England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		6th December 2007

1. LORD JUSTICE THOMAS: The appellant is married to Asad Chohan. In December 2000 he bought No 267 Wake Green Road, Birmingham, for approximately £190,000. The family moved to live there with the two children and mortgage repayments were made during the course of 2001.
2. Asad Chohan was convicted in April 2001 of conspiracy to avoid excise duty over a large quantity of tobacco. He was sentenced to 18 months' imprisonment. In July 2001 he was charged with various trading standards offences and further charges followed. In April 2006 he was convicted of tobacco smuggling between June 2000 and December 2000. That conviction occurred in his absence as he had fled to Pakistan.
3. On 6th December 2001 he transferred the matrimonial home at 267 Wake Green Road for £158,000 to Nadim, the appellant's brother, on behalf of the appellant. Nadim was a barrister who practised in Manchester and lived in Rochdale. The transfer had been made to him because no lender would lend to the appellant. Eventually the Derbyshire Building Society provided a loan.
4. The appellant and Nadim had been charged with money laundering in respect of 267 Wake Green Road, in that it was said that the sale to Nadim was an arrangement which facilitated the retention or control by Asad Chohan of the property and that property represented the proceeds of Asad Chohan's criminal conduct, which both were said to know. They had done this contrary to section 93A of the Criminal Justice Act 1998.
5. There was a long trial, lasting some 30 days, at Birmingham Crown Court before His Honour Judge Griffith-Jones and the jury during October and November 2006. The retirement of the jury was about five days. Nadim was acquitted but the appellant was convicted by a majority of ten to two. She received a sentence of 80 hours' community service. She sought leave to appeal on three grounds. She was granted leave on one, namely the conviction was unsafe as the jury's verdicts were inconsistent. This is not a case where there were inconsistencies between verdicts on different counts but it is said that, if the jury had acquitted Nadim, they should also have acquitted the appellant.
6. To succeed in setting aside the verdict of the jury on the grounds of inconsistency, it is necessary to establish, first, that the verdicts are in fact inconsistent, and secondly, if they are inconsistent, that a legitimate train of reasoning cannot be postulated that can sensibly account for the inconsistency or that the verdicts cannot be regarded as safe.
7. The leading authority often cited is R v Bell[1997] EWCA Crim 1200 (15th May 1997), but we think it is more helpful to refer to the decision of this Court in R v WM (transcript 98/3892/W4 of 30th March 1999, BAILII: [1999] EWCA Crim 2267) a case briefly referred to in Archbold at paragraphs 7-71 as R v W Martin 1999 6 Archbold News 3 (Court of Appeal). It is unfortunate that the case is not fully reported as it contains a classic exposition of the law by the then Chief Justice, Lord Bingham of Cornhill. The defendant was convicted on some counts of indecent assault and rape and acquitted on others. The sole issue at trial had been the respective credibility of the complainant and the defendant.
8. It was a typical case where inconsistent verdicts are sought to be argued before this Court. The Court concluded in the course of its judgment as follows:

"It seems to us important to begin our consideration of this matter by reminding ourselves of the role of the jury in a criminal case. The jury is one of the oldest and most highly valued of our legal institutions, esteemed by the public and almost all of the legal profession, for the fairness, open-mindedness, common sense, practical judgment and breadth of experience which jurors bring to their important task. But the jury is not a precision instrument. It delivers its decision ordinarily in one or two words; it gives no reasons; it provides no explanation. While jurors ordinarily listen with obvious attentiveness to judicial directions, no one can be sure what they make of those directions in the course of their deliberations. It may be that if their thought processes were subjected to logical analysis, flaws would be found. If, however, a flawless process of reasoning were required, a jury would be a strange body from which to require it. As Evans LJ pointed out in R v Van Der Molen [1997] Crim LR 604, 605, BAILII: [1997] EWCA Crim 523, the court must be very careful not to usurp the role of the jury.

Secondly, we would point out that the judge's direction in this case, as is acknowledged, was in conventional terms. He urged separate consideration of each count. He emphasised that the facts were for the jury. He suggested that most, if not all, of the counts in relation to each complainant would stand or fall together, but he did not direct the jury that, as a matter of logic, it was necessary for counts 1 to 7 and 8 to 16 respectively to be decided in the same way. He was not invited to give such a direction. The defence acquiesced in the direction which he did give, and on appeal Miss Worrall expressly approves it. If the view of the defence was that any differentiation by the jury in the verdicts on counts 1 to 7 or on counts 8 to 16 would of necessity be inconsistent, then that is a view which should have been put to the judge and he should have been invited to give a different direction. As it is, it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it.

The cases to which we have referred in our view make quite plain the proper approach. In a case other than the Cilgram type of case (which is in a class of its own), it is ordinarily for an appellant to show a logical inconsistency between the verdicts criticised and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency. The court will not interfere with the verdict of the jury unless those tests are satisfied."

9. In this case the learned judge gave a very clear direction. He said:

"You must consider the case against and for each of the two defendants separately. The evidence against them is different and your verdicts do not have to be the same. They can be the same, but they do not have to be."

10. Against that background we turn to say a little more about the facts of this case. It is, we think, possible to adopt what the judge said as to the basic facts. We have referred to the fact that house was transferred to Nadim for £158,000. The purchase price was funded by a mortgage from the Derbyshire Building Society of £130,000 or thereabouts, a sum of about £27,500, which had come from the sale of a Mercedes motorcar, owned by the Chohan family and Nadim had made a contribution of £4,500 himself. The judge continued:

"You, the jury, are being asked to make a judgment about two or three people who were concerned in that arrangement. The prosecution say to you that the only proper inference from the arrangement is that the house was being transferred away from Asad [Chohan] to enable him to make it easier to retain control of it against the only realistic risk of losing the property, which was confiscation by the authorities. The prosecution say to you that they acknowledged that it may well have been a motivation on the part of Samiah and Ahmed Nadim that the arrangement would help ensure that she and the children had a roof over their heads. However, the prosecution say that they sought to achieve this aim by means of engaging in the crime which is alleged against them on the indictment.

