Crown was not given, or the assertion, was not given in the proceedings. It is necessary to refer briefly to section 105. It reads in the relevant subsections:

"(1) For the purposes of section 101(1)(f)-

(a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;

(b) evidence to correct such an impression is evidence which has probative value in correcting it.

(2) A defendant is treated as being responsible for the making of an assertion if-

(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),

(b) the assertion was made by the defendant-

(i) on being questioned under caution, before charge, about the offence with which he is charged, or

(ii) on being charged with the offence or officially informed that he might be prosecuted for it,

and evidence of the assertion is given in the proceedings,

15. The short point in relation to that is that at the time that the application was made by the prosecution that assertion had not been given in evidence before the jury. Accordingly, subsection (2) had not been triggered. We reject these proposed grounds of appeal. In our judgment the judge was quite entitled to admit the evidence under both gateways, that is 101(1)(d) and 101(1)(f). In our view, the prosecution argument that the conviction was relevant to the issue of whether or not the applicant had guilty knowledge was, in our opinion, a sound one. It was, in our view, relevant to propensity. In our judgment the judge was correct to so rule.
16. The argument that the judge failed properly to distinguish between propensity and dishonesty is, in this case, one which we do not think has any force at all. In this case the issue of propensity and dishonesty were no more than two sides of the same coin. When one looks at the summing-up that is the way that the judge dealt with it and, in our judgment, it was a proper way for the matter to be dealt with. Accordingly, we are quite satisfied that the judge was quite entitled to rule this conviction admissible in relation to section 101(1)(d). We pause simply to observe that in the case of Hanson the then Vice President said, at the bottom of page 5 at paragraph 14 in the judgment:

"If a judge has directed himself or herself correctly, this Court will be very slow to interfere with the ruling either as to admissibility or as to the consequences of non-compliance with the regulations for the giving of notice of intention to rely on bad character evidence."

17. The judge, in our judgment, in relation to section 110(1)(d), properly directed himself as to all the matters he ought to take into account. He made it clear in the passage, to which we have referred, that he had borne in mind that the conviction was a considerable time before the events and, in the circumstances, in our view his ruling was not flawed in any way.
18. So far as the grounds which criticised the judge for admitting the evidence under section 101(1)(f), in our judgment the prosecution was quite entitled to adduce this evidence under that gateway. The ground of appeal based, as it is, on a submission that because at the time the application was made no evidence of the assertion had been adduced at trial by them, in our view, borders on the absurd. The sensible procedure to adopt in a situation like this is for the Crown to make its application before evidence of the interviews were adduced upon which the judge can rule. It seems to me that to construe subsection (2) in the way in which it is contended for by Mr Pickup is to strain the language of the whole, and the context of the whole, of these provisions to an absurd point.
19. We conclude that the judge was entitled to rule that the applicant had told a deliberate lie in an effort to dissuade the police from prosecuting him. Despite (and we bear in mind) the fact the police knew of his previous conviction, quite clearly it was a deliberate lie. The only real inference that can be drawn from it is that the applicant was attempting to mislead the prosecution and/or the jury. In the circumstances we are quite satisfied that the judge's ruling was correct and the grounds of appeal are not reasonably arguable. Accordingly, this application must be refused. `