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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kashyap, R v [2008] EWCA Crim 775 (17 March 2008)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/775.html
Cite as: [2008] 2 Cr App R (S) 109, [2008] 2 Cr App Rep (S) 109, [2008] EWCA Crim 775
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE JACK
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| R E G I N A | ||
| v | ||
| JOGINDER PAUL KASHYAP |
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- LORD JUSTICE TOULSON: This is the renewed application by Mr Joginder Paul Kashyap for leave to appeal against conviction of one offence for conspiracy to facilitate the commission of a breach of immigration law. In the judgment which we have just delivered concerning the renewed application for leave to appeal against sentence of his wife, Rani Kashyap, we have dealt with the facts which gave rise to the offence and those need not be set out again.
- The first proposed ground of appeal is that the judge was wrong to admit the evidence of Karen Higham, an immigration officer working in Delhi, who had visited a number of villages from which Mr and Mrs Kashyap had recruited persons as musicians to come to the United Kingdom. She had made enquiries intended to find out whether they were genuine musicians or performers or not. She had recorded the answers that she had made in notes which were written up into a report.
- At the trial the prosecution applied to have that evidence admitted under section 116 of the Criminal Justice Act 2003. Two points, in particular, were taken against the admission of that evidence: was there sufficient identification of the persons that Karen Higham had spoken to; had all steps that were reasonably practicable been taken to obtain their appearance at the trial either in person or via video link?
- The judge dealt with those matters with care and at some length. There are no possible grounds for disputing the conclusion that he came to. There is nothing in that ground of appeal.
- The second proposed ground relates to the admission of evidence concerning a telephone conversation between one Jaswan Singh and the defendant. Jaswan Singh was not called and the judge concluded that in fact the defence would be better off without him being called because of what he might say if he was called. The judge, again, gave a careful ruling concerning this matter. The reasons that he gave for admitting the evidence cannot be criticised.
- The further proposed grounds of appeal relating to the trial itself refer to the fact that when the time had come for the applicant Joginder Kashyap to give evidence, he being the last witness at the trial, counsel informed the judge that Mr Kashyap no longer wished them to act for him and they could not continue to act, so he was, in effect, in person.
- Complaint is made, first, that the judge did not allocate Mr Kashyap new counsel, he was left to conduct his own defence from that point, and, second, that there was no sufficient direction to the jury concerning the fact that Mr Kashyap was representing himself.
- There has been a waiver of privilege in relation to this and we have been able to consider the relevant material. After having first decided that he would not give evidence, the applicant then decided that he would. He then, in effect, it seems, accused his counsel of working with the prosecution. That may have arisen because his counsel suggested to him what questions he would be asked if he did give evidence. That would not be something that would be difficult for an experienced counsel to predict. Mr Kashyap had no grounds for the suggestion that he made against his counsel. He told the judge that he had lost faith in his representation and he then listed a long history of matters going back to the involvement of a legal representative who had long since been replaced in his role in the defence by a solicitor.
- It was the applicant's own decision to part company from his representatives when, in reality, he had no good reason to do so. He did not in fact ask for fresh representation, but accepted the consequence was that he should represent himself.
- As we have said, all that remained at this point was for the applicant to give evidence himself, if he chose to do so. The judge gave him time to prepare himself and said that he might take notes and papers into the witness box as he wished. The judge told the jury that he would be representing himself from this point on and explained to the jury that the court would not sit until the following morning so that the applicant could prepare himself.
- The applicant has not pointed to any specific matter on which he was disadvantaged as a result of the course that he himself had chosen. The judge did not advert in the summing-up to the fact that the applicant was representing himself. It seems to us that if he had done so there would have been a real risk that the jury would have been caused to speculate further about how it might have come about that the applicant was representing himself. That is likely to have been to the applicant's disadvantage. The judge was entitled to conclude that it was better to say nothing about it in his summing-up.
- The last ground of appeal relates to fresh evidence. One of the witnesses at the trial was Rominder Begampuri. His evidence was referred to by the judge in the summing-up on pages 32 to 34 and again at 171 and 2.
- Mr Begampuri has now made a statement, saying that he did not give honest evidence to the Crown Court on important matters. There is no evidence before us, as there should be, of the circumstances in which this new statement has come into being. There must inevitably be a substantial question mark over its credibility, but that is not something that we can deal with today. We have concluded that the right course is to refer this ground of appeal to the Full Court. We shall not grant leave, but neither do we strike it down at this point.
- We will grant a representation order for counsel and for solicitors to take this matter forward. As indicated, it will be necessary, amongst others things, for them to obtain evidence as to how this new witness statement from Mr Begampuri has come into being. They will need to consider whether, if the court hears Mr Begampuri's evidence, it will need to be via a link, or whether he will be available in person. The prosecution should be represented on further hearings of this matter.
- So the outcome of the renewed application for leave to appeal against conviction by Joginder Kashyap is that the application is dismissed on all grounds, save the application for further evidence, which is referred to the Full Court as we have indicated.
- LORD JUSTICE TOULSON: Mr Kashyap, have you understood the effect of that?
- THE APPLICANT: A little bit.
- LORD JUSTICE TOULSON: Right. Well, you will get a transcript. You will need to go and see your solicitors because the effect of it is that your application, as my Lord has just said, is refused on all grounds, except your attempt to introduce the fresh evidence of Mr Begampuri. That is unsatisfactory in its present form and we have expressed scepticism about it, but we are not cutting you off at this point, but you will need to see solicitors about it and you will be provided with a transcript of what the court has said.
- THE APPLICANT: So they will have the legal aid?
- LORD JUSTICE TOULSON: You are being given representation for counsel and solicitors limited to this point. Thank you.
- MR JENKINS: My Lords, I will explain it to him outside.
- THE CLERK TO THE COURT: The representation order, my Lord, is that limited to junior counsel.
- LORD JUSTICE TOULSON: Yes.
- THE CLERK TO THE COURT: Are you minded to impose any timetables or time estimates?
- LORD JUSTICE TOULSON: What is the conventional period, can you remind me?
- THE CLERK TO THE COURT: It is usually four weeks. Time, on fresh evidence, about half a day if they are minded to, or do you want to have it mentioned beforehand to see if witnesses are coming?
- LORD JUSTICE TOULSON: We will direct that any amended grounds of appeal, skeleton argument and further evidence be lodged with the court within 28 days and that any application for an extension of that period to be addressed to the registrar. The point is this, the matter has to be kept moving but we recognise that getting your solicitor instructed, getting them to prepare the -- obtain the information, which at the moment is lacking, about how the witness has come to change his evidence and produce a proper skeleton argument, particularly when the witness is in India, may take more than 28 days. If it does, your lawyers will have to apply to the registrar explaining what the position is and asking for whatever extension time is needed. Thank you very much.