The defence say that the prosecution has totally misrepresented the nature of the arrangement. They say that the arrangement was a device, negotiated at a time when Asad and his family were in a vulnerable position, to obtain control of 267 Wake Green Road from Asad and to change the relative power between Asad and Samiah so that Samiah could, albeit through her brother, control the property. The purpose of taking control was to enable Samiah to exercise choices in an unhappy and uncertain married life, even if she was not going to take the step of divorcing Asad, a step which would have profound family and cultural difficulties for her."

That short passage from the summing-up neatly encapsulates the respective cases put before the jury.

11. It is said on behalf of the appellant by Mr Lawson-Rogers QC, in an elegant submission to this Court, that the case advanced was one of joint enterprise. That the way the prosecution put the case was essentially that the brother, Nadim, his sister, the appellant, and her husband, Chohan, were in this together and had made an arrangement to the effect that is set out. He goes on to say that, if one looks at the way in which the case was opened and the evidence, the way the persecution put the case was essentially that Nadim was the person who carried out the transaction; that it was, in the circumstances, never suggested that it was open to the jury to consider that if they acquitted Nadim, they could have convicted the appellant. This was really a case where the jury might, on one view of the matter, be satisfied as to Nadim's involvement and not the appellant's but this was never put as a case where it would be open to the jury to find that the appellant was guilty but Nadim was not.
12. We will return to that submission in a moment. It is clear from the way the prosecution put the case, and it is particularly clear from the way that the learned judge summed the case up to the jury that the jury were to have regard to the knowledge of each of Nadim and the appellant in relation to the transaction and to the source of the funds. It is not necessary to set out in any detail the directions that the learned judge gave, but it is quite clear that he directed the jury to consider carefully the knowledge of each.
13. The summing-up contains an admirable and clear summary of the evidence. It is clear on the evidence that was before the jury that they could have concluded that the knowledge of the appellant and the knowledge of Nadim was different. First of all, there is the obvious position that it may well be that a person who lives with and is married to a person knows much more about the source of the finances than does the brother-in-law. Secondly, in this particular case the monies that were used to pay interest on the mortgage after it had been obtained by Nadim were monies that were reimbursed to him by the appellant. She would have known of the source of funds; his evidence on this point was that the payments were being reimbursed "from my sister's money", money that had come from her resources. That evidence was quite naturally not contradicted by her because it was her case that the money came from her own resources.
14. The third aspect where the position between them might be different related to the general life-style that was being lived by the appellant and her husband. It is very fairly accepted by Mr Lawson-Rogers QC that the jury could quite properly have decided on the evidence before them that the appellant may have known much more about the source of the original financing of the house, and might well have known more about the funds that were used to discharge the mortgage.
15. Indeed, it would have been open on the evidence for the jury to have come to the view that they did not accept the appellant's evidence in relation to her knowledge of the source of the funds. It has been submitted to us, on behalf of the prosecution, that there was ample material upon which they could have disbelieved her. In particular the prosecution referred to and relied upon her evidence that the marriage was an unhappy one and one of the children of the marriage had been the result of an inter-marriage rape, whereas there existed for the jury to consider letters that showed a very different picture of the relationship between the appellant and her husband.
16. This therefore appears, it might properly be said, to be a case where there is in logic nothing wrong with the jury's verdict upon the basis on which they were directed. They were, it seems to us, on the evidence that was heard, entitled to say, for example: "Well, we are sure about the knowledge of the appellant but we are not sure about the knowledge of Nadim." Or to have said: "We are quite sure that Nadim knew nothing about the source of funds or true purpose of the arrangement." That verdict it seems was unarguably open to the jury on the evidence. It seems to us that on the directions given to the jury which we have set out, it cannot be argued that it was perverse or irrational for them to have come to that verdict.
17. However, the real complaint which, as we have set out, Mr Lawson-Rogers QC makes is that that verdict should not have been open to them on the basis upon which the prosecution ran the case. It seems to us, if that was the position, then it was incumbent, as Lord Bingham, the then Lord Chief Justice said, for that to have been raised prior to the directions being given to the jury; or, if directions had been given in the standard terms to the jury, the judge should have been asked to correct the directions. If it was in truth to be said that this was a case where the appellant could not be convicted if Nadim was acquitted, then the jury should have been directed in that way. However, we have been told that had that point been raised before the jury the prosecution would have made it very, very clear that their case was that, on the evidence before the jury, it was open to the jury to convict the appellant and acquit Nadim.
18. It seems to us very important to bear in mind the passage in the judgment of Lord Bingham CJ from which we have cited which, as we have already said, unfortunately is not set out in clear enough terms in Archbold or in the other standard works. If an issue of this kind arises, it must be dealt with at trial, before a direction is given to the jury. Everyone prizes the institution of the jury. If the jury proceed to give a verdict on the evidence and are told that the verdicts do not have to be the same, it simply is not open to someone to come to this Court hereafter and complain that a verdict which is open to the jury on the evidence and which was arrived at in accordance with the judge's directions (which were not objected to) is one that is perverse. It would do the institution of the jury a great disservice if such a line of argument was permissible.
19. For those reasons, therefore, we have concluded that despite the way in which this issue has been argued by Mr Lawson-Rogers QC, this appeal must be dismissed